Judge Lynette Gridiron Winston, Case Number: 22PSCV01913, Date: 2024-03-29 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01913, Date: 2024-03-29 Tentative Ruling

Case Number: 22PSCV01913 Hearing Date: March 29, 2024 Dept: 6

CASE NAME: Amelita Reyes Diaz v. Super Center Concepts, Inc. dba Superior Grocers

Defendant Super Center Concepts, Inc.’s Motion for Summary Judgment

TENTATIVE RULING

The Court GRANTS Defendant’s motion for summary judgment. Defendant must submit a proposed judgment.

Defendant is further ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a slip-and-fall case. On November 18, 2022, plaintiff Amelita Reyes Diaz (Plaintiff) filed this action against defendant Super Center Concepts, Inc. dba Superior Grocers (Defendant) and Does 1 to 10, alleging causes of action for premises liability and general negligence. On April 11, 2023, Plaintiff filed the operative First Amended Complaint (FAC) alleging the same causes of action against Defendant and Does 1 to 10.

On January 23, 2024, Defendant moved for summary judgment. On March 8, 2024, Plaintiff opposed the motion. On March 18, 2024, Defendant replied.

LEGAL STANDARD

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

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).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the 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 or a defense thereto.” (Id.; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

REQUESTS FOR JUDICIAL NOTICE

The Court GRANTS Defendant’s request for judicial notice. (Evid. Code § 452, subd. (d).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

DISCUSSION

Summary of Undisputed Material Facts

On November 28, 2020, Plaintiff was injured in a slip-and-fall accident at Defendant’s store, located at 1375 N. Citrus Ave., Covina, CA 91722, due to water on the ground of the store floor. (UMF 3-4.) Defendant performs hourly inspections and sweeps of the entire sales floor and cleans up debris, liquids, or other hazards. (UMF 6.) On the date of the accident, Defendant made two sweeps of the area in question approximately 50 minutes before Plaintiff was injured, and no water was present at that time. (UMF 7-9.) Surveillance camera footage shows that an unidentified third party customer was carrying a gallon of water and tampering with the lid, which caused it to spill. (UMF 11.) After the spill, the unidentified third party customer looked at the spill, turned around, walked back the way he came, and put the gallon of water on a random shelf. (UMF 12.) Approximately 10 seconds later, Plaintiff came through the area in question and then slipped and fell. (UMF 13.) A few minutes later, Defendant cleaned up the spill. (UMF 14.)

Analysis

The elements of claims for premises liability and negligence are the same, namely a legal duty of care, breach of that duty, causation, and damages. (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517; Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) “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. [Citation.]” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “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.” (Id.) “Because the owner is not the insurer of the visitor's personal safety [citation], the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Id. at p. 1206.) “Most Courts of Appeal hold that a defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Id. at p. 1207.) “[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.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 831.)

Defendant moves for summary judgment on the grounds that the undisputed evidence shows Defendant did not have actual or constructive notice of the hazardous condition to timely act. Defendant contends the surveillance video footage shows that Defendant did not create the hazardous condition; rather, an unidentified third party customer spilled the water, and that the water was on the ground for approximately 10 seconds before Plaintiff slipped and fell. (UMF 11, 13.) Defendant also contends Plaintiff has no evidence to dispute the surveillance video showing when the spill was created, and that Plaintiff cannot show Defendant had actual or constructive notice due to the short length of time between the spill and Plaintiff’s fall. Defendant further contends that even if Plaintiff had conducted an inspection of the area a few minutes before Plaintiff’s fall, it would not have prevented Plaintiff’s fall because of the 10-second gap between the spill and the fall. Defendant also contends the evidence shows Defendant acted promptly to address the spill after learning of it. (UMF 14.)

The Court finds Defendant has met its moving burden and that Defendant has established the absence of a triable issue of material fact. The evidence presented shows that Defendant conducted regular sweeps of the store floor to address hazardous conditions like the one in question, Defendant inspected the area less than an hour before Plaintiff’s injury, a third-party created the hazardous condition, and approximately 10 seconds elapsed between the spill and Plaintiff’s fall. (UMF 6-13.) The Court finds that, as a matter of law, 10 seconds is insufficient to have put Defendant on notice of the hazardous condition here. (See Ortega, supra, 26 Cal.4th at p. 1207; Girvetz, supra, 91 Cal.App.2d at p. 831.) Accordingly, the burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

In opposition, Plaintiff contends that the fact of Plaintiff’s slip and fall is sufficient to create a triable issue of fact as to Defendant’s liability. Plaintiff cites allegations from the FAC to show that Defendant owns the property where the incident occurred and thereby owed Plaintiff a duty of care when Plaintiff slipped and fell inside the store due to Defendant’s alleged failure to properly maintain the common areas. Plaintiff argues that a triable issue of material fact exists regarding whether Defendant’s inspection of the subject area 50 minutes before Plaintiff’s injury was reasonable, and that more frequent inspections would have prevented Plaintiff’s injury.

The Court finds Plaintiff has failed to establish the existence of a triable issue of material fact. First, Plaintiff did not submit any evidence in opposition to Defendant’s motion. (See Code Civ. Proc., § 437c, subd. (b)(2) [“The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”]; Aguilar, supra, 25 Cal.5th at p. 843 [purpose of summary judgment is to cut through the pleadings to determine whether trial is necessary despite the allegations].) Plaintiff’s Separate Statement contains no citations to any admissible evidence. (Cal. Rules of Court, rule 3.1350, subd. (f)(3); see generally, Plaintiff’s Response to Defendant’s Separate Statement.) Plaintiff’s citations to allegations from the FAC as evidence in support of her opposition to Defendant’s motion are also insufficient to establish the existence of a triable issue of material fact. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 702 fn. 7 [“It is generally understood, for instance, that a party cannot rely on the allegations of his own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context. [Citations].”])

The Court further agrees with Defendant that Plaintiff’s citation to Regents of University of California v. Superior Court (2010) 183 Cal.App.4th 755 is unavailing, as Plaintiff only provides the general citation and does not indicate which holding or conclusion she relies on. The Court will not guess what Plaintiff intended with this citation.

Second, Plaintiff’s opposition does