Judge Audra Mori, Case 20STCV44450 2022-08-11 Tentative Ruling

Plaintiff Joan Oritza Pollock (“Plaintiff”) filed this action against Defendant Panda Express, Inc. (“Defendant”) alleging that Plaintiff slipped and fell on a slippery substance while on Defendant’s property- a restaurant. The complaint alleges a single cause of action for premises liability.

Defendant Corona now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that Plaintiff allegedly slipped and fell on the floor in front of the men’s restroom after she entered Defendant’s restaurant, but Defendant’s assistant manager at the time of the incident, Oscar Hernandez (“Hernandez”), saw no liquids, debris, or foreign substances on the floor in the area where Plaintiff fell two minutes and eight seconds before the incident occurred. Defendant contends that it thus did not have actual notice of any alleged dangerous condition on the floor prior to the fall, and that there is no evidence that Defendant had any constructive notice of a dangerous condition. Defendant avers the undisputed material facts show that Plaintiff cannot establish the breach and causation elements of her premises liability claim against Defendant.

Plaintiff argues that Defendant fails to meet its moving burden to show there are no disputed material facts, and that whether Defendant properly maintained the floor is a question of fact for the jury. Further, Plaintiff contends Hernandez’s credibility is also at issue because he offers significantly different testimony in his declaration filed with the motion than he did in his deposition. In addition, Plaintiff argues that notice of the dangerous condition is not required because Defendant’s employees created or contributed to the dangerous condition of the floor, and that even if notice was required, the amount of time the condition existed is a question for the jury. Plaintiff further contends that she can prove Defendant’s negligence using her expert witness’s opinions and asserts that Defendant failed to preserve evidence from the date of the incident.

Plaintiff submits six objections to Hernandez’s declaration attached to the motion. Objections 1-6 are overruled.

Defendant, in its reply, asserts 14 objections to the declaration of Plaintiff’s expert, Eris J. Barillas, CPSI, CXLT (“Barillas”). Objections 1 and 11 are sustained to the extent Barillas relates or relies on case-specific facts relayed by Plaintiff of which Barillas has not established independent knowledge. (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].) Additionally, objections 2, 4, 8, 12, and 14 are sustained.

Objections 7, 10, and 13 are not material to the disposition of the motion, and thus, the court declines to rule on them at this time. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use…” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

What is more, “[t]he owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

“A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Id. at 1206-1207.) Where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id., at 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 888 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id., at 1205-1206.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

Here, Plaintiff allegedly slipped and fell on March 6, 2019, in Defendant’s restaurant.[1] (UMF 1.) Plaintiff’s slip and fall incident occurred at approximately 7:24 p.m.[2] (UMF 2.) Plaintiff entered Defendant’s restaurant through the main entrance at approximately 19:23:44, or 7:23 p.m., and cleaned her shoes on a mat on the floor inside of the entrance; Plaintiff then turned to her left and walked towards the restrooms located down a hallway. (UMF 6-8.) As Plaintiff was walking to the restroom area, she never saw any water or liquids on the floor prior to the incident. (UMF 10.) As Plaintiff approached the women’s restroom, she slipped and fell on the floor between the men’s and women’s restrooms; Plaintiff does not know what caused her to slip and fall. (UMF 11-13.) There was adequate lighting on the date of the incident in the hallway where the restrooms were located, and while Plaintiff was on the floor after the incident, she did not see anything that she believed caused her to fall. (UMF 15-17.) After the incident, Plaintiff did not advise any of Defendant’s employees of any substance on the floor that she believed she slipped on, and none of Defendant’s employees ever told Plaintiff they found anything slippery in the area she fell; furthermore, there was no trash on the floor where Plaintiff slipped and fell. (UMF 19-21.)

Prior to the incident, Defendant’s assistant manager, Hernandez, walked toward the area of the restrooms at 19:21:51, or about 7:21 p.m., and on his way to the men’s restroom, Hernandez inspected the floor in the area of the incident and did not see any liquids, debris, or foreign substances on the floor. (UMF 22-23.) Hernandez was always looking for hazards at the restaurant, including on the floor, and he would have immediately cleaned up any foreign substance on the floor, or instructed another employee to, if he saw one any at the time. (UMF 25.) Two minutes after entering the restroom, Hernandez heard someone scream and exited to find Plaintiff on the floor in the area he had just inspected. (UMF 26-27.) Hernandez did not see any foreign substance on the floor in the subject area. (Id.)

Defendant avers it is entitled to summary judgment because the undisputed evidence establishes that Defendant did not have actual notice of any dangerous condition, and that two-minute interval between Hernandez’s inspection and the incident did not provide Defendant sufficient notice of an alleged dangerous condition, and thus, precludes a finding of constructive notice. The evidence is sufficient to meet Defendant’s moving burden to show that it did not have actual or constructive notice of any alleged dangerous condition prior to Plaintiff’ slip and fall.

In opposition, Plaintiff argues there are credibility issues regarding Hernandez and his declaration submitted in support of the motion. However, a bare assertion of credibility issues is not sufficient to create an issue of fact. While Plaintiff asserts that Hernandez lacks credibility because of his purportedly conflicting declaration and deposition testimony, Plaintiff fails to articulate how Hernandez’s declaration, especially concerning his inspection of the floor, contradicts or conflicts with his deposition testimony. It is improper for the court to weigh any evidence or determine the credibility of the witnesses, including Hernandez, in connection with this motion for summary judgment, and there has been no showing by Plaintiff to justify disregarding Hernandez’s testimony. (See Id.; Binder v Aetna Life insurance Co. (1999) 75 Cal. App. 4th 832, 840; AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1065.)

Plaintiff further argues that notice of the dangerous condition is not required because Defendant, its employees, or agents created the dangerous condition. Plaintiff is correct that the standard is whether Defendant had actual or constructive notice of the dangerous condition and/or created the dangerous condition. (See Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.) Plaintiff argues that Defendant created the dangerous condition through choosing the flooring material used, the placement of cones, the type of mat used, and by failing to empty the trashcan when it was overflowing onto the floor. However, Plaintiff does not contend that the flooring material, placement of cones or the type of mat used in Defendant’s restaurant themselves caused Plaintiff to fall or created a dangerous condition. Rather, Plaintiff contends that the dangerous condition was a slippery substance on the floor, and Plaintiff offers no evidence to suggest that Defendant or its employees caused a slippery substance to be on the floor.[3]

Moreover, although Plaintiff’s expert attests that Plaintiff “encountered debris that was overflowing from the trash receptable adjacent to the front doors,” (Opp. Barillas Decl. ¶ 12), there is no direct or circumstantial evidence to suggest that Plaintiff slipped and fell because trash on the floor. The photographs attached to Barillas’s declaration that depict the trashcan inside Defendant’s restaurant show that at the time of the incident, the trash was not overflowing outside of the trashcan. (Opp. Barillas Decl., Exhibit C attached thereto.) Further, the photographs do not show any trash on the floor. (Ibid.) Barillas’s opinion that Plaintiff encountered debris from the trashcan is thus merely speculative. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 [An expert opinion that is based on speculation, surmise or “assumptions of fact ... without evidentiary support” does not raise a triable issue of material fact.]; cf. People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].) Similarly, Barillas does not provide any factual basis for her assumption that there was trash or other debris from the trashcan on the floor. (See Opp. Barillas Decl. ¶¶ 12, 14-15, 19, 21.) When asked at her deposition, “Was there trash on the floor?”, Plaintiff responded in relevant part, “No, no.” (Mot. Voss Decl. Exh 7 at p. 67:12-13.) Accordingly, Plaintiff fails to show that Defendant or its employees caused or created the alleged dangerous condition.

Plaintiff next contends that if notice was required, the amount of time the condition existed is a question of fact for the jury. Plaintiff argues that Defendant’s store procedures were not followed on the date of Plaintiff’s slip and fall and again argues that Hernandez has credibility issues. The video surveillance footage submitted by Plaintiff and Defendant shows that Plaintiff enters Defendant’s restaurant at 19:23:44, as timestamped in the video footage. (Mot. Voss Decl. Exh. E; Opp. Darbinyan Decl. Exh. 2.) Hernandez is then seen walking and turning towards the restroom area at 19:21:51, which is when Hernandez attests he inspected the subject area where the incident occurred. (Ibid.) Afterwards, Plaintiff is seen walking towards the restroom area beginning at 19:23:56 before the incident occurs at approximately 7:24 p.m., which would be 19:24:00. (Ibid.; UMF 2, 26.) The video footage submitted does not capture the slip and fall incident itself, but the evidence is sufficient to show that Hernandez walked through the subject area about two minutes before Plaintiff slipped and fell. While Plaintiff argues there are credibility issues concerning Hernandez’s declaration that he saw no foreign substances as he inspected the area on his way to the restroom during this time, Plaintiff herself stated that she did see any water or liquids on the floor prior to the incident, that she did not know what caused her to slip and fall, and that Plaintiff did not see anything she believed caused her to fall while she was on the floor. (UMF 10, 12-13, 17.) Further, after the incident, Plaintiff did not advise Defendant’s employees of anything on the floor that caused her to slip and fall, and there was no trash in the area where Plaintiff slipped and fell. (UMF 19, 21.) Plaintiff does not establish that Hernandez’s declaration should be disregarded.

Therefore, Defendant’s evidence shows the alleged dangerous condition existed for approximately only two minutes, as that was the time between Hernandez walking through and inspecting the area and Plaintiff walking to the restroom area. Plaintiff does not submit any evidence that would suggest the dangerous condition existed for longer than two minutes. A period of two minutes is too short of a time to require Defendant to have discovered the condition and remedied it, and thus, to establish constructive notice. (Girvetz, 91 Cal. App. 2d at 831; see also Barta v. Target Corporation (C.D. Cal. 2017) 2017 WL 6551145, 4-5 [applying California law, summary judgment granted for defendant on constructive notice where video showed inspection of area about 5½ minutes before the plaintiff's fall].)

While Plaintiff contends Defendant’s inspection system was inadequate or not properly followed on the date of the incident when it was raining outside, the evidence showing the condition existed for about only two minutes is sufficient to support Defendant’s moving burden to show lack of sufficient notice, regardless of whether an adequate inspection system was in place. The owner’s inspection practice is a factor used to determine the length of time a condition existed when the length of time is unknown. Here, however, the evidence shows that the condition existed for approximately two minutes, and Plaintiff does not otherwise submit any evidence controverting this or suggesting Defendant had actual notice of the spill prior to Plaintiff’s fall.

Lastly, as to Plaintiff’s argument that Defendant failed to preserve evidence from the date of the incident, Defendant avers in reply that it did not fail to preserve any evidence in this matter. Notably, Plaintiff asserts that she sent a preservation of evidence letter to Defendant on March 11, 2019, and October 13, 2020, demanding all surveillance video from 24 hours before to 24 hours after the incident be preserved; however, Plaintiff does not assert or submit any evidence suggesting Defendant actually failed to preserve such evidence. (Opp. Pl.’s AUMF 21.) Moreover, Plaintiff does not state or show that a camera inside Defendant’s restaurant could have captured the incident. Plaintiff fails to show that any video of the incident existed or what it could have shown.

Defendant met its moving burden to show it lacked sufficient notice of the alleged slippery substance on the floor. Plaintiff, in opposition, failed to raise a triable issue of fact concerning notice. Given this ruling regarding Defendant’s notice of the alleged dangerous condition, the court need not reach the remaining issues concerning causation.

[1] Defendant’s recited facts in its separate statements are largely not disputed, or not effectively disputed, for purposes of the motion for summary judgment. Plaintiff’s 111-page response to Defendant’s separate statement miscomprehends the nature and purpose of a separate statement. (CCP § 437c(b)(1).) “The parties' separate statements ‘are intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ [Citation.]” (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1248-1249, 4 Cal.Rptr.3d 416.) Plaintiff’s repetitive arguments to dispute facts that are straight forward, such as what is alleged in Plaintiff’s complaint, (see e.g., UMF 1), does not promote this goal.

[2] In response to each of Defendant’s 32 alleged undisputed material facts, Plaintiff asserts that Defendant violated California Rules of Court, Rule 3.1350, which requires a citation to the evidence that supports each material fact. Defendant’s separate statement properly cites to the evidence that Defendant relies on in support of each asserted facts; however, Plaintiff herself fails to comply with California Rules of Court, Rule 3.1350(f)(2), as Plaintiff fails not cite what evidence supports her position that a given fact is controverted in response to all of Defendant’s facts. (See e.g., Pl.’s Response to Defendant’s UMF 2.)

[3] Plaintiff’s expert opines that the floor was slippery under wet conditions but does not state that the flooring material itself constituted a dangerous condition. (Opp. Barillas Decl. ¶ 9.)