Judge Kerry Bensinger, Case 20STCV30578 2023-03-14 Tentative Ruling

On August 12, 2020, plaintiff Mark Nathanson (“Plaintiff”) filed this action against defendants Costco Wholesale Corporation (“Costco”), Willie Curry-Barnes (“Curry-Barnes”), Greg Carter II (“Carter”), Gary McElmurry (“McElmurry”), and Robert Fox (“Fox”) (collectively, “Defendants”) for premises liability and negligence arising from injuries Plaintiff sustained in a slip and fall occurring on August 16, 2018.

On October 17, 2021, Defendants filed the instant motion for summary judgment, or in the alternative for summary adjudication. Plaintiff filed an opposition on March 10, 2022 and an amended opposition on February 28, 2023. Because Plaintiff timely filed an opposition on February 28, 2023 which included evidence obtained after March 10, 2022, the Court considers Plaintiff’s later filing as the operative pleading.

On August 16, 2018, Plaintiff was shopping at the Costco Wholesale Corporation warehouse located at 14501 Hindry Avenue in Hawthorne, California (“Costco Store”). (Undisputed Material Fact (“UMF”) No. 1.) As Plaintiff was walking down the aisle near the back of the store near a Fiji water display, he suddenly slipped on some liquid and fell hard onto the concrete floor. (UMF No. 2.) The liquid was a puddle of water four to six feet in diameter. (Plaintiff’s Statement of Additional Material Facts (“PSAMF”) No. 3.) Immediately after failing, Plaintiff observed three Costco employees in the area near him, one of whom had a dry mop. (PSAMF Nos. 5, 7.) That employee mopped up a puddle of water after Plaintiff’s fall. (PSAMF Nos. 8.)

In his complaint, Plaintiff states that the fall occurred at approximately 7:50 p.m. (Complaint, ¶ 15.) In a written report to the Costco Store, completed by Plaintiff at 8:09 p.m. on the day of the incident, Plaintiff indicates that he slipped at 7:52 p.m. (UMF No. 4.) Costco Store employee Antonio Flores (“Flores”) conducted a Floor Walk/Safety Inspection of the Costco Store from 7:13 p.m. to 7:35 p.m. on August 16, 2018. (Plaintiff’s Response to UMF (“PRUMF” No. 7.) Defendants do not know at what time or whether Flores visited the area where Plaintiff fell. (PSAMF Nos. 1, 2.)

Defendant Curry-Barnes was employed by Costco as of August 16, 2018 but did not work on the day of the incident. (UMF No. 39.)

Defendant Carter is a former general manager of the subject Costco and has not worked there since September 29, 2009. (UMF No. 52.)

Defendant McElmurry is a former general manager of the subject Costco and has not worked there since June 26, 2016. (UMF No. 63.)

Defendant Fox is a former assistant general manager of the subject Costco and has not worked there since June 27, 2016. (UMF No. 75.)

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.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Additionally, a plaintiff must prove (1) “[a] condition on the property created an unreasonable risk of harm”; (2) that defendant “knew or, through the exercise of reasonable care, should have known about it,” and (3) that defendant “failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.” (CACI No. 1003)

A property owner is not the insurer of the safety of its guests. The owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-40; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (Ortega) [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”].)

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Ortega, 26 Cal.4th at pp. 1206-1207.) Where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id., at p. 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 888 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) While failure to inspect is not sufficient, alone, to satisfy the plaintiff’s burden, the owner’s inspection practice is one of several factors that may be used to determine the length of time a condition existed. (Ortega, 26 Cal.4th at p. 1208.) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id., at pp. 1205-1206.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

Defendants submit twelve (12) evidentiary objections to the Deposition Testimony of Ned Wolfe, Plaintiff’s Deposition Testimony, the “Loss run reports” from another case, the Nagle Declaration, and the Burns Declaration. For the most part, Defendants’ evidentiary objections fail to properly quote and identify the specific text that is the subject matter for the objection. Cumulative references and insufficient identification of the language and text that is the subject matter of the objection precludes the Court from ruling on the objection. Many of the objections are overruled based upon Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 948-949 (noting that inadmissible evidence may be considered in ruling on a summary judgment motion if the defects can be cured at trial.). The following objections are overruled: #2, 3, 13, 14, 15, 17, 19, 20, 21.

