Judge: Lisa R. Jaskol, Case: 22STCV21475, Date: 2024-03-04 Tentative Ruling
Case Number: 22STCV21475 Hearing Date: March 4, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On July 1, 2022, Plaintiff Mark Daniel Caradine (“Plaintiff”) filed this action against Defendants The Kroger Co. and Does 1-10 for general negligence and premises liability.
On September 21, 2022, Defendant Ralphs Grocery Company dba Food 4 Less (erroneously sued as “The Kroger Co.”) (“Defendant”) filed an answer.
On December 15, 2023, Defendant filed a motion for summary judgment to be heard on March 4, 2024. On February 20, 2024, Plaintiff filed an opposition. On February 28, 2024, Defendant filed a reply.
Trial is currently scheduled for April 19, 2024.
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.)
“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 addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all of the evidence and all of 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.) “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion. [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.)
B. Negligence and premises liability
“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, 1159.)
DISCUSSION
A. The complaint
The complaint alleges that on July 4, 2020, at 3200 W. Century Boulevard, in Inglewood, California 90303, Plaintiff slipped, fell, and suffered injuries in an aisle of Defendant’s store due to Defendant’s negligence.
B. Undisputed facts
Food 4 Less’s policy requires a recorded inspection and/or sweep of the sales floor at least once per hour. A sweep of the floor is logged after completion. The employee logging the sweep affirms, in a “Sweeps Floor Inspection Report,” that the floor was free and clear of debris. Food 4 Less’s policy also requires that any employee encountering a spill or debris on the floor take action to clean the floor immediately or stay in the area and call for assistance.
On July 4, 2020, a Food 4 Less employee, Venetria Tolbert ("Tolbert"), logged a sweep and inspection of the sales floor at 11:22 a.m., affirming the area was clean and free of debris. Surveillance video shows Tolbert pushing a broom down the aisle.
Security surveillance confirms that several customers walked over the subject area after Tolbert’s 11:22 a.m. sweep.
At approximately 11:40 a.m., Plaintiff allegedly slipped and fell while shopping at the store. Plaintiff asserts that he was walking near the middle aisle when he slipped on a clear liquid on the floor. Plaintiff does not know where the liquid came from, how long it had been there, or when the area was last cleaned or inspected.
C. Analysis
“ ‘ “Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....” ' [Citation.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411 (Salinas), quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747 (Padilla).) “ ‘Civil Code section 1714 sets forth the general duty of a property owner toward others: “Everyone is responsible, not only for the result of his or her willful acts, but also 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, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” The application of this provision entails an inquiry [into] “whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others....” [Citations.]’ ” (Id. at pp. 411-412, quoting Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659 (Laico).)
“A landowner ‘ “ ‘has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ” ’ [Citation.]’ ” (Salinas, supra, 166 Cal.App.4th at p. 412, quoting Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)
“ ‘An exception to the statutory rule of liability for failure to use ordinary care in the management of one's property requires clear support in public policy.’ ” (Salinas, supra, 166 Cal.App.4th at p. 412, quoting Laico, supra, 123 Cal.App.4th at pp. 659–660.) “ ‘ “In the case of a landowner's liability for injuries to persons on the property, the determination of whether a duty exists, ‘involves the balancing of a number of considerations; the major ones 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 the 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.’ [Citations.]” [Citation.]’ ” (Ibid., quoting Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430.) “ ‘Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.’ ” (Ibid., quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “The existence and scope of a defendant's duty is a question of law for the court's resolution.” (Ibid., citing Shin v. Ahn (2007) 42 Cal.4th 482, 488; Padilla, supra, 160 Cal.App.4th at p. 747.)
In Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203 (Ortega), our Supreme Court held that when the plaintiff has no evidence of the source of the dangerous condition or the length of time it existed, the plaintiff may rely solely on the owner’s failure to inspect the premises within a reasonable period of time to establish an inference that the defective condition existed long enough for a reasonable person exercising ordinary care to have discovered and remedied it. “[I]f a store owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach will be found even if a plaintiff does suffer injury.” (Id. at p. 1211.)
Defendant argues that summary judgment is appropriate because it did not have actual or constructive notice of a defective condition on its premises. “ ‘The requirement of actual or constructive knowledge is merely a means of applying the general rule . . . that the proprietor may be liable if he knew or by the exercise of reasonable care could have discovered the dangerous condition . . . .’ ” (Ortega, supra, 26 Cal.4th at p. 1203, quoting Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447.) Specifically, Defendant asserts that Tolbert’s sweeping and inspection of the aisle before Plaintiff’s fall establishes that no defective condition existed long enough for a reasonable person exercising ordinary care to have discovered and remedied it.
Defendant has carried its initial burden on summary judgment by showing that Tolbert swept and inspected the area about 27 minutes before Plaintiff fell, shifting the burden to Plaintiff.
Plaintiff argues that a triable issue of fact exists regarding the adequacy of Defendant’s sweeping and inspection of the premises because Tolbert did not sweep the entire aisle where Plaintiff fell. Plaintiff does not, however, present or identify evidence showing that Tolbert failed to visually inspect the portions of the floor that her broom did not reach. Speculation that Tolbert did not inspect these areas does not carry Plaintiff’s burden on summary judgment.
The Court grants the motion.
CONCLUSION
The Court GRANTS the motion for summary judgment filed by Defendant Ralphs Grocery Company dba Food 4 Less (erroneously sued as “The Kroger Co.”).
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.