Judge Jill Feeney, Case 21STCV11475 2023-01-30 Tentative Ruling

Defendant argues that Plaintiff cannot establish that a dangerous condition caused her fall. Defendant also argues that Plaintiff cannot establish that Defendant had actual or constructive notice of any dangerous condition. Defendant finally argues that it did not breach its duty of care to Plaintiff because it undertook reasonable efforts to ensure that the sales floor was free and clear of hazardous conditions.

Plaintiff argues that the facts are sufficient to infer that construction dust settled on the floor causing her to fall. Plaintiff also argues that a similar slip incident took place 45 minutes before her fall. Plaintiff also argues that Defendant created the dangerous condition and failed to follow its own policies, causing her to fall. Additionally, Defendant had notice of the condition because the person who slipped before Plaintiff did was an employee.

Defendant argues that Plaintiff submitted no credible evidence to demonstrate that it caused her fall. Defendant objects to Plaintiff’s expert testimony on the grounds that it is speculative. Defendant also argues that Victor Katona’s alleged slip is a red herring and that Plaintiff mischaracterized his testimony.

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).)

In order to overcome a motion for summary judgment with respect to inferences, a plaintiff most demonstrate that inferences in plaintiff’s favor are more reasonable and probable than those for the other side. (Kaney v. Custance (2022) 74 Cal.App.5th 201, 220.)

Plaintiff objects to the declaration of Victor Katona on the grounds that it is not based on his personal knowledge. Plaintiff alleges that Katona had no independent recollection of the day of the incident. However, Katona testified during his deposition that although he did not remember the day of the incident, he confirmed that the facts in his declaration are true by reviewing surveillance footage. (Katona Depo., 49:20-51:9.) A witness is permitted to refresh his memory with respect to any matter about which he testified so long as the writing or other item used to refresh his memory is produced to the adverse party. (Evid. Code, Section 771.) Here, the surveillance footage Katona relied upon to confirm the facts of his declaration and testify at his deposition is available to both parties. Although Katona did not draft the declaration himself, he confirmed the facts and signed under penalty of perjury. (Katona Depo., 40:16-19.) Katona was permitted to refresh his memory using the surveillance footage and confirmed the facts of his declaration at a deposition taken under oath. Plaintiff’s objections are overruled.

Defendant objects to the declaration of Mark Burns on the grounds that it is speculative. The Court finds that Burns’ declaration with respect to the slip resistance of the floor with respect to water in Defendant’s store is based on his own measurements and is therefore not speculative. However, his opinions about contamination are speculative as he does not describe any tests performed with any contaminate such as dust which is the alleged contaminant here.

However, his opinion as to the cause of Plaintiff’s fall based on security footage and Victor Katona’s declaration is speculative because he opines that it is likely Katona and Plaintiff encountered a contaminant. Thus, Defendant’s objections with respect to Burns’ opinion on the cause of Plaintiff’s fall are sustained.

Defendant moves for summary judgment on the grounds that (1) Plaintiff cannot prove the existence of a dangerous condition where she slipped and fell, (2) Plaintiff cannot prove that Defendant had notice of a dangerous condition, and (3) Defendant did not breach its duty of care to Plaintiff.

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, 26Cal.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 1210.)¿¿

A plaintiff “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 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.)¿¿

Here, Defendant’s evidence shows that on June 21, 2020, at 10:07 a.m., Plaintiff was shopping for groceries at a Ralphs store when she slipped and fell. (UMF No.1.) The store was undergoing a multi-week remodeling that occurred overnight when the store was closed from 10:00 p.m. to 6:00 a.m. (UMF No.9.) There was no construction ongoing at the time of the incident. (UMF No.9.)

(Medeiros Depo: 31:17-32:9.) Plaintiff’s responses to special interrogatories also state that she “does not know with specificity what she fell from” and that the cause “could have been construction dust or material from construction that caused” her to fall. (Motion, Exh. D.)

Defendant also submits surveillance footage of the incident. An examination of the footage shows that at 10:07 a.m., Plaintiff, who was wearing flip flops, was walking just past a red display when her left foot slid forward and she fell, landing on her right knee. (Motion, Exh. E, file name: R646 SNAG 6.21.20_%T1 and R566 ACT.11 INCIDENT 6.21.20_%T1.) Plaintiff then stood up and swept her foot across the area. (Id.) A Ralphs employee then came to her, also swept his feet across the area, and looked at the area. (Id.)

A: I actually checked the floor because I couldn’t understand how she fell because on the floor, there was nothing. I remember because I even had tennis shoes that were slippery for the floor, and I was walking around, and I didn’t slip.”

Another Ralphs employee who passed through the area pushing a bread cart at 9:14 a.m. on the date of the incident testifies that he did not see a foreign substance on the floor in the area and would have immediately cleaned up the substance or reported it if he had. (Katona Decl., ¶6.) Katona further testifies in his declaration that he looked at the bottom of his shoe in the surveillance footage because there was a sticker at the bottom of his shoe. (Katona Decl., ¶7.)

Defendant’s policies require employees to monitor the store’s floors for the presence of potentially hazardous conditions along with the sweeping and cleaning of floors as needed. (UMF No.12.) If an employee encounters a hazardous condition, that employee is responsible for immediately cleaning up the condition or contacting another employee to clean it up. (UMF No. 12.) Store managers also regularly monitor the store’s floor surfaces. (UMF No. 12.) A designated Ralphs employee is required to conduct a floor-walk and sweep of the store on an hourly basis, and did so in the hour prior to the alleged incident. (UMF No. 13.) Surveillance footage shows that an hourly floor-walk/sweep was conducted within 30 minutes of the incident. (UMF No. 14.)

