Judge Jill Feeney, Case 21STCV16929 2023-04-04 Tentative Ruling

Defendant moves for summary judgment on the grounds that (1) Defendant performed a reasonable inspection shortly before the incident; (2) Defendant did not create the hazard that caused Plaintiff’s fall; and (3) Defendant did not have a reasonable amount of time to discover and correct the alleged condition.

Plaintiff argues that a triable issue of material fact exists as to whether Defendant conducted a reasonable inspection of the premises because Defendant did not prohibit customers from eating or drinking in the store, Defendant does not train its employees to look for produce on the floor of the store, there is no specific path employees are required to sweep, there is no surveillance of the sweep, and other customers have slipped and fallen in the store. Plaintiff also argues that Defendant’s employee performing the sweep did not see the floor where Plaintiff fell, does not know what areas of the store she swept, did not know what she recorded when she self-reported a sweep, and that there is no evidence Defendant’s employee swept the area where Plaintiff fell.

Defendant argues that the employee who performed the sweeps was of limited intelligence and was confused during her deposition. Additionally, there was no camera that captured Plaintiff’s fall. Defendant also argues that Plaintiff’s expert’s testimony must be excluded because Plaintiff’s expert lacked the professional training and facts to support his opinion.

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).)

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 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, a 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 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 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 15-25 minutes before an injury, courts have held that whether a defendant had constructive notice of the condition is a question for the jury. (Id.) 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 of him. (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 831.) (See also Tuttle v. Crawford (1936) 8 Cal.2d 126, 131 [case where plaintiff slipped on a wet floor five or eight minutes after an employee had swept the area was presented to a jury].)

In Hale v. Safeway Stores (1954) 129 Cal.App.2d 124, the plaintiff slipped on a banana on the floor. A store employee testified that he conducted a sweep of the area shortly before the accident and did not see a banana on the floor. He estimated that between 5 and 12 minutes elapsed from when he finished sweeping until he came out of the storeroom and saw plaintiff after the accident. (Id. at 127-128.) The court in Hale found a jury could have drawn a legitimate inference that the defendant, in the operation of its fruit and vegetable section, should have, in the exercise of ordinary prudence, discovered the dangerous condition and remedied it. (Id. at 131.)

Here, Plaintiff alleges that on May 23, 2019 at approximately 8:00 a.m., she slipped and fell while shopping at a Vons in Santa Monica. (UMF No.1.) Defendant provides Plaintiff’s deposition testimony in support of its motion for summary judgment. According to the testimony provide, Plaintiff walked into the store through a pair of sliding doors and slipped after taking a few steps into the store. (Calvanese Depo., 41:18-22.) Plaintiff slipped about five feet from the store entrance, near the deli counter. (Calvanese Depo., 33:12-24.) Plaintiff alleges that she fell on a reddish film that resembled fruit leather that was stuck to the floor. (Calvanese Depo., 38:8-18.) Once she was on the ground, Plaintiff saw that there was a large pool of berries, like raspberries, that had dried into fruit leather. (Calvanese Depo., 38:19-40:1.) The pool covered the entire space between the fruit display to the left of the entrance and the deli on the right. Plaintiff believed the berries were raspberries because there was a raspberry display to the left of where she fell. (Calvanese Depo., 40:2-4.) Plaintiff did not touch the berries or cause any of the fruit to fall prior to the incident. (Calvanese Depo., 41:3-7.)

Defendant also provides the declaration of Alison Mackenzie, Defendant’s employee, a courtesy clerk who was working on the date of the incident. Mackenzie testifies that she has been employed as a courtesy clerk since 2013. (Mackenzie Decl., ¶1.) Vons requires a recorded sweep and inspection of the sales floor at least once per hour. (Id., ¶2.) Mackenzie typically used a large dust mop or broom and a dustpan to walk through each aisle of the sales floor inspecting it for debris or spills. (Id.) If she encountered a spill or debris, she would remove it. (Id.) Upon completion of a sweep and inspection, Mackenzie was required to log completion of the sweep using a time clock located in from of the store. (Id., ¶3.) On the date of the incident, Mackenzie conducted a sweep and inspection of the sales floor at 7:00 a.m. and completed the inspection at 7:30 a.m. (Id., ¶4.) She performed a second sweep shortly after, completing that sweep at 7:55 a.m. (Id.) After completing her second sweep, Mackenzie began walking outside the store to check the parking lot for shopping carts. (Id., ¶6.) As she walked past the displays near the main entrance, Mackenzie saw Plaintiff near a cherry display, placing a loose cherry in her mouth. (Id., ¶6.) Mackenzie did not see any fruit or debris on the floor as she passed by. (Id.) Mackenzie returned through the front entrance 3-5 minutes later and saw Plaintiff on the floor surrounded by loose cherries. (Id.)

Defendant fails to meet its initial burden of showing it did not have constructive notice of the alleged condition. The evidence shows that Mackenzie began performing a sweep of the entire store at 7:30 a.m. and completed the inspection at 7:55 a.m. on the date of the incident. Because Mackenzie logged her sweep of the entire store upon completion, there is no evidence of when Mackenzie performed her sweep of the lobby. The time Plaintiff fell is also an estimate and Mackenzie testifies that she was outside the store in the parking lot between 3 to 5 minutes before Plaintiff’s fall. Thus, Mackenzie could have swept the area where Plaintiff fell anywhere between 3 minutes and 30 minutes before Plaintiff’s fall. Defendant’s evidence is too speculative for the Court to find that no triable issue of material fact exists over whether Defendant had constructive notice of the condition.

When performing sweeps, Mackenzie sometimes used a dry mop to sweep the whole store or walked through the store with a broom and dustpan in her hand. (Id., 68:12-14.) Mackenzie sometimes performed a visual inspection with the broom and dustpan in her hand and did not distinguish this visual inspection from sweeps in the store’s records. (Id., 93:25-96:9.) Mackenzie has no memory of which areas of the store she may have swept before she saw Plaintiff. (Id., 170:16-171:2.) There is no specific pattern or path that Mackenzie follows when performing sweeps. (Id., 192:14-193:14.) Mackenzie struggled to describe events in relative time. (Id., 51:9-14; 52:22-25.) When Mackenzie was walking out of the store to the parking lot, she was watching Plaintiff. (Mackenzie Depo., 55:10-21.) By the time Mackenzie returned to the store, Plaintiff had moved to another cherry display and fell on the other side of the display. (Id., 167:22-168:17.) Before exiting the store, Mackenzie could not see the floor where Plaintiff fell. (Id.) After Plaintiff fell, a produce man named Carlos helped Mackenzie pick up the fallen cherries that were on the floor where Plaintiff fell. (Id., 120:18-121:1.)

Mackenzie’s full deposition shows that Defendant’s evidence of how long the condition existed is speculative. Mackenzie has very little memory of the date of the incident. Although she testifies that she believes the last place she swept was the front of the store, she has no memory of whether she swept the floor or merely visually inspected it. Mackenzie does not follow a path when performing inspections, is regularly called away in the middle of sweeps, and does not remember what areas of the store she inspected that day. Moreover, Mackenzie cannot distinguish between seconds and minutes, and cannot describe relative time. Thus, her estimation of how long she was in the parking lot before Plaintiff’s fall is speculative. Mackenzie also could not have seen the floor where Plaintiff fell as she passed through the lobby on the way out of the store because the floor was blocked by another cherry display. Indeed, Mackenzie testified that she could not see the area where Plaintiff fell prior to Mackenzie exiting the store to check the parking lot. Defendant thus fails to show that there is no triable issue of material fact as to whether Mackenzie in fact performed a sweep where Plaintiff fell and no triable issue of material fact as to the length of time that the condition existed.

On the other hand, Plaintiff’s deposition testimony shows that the smashed fruit which caused her to slip was more visible once she was on the ground and that the fruit had dried like fruit leather. The fruit, therefore, was there long enough to have dried. There is also evidence that there were other employees in the area where Plaintiff fell. Carlos, an employee working in the produce section, helped Mackenzie pick up the fallen cherries after Plaintiff’s fall. There was at least one other employee in the area aside from Mackenzie who could have seen the fallen cherries. Making all reasonable inferences in the light most favorable to Plaintiff, it is reasonable to infer that Defendant could have discovered the condition with sufficient time to remedy it.

Defendant cites to the case of Peralta v. The Vons Companies, Inc. as supporting a decision in its favor here. However, the facts of that case were very different than those here. There, a customer in the bakery section reported falling because the floor was slippery but did not know if there was anything on the floor. Furthermore, an inspection of the area where the plaintiff fell undertaken immediately after plaintiff’s fall did not find anything slippery on the floor. There, the Court found that summary judgment was appropriate as there was no evidence of anything slippery being on the floor at all. (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036-37.)