Judge Lee S. Arian, Case Number: 20STCV11939, Date: 2023-11-13 Tentative Ruling

On March 25, 2020, Plaintiff Diana Valenzuela (“Plaintiff”) filed this action against Defendants Culver City Mall, LLC (“CCM” or “Defendant”), Westfield, LLC, and Does 1 through 50 for negligence and premises liability arising out of a slip and fall incident on April 8, 2018.

On August 23, 2023, CCM moved for summary judgment, or alternatively, summary adjudication on both causes of action in the Complaint. CCM contends that 1) Plaintiff has no substantial admissible evidence there was any hazardous or dangerous condition at Culver City Mall that caused her to fall and 2) Plaintiff cannot prove that Culver City Mall had actual or constructive notice of any alleged dangerous condition.

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[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).)

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.)

CCM moves for summary judgment, or in the alternative, summary adjudication of both causes of action in the Complaint. CCM contends that Plaintiff cannot put forth sufficient evidence to create a triable issue of fact as to whether (1) there was a dangerous condition or (2) CCM had knowledge or constructive notice of a dangerous condition because Plaintiff relies entirely on speculation.

The following are undisputed facts that Defendant presents to support its prima facie burden to establish that no triable issue of fact exists in this case: (1) Defendant Culver City Mall, LLC owned the Culver City Mall located at 6000 Sepulveda Boulevard in Culver City, California (the “Property”) on April 8, 2018. (Undisputed Material Fact [“UMF” 1][1]; (2) Sometime in the afternoon of April 8, 2018, Plaintiff visited the Property with her daughter, Waleska Oliva-Martinez (“Oliva-Martinez”). (UMF 2.); (3) Plaintiff initially alleged that she slipped on what she claims was a piece of mango or other similar object or substance and fell to the floor inside the Property. (UMF 3.); (4) Plaintiff cannot recall how she ended up falling nor the specific time or location of her alleged fall. (UMF 4.) Plaintiff did not recall feeling anything under her shoe when she slipped, nor could recall the size or color of the alleged mango peel she slipped on. (UMF 5.) Plaintiff did not see any substance or debris, including a mango, on the floor before Plaintiff fell. (UMF 6.) Plaintiff could only identify her daughter, OlivaMartinez, by name as a witness to the fall. (UMF 7.) However, Oliva-Martinez did not directly witness Plaintiff’s fall, nor see any condition that caused Plaintiff to slip. (UMF 8.)

In addition to these facts deemed undisputed, Defendant also contends that Culver City Mall’s housekeeping vendor, Nationwide Janitorial Services, Inc. (“NJSI”) conducts regular inspections of the Property for spills and potential hazards, including on April 8, 2018. (UMF 9.) Further, Plaintiff provided Lighthouse Reports that apparently demonstrate regular inspections by NJSI throughout the day on April 8, 2018.

Defendant further contends that Plaintiff has no evidence to establish that Defendant had actual or constructive knowledge of any hazardous or dangerous condition.

Plaintiff proffers her own deposition testimony to support her position that a triable issue of fact exists. Specifically, Plaintiff points to the following portions of her deposition testimony to establish that she fell on a mango peel at Culver City Mall: “Q. Can you tell me what you slipped on? A. Yes. It was a mango peel. But I saw it after they helped me [up from the ground after her fall]… Q. Do you recall where you were looking when you fell just before you fell? A. The store. I wasn't looking down. Q. Were you looking straight ahead? A. Yes. ... Q. You testified earlier that you slipped on a mango peel; is that correct? A. Yes. Q. How do you know you slipped on a mango peel? A. Because I saw it flying. I don't know if my daughter took a picture of that mango peel. At the moment, I was in pain. I don't know. Q. So you saw the mango peel at the time of the incident; is that correct? A. Yes. Q. How long after the fall did you first see mango peel? A. At the moment that they lifted me up and sat me down.” (Opposition, Ex. 1., p. 19, 20, 23.)

Plaintiff then contends that the Declaration of Alex Balian, a purported expert in retail store operations and establishments establishes a triable issue of fact regarding notice.[2] Based on his review of various case documents, Alex Balian (“Balian”) opines that Defendant’s inspection system fails to establish any frequency or interval of inspections. Without such established interval of inspections, Balian opines that Defendant cannot establish that a dangerous condition would be discovered within a reasonable length of time and, therefore, he further opines that the mango in this case was on the floor long enough that it should have been discovered by Defendant, thereby establishing that Defendant knew or should have known of the hazard. (Plaintiff’s Opposition to Defendant’s Separate Statement of Undisputed Material Facts, Plaintiff’s Material Fact 7).