During construction, the crew and employees use vacuuming, wet vacuuming, and sweeping to clean construction dust. (UMF No. 10.) Mendez and Ralphs’s Person Most Knowledgeable, Juan Palacios, both testify that the dust from construction is white and easily visible on the store’s floor. (UMF No. 11.)

Defendant’s evidence sufficiently shows that there are no triable issues of material fact over whether a dangerous condition existed at the time of Plaintiff’s fall. Plaintiff does not know what caused her fall, two Ralphs employees testify that they did not observe any dust or other condition in the area that could have caused her fall. Additionally, the surveillance footage shows many patrons walking in the area throughout the morning without issues. Therefore, there are insufficient facts to infer that a dangerous condition existed when Plaintiff fell.

Plaintiff provides the expert opinion of Mark Burns, who testifies that the floor posed a slip and fall hazard when wet or contaminated. (Burns Decl., ¶10.) Burns also testifies that contaminants were likely present on the date of the incident. (Id., ¶12.) However, Burns’s opinion as to the cause of the hazard is based on his own observations of surveillance footage and Katona’s declaration stating that he stepped on a sticker and removed it from his shoe. Katona testifies in his declaration that he noticed the sticker on his shoe, removed it, and did not notice any other foreign substance on his shoe. (Katona Decl., ¶¶6-7.) Thus, the basis of Burns’s opinion is unsound and his opinion as to the cause of the fall should be disregarded. Conjecture that there “may” have been a contaminant causing Plaintiff’s fall is also insufficient to meet Plaintiff’s burden to show that Defendant’s conduct caused the fall.

Plaintiff also provides the deposition of Defendant’s Person Most Knowledgeable, Juan Palacios, who testified that the store was undergoing construction that included grinding and polishing of the floors. (Palacios Depo: 9:14-10:1; 20:24-21:22.) Palacios testified that management typically walks the store with sweepers that clean the floor. (Palacios Depo: 22:4-12.) However, he did not know if there was vacuuming performed on the date of the incident. (Palacios Depo: 22:13-15.) Palacios also agreed that a small amount of dust on the floor could be hard to see. (Palacios Depo:22:21-24.)

Plaintiff also points to Mario Ernesto Mendez’s deposition, where he testifies that he had received complaints about the dust. However, Mendez’s testimony states that customers complained about being hard to breathe from paint fumes or dust in the air or on shelves, not about dust on the ground. (Mendez Decl., 21:5-15.) Mendez later testifies that he never received complaints about the area where Plaintiff fell. (Mendez Decl., 28:4-7.)

Plaintiff also argues that Katona slipped in the area 45 minutes prior to Plaintiff’s fall. Plaintiff relies on surveillance footage showing that Katona checked his foot after walking in the area where Plaintiff fell beginning at 9:14:28 a.m. However, Katona’s declaration states that he had stepped on a sticker and removed it from his shoe. (Katona Decl., ¶7.) Katona later confirmed his testimony at deposition. (Katona Depo., 49:20-51:9.) Plaintiff also argues that Defendant’s sticker theory and Katona’s identity in the footage are suspect because Mendez testified that Katona stepped on a sticker despite having no personal knowledge of it. (Opp., p.11.) However, Katona himself confirmed his identity during deposition and testified that he had stepped on a sticker in both his deposition and his declaration. (Katona Depo., 34:3-4.) Moreover, an inspection of the footage shows that Katona did not show signs of slipping as he walked through the area. Although Plaintiff also disputes the admissibility of Katona’s testimony, the Court overruled Plaintiff’s objections to Katona’s testimony.

In her opposition, Plaintiff makes clear that she is arguing that the inference of the existence of an unreasonably unsafe condition should be found to be in her favor. Plaintiff does not contend that she has actual proof of the existence of dust on the floor that caused her to slip nor does she argue that this is a situation where the doctrine of res ipsa loquitur applies.

Plaintiff slipped at the grocery store. She did not see anything that would have caused her to fall, liquid or dust, either before or after her fall. The grocery store employee who came to her aid after the fall also did not see any dust or anything else that would have caused the slip. The employee did not find the floor to be slippery in that area.

As part of the renovation process, the floor of the grocery store was ground down and polished. The process did sometimes create dust. A grocery employee testified that the dust was generally visible if any was left on the floor. That employee conceded that very small amount of dust might not be visible on the floor.

The video surveillance at 9:14 and 26 seconds a.m. shows a grocery employee, Victor Katona pick up his foot and look at the bottom of this shoe in the area where Plaintiff fell. A few seconds later, the surveillance video shows Katona take something off the bottom of his shoe. The video does not show that Katona slipped at any time. Nor did any witness testify that Katona did slip. Katona does not state that he slipped on anything. Kotona testified that based on his review of the video he believes that he was removing a price sticker from his shoe. Katona also testified at his deposition that it was his practice to clean up or place a cone on any hazardous materials that he saw on the floor. A review of the video clips reveals that Katona does not return to the spot to clean it or place a cone. A review of the video clips also reveals that numerous employees and customers walked over the same spot where Plaintiff fell and did not slip.

Nobody reported any issues with the floor on the date of the incident, prior to Plaintiff’s accident. The video surveillance shows that many customers and employees walked in the same area where Plaintiff slipped prior to her fall and nobody fell or slipped.

Plaintiff’s evidence fails to establish facts sufficient to support a reasonable inference that a condition creating an unreasonable risk of harm existed where she fell. Evidence that the store was undergoing construction that created dust alone is insufficient to support the inference that the walkway where Plaintiff fell was in a unreasonably unsafe condition as a result of construction dust. Even if a small amount of dust would have been hard to see, Plaintiff offers no evidence from which a reasonable inference could be made that an amount of dust too small to see would have posed an unreasonable risk of harm to patrons in the store.