As framed by the Complaint, Plaintiff alleges he was seriously injured on Defendants’ property because Defendants negligently owned, controlled, supervised, managed, maintained, and operated the premises. (Complaint, ¶¶ 18-25.) Specifically, Defendants failed to protect invitees like Plaintiff from dangerous conditions on the property, including dangers posed by slippery floors that did not meet the minimum slip resistance requirements, and liquid spills left unattended during normal business hours. (Complaint, ¶¶ 20-25.)

Plaintiff sues Defendant Curry-Barnes in her capacity as the Senior Manager for the Costco Store (Complaint, ¶ 20); Defendant Carter in his capacity as the VP/GMM Good and Sundries for the Costco Store (Complaint, ¶ 21); Defendant McElmurry in his capacity as the Warehouse Manager for the Costco Store (Complaint, ¶ 22); and Defendant Fox in his capacity as the Assistant Warehouse Manager for the Costco Store (Complaint, ¶ 23).

Defendants move for summary judgment because Defendants did not have actual or constructive notice of the allegedly dangerous condition. In support, Defendants cite the Member First Report of Incident to be Filled Out by Member Only (“Member First Report”), Plaintiff’s Complaint, and the Daily Floor-walk Safety Inspection Form from the date of the incident.

Declaration”), general manager of the subject Costco Store, “it is Costco policy and practice to always have the member involved in an incident to personally complete the Member First Report by and before leaving the Warehouse.” (Kirby Decl., ¶¶ 2, 8.) Plaintiff completed a Member First Report at 8:09 p.m. on the day of the incident wherein Plaintiff indicates that his slip and fall occurred at 7:52 p.m. (Kirby Decl., ¶ 9, Ex. B.)

2. Plaintiff’s Complaint. In the complaint, Plaintiff alleges that he slipped and fell at

3. Daily Floor-walk Inspection Form. According to the Kirby Declaration, at least once per

hour when the Costco Store is open, and as part of its regular course business, Costco employees perform a floor walk and safety inspection for unsafe conditions or potential hazards. While the inspection is performed, each inspector completes a Daily Floor-walk/Safety Inspection form, and notes descriptions of any hazards observed and resolved, among other things. Further, Kirby is the custodian of the Daily Floor-walk/Safety Inspection forms. On the day of the incident, Costco Store employee Antonio Flores (“Flores”) conducted a floor walk and safety inspection beginning at 7:13 p.m. and ending at 7:35 p.m. (Kirby Decl., ¶¶ 5, 7, Ex. A.)

In the Declaration of Juan Pineda, merchandise manager of the Costco Store, Pineda declares that he was the duty manager on the evening of the incident and supervised Flores. Pineda further declares that Flores completed the Daily-Floor-walk/Safety Inspection form which indicates that Flores personally inspected all zones of the Warehouse and did not encounter any unsafe conditions or potential hazards. (Pineda Decl., ¶¶ 2, 4-7, Ex. A.)

Based on the foregoing, Defendants argue that Plaintiff’s slip and fall occurred no more than 17 minutes[2] prior to Flores’s inspection of the Costco Store. Defendants further argue that because the area where the incident occurred was inspected less than 30 minutes before the incident, Costco could not have had actual or constructive notice as a matter of law.

In opposition, Plaintiff points out that Defendants have not submitted any evidence to establish when Flores inspected the area of the incident during the 7:13 p.m. to 7:35 p.m. floor walk inspection. Nor have Defendants submitted Flores’s declaration to establish that Flores did, in fact, inspect the area where Plaintiff slipped and fell. Plaintiff also cites to the deposition testimony of Scott Kirby, Defendants’ designated person most knowledgeable. Kirby states that he does not know when during the 7:13 p.m. to 7:35 p.m. inspection Flores visited the aisle where Plaintiff fell. Nor does he know whether Flores visited the specific area where Plaintiff fell. (Nagle Decl., Ex. A., Kirby Depo., at 81:17-83:22, 100:20-101:7.)

Plaintiff’s point is well-taken. The sum of Defendants’ evidence shows that Flores may have inspected the area of Plaintiff’s incident anywhere between 17 minutes and 39 minutes prior to the incident if Flores inspected the area at all. Even assuming Defendants were to establish that Flores inspected the area, and further, could identify the exact time Flores inspected the specific area where Plaintiff slipped and fell, case law is clear: “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.)

