Judge: Lisa R. Jaskol, Case: 22STCV32178, Date: 2024-11-21 Tentative Ruling

Case Number: 22STCV32178    Hearing Date: November 21, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On October 3, 2022, Plaintiff Maria G. Orozco (“Plaintiff”) filed this action against Defendants Northgate Gonzalez Markets, Inc., and Does 1-25 for general negligence and premises liability. 

On January 13, 2023, Defendant Northgate Gonzalez, LLC (erroneously sued as Northgate Gonzalez Markets, Inc.) (“Defendant”) filed an answer. 

On December 14, 2023, Defendant filed a motion for summary judgment.  The motion was set for hearing on May 1, 2024.  Defendant rescheduled the hearing for October 31, 2024.  On October 17, 2024, Plaintiff filed an opposition.  On October 25, 2024, Defendant filed a reply. 

On October 31, 2024, the Court issued a tentative ruling, heard argument, and continued the hearing on Defendant's motion for summary judgment to November 21, 2024. 

On November 8, 2024, Defendant lodged a flashdrive containing video clips with the Court. 

Trial is scheduled for January 29, 2025. 

PARTIES’ REQUESTS 

Defendant asks the Court to grant summary judgment. 

Plaintiff asks the Court to deny the motion. 

DEFENDANT’S EVIDENTIARY OBJECTIONS 

          Objections to Allen Declaration:
                    Sustained: 1 

Objections to Avrit Declaration:
                    Sustained:  6, 7
                    Overruled: 1, 2, 3, 4, 5 

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 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, quoting Code Civ. Proc., § 437c, subd. (b)(1).) 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 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 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.) 

“ ‘ “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 as to “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.]’ ” (Id. 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 v. Christian (1968) 69 Cal.2d 108] 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.) 

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

Negligence claim:  On November 15, 2020, Defendants negligently managed, owned, maintained, operated, controlled, designed and/or safeguarded the entrance of the premises located at 425 S. Soto Street, Los Angeles, CA 90033 in an unreasonable and unsafe manner, causing Plaintiff to slip and fall on a slippery substance that had accumulated on the floor of Defendant’s premises, where Plaintiff was shopping.  Defendants knew or should have known about the dangerous condition.  Defendant failed to barricade the area and/or warn of the hazardous condition.  The conduct of Defendants and/or their employees was below the standard of care and caused Plaintiff’s injuries. 

Premises liability claim:  On November 15, 2020, Defendants negligently, carelessly, recklessly, and/or wantonly managed, owned, maintained, operated, controlled and safeguarded the premises located at 425 S. Soto Street, Los Angeles, CA 90033, causing a slippery substance to accumulate on the floor which caused a hazard to foot traffic. Defendant knew or should have known about the dangerous condition on the premises. Defendant failed to barricade the area and failed to warn of the hazardous condition on the premise. Defendants improperly and/or incorrectly allowed foot traffic in the area where the dangerous condition existed, rendering the area dangerous and causing Plaintiff’s injuries. 

B.   Undisputed facts 

On November 15, 2020, at approximately 6:07:41, Plaintiff slipped and fell in aisle number 6 (frozen) located inside Defendant's store located at 425 S. Soto Street, Los Angeles, CA 90033.  Plaintiff alleges she slipped and fell on a slippery green substance on the floor that she described as "green leafs" at her deposition. 

Defendant's store policy requires a formal sweep and inspection of the entire store every sixty minutes conducted by authorized store personnel walking the store aisles inspecting the entire sales floor for any spills or foreign matter.  Defendant's store policy also requires that, if a spill or foreign substance is discovered on the sales floor, the area must be blocked off or barricaded for the safety of customers and associates until the spill is cleaned up or the foreign substance is eliminated. 

While carrying out the floor sweeps and inspections, which are part of what is called the Gleason inspection system, the authorized store personnel must touch Gleason buttons which are located in various aisles throughout the store as they follow a pre-set inspection route. 

An in-store video shows the events leading to the subject incident and the subject incident itself. The recording system cannot be edited or overwritten. 

The video shows that Defendant's employee entered aisle number 6 at 6:00:55 to conduct a sweep and inspection.  The employee reached the end of aisle 6 at approximately 6:01:10 p.m. and stayed there until approximately 6:01:40. About 12 seconds after the employee finished the inspection, a man walked through the area without incident.   

From 6:03:30 to 6:03:56, a customer walked repeatedly through the area without any problems.   From 6:04:38 to 6:04:45, five customers walked down aisle 6 and through the same area.  At 6:05:34, a woman walked through the area without incident. From 6:06:34 to 6:06:36, two people walked through the area without incident.  At 6:07:09, a man walked through the area. 

At 6:07:40, Plaintiff entered aisle 6.  At 6:07:41, approximately six minutes after Defendant's employee completed his inspection and sweep, Plaintiff’s right foot slipped and she fell to the ground in the area Defendant's employee had inspected and swept. 

After Plaintiff fell, a green leafy material was located immediately next to Plaintiff's extended right foot and on the heel of Plaintiff’s right shoe. 

C.   Defendant has carried its initial summary judgment burden 

Citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200 (Ortega), Defendant argues that it is entitled to summary judgment because it lacked actual or constructive notice of any dangerous condition on the floor where Plaintiff fell.  In Ortega, the 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 in order to establish an inference that the defective condition existed long enough for a reasonable person exercising ordinary care to have discovered and remedied it.  “ ‘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.)  But “if 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.) 

The undisputed facts show that Defendant’s employee inspected and swept aisle 6 about six minutes before Plaintiff’s fall and Plaintiff did not know how the green leafy material got on the floor.  The Court finds that Defendant has carried its initial burden of showing the green leafy material was not on the floor long enough for Defendant to have discovered it.  The burden shifts to Plaintiff. 

D.   Plaintiff has raised a triable issue of fact 

Plaintiff has submitted evidence that creates a triable issue of material fact regarding (1) whether Defendant’s policy on inspection and sweeps was reasonable under the circumstances, (2) whether Defendant’s employee’s inspection and sweep were reasonable under the circumstances, (3) whether the green leafy material was on the floor long enough to give Defendant constructive notice, and (4) whether Defendant's employee created the dangerous condition.  The evidence includes the declaration of Brad Avrit, paragraphs 7-13.  Avrit opines, among other things, that the employee who inspected and swept aisle 6 dislodged the green leafy material on which Plaintiff fell from his broom onto the floor, creating the dangerous condition. 

Defendant argues that Avrit’s description of the events recorded in the video of the incident is inaccurate and speculative. 

At Defendant’s request, the Court has reviewed the two “video clips” contained in the flashdrive which Defendant lodged with the Court.  The video clips show the events leading up to and including Plaintiff’s fall.  One video clip contains “the original view.”  (Notice of Lodging p. 2.)  The other video clip “is zoomed in per plaintiff’s counsel’s comments at the October 31, 2024 hearing.” (Notice of Lodging p. 2.) 

The video footage does not eliminate the triable issue of fact which Plaintiff’s evidence creates.  Only a trier of fact can decide which interpretation of the evidence is correct.   

The Court denies Defendant’s motion. 

CONCLUSION 

The Court DENIES Defendant Northgate Gonzalez, LLC’s 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.