The elements of premises liability and negligence causes 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.)

On the issue of whether a dangerous condition existed, Defendant contends that Plaintiff’s apparent failure to see the mango peel prior to her fall and her somewhat uncertain deposition testimony about the peel is insufficient to create a triable issue of fact. Defendant specifically points to the following deposition testimony: Plaintiff does not remember how she fell. (UMF 4; Sun Decl., ¶ 3, Ex. 4, Valenzuela Depo., p. 19:10–15.) She also stated that she did not recall feeling anything under her shoe when she slipped or the size or color of the alleged mango peel she slipped on. (UMF 5; Sun Decl., ¶ 3, Ex. 3, Valenzuela Depo., pp. 34:2-8.) She further stated that she did not see any objects or substances on the floor prior to her fall. (UMF 6; Sun Decl., ¶ 3, Ex. 3, Valenzuela Depo., pp. 24:23-25:1.)

Additionally, Defendant relies on the deposition testimony of Oliva-Martinez, an eyewitness to the accident, who stated in her deposition that she did not see whether or not Plaintiff slipped on anything: “Q: And just to clarify, as you sit here today, you cannot tell when [sic] me what caused [Plaintiff] to slip and fall? A: That is correct.” (UMF 8; Sun Decl., ¶ 4, Ex. 5, Oliva-Martinez Depo., pp. 24:16-21, 35:7-10.) Oliva-Martinez also stated that she did not have a clear angle of Plaintiff when Plaintiff fell. (UMF 8; Sun Decl., ¶ 4, Ex. 5, Oliva-Martinez Depo., pp. 20:13-21:9.) CCM contends that, based on this lack of support for the existence of a dangerous condition alone, it is entitled to summary judgment.

However, viewing the evidence in a light most favorable to the non-moving party, the Court finds that Plaintiff’s deposition testimony regarding her own knowledge that she slipped and fell on a mango peel during her accident is not too speculative; it is based on a reasonable inference drawn from what she saw after her fall. That testimony is sufficient to create a triable issue of material fact on the issue of whether a dangerous condition existed.

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.)

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.) However, “[t]he plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.) “The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) 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.) 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.]” (Ortega, supra, 26 Cal.4th at p. 1203 [employees usually walked the aisle where plaintiff slipped every 15 to 30 minutes]; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 (Sapp) [whether 15-to-25-minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact].)

However, 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.)

Actual notice is not at issue here. No evidence exists to establish that any CCM employee caused the dangerous condition or knew of it prior to Plaintiff’s alleged fall. So, the issue is constructive notice. Plaintiff confirmed she does not know of any reason that CCM would have had constructive notice of any alleged dangerous condition that caused her fall: Q: Do you have any knowledge as to whether Culver City Mall should have had notice of the mango peel on the floor that you alleged caused your fall? A: No. Sun Decl., ¶ 3, Ex. 4, Valenzuela Depo., p. 69:21-25.) While Plaintiff herself does not have that evidence, the question here is whether Balia’s testimony is sufficient to establish a triable issue regarding constructive notice. The Court would like to hear from the parties on this issue and discuss the Lighthouse reports that Defendant submitted in support of its motion. (The Court would also like to discuss the various allegations regarding discovery violations made within the parties’ briefing.)

Hon. Lee S. Arian

Judge of the Superior Court

[1] Plaintiff has agreed that UMF 1-3 and 9 are undisputed, with the exception of evidentiary objections she has made to the Declarations submitted in support of these facts. See Plaintiff’s Opposition to Defendant’s Separate Statement of Undisputed Material Facts. The Court hereby overrules those objections as it does to the objections of both parties to the submitted declarations. Plaintiff disputes UMF 4-7 on the basis that they misstate the evidence. The Court finds that they do not misstate the evidence.

[2] Defendant objects to Alex Balian’s declaration on several grounds. As noted in the preceding footnote, the Court overrules those objections, though it does not consider Balian’s conclusions that are speculative.