Judge: Linda S. Marks, Case: 2020-01143739, Date: 2022-12-12 Tentative Ruling

Motion for Summary Judgment and/or Adjudication filed by Chevron Stations, Inc. on 6/9/22

Defendant, CHEVRON STATIONS INC. (hereinafter “Chevron” or “Defendant”), moves the Court for an order for summary Judgment in favor of Chevron and against Plaintiff, Christopher Kelly (hereinafter “Plaintiff”), on the grounds that (1) Plaintiff cannot establish a dangerous condition caused his incident; and (2) even assuming arguendo, a dangerous condition caused his fall, Chevron did not have notice of the condition.

“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205). “In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and damages.” (Id.). “A plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability.” (Id.). These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Id.).

“Because the owner is not the insurer of the visitor’s personal safety [citation removed], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Id. at 1206 ) “Although the owner’s lack of knowledge is not a defense, ‘[t]o 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…” (Id.).

“Courts have also held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Id. [emphasis added])

Here, Defendant first argues that it did not cause the accident because there is no evidence that there was any foreign substance on the floor at the time Plaintiff’s incident occurred. However, there is evidence of a clear liquid being present. Plaintiff testified he slipped on the substance on the floor. [Declaration of Le¶5, Ex. B, Plaintiff’s Deposition Transcript, page 27:1-25. ]

Additionally, witness Aleksandrina Tchoub testified that she saw Plaintiff lying on the ground with clear liquid underneath him and his red Slurpee on top of him. [See Declaration of Le¶6, Ex. C, Tchoub Deposition, page 18:17-25. ]

This is sufficient evidence to create a triable issue of material fact as to whether a clear liquid at Defendant’s premises caused the accident.

As to notice, Defendant argues the evidence is definitive that Chevron did not have notice of any condition on the floor, and did not have sufficient time to correct the condition.

Defendant argues that employee, Mr. Mahmud had just walked through the area where Plaintiff's incident occurred less than 6 minutes before Plaintiff’s incident, and the area was clean and dry at that time. Defendant argues that 6 minutes to respond to an unknown spill is an insufficient time period to hold Chevron liable.

Defendant asserts liability cannot attach. To support this conclusion, Defendant cites Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, wherein the Court held: “[W]here the only evidence is that the foreign object has been on the floor of the market for ‘a minute and a half,’ it must be held that it is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.” (Id. at 831). The Court in Girvetz explained: “Obviously, the exact time that a dangerous condition must exist in order to charge the proprietor cannot be stated as a matter of law. It can only be held that, in the circumstances of the case now before the court, one and one-half minutes is too short a period.” (Id. at 832). The Court explained that a contrary finding would essentially impose a duty of “utmost,” rather than “ordinary,” care. (Id.).

Citing the above, Defendant asserts Girvetz mandates summary judgment in this action; however, Girvetz specifically addresses constructive notice, only. As the Court in Girvetz explained: “[T]he determination of this appeal is narrowed to the question of whether there is any evidence, direct or circumstantial, from which it could be inferred that the dangerous or defective condition, that is, the presence of the banana on the floor of the aisle, had existed for a sufficient length of time to justify charging the proprietor with knowledge of its existence and consequently with negligence in failing to remedy the condition.” (Id. at 829-830 [emphasis added]).

However, this case appears distinguishable. In that case, the banana was on the floor for a minute and a half. In this case, it is unknown how long the wet substance was on the floor, only that six minutes prior to the accident

Chevron employee, Mohammed Mahmud, was in the area and it was clean and dry at the time. Declaration of Mahmud states: 4. “Shortly before the man's incident, I placed food in the warmer on the counter next to the sltu'pee/drinks area. When I was placing food into the warmer, I could observe the floor in that area. There was no liquid or any other foreign substance/debris on the floor and it was clean and dry.”

However, this argument seems to fail for a couple of reasons. First of all, there is no evidence Mr. Mahmud was in the area to specifically inspect it for spills, but rather, to put food in a warmer. [See UMF No. 21.

Decl. of Mahmud¶4.] Arguably, because Mr. Mahmud’s purpose for being in the area was to put food in a warmer, and not to inspect for spills, it is possible the spill was present but he did not see it. Additionally, Defendant presents no other evidence as to cleaning logs, inspection protocol etc. to establish had the spill been there, a reasonable inspection would have located it.

Second, Defendant does not cite to any case that holds failure to detect a spill within 6 minutes is reasonable. In fact, at page 10, MP seems to concede, “Although no California case has explicitly stated that 6 minutes is an inadequate amount of time to support an inference of constructive notice…”. Motion page 10: 6-7.

Third, in support of its arguments Defendant presents the store surveillance video. However, the video is not helpful. The angle of the footage does not provide a direct view of the Slurpee area or the fall. It does show the employee, Mr. Mahmud, in the area at 1:42:28, but it is difficult to determine whether he actually viewed the floor, as opposed to simply put food items in the warmer. The video does not seem to provide evidence of constructive notice, one way or another. Additionally, Plaintiff has submitted objections to the declarations referring to the video.

All in all, it would appear that the issue, however weak it may be, should go to the jury. The California Supreme Court held in Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1212–1213 the following: We conclude that plaintiffs still have the burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition. (Perez, supra, 200 Cal.App.2d at p. 561, 19 Cal.Rptr. 372.) **20 We also conclude, however, that plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. (Bridgman, supra, 53 Cal.2d at p. 447, 2 Cal.Rptr. 146, 348 P.2d 696.) In other words, if the plaintiffs can show an inspection was not made *1213 within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. (Ibid.) 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.

Finally, there does not appear to be any discussion by Defendant of “actual notice” or lack thereof despite Plaintiff seeming to plead actual notice in the Complaint. See Complaint ¶7, “These Defendants failed to correct or remedy said dangerous, defective, and/or unsafe condition of the Property and further failed to adequately warn of said dangerous, defective, and/or unsafe condition, although they knew, or in the exercise of due care should have known, of same.”

Arguably, Defendant did not sustain its burden in regard to showing lack of actual notice.

Tentative Ruling: Defendant’s Motion for Summary Judgment and/or Adjudication is DENIED. Plaintiff to give notice.

OBJECTIONS: Objections to Declaration of Ali Akbar (ROA 160): 1. Overruled; 3. -4. Sustained.

Objections to Declaration of Mohmmad Mahmud (ROA 159): 1. Overruled; 2. Sustained; 3.Overruled; 4. Overruled; Sustained.

Objections to Declaration of Marlene Valdovinos (ROA 158): 1. Overruled; 2. Sustained; 3. Sustained; 4. Overruled.

Objections to Declaration of Derek Classen (ROA 157): 1. Sustained;