Judge: Daniel M. Crowley, Case: 21STCV30871, Date: 2023-02-27 Tentative Ruling

Case Number: 21STCV30871    Hearing Date: February 27, 2023    Dept: 28

Defendant Macy’s Retail Holdings, LLC’s Motion for Summary Judgment

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

BACKGROUND

On August 20, 2021, Plaintiff Nancy Meza (“Plaintiff”) filed this action against Defendants Macy’s West Stores, Inc. (“MWS”) and Macy’s, Inc. (“Macy’s”) for general negligence and premises liability.

On November 15, 2021, Macy’s Retail Holdings, LLC (“Defendant”) filed an answer. On June 9, 2022, Defendant filed a Cross-Complaint against Cross-Defendant Blue Chip 2000 Commerical Cleaning, Inc. (“Cross-Defendant”) for express indemnity, implied equitable indemnity, comparative contribution, equitable indemnity and declaratory relief. On September 14, 2022, the Court dismissed Cross-Defendant, with prejudice, pursuant to Defendant’s request.               On September 28, 2022, Defendant filed a Motion for Summary Judgment to be heard on December 8, 2022. The Court continued the hearing on the motion to February 27, 2023. On November 22, 2022, Plaintiff filed an opposition; Plaintiff filed an amended opposition on February 8, 2023. On February 17, 2023, Defendant filed a reply.

Trial is scheduled for August 18, 2023.

PARTY’S REQUESTS

Defendant requests the Court grant summary judgment on the basis that there is no dispute as to material facts.

Plaintiff requests the Court deny the motion.

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.)

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.)

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 while shopping at Defendant’s store, she slipped on a spilled smoothie on the floor. (UMF 2.) The spilled smoothie was purple and approximately a foot in diameter. (UMF 4.) Plaintiff states she did not see the smoothie prior to her fall, but admitted if she looked down, she would have seen the smoothie on the floor. (UMF 2, 5.)

A premises owner is not liable for premises liability or negligence if an invitee is injured due to danger that was open and obvious via the exercise of reasonable care. Defendant provides evidence demonstrating the dangerous condition was open and obvious, meeting its burden; the burden shifts to Plaintiff.

Plaintiff argues that the smoothie was not open and obvious, noting that in Plaintiff’s deposition she stated that it was “possible,” she would have seen the smoothie had she been looking at the ground—this is not a definitive statement that she would have seen said smoothie. (UMF 5.) Plaintiff also states that she was walking in a reasonable, ordinary and foreseeable manner, as she was looking at the merchandise on sale at the shop. (SSUF 3.) She did not see the substance on the floor, nor did she have any warning of the substance prior the fall. (SSUF 4-5.)

The Court finds there is a dispute as to whether the subject smoothie was open and obvious to a reasonable invitee. Therefore, the Court will not grant summary judgment.

Defendant also argues that they cannot be liable, as they had neither constructive nor actual notice of the dangerous condition. A customer injured on a defendant’s premises can only recover if defendant did or should have had notice of the dangerous condition. Defendant argues they were not on notice; Defendant provides no proof in support of this argument, instead stating that Plaintiff has no evidence Defendant was on actual or constructive notice as to the dangerous condition. This is not sufficient to meet the burden on a motion for summary judgment. The fact Plaintiff did not know how long the smoothie was on the floor is not sufficient to establish that Defendant should not have been on notice. The Court is unaware how often Defendant performs inspections of or cleans the flooring, providing no basis to establish a time frame for how long the dangerous condition existed. Furthermore, Plaintiff’s opposition cites that Defendant did not conduct any inspections of the area prior to the incident. (UMF 12.) Defendant did not provide any evidence indicating policies or documentation of inspections. (UMF 13.) Defendant has not met its burden.

Both Defendant’s theories do not show a lack of dispute as to material facts that would bar Defendant from liability. The Court denies the motion.

CONCLUSION

Defendant Macy’s Retail Holdings, LLC’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.