Judge Jill Feeney, Case 21STCV29669 2022-12-20 Tentative Ruling

This is an action for premises liability arising from a slip and fall incident that took place in August 2019. Plaintiff Roger Robles filed his Complaint against Defendants South Bay Center SPE, LLC, South Bay Associates SPE, LLC, QIC US Management, Inc., and Federal Building Services, LLC on August 11, 2021.

Defendants Federal Building Services, Inc. and South Bay Center SPE, LLC (erroneously sued as South Bay Associates SPE, LLC and QIC US Management, Inc.) (“Moving Defendants”) filed the instant motion for summary judgment on October 6, 2022.

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., section 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., section 437c(c).)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) “[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.) “Where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it,” there is not a clear “legal basis for imposing liability for failure to properly maintain the sidewalk.” (Williams v. Foster, 216 Cal. App. 3d at p. 521.)

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.)

Here, Moving Defendants’ evidence shows that on August 29, 2019 at 11:04 am, Plaintiff slipped and fell at the Galleria Shopping Center on the second-floor walkway in front of a Footlocker store. (UMF Nos. 1-2.) Plaintiff alleges that he slipped on a trail of water that was as wide as a bucket and led from where he fell down the walkway and down a corridor toward a security office. (UMF Nos. 3-4.) Plaintiff did not see the trail of water before the fall and there was no water on the walkway from the direction he came. (UMF No. 5.) At 10:54 am on the day of the fall, a security officer at the Center walked through and inspected the area where Plaintiff fell and did not see water or other liquid on the ground. (UMF Nos. 6-7.) Between 10:55 and 11:09, several other Center patrons walked over the spot where Plaintiff fell without issues. (UMF Nos. 11-18.) At 11:10 am, a Footlocker employee placed a caution sign several feet behind where Plaintiff fell. (UMF No. 19.) At 11:12 am, a housekeeping employee placed more caution signs behind where Plaintiff fell. (UMF No. 20.)

Moving Defendants first argue that Plaintiff cannot prove there was a dangerous condition that caused his fall. Moving Defendants depend largely on the testimony of De’Jah Pickett, the security guard who inspected the area before Plaintiff fell, and security footage of the area where Plaintiff fell.

Pickett testifies that he performed an inspection of the area where Plaintiff fell at 10:54 am and did not see any water. If he had, Picket testifies that he would have reported the issue to housekeeping. Pickett’s testimony reads as follows:

“6. I have reviewed the surveillance video from the morning of August 29, 2019. At 10:54 am, I can be seen walking down the stairs on the bottom right hand corner of the video. After walking off the stairs, I can be seen in the video walking along the second floor walkway in front of the Footlocker store. This is part of my routine inspection of the Center. During these routine inspections, I will constantly observe my surroundings, including the floor and walkways I walk through, to identify any problems or issues, including any spills of water or liquid that may be a potential hazard.

7. If I observe any liquid on the ground, I will immediately stop where I observe the potential hazard and notify housekeeping of the location of any liquid or water so they can clean it up. I will stay by the liquid or water until housekeeping arrives and cleans up the liquid or water to ensure patrons of the Center do not slip or fall on any liquid.

8. Based on the surveillance video and my recollection, I did not observe any water or liquid on the second floor walkway in front of the Footlocker when I conducted my inspection at 10:54 am on the morning of August 29, 2019. If I observed any water or liquid on the ground in the second floor walkway, I would have immediately notified housekeeping to clean it up as is my custom and routine.”

Moving Defendants also provided surveillance footage of the area. The video is blurry and the Court cannot discern the condition of the floor where Plaintiff fell. The area is illuminated by sunlight, which obscures the floor where Plaintiff fell. An examination of the footage shows that several patrons walked across the area where Plaintiff fell without slipping between 10:54 am and 11:04 am. (Defendant’s Compendium, Exh. 2.)

Moving Defendants’ evidence shows that the Pickett did not see any water in the area when he inspected the area approximately ten minutes before Plaintiff’s fall and that several other patrons did not slip in the same spot before and after the fall. However, this evidence does not show that there was not in fact water on the ground where Plaintiff fell. Moreover, Plaintiff’s deposition testimony directly states there was water on the ground where he fell. A court cannot weigh the evidence, assess credibility of witnesses, or make determinations of fact. (Weiss v People ex rel Dep't of Transp. (2020) 9 C5th 840, 864.) Here, the Court cannot weigh Plaintiff’s testimony against Moving Defendants’ evidence. Based on Plaintiff’s testimony, it would also be unreasonable to infer that Plaintiff would be unable to obtain evidence showing there was water on the floor where he fell.

Moving Defendants argue that where the testimony of a witness contradicts video recordings, the Court should disregard the testimony in favor of the video evidence. Moving Defendants cite Swigart v. Bruno (2017) 13 Cal.App.5th 529, 534 fn. 4. However, Swigart involved footage of an endurance horse riding event which readily displayed the inherent risk of endurance horse riding. Whether there was inherent risk in the activity of endurance horse riding was relevant to duty, which is a question of law, not fact. Here, unlike Swigart, the video footage is blurry, does not show the condition of the floor where Plaintiff fell, and shows other patrons walking in the area without slipping. Moving Defendants argue that the presence of other patrons walking without slipping makes it more likely that there was no water in the area where Plaintiff fell. The Court cannot make this determination of fact.

Moving Defendants also argue that the video footage clearly shows Plaintiff’s testimony was false. This argument is without merit because the surveillance footage is blurry and the spot where Plaintiff fell is obscured by sunlight. Thus, it is unclear whether there was water there.

Moving Defendants finally argue that there was water on the floor several feet behind Plaintiff, but not where Plaintiff fell. Moving Defendants rely on the security footage which shows housekeeping staff cleaning the area behind where Plaintiff fell. Again, this is a determination of fact that the Court cannot make at summary judgment. Moreover, further examination reveals that the housekeeping staff member then cleaned the spot where Plaintiff fell and parts of the floor leading around the corner of the Footlocker store. Thus, this argument is without merit.

Moving Defendants next argue that they had no notice of the dangerous condition. Moving Defendants rely on Pickett’s testimony that he inspected the area approximately ten minutes before Plaintiff’s fall. Moving Defendants argue that because only ten minutes elapsed between Pickett’s inspection and the fall, Moving Defendants did not discover the water after reasonable inspection and did not have constructive notice of the water.

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.)

Moving Defendants cite Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827. However, even Grivetz states that “the presence of a condition…for as long as 10 or 15 minutes would in all probability be held to justify submitting the cause to the jury” while “‘a minute and a half’…is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.”

Moving Defendants also cite unpublished Federal cases in support of their argument. Federal cases, whether published or unpublished, represent only persuasive authority. (Metalclad Corp. v. Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1714.) Thus, these cases are persuasive.

Here, it is unclear whether or how long there was water on the ground where Plaintiff fell. Pickett’s declaration alone is insufficient to show whether Moving Defendants made reasonable inspection and whether reasonable inspection would have revealed the water. As it stands, this is a question of fact for the jury.