In reply, Defendants cite Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487 for the proposition that questioning the credibility of Defendants’ evidence—specifically, the Pineda and Kirby Declarations—is not sufficient to raise a triable issue of fact. However, Plaintiff does not question the credibility of the Pineda and Kirby declarations. Rather, Plaintiff points to the fact that each declarant cannot confirm whether Flores conducted the floor-walk inspection, whether Flores inspected the specific area of the incident, or when Flores conducted the inspection of the area of the incident. Ayon does not warrant a different conclusion. This is not a credibility determination. (See Code Civ. Proc., § 437c, subd. (e); AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal.App.3d 1061, 1064 [“If a party is otherwise entitled to summary judgment…[it] shall not be denied on grounds of credibility”].)

In sum, a triable issue of material fact exists on the issue of constructive notice because the water puddle could have existed up to 39 minutes prior to Plaintiff’s slip and fall. Defendants’ reliance on federal cases (see Motion, p. 15:6-8) for the proposition that inspection of an area 30 minutes prior to an incident precludes constructive notice is misplaced under these facts.[3] Defendants fail to meet their initial burden to show that no triable issue of material facts exists. Accordingly, the Court finds Defendants are not entitled to summary judgment.[4]

In the alternative, Defendants seek summary adjudication as to the following issues:

Issue No. 1: No triable issue of material fact exists as to Plaintiff’s first cause of action for premises liability and, as a matter of law, said cause of action is without merit.

Issue No. 2: No triable issue of material fact exists as to Plaintiff’s second cause of action for negligence, which is also duplicative of the first cause of action, and, as a matter of law, said cause of action is without merit.

Issue Nos. 3-6: No triable issue of material fact exists as to Plaintiff’s causes of action against alleged defendants WILLIE CURRY-BARNES, GREG CARTER II, GARY McELMURRY, and ROBERT FOX and, as a matter of law, said causes of action are without merit.

Because the Court has found that Defendants are not entitled to summary judgment for Plaintiff’s claims, Defendants’ motion for summary adjudication as to Issue Nos. 1 and 2 is denied.

As to Issues Nos. 3-6, Defendants offer Kirby’s Declaration to show that Defendants Carter, McElmurry and Fox (“Individual Defendants”) were not employed at the subject Costco Store on the date of the incident and that Defendant Curry-Barnes did not work nor was present at the subject Costco Store on the day of the incident. (Kirby Decl., ¶¶ 11-14.) As such, Individual Defendants were not responsible for implementing and enforcing any Costco policies at the subject Costco Store on the day of the incident. (Id.) Based on the foregoing, Defendants show no triable issue of material fact exists as to Plaintiff’s causes of action for premises liability and negligence against Individual Defendants.

In opposition, Plaintiff argues that Individual Defendants ignore Plaintiff’s allegations related to their duty to provide adequate signage or written or other warning regarding the dangers posed by Costco’s slippery floors. (PRUMF Nos. 39, 52, 63, 75.) However, Plaintiff does not submit any evidence or cite to any authority for the proposition that Individual Defendants owed a duty of care to Plaintiff despite not being present or employed at the subject Costco Store on the day of the incident. Plaintiff fails to create a dispute of material fact as to Individual Defendants.

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’s 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

[1] The Court posted its tentative ruling prior to receiving Defendants’ Reply and Evidentiary Objections. Defendants filed their Reply papers timely, however, because of the backlogged electronic filing system the papers were not “posted” for the Court’s review until March 13, 2023. After having reviewed Defendants’ filings, the Court revises its tentative accordingly.

[2] 17 minutes represents the lapse of time between Flores’ purported completion of the floor walk inspection at 7:35 p.m. and Plaintiff’s slip and fall at approximately 7:52 p.m.

[3] Moreover, federal cases are not binding on this Cand the California Supreme Court has made clear that the length of time a defective condition has existed is a question for the jury (see Ortega, supra, 26 Cal.4th at p. 1213; Hatfield, supra, 18 Cal.2d at p. 807).

[4] In addition to its contention that the water puddle created an unreasonable risk of harm for which Costco had constructive notice, Plaintiff argues that Costco’s flooring, in and of itself, created an unreasonable risk of harm and Costco had actual notice of its flooring’s defects. Given the foregoing ruling, the Court need not, and does not, reach a ruling on this independent argument.