Judge Jill Feeney, Case 20STCV15480 2023-02-15 Tentative Ruling

ABM argues that it had no notice of any dangerous condition and did not breach any duty of care. ABM alleges that it inspected the floor of the convention center where Plaintiff fell before the fall and it was clean, dry, and free of any substance. ABM was not notified of any water on the ground prior to the fall. The last inspection of the floor took place four to six minutes prior to Plaintiff’s alleged fall.

Plaintiff argues that ABM fails to meet its burden of showing no triable issue of material fact exists over whether it had notice of a dangerous condition. Plaintiff argues that ABM relies solely on Esparanza Martinez’s declaration, which estimates how long it takes to walk from the West Lobby to the bathroom, and does not state exactly how long it had been between the last inspection and Plaintiff’s fall. Plaintiff’s lack of knowledge as to how long the water had been there does not show whether ABM had actual or constructive knowledge of the water. Plaintiff also argues that Defendant fails to provide any evidence as to whether they were diligent in their inspection and cleaning process prior to the fall. Plaintiff also alleges that she has been unable to complete depositions of ABM’s employees.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

As set forth in Aguilar, a party moving for summary judgment has the initial burden to demonstrate either that: (1) The non-moving party does not have, and cannot reasonably obtain, evidence supporting their claim, or (2) Submit sufficient affirmative evidence to establish that there is no triable issue of material fact as to an element of the non-moving party’s claim. (Aguilar, 25 Cal.4th at 854.)

The elements of a cause of action for premises liability are the same as those for negligence: 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 to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

Because the owner is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it. (Ortega, 26 Cal.4th at 1203, 1206.)

However, the plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence. (Ortega, supra, 26 Cal.4th at 1206.) A plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular period of time prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it. (Id. at p. 1210.)

A moving party “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.¿ A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” (Ortega, supra, 26 Cal.4th at pp. 1205-1206.) “In the context of a business owner’s liability to a customer or invitee, speculation and conjecture with respect to how long a dangerous condition existed are insufficient to satisfy a plaintiff’s burden. (Id.)

“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom's Food Stores (1947) 81 Cal.App.2d 601, 608.) “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” (Ortega, supra, 26 Cal.4th at p. 1213.)

Whether, under all circumstances, a defective condition existed long enough so that a reasonable man exercising reasonable care would have discovered it, is generally a question of fact for the jury. (Louie v. Hagstrom's Food Stores (1947) 81 Cal.App.2d 601, 607.) Even if a dangerous condition existed from 15 to 25 minutes before an injury, courts have held that whether a defendant had constructive notice of the condition is a question for the jury. (Id.)

ABM provides the declaration of Esparanza Martinez, a porter working for ABM, who testifies that on the day of the incident, she was working a shift at the convention center, emptying trash receptacles, picking up trash, and generally keeping the area clean. (Martinez Decl., ¶¶4-5.) Martinez was unaware that Plaintiff had fallen that day. (Id., ¶6.) About four to six minutes prior to Plaintiff’s fall, she inspected the area when she walked through it to get to the nearby women’s restroom on the concourse. (Id., ¶7.) Martinez recalls that the area was clean, the floor was dry, and she did not see trash or any other substance on the floor when she passed through and inspected the area. (Id., ¶9.) There was no water leaking from the dispenser located along the wall. (Id., ¶10.) She learned of Plaintiff’s fall after she exited the women’s restroom and saw Plaintiff on the floor in the West Lobby. (Id., ¶11.) Martinez picked up a piece of plastic wrap from the floor and wiped the floor to clean any remaining water. (Id., ¶12.)

ABM also provides Plaintiff’s deposition testimony, which states that she fell after exiting the escalator, turning left, and walking between eight to twelve steps. (Gutierrez Depo., 44:8-13.) Plaintiff saw water that was murky to the point that she could see it on the floor. (Id., 45:9-17.) Plaintiff estimates that she fell 12 feet away from a water dispenser in the West Lobby. (Id., 60:23-61:5.) Plaintiff did know how the water had gotten there or how long it had been there. (Id., 86:1-12.)

ABM’s evidence fails to establish that ABM did not have actual knowledge of the water and fails to demonstrate that Plaintiff cannot show ABM had actual notice of the alleged condition. Martinez testifies that there was no water on the floor in the area when she passed through the area. (Martinez Decl., ¶9.) She also testifies that there was no water around Plaintiff when she reached her after the fall. (Martinez Decl., ¶12.) However, Plaintiff provides her deposition testimony showing she was splashing in water as she was trying to get up after falling. (Gutierrez Depo., 23:1-22.) Security guards in the area also witnessed Plaintiff splashing in the water and helped Plaintiff to her feet. (Id.) Evidence that one porter working in the area did not see water in the area is insufficient to show that ABM had no actual notice of the alleged condition. The presence of security personnel in the area shows that ABM may have had actual notice of the condition. Moreover, ABM does not offer any evidence of regular sweeps/checks performed in the area, nor does ABM offer any evidence showing that it received no complaints about the area where Plaintiff fell prior to her fall. Martinez’s declaration stating that she did not receive any calls over the walkie talkie about water on the floor where Plaintiff fell is insufficient in this regard in that there is no explanation as to where complaints are logged and that a search of all such logs was performed. Defendant’s own interrogatory response stating that there were no complaints is also insufficient as it is inadmissible. (Code of Civil Procedure Section 2030.410.) There is also insufficient evidence for the Court to infer that Plaintiff will not be able to offer evidence that ABM had actual notice of the alleged condition.

ABM’s motion relies on the declaration of Esparanza Martinez to show that ABM had no constructive notice of the alleged water that caused Plaintiff’s fall. ABM argues that it had no constructive notice of the alleged dangerous condition because Martinez had inspected the area between 4 to 6 minutes before Plaintiff fell. Specifically, Martinez’s declaration states that she knows the fall took place 4 to 6 minutes after she walked through the area because “that is how long it takes [her] to walk from that area to the women’s restroom, clean/inspect it, and return to the area where Ms. Gutierrez fell.” (Martinez Decl., ¶¶7-8.) Martinez became aware of Plaintiff’s fall after exiting the women’s restroom and witnessing Plaintiff on the floor. (Id., ¶11.) Martinez’s estimation of time is speculative because it is based on her estimation of how long it usually takes for her to reach the women’s restroom, clean it, and return to the area where Plaintiff fell.

Plaintiff’s counsel testifies that counsel has not been able to depose Martinez, Defendant’s Person Most knowledgeable, and the security guard present at the time of the incident despite multiple deposition notices sent between December 2021 and October 2022. (Panah decl., ¶¶6-10.) ABM did not file a reply and did not respond to this issue. Nevertheless, the testimony of one porter and her estimate of how long the condition existed fails to show that there is no possibility that Plaintiff can produce evidence that ABM had constructive notice of the alleged condition.