Judge: John C. Gastelum, Case: 21-01198673, Date: 2023-03-27 Tentative Ruling

Motion for Summary Judgment and/or SAI

Tentative Ruling: “A defendant moving for summary judgment has met his burden of showing that a cause of action has no merit if he has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. 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 that cause of action or defense. [Citations.]”  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926 (Caloroso).)  “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.]”  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) 

“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. [Citations.]… A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.”  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203, 1205 (Ortega).) 

Where there is “no evidence of the source of the dangerous condition or the length of time it existed,” a store owner's “failure to inspect the premises within a reasonable period of time” creates an “inference that the defective condition existed long enough for a reasonable person exercising ordinary care” to have constructive notice of that condition and remedy it.  (Ortega, supra, 26 Cal.4th at p. 1203; Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 477.)  The inference of negligence may be negated by a store owner showing that it inspected the store in a reasonable manner. (Ortega, supra, 26 Cal.4th at p. 1211; Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036-1037 [defendant met burden on summary judgment with declaration showing that sweep of entire store, including area where the plaintiff fell, had been recorded less than eight minutes before incident].)

Here, the parties do not dispute that Plaintiff slipped and fell on a liquid in the Walmart store in Westminster on August 4, 2019.  (See Opp. SS, UF #1.)  In support of its assertion that it did not breach its duty of care, Defendant submitted evidence to show Plaintiff does not know the source of the spill, how long it existed before she fell, and whether anyone at the store was aware of the liquid before she fell.  (Def. SS UF #2-4.)  It also submitted evidence that its employees are “trained to continuously inspect the premises and maintain good housekeeping to prevent slips, trips, and falls, including frequent zoning, picking up debris, and immediately taking care of any slip or trip hazards they encounter throughout their shift.”  (Id., UF #5.)

Defendant failed to meet its initial burden of showing that it did not breach its duty of care to Plaintiff.  While Defendant presented evidence that Defendant did not have actual notice of the liquid that Plaintiff slipped on, it failed to submit sufficient evidence that it did not have constructive notice.  Defendant’s evidence that it inspects the store was too general and does not demonstrate that it inspects the store in a reasonable manner.  Defendant’s supporting declaration does not state when and how Defendant’s employees inspect the premises and it did not even state that the premises were inspected the day of the incident.  Therefore, the motion for summary judgment is DENIED.

Plaintiff to give notice of ruling.