Judge: Lisa R. Jaskol, Case: 21STCV37351, Date: 2025-03-27 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. 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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line. If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.
If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.
Case Number: 21STCV37351 Hearing Date: March 27, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 12, 2021, Plaintiff Sonia Hernandez (“Plaintiff”) filed this action against Defendants Super Center Concepts, Inc. dba Superior Grocers (“Defendant”) and Does 1-50 for negligence.
On January 26, 2023, Defendant filed an answer.
On January 8, 2024, Defendant filed a motion for summary judgment. The motion was set for hearing on October 10, 2024. On January 14, 2025, Plaintiff filed an opposition. On January 23, 2025, Defendant filed a reply. On January 29, 2025, Plaintiff filed a sur-reply, which the Court has not considered. The Court continued the hearing to March 27, 2025.
Trial is scheduled for May 1, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to grant summary judgment.
Plaintiff
asks the Court to deny the motion.
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Negligence
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko).)
“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.)
“Courts
look to what are commonly called ‘the Rowland factors’ in determining
whether policy considerations favor such an exception.” (Williams, supra,
37 Cal.App.5th at p. 663, citing Vasilenko, supra, 3 Cal.5th at
p. 1083.) “These are “ ‘ “the foreseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness of the
connection between the defendant's conduct and the injury suffered, the moral
blame attached to the defendant's conduct, the policy of preventing future
harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for
breach, and the availability, cost, and prevalence of insurance for the risk
involved.” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663,
quoting Vasilenko, supra, 3 Cal.5th at p. 1083; Rowland v.
Christian (1968) 69 Cal.2d 108, 113.)
“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 (Ortega).) “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.)
“If [a] dangerous condition is brought about by third persons, ‘then to impose liability the owner 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.’ ” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1208, quoting Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806 (Hatfield).)
However, “[w]here the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him.” (Hatfield, supra, 18 Cal.2d at p. 806; see Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 383 (Getchell) [“Where, as here, 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”].)
“The 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. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ [Citation.] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances. [Citation.]” (Ortega, supra, 26 Cal.4th at pp. 1206-1207.)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On December 23, 2019, Plaintiff fell due to a liquid substance on the floor of a Superior Groceries market which Defendants owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled and/or supervised at 3600 East Cesar E. Chavez Avenue, Los Angeles, California (“premises”).
Defendants created, knew of, or in the exercise of reasonable care should have known of, the dangerous and defective condition, but failed to take reasonable care to guard against, or warn against, the dangerous condition.
B. Undisputed facts
Plaintiff alleges that on December 19, 2019, she slipped and fell on premises owned by Defendant located at 3600 E Cesar E Chavez Ave, Los Angeles, California (“premises”).
Defendant has adopted the following policies and practices:
· Approximately every thirty minutes during store hours
an employee is sent to inspect the premises for any slip or trip hazards.
· As employees complete their other tasks through the
store, if they come across any slip or trip hazards they should immediately
remedy the hazard or report it to a manager.
· If a customers reports any slip or trip hazards, an
employee of Defendant would be immediately dispatched to clean up the hazard.
On December 19, 2019, at approximately 4:28 p.m., a customer at the premises spilled salsa on the floor. At approximately 4:29 p.m., Plaintiff slipped on the salsa. Between 4:28 p.m. and 4:29 p.m., no employee of Defendant walked by or through the aisle where Plaintiff fell. The time between the spill and Plaintiff’s fall was approximately 50 seconds.
Defendant
did not have notice of the spilled salsa on the floor prior to Plaintiff’s
fall.
C. Defendant has carried its initial summary judgment burden
Defendant argues the Court should grant summary judgment because the undisputed evidence shows that the salsa was on the floor no more than one minute before Plaintiff slipped on the salsa and fell. (UMF 5-6, 8.) It is undisputed that Defendant did not have actual notice of the spilled salsa on the floor before Plaintiff fell. (UMF 9.) Therefore, Defendant argues, Plaintiff will be unable to show that the Defendant had actual or constructive notice of the allegedly dangerous condition before Plaintiff’s fall.
Case authority supports Defendant’s argument. “To repeat, there are ‘no exact time limitations’ when determining ‘[w]hether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it . . . .’ ” (Gonzalez v. Interstate Cleaning Corporation (2024) 106 Cal.App.5th 1026, 1037 (Gonzalez), quoting Ortega, supra, 26 Cal.4th at p. 1207.) But in an appropriate case a court may conclude as a matter of law that a substance has not been on the floor long enough to impose liability on the store’s owner. (See ibid., citing Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 832 (Girvetz).)
