Judge Lee S. Arian, Case Number: 21STCV45823, Date: 2023-12-20 Tentative Ruling

MONIQUE MONTEVERDE LINDBERG,

Plaintiff,

vs.

WALMART, INC.,

Defendant.

)

CASE NO.: 21STCV45823

[TENTATIVE] ORDER RE: DEFENDANT LOS ANGELES CITY COLLEGE’S MOTION FOR SUMMARY JUDGMENT

Dept. 27

1:30 p.m.

December 20, 2023

Defendant Walmart, Inc. (“Defendant”) moves for summary judgment against Plaintiff Monique Lindberg (“Plaintiff”) on the grounds that there is no triable dispute as to whether Defendant breached a duty to Plaintiff.

This action arises from a slip and fall suffered by Plaintiff on Defendant’s location in Santa Fe Springs on March 12, 2020. On December 16, 2021, Plaintiff filed a complaint against Defendant and Does 1-50 (together, “Defendants”) alleging 1) general negligence and 2) premises liability. Plaintiff claims the fall was the result of Defendants’ negligence in maintaining and controlling a dangerous condition on Defendant’s premises, specifically, failing to inspect and properly remove a wet substance from the floor.

On February 27, 2023, Defendant filed the instant motion for summary judgment, along with a separate statement of undisputed facts, a notice of lodgment, a memorandum of points and authorities, the Declarations of Jonathan Greenbergs, Maria Flores de Pas, and Julio Caridad, and a proposed order. On December 6, 2023, Plaintiff filed a response to Defendant’s separate statement, the Declarations of Shane Hapuarachy and Mark Burns, a notice of filing confidential documents, and a proposed order sustaining Plaintiff’s objections. On December 7, 2023, Plaintiff filed an opposition. On December 15, 2023, Defendant filed a reply and a response to Plaintiff’s response to the separate statement.

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).) 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 moves for summary judgment on the grounds that it in fact took reasonable safety measures in response to the rainy conditions on the day of the subject incident and that, therefore, it cannot be held liable as it had fulfilled its duty of care.

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, 26 Cal.4th at 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, 26 Cal.4th at 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.)

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.)

In support of its assertion that it took reasonable safety measures on the day of the incident, Defendant puts forth the following evidence: Prior to Plaintiff approaching the area, Defendant’s maintenance associates placed floor mats, an industrial fan, and warning cones at the entrance of the store. (SSUF 4, 13.) Asset Protection Coach, Julio Caridad, was near that entrance and had checked the floor mat about a minute prior to Plaintiff falling, and noted that the floor mat was slightly damp, but dry enough that it was safe. (SSUF 5, 14.) Caridad also noted that the floor around the entrance was dry. (SSUF 5, 14.) A maintenance associate, Maria Flores de Paz, swept the area with a broom and paper towel less than one minute before Plaintiff arrived. (SSUF 6, 15.) Subsequently, Plaintiff walked into Defendant’s store and fell just inside the entrance. (SSUF 7, 16.) An unknown customer who was nearby attempted to lift Plaintiff off the ground, but the customer dropped Plaintiff, causing her to land on the ground again. About a minute after Plaintiff slipped, Caridad returned and surveyed the area again. (SSUF 8, 17.) He did not see any water on the floor. (SSUF 8, 17.) There was an orange caution cone to the right of the entrance of the Walmart, and Plaintiff acknowledged that the cone served to warn her that the area could be slippery because it had been raining. (SSUF 9, 18.) Furthermore, Defendant contends that Plaintiff has admitted that, prior to falling, she saw an orange cone warning of slipping and an employee cleaning the area where she eventually slipped roughly a minute before she slipped. (SSUF 6, 9, 15, 18.) Therefore, Defendant contends, there is no evidence showing that Defendant breached its duty to Plaintiff.

The Court finds that based on the undisputed facts and argument presented by Defendant, Defendant has met its initial burden to show that no triable issue of fact exists. The burden thus shifts to Plaintiff to establish that there is a triable issue of fact.

Plaintiff contends that Defendant breached its duty by failing to take the necessary safety precautions, including changing out the carpeted floor mats at the entrance to the store that become saturated with rainwater during inclement weather. Plaintiff contends that the mats were not dried out or changed at any point on March 12, 2020, prior to Plaintiff’s fall. Plaintiff also contends that, though it was best practice for Defendant to vacuum water out of the mats when they become saturated, at no point on March 12, 2020, prior to Plaintiff’s fall did Defendant use the Kaivac maintenance cart. Plaintiff also argues there is a triable issue of fact as to whether Walmart warned Plaintiff of the risk of slipping because there was only one caution cone on the outside of the store to the side of the entrance, and that cone did not warn of conditions inside the store. Further, there was no warning to the customers about saturated mats.

Plaintiff puts forth the Declaration of expert Mark Burns to support her contentions. Burns was retained as a safety and liability expert for the purposes of rendering opinions surrounding the subject incident. (Burns Decl. para. 5.) He is familiar with what constitutes a dangerous condition for flooring and mats like those involved in the subject incident. (Id.) In coming to his conclusion, Burns reviewed the Deposition transcript of Monique Monteverde Lindberg, the Deposition Transcript of Julio Caridad; Defendants Motion for Summary Judgment including Memorandum of Points and Authorities and the Declaration of Maria Flores De Paz in support thereof; and four (4) surveillance videos of the subject incident. (Burns Decl. para. 6.) In addition, Sam Attal-Watts, a Forensic Engineer in Burns’s office inspected the entrance of the subject Walmart on April 21, 2023, taking photographs and measurements of relevant areas. (Id.) Burns’s conclusion after reviewing the evidence is that Plaintiff fell due either to a wet floor or due to tracking water from the saturated mat at the front entrance of the store. (Burns Decl. para. 9.) Burns concludes that Defendant breached its standard of care by failing to dry the saturated mat. (Burns Decl. para. 10-13.)

In reply, Defendant contends that this evidence is insufficient because neither Burns nor Attal-Watts, his associate, conducted an inspection of the actual mat itself. While true, that argument is unfair -- Burns, of course, did not have the ability to examine the mat in the condition it was in at the time of the incident. However, Burns has no specific response to the eyewitness statements and appears to ignore them in his declaration. Burns does not address (or, for that matter, even acknowledge) the eyewitness testimony of Julio Caridad, who stated that he had checked the floor mat about a minute prior to Plaintiff falling and noted that the floor mat was slightly damp, but dry enough that it was safe. (SSUF 5, 14.) Caridad also noted that the floor around the entrance was dry. (SSUF 5, 14.) Nor does Burns address that Maria Flores de Paz swept the area with a broom and paper towel less than one minute before Plaintiff arrived. (SSUF 6, 15.) Further, Burns’ entire declaration appears to start with the assumption that the mat was “saturated.” But, he fails to provide any clear basis for that as a starting point. That starting point is clearly speculative, particularly in the face of eyewitness testimony to the contrary. Accordingly, the Court finds that Plaintiff failed meet its burden to show that a triable issue of one or more material facts exists as to her causes of action and, consequently, summary judgment is appropriate.

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.