Judge: Daniel M. Crowley, Case: 21STCV14356, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV14356    Hearing Date: March 10, 2023    Dept: 28

Defendant Food 4 Less of California,
Inc.’s Motion for Summary Judgment

Having considered the moving,
opposing and reply papers, the Court rules as follows. 

BACKGROUND

On
April 15, 2021, Plaintiff Alberto Roman (“Plaintiff”) filed this action against
Defendants Food 4 Less of California, Inc. (“F4L”) and The Kroger Co.
(“Kroger”) for general negligence and premises liability.

On June 24,
2021, F4L filed an answer.

On
December 20, 2022, F4L filed a Motion for Summary Judgment to be heard on March
10, 2023. On March 3, 2023, Plaintiff filed an opposition. F4L filed a reply on
March 3, 2023.

Trial
is currently scheduled for June 7, 2023.

PARTY’S REQUESTS

F4L
requests the Court grant summary judgment on the basis that there are not
triable issues of material facts.

Plaintiff
requests the Court deny the motion.

OBJECTIONS

LEGAL STANDARD

The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party cannot show evidentiary support
for a pleading or claim and to enable an order of summary dismissal without the
need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if
all the evidence submitted, and ‘all inferences reasonably deducible from the
evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion
for summary judgment is to delimit the scope of the issues; the function of the
affidavits or declarations is to disclose whether there is any triable issue of
fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993)
12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991)
231 Cal. App. 3d 367, 381-382.)

As
to each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v.
D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.) 

Once
the defendant has met that 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 a defense thereto. To establish a triable issue of material fact, the
party opposing the motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The
elements of a negligence claim and a premises liability claim are the same: a
legal duty of care, breach of that duty, and proximate cause resulting in
injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

Whether
a commercial landlord had possession and control over commercial property to
subject the landlord to liability is a question of law for the court to decide.
(Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14
Cal.4th 814, 819.)
“A landlord has relinquished possessory interest in the land, his or her duty
of care to third parties injured on the land is attenuated as compared with the
tenant who enjoys possession and control.” (Garcia v. Holt (2015) 242
Cal.App.4th 600, 604.) “[W]here a landlord has relinquished control of property
to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty
of care owed to a third party injured on the property as compared with the
tenant who enjoys possession and control.” (Salinas v. Martin (2008) 166
Cal.App.4th 404, 412.) This bright line rule holds a landlord liable to third
parties in a premises liability action only if: (1) the landlord has actual
knowledge of the hazard; and (2) the right and ability to remedy it. (Id.)

A
land possessor does not have a duty to warn an invitee of obvious dangers but
does have a duty to warn about dangerous conditions known to the possessor and
those that might have been found by exercise of ordinary care. (Beauchamp v.
Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are
those that which that an invitee will perceive “that which would be obvious to
him through the ordinary use of his senses.” Id. A land possessor is not
liable for damages caused “by a minor, trivial, or insignificant defect in
property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

According
to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268,
when determining if a risk if trivial, courts look to a multitude of factors
beyond just depth or height of a sidewalk fault. For example, courts may look
towards physical characteristics (such as exposed rebar or broken pieces),
visibility, and history (such as whether anyone else has been injured). 

A
customer injured by a dangerous condition on a premises owners' property can
only recover damages against the owner of a premises if the owner was somehow
negligent. (Louie v. Hagstrom's Food Stores, Inc. (1947) 81 Cal.App.2d
601.) A premises owner's negligence may be proven by showing that the owner did
not “exercise reasonable care to keep the premises reasonably safe for patrons”
(Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035),
either because (1) the owner itself created a dangerous condition on the
premises (Henderson v. Progressive Optical System (1943) 57 Cal.App.2d
180, 184), or (2) someone else created a dangerous condition, and the owner
acted unreasonably by not remedying that condition or warning its customers
about it (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829) “Absent
any evidence that there was a … dangerous condition created by or known to [defendant],
[plaintiffs] cannot sustain their burden of proof” so as to defeat a
defendant’s motion for summary judgment. (Peralta v. The Vons Companies,
Inc., (2018) 24 Cal.App.5th 1030, 1036.) A store owner must have actual or
constructive notice of the condition to be negligent; it cannot have merely
existed. (Id.)

DISCUSSION

Plaintiff alleges that on April 17, 2019, at
approximately 11:13 p.m., Plaintiff slipped and fell on a mango peel/skin in
F4L’s store. F4L captured the incident on video, although the alleged mango
cannot be seen in the video. The video shows that the area was swept at 10:37
p.m. Two customers walked through the aisle at 10:43 p.m. and 10:54 p.m.
without incident. No other person or employee walked through the aisle of the
incident.

For
a premises owner to be liable for injuries suffered due to a dangerous
condition on the premises, the premises owner either must have actual or
constructive knowledge of the dangerous condition. Generally, this means either
the condition existed long enough that the owner should have discovered
it, or that the owner was informed of the dangerous condition.

The facts presented indicate that F4L was not
on actual notice of the defective condition. Plaintiff does not allege that any
F4L employee cause the debris or was aware of it, meaning there is no
indication that F4L. had actual notice of the subject condition. No customer or
employee informed F4L of the subject condition between the time swept and
Plaintiff’s fall. (DUMF 5.)

However, the Court does not find that the
evidence supports that F4L was not on constructive notice. F4L’s employee swept
the area approximately 36 minutes prior to Plaintiff’s fall. (DUMF 8.) According
to F4L, F4L’s policy requires that an employee inspect and sweep the sales at
least once per hour. (DUMF 3.) Plaintiff argues that the subject inspection and
sweep was insufficient, inadequate and incomplete to clean the floor area of
the dangerous condition. (PUMF 1.) Plaintiff specifically cites that the area
was swept for only 7 seconds, and the employee was facing upwards and looking
straight ahead, instead of inspecting the floor of foreign objects. The broom
did not cover the entire aisle and the employee did not move the broom to cover
more area on the aisle. Plaintiff also notes that the footage does not show
when the alleged mango peel was dropped; none of the individuals shown on
camera drop the peel. Given that, it is possible that the peel existed prior to
the sweep and that F4L’s sweep of the area was insufficient. In Ortega v.
Kmart Corp (2001) 26 Cal. 4th 1200, which F4L cited in their moving papers,
the court found that the potential for a dangerous condition to be present for
over two hours, even when inspections were conducted every 15-20 minutes, was
proper for a jury to rule on. Given that the Court is unaware when the subject
mango peel dropped and the video does not make clear that F4L’s inspection or
sweep was thorough, the Court finds F4L has not met its burden.

Based on the above, the Court denies the
motion.

CONCLUSION

Defendant
Food 4 Less of California, Inc.’s Motion for Summary Judgment is DENIED.

            Moving
party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this
ruling with the Court within five days.

The parties are directed to the header of this
tentative ruling for further instructions.