Judge Kerry Bensinger, Case 20STCV12368 2023-02-03 Tentative Ruling

On March 27, 2020, plaintiff Ana Melara (“Plaintiff”) filed this action against defendant Alpha Beta Company dba Food 4 Less (“Defendant”) for negligence and premises liability. On April 14, 2018, at approximately 3:13:52 p.m., Plaintiff tripped on a folded-over floor mat at Defendant's store located at 1717 South Western Avenue, Los Angeles, California 90006.

On July 15, 2022, Defendant filed this motion for summary judgment arguing that it did not have actual or constructive notice of a dangerous condition that contributed to Plaintiff’s incident.

On January 6, 2023, this motion was scheduled for hearing. The Court continued the motion to allow Defendant an opportunity to review and incorporate Plaintiff’s expert declaration into its reply. On January 13, 2023, the Court again continued the hearing after noting that Plaintiff’s expert declaration was missing various exhibits. The Court gave Plaintiff leave to file the exhibits and Defendant leave to file an additional reply. On January 17, 2023, Plaintiff filed the missing exhibits, and on January 27, 2023, Defendant filed an additional reply.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Defendant initially objected to the Declaration of Philip Rosescu, in its entirety, as no Exhibits were attached to the initial Declaration. However, Plaintiff has remedied this error by filing the missing exhibits along with the Declaration.

Defendant objects to Paragraph 18 of the Rosescu Declaration because it is not cited in the Separate Statement. Defendant also objects to the unpublished cases cited throughout Plaintiff’s opposition papers. However, Defendant’s arguments are not appropriate evidentiary objections, but rather arguments based on case law. However, the Court does not consider Paragraph 18 because "[a]ll material facts must be set forth in the separate statement.” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30-31). Additionally, the Court will not consider the unpublished cases as citation thereto is improper.

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “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; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’ [Citation.]” (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) For example, 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.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].) The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.” (Ibid.)

- Plaintiff's incident is captured on the store surveillance system in front of the ice machine at approximately 3:13:52 p.m. (UMF 1.)

- Before Plaintiff tripped and fell, at 3:11:56 p.m. an unidentified customer pushed his cart over the mat, causing it to fold over. (UMF 9.)

- Then another customer in a motorized cart ran over the mat, further rolling the mat at approximately 3:12:58 p.m. (UMF 10.)

- No store employees passed through or near the area where the mat was folded between 3:11:56 p.m. (when the unidentified customer caused the mat to fold) and 3:13:52 p.m. (when Plaintiff tripped). (UMF 11.)

Defendant argues that there is no evidence that its employees created the condition the mat was in (i.e., folded-over or bunched-up), nor were employees informed of the mat’s condition, or discovered it between its creation (at 3:11:56 p.m.) and the accident (at 3:13:52 p.m.). Defendant's employee, Kimberly Reyes, inspected the incident area eleven minutes before Plaintiff entered the area. (Reyes Decl., ¶ 5 .) At the time of the inspection, the floor mat was flat, without any crinkles or folded-over parts. (Ibid.) Defendant argues that the evidence shows that only two minutes elapsed between the creation of the hazard and Plaintiff's fall, which is an insufficient amount of time to place it on constructive notice of the condition.

In opposition, Plaintiff relies on the declaration of her expert, Philip L. Rosescu, who opines that the hazardous condition was created by Defendant because Defendant did not take necessary precautions to ensure that the mat was properly secured to the ground surface and unable to slide or move. (Rosescu Decl. ¶ 12, 17.) The expert declaration references the “Safety-Housekeeping” section within the Food 4 Less Co. General Merchandising Clerk Manuel which states that “Mats should be kept laying flat…Mats with edges that will not stay down should be removed and replaced.” (Rosescu Decl. ¶ 13; Exhibit B.) He also references the American Society for Testing and Materials standards, the National Safety Council Data Sheet, and the ANSI+ASSE standards, which state that the mats should not have loose edges, should be thick enough to not slide or curl easily, and should be secured if needed to avoid tripping hazards. (Rosescu Decl. ¶¶ 13-16; Exhibit C, D, E.) Rosescu states that the subject mat was in violation of these standards because the skid-resistant backing of the mat looked to be deteriorated and heavily worn, and the mat was only 1/10^th of an inch which caused it to easily slide and shift, as seen in the surveillance footage. (Rosescu Decl. ¶ 14-15, 17-18.) Additionally, Rosescu states that the mat could have been secured easily through tape or another adhesive. (Rosescu Decl.¶ 16.)

Plaintiff argues that because Defendant created the defective condition, Defendant’s analysis of actual or constructive notice is not relevant because notice is imputed to Defendant. Where a plaintiff produces evidence from which a reasonable inference can be drawn that the dangerous condition was created by defendant or its employees, defendant is charged with notice of the dangerous condition. (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 382.)

In Defendant’s first additional reply, Defendant argues that the declaration does not provide a triable issue of material fact because the declaration still does not show that Defendant had notice of the dangerous condition. Rather, Defendant argues, the expert declaration merely shows that the Defendant’s “mode of operation” was flawed because the floor mat was not secured to the floor.

In Defendant’s second additional reply filed most recently, Defendant submits the Declaration of Ned Wolfe. Wolfe states that he inspected the store on September 23, 2022, and found that “the mat laid perfectly” and “was an industry standard rubber-backed wiper mat” that “was mostly likely an exemplar replacement of the subject mat in 2018.” (Wolfe Decl. ¶ 4, 5, 8; Exhs. 2, 3, 4 [exhibits contain photographs of subject mat during his inspection].) He states that “there is no safety standard that requires the subject wiper mat to be fixed in place.” (Wolfe Decl. ¶ 9.)

First, the Court did not give leave for Defendant to submit additional evidence, and Plaintiff was not given an opportunity to respond to this evidence. Second, even if the Court had allowed additional evidence, there is still a genuine dispute of a material fact as to whether Defendant created a dangerous condition by using the subject mat. Plaintiff’s expert declaration shows that the fact that the mat could fold over was itself a dangerous condition created by Defendant. Notice is imputed if a plaintiff can also show if the owner created a dangerous condition on the premises. Plaintiff’s expert declaration argues that the dangerous condition was created by the Defendant when Defendant decided to put the unsecured mats in the entranceway that were capable of folding over. Plaintiff’s expert declaration creates a triable issue of material fact.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court