In Girvitz, the plaintiff slipped and fell on a banana peel that had been lying on the floor of a store’s grocery department for a minute and a half. (Girvetz, supra, 91 Cal.App.2d at p. 828; see Gonzalez, supra, 106 Cal.App.5th at p. 1037.) After a jury returned a verdict for the plaintiff, the trial court found no substantial evidence to support the verdict and granted the defendant’s motion for judgment notwithstanding the verdict. (Girvetz, supra, 91 Cal.App.2d at p. 828.) The Court of Appeal affirmed.
The Court of Appeal acknowledged that “[w]hether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury.” (Girvetz, supra, 91 Cal.App.2d at p. 829.) “But where 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 p. 831.) The Court of Appeal reasoned:
“True, there were many employees in the immediate vicinity of where the plaintiff fell. If their duty required that they perceive the presence of the object on the floor within a minute and a half after it fell there, then their duty was not that of ‘ordinary,’ but of ‘utmost’ care. The conclusion is inescapable that the evidence cannot, as a matter of law, be held sufficient without, in effect, applying the doctrine of res ipsa loquitur and casting upon the market proprietor a burden which, in the present state of the law, he is not required to assume.”
(Girvetz, supra, 91 Cal.App.2d at p. 832.)
Here, based on the undisputed evidence that the salsa was on the floor no more than one minute before Plaintiff’s fall, the Court finds that Defendant has carried its initial burden on summary judgment, shifting the burden to Plaintiff.
D. Plaintiff has not raised a triable issue of fact
Plaintiff argues that “there are triable issues of fact with regard to whether Defendant negligently handled, prepared, filled, sealed, secured, packaged, placed, stocked, maintained, checked, and/or monitored salsa containers made available to the public for purchase, resulting in Plaintiff’s injuries.” (Opposition pp. 1-2.)
To support this argument, Plaintiff points to evidence that:
· a customer placed a container of salsa in a shopping
cart
· the customer did not touch the salsa container after
placing it in the shopping cart
· the salsa container did not come in contact with other
items in the shopping cart
· the customer turned the cart to go left
· the salsa container then “tumble[d]” in the shopping cart, opened, and spilled salsa on the floor. (Plaintiff’s additional material facts (“PAMF”) 3-7.)
Plaintiff is correct that the negligence of a property owner or its employees in creating a dangerous condition may support a finding that the property owner had notice or knowledge of the dangerous condition. (See Hatfield, supra, 18 Cal.2d at p. 806 [“Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him”].)
In Hatfield, the jury returned a verdict for the plaintiffs based on injuries one of the plaintiffs sustained when she fell in the defendant’s store. (Hatfield, supra, 18 Cal.2d at p. 802.) On appeal, the defendant argued there was insufficient evidence to show that it had actual or constructive notice of the dangerous condition of the floor. (Id. at p. 806.) The Supreme Court rejected the argument, citing (among other things) evidence that the store employee who spread wax on the floor knew the floor was slippery and his negligence brought about the dangerous condition. (Ibid.) Knowledge of the dangerous condition was imputed to the defendant. (Ibid.)
Here, in contrast, Plaintiff has presented no evidence that Defendant or its employees caused the salsa to spill on the floor. (See Howard v. Accor Management US, Inc. (2024) 101 Cal.App.5th 130, 135 [affirming summary judgment where plaintiff provided no evidence that defendant’s employee created dangerous condition].) For example, Plaintiff presented no evidence showing why the salsa container opened and spilled its contents, whether other salsa containers had previously spilled their contents at the store, or whether the customer who took the container off the store shelf opened or damaged it before placing it in her shopping cart. Only speculation could support an inference that Defendant should have foreseen that a salsa container would open and spill its contents after being placed in a customer’s shopping cart.
Having considered the evidence and reasonable inferences in the light most favorable to Plaintiff (see Aguilar, supra, 25 Cal.4th at p. 843), the Court finds that Plaintiff has not raised a triable issue of fact concerning whether Defendant had actual or constructive notice of the dangerous condition or whether Defendant or its employees created the dangerous condition.
The Court grants Defendant’s motion for summary judgment.
CONCLUSION
The Court GRANTS Defendant Super Center Concepts, Inc. dba Superior Grocers’ motion for summary judgment.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.