Judge Katherine Chilton, Case 21STLC03867 2022-10-05 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC03867, Date: 2022-10-05 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 25 at the Spring Street Courthouse up until the morning of the motion hearing. The e-mail address is SSCdept25@lacourt.org. The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.
Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time. **Please note we no longer use CourtCall**

Case Number: 21STLC03867 Hearing Date: October 5, 2022 Dept: 25

PROCEEDINGS: MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant Nordstrom, Inc.

RESP. PARTY: Plaintiff Marta Salvatierra

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Defendant Nordstrom, Inc.’s Motion for Summary Judgment is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: Filed on September 19, 2022. [ ] Late [ ] None

REPLY: Filed on September 30, 2022. [X] Late [ ] None

ANALYSIS:

I. Background

On May 18, 2021, Plaintiff Marta Salvatierra (“Plaintiff”) filed an action for premises liability against Nordstrom, Inc. (“Defendant”), as a result of allegedly slipping and falling on Defendant’s property on August 8, 2019. Defendant filed an Answer on October 8, 2021.

On July 22, 2022, Defendant filed the instant Motion for Summary Judgment (“Motion”). Plaintiff filed an Opposition to the Motion (“Opposition”) on September 19, 2022. Defendant filed a Reply to the Opposition (“Reply”) on September 30, 2022.

On August 24, 2022, upon stipulation of the parties, the Court continued the trial date from November 15, 2022, to February 14, 2023. (8-24-22 Stipulation and Order.)

II. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.) Thus, “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 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c(p)(1).) When a defendant seeks summary judgment, he/she has the “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc. § 437c(p)(2).)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc. § 437c(p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.) Summary judgment must be granted “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.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.)

III. Discussion

Defendant seeks a court order granting summary judgment in its favor and against Plaintiff on grounds that Plaintiff’s cause of action for premises liability has no merit as there is no evidence that Defendant “was negligent or possessed actual or constructive notice of any alleged dangerous condition in sufficient time to correct it,” “Defendant is not liable to Plaintiff as a matter of law,” and “there is no triable issue of material fact.” (Mot. p. 2.) Alternatively, Defendant seeks summary adjudication as to the first cause of action for premises liability. (Ibid.)

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.) While those who own, possess, or control property are not insurers of the safety of their patrons, they generally have a duty to exercise reasonable and ordinary care in keeping the premises reasonably safe and in managing the property¿to¿avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1205; Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.) The existence and scope of duty are legal questions for the court. (Annocki, 232 Cal.App.4th.¿at¿36.) “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.”¿ (Ibid.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe for their¿[customers’]¿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 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.)

Once duty is established, the plaintiff must prove that the defendant breached this duty by failing to exercise ordinary care and the breach was a substantial factor in causing plaintiff’s harm. (Ortega, 26 Cal.4th at 1205.)

Here, Plaintiff alleges that she “slipped and fell on defendants [sic] property due to a dangerous condition existing located at 21725 Victory Blvd, Canoga Park, CA 91303.” (Compl. p. 4, Prem.L-1.) Plaintiff further alleges that there was transparent water-like liquid on the floor of the premises in the area where she fell. (Loeding Decl. ¶ 2; Ex. A – p. 26:17-24.) Defendant does not dispute that Plaintiff slipped and fell in this location. Defendant has produced a surveillance video that is eleven (11) minutes of footage of patrons walking through the area where Plaintiff fell (before she fell), followed by one patron carrying a drink cup, followed six seconds later by Plaintiff falling “in the exact same area an individual holding a cup walked 6 seconds before Plaintiff’s fall.” (Loeding Decl. ¶¶ 3-4; Exs. B-C.) As noted, the video also shows several other individuals walking through the same area without any incidents occurring, nor does it show individuals avoiding the spot where Plaintiff ultimately fell. (Loeding Decl. ¶ 3; Ex. B.)

Defendant points to Plaintiff’s responses to Defendant’s Special Interrogatories which state, in conclusory fashion, that “Nordstrom failed to inspect and make safe its property,” and “that by reasonable inspections of its property Nordstrom would have detected the substance on the floor.” (Loeding Decl. ¶ 5; Ex. D, Responses #2, 14-15.) Defendant also contends that Plaintiff’s responses to Form Interrogatories, propounded in conjunction with Requests for Admission, are not sufficient to establish any facts regarding Defendant’s liability, as she merely responded that “[l]arge quantity of liquid substance on the floor at time of fall” and “liquid was not readily visible due to the area of the fall.” (Loeding Decl. ¶ 7; Ex. F, Response #17.1.)

Defendant argues that Plaintiff does not produce any evidence showing that Defendant had “notice of the dangerous condition in sufficient time to correct it” in her Complaint or in her discovery responses, other than “legal conclusions which mirror the typical allegations found in a complaint in a slip and fall action for premises liability.” (Memorandum pp. 2-3, 7-8.) Furthermore, Defendant’s 11 minutes of surveillance footage provides evidence that the liquid likely was spilled six (6) seconds prior to the incident when a young man carrying a cup walked through the exact location. (Ibid. at p. 4.) Plaintiff cannot show that Defendant had or should have had notice of the dangerous condition within those six (6) seconds. (Ibid. at pp. 4-5.) Nor is there any evidence that the liquid was there prior to the young man with the cup walking by.

In Opposition, Plaintiff has submitted a brief Memorandum of Points and Authorities, devoid of a Separate Statement, any declarations, or evidence, as required by Code of Civil Procedure § 437c(b)(2), (b)(3). Plaintiff argues that a triable issue of material fact exists regarding Defendant’s notice of the dangerous condition and Defendant did not produce any proof that it conducted any inspection of the area where Plaintiff fell prior to the incident. (Oppos. p. 5.)

In its Reply, Defendant reiterates that Plaintiff has not produced any evidence to establish that Defendant had actual or constructive notice of the liquid on the floor of its premises. (Reply p. 1.) Defendant argues that “Plaintiff does not submit a single declaration, a single piece of deposition testimony, a single discovery response, or any evidence whatsoever in opposition to Nordstrom's Motion.” (Ibid. at pp. 1-3.) It once again cites to Ortega v. Kmart Corp, for its contention that Plaintiff has the burden of showing that the owner of the premises had actual or constructive notice of the condition in sufficient time to correct it. (Ibid. at p. 3; Ortega, 26 Cal.4^th at 1206.)

The Court finds that Defendant has met its burden of showing that Plaintiff’s cause of action for premises liability does not have merit because there is no evidence that Defendant had notice of the dangerous condition in time to correct it or provide warning. Furthermore, Plaintiff has failed to submit a Separate Statement in response to the Motion and has not produced any evidence to show the existence of a genuine dispute of material fact regarding Defendant’s notice of the condition. Therefore, Defendant is entitled to summary judgment on the single cause of action for premises liability.

IV. Conclusion & Order

For the foregoing reasons, Defendant Nordstrom, Inc.’s Motion for Summary Judgment is GRANTED.

Moving party is ordered to give notice.