Judge Jill Feeney, Case 20STCV18666 2023-03-17 Tentative Ruling

This is an action for premises liability arising from a slip and fall incident which took place in August 2019. Plaintiff Melchora Rubio filed her Complaint against Green Farm Market Gardena on May 15, 2020.

Defendant moves for summary judgment on the grounds that (1) it had no notice of a dangerous condition and (2) Plaintiff cannot establish that any alleged negligence was the proximate cause of injury.

Plaintiff argues in opposition that the dangerous condition was the blueberry display, that Defendant had actual knowledge of the display, and that Defendant was the proximate cause of the slip and fall.

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).)

Defendant moves for summary judgment on the grounds that (1) it had not notice of the alleged dangerous condition and (2) Plaintiff cannot show that any alleged negligence was the proximate cause of Plaintiff’s injury.

The Court notes that Plaintiff filed her opposition on March 10, 2023. The opposition is untimely under Code Civ. Proc., §¿437c(b)(2). Nevertheless, the Court will discuss the merits of Plaintiff’s opposition below.

The court further notes that Plaintiff did not file a separate statement in the required format set forth at Code of Civil Procedure Section 437c(b)(3) . The separate statement must respond to the moving party’s statement of material facts and indicate if each material fact is disputed or undisputed. If it is disputed, the opposing party must describe and cite to the evidence supporting the dispute. If there are additional material facts the opposing party believes are pertinent, those facts must also be included in the separate statement and supported by evidence citations. Failure to comply with these requirements is a sufficient ground to grant the motion for summary judgment. (CCP 473c(b)(3).) The Court grants the motion on this basis but also based on the merits as set forth below.

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 p. 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.) However, courts have held that evidence that a foreign object has been on the floor of a market for one and one-half minutes is insufficient to support an inference that a defendant failed to exercise the care required. (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 831.)

Here, Defendant first argues that Plaintiff cannot prove the existence of a dangerous condition where she fell. Plaintiff has the burden to prove that Defendant had actual or constructive notice of the dangerous condition in sufficient time to correct it.

Defendant’s evidence shows that on August 13, 2019, Plaintiff was in the produce section of a grocery store owned by Defendant when she slipped on blueberries that were on the floor. (UMF Nos. 1-2.) Surveillance footage of the store shows that another customer knocked a container of blueberries to the floor off of the raised display area, causing blueberries to fall on the floor. (UMF No. 5.) The spill occurred out of view of the cashier and was obstructed from the cashier’s view by a line of customers and large products displayed on platforms. (UMF No. 9.) No one reported or observed the spill prior to the subject accident. (UMF No. 10.) there were no similar incidents or complaints involving the berry display. (UMF No. 11.) Defendant employs dedicated staff who periodically sweep the produce department and clean spills on notification. (Le Decl., ¶8.)

Defendant’s surveillance footage shows that at 20:20:29, Plaintiff passed the blueberry display case and headed to the back of the store. (Motion, Exh. A.) At 20:20:33, another customer knocked a box of blueberries to the floor near a cash register behind another stack of goods. (Id.) After picking up the box, the customer left and another customer stepped on the scattered blueberries on the floor. (Id.) At 20:21:58, Plaintiff then slipped on the scattered berries while handing another item to another customer over the stack of goods. (Id.) The total time that elapsed between the time the box of blue berries fell on the floor and the time of Plaintiff’s fall was around 1 minute and 25 seconds.

Defendant’s expert, retail consultant Alex Balian, testifies that the blueberries were prepackaged in standard packaging as received from Defendant’s supplier and displayed in a manner consistent with industry standards. (Balian Decl., ¶10.) Balian also opines that the display itself did not cause the package to open but the impact of hitting the floor. (Id., ¶11.) Defendant’s policy was for personnel to clean hazards on the floor when informed or when encountered. (Id., ¶7.) Defendant’s employees, Binh Tran and Cuong Le both testified that they were unaware of the spill prior to the fall. (Id.) Balian also opines that the berries were not on the floor long enough to give Defendant’s employees sufficient time to clean them. (Id., ¶12.)

Defendant’s evidence shows that the blueberries Plaintiff slipped on were knocked to the floor less than one-and-a-half minutes before her fall. As a matter of law, this is insufficient to support an inference that Defendant failed to exercise the care required of it. One-and-a-half minutes was insufficient time for Defendant to discovery and remedy the fallen blueberries. Defendant thus meets its burden of showing no issues of material fact remain over whether it had notice of the blueberries.

Plaintiff argues in opposition that the dangerous condition was the display case itself and that Defendant had adequate notice that the case existed. Plaintiff offers expert testimony that the display case was overstacked and placed customers at risk. (Hutt Decl., ¶5.) Although Plaintiff’s expert opines that a “reasonable retailer” would not have stacked the berries above an enclosed area, the expert does not refute Defendant’s expert’s testimony that the berries were displayed in compliance with accepted industry standards. Although Plaintiff’s expert references FDA and CDC guidelines generally, Plaintiff’s expert does not state Defendant violated these guidelines, much less how Defendant violated these Guidelines, and does not set forth any guidelines with the respect to the stacking of items in a display case. (Hutt Decl., ¶¶9-10.)

Plaintiff’s evidence fails to show that there is a genuine issue of material fact that the display case posed an unreasonable risk of harm to customers. Plaintiff also fails to provide evidence that Defendant was on notice that the display case was in a dangerous condition. Rather, Defendant’s employees testified that there had been no prior incidents or complaints with respect to the display case. Therefore, Plaintiff fails to meet her burden of showing a genuine issue of material fact regarding whether Defendant had any notice that the display case was in a dangerous condition.

A defendant “causes” harm when the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) A court may grant summary judgment because there is no triable issue of material fact regarding causation only when there is no other reasonable conclusion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)

Defendant’s evidence shows that the blueberries were packaged and maintained in compliance with accepted industry standards. Additionally, Defendant employed staff dedicated to sweeping and cleaning spills on notification. The blueberries which caused Plaintiff’s fall fell on the floor due to the acts of another customer and there is no evidence showing negligence on Defendant’s part caused or contributed to the blueberries falling. The evidence is sufficient to support an inference that Plaintiff can offer no evidence showing that Defendant’s conduct caused her fall. The burden shifts to Plaintiff. As discussed above, Plaintiff’s evidence fails to show that there is a genuine issue of material fact regarding Defendant’s conduct causing the berries to fall. Plaintiff thus fails to meet her burden of showing there are issues of material fact over whether Defendant’s conduct caused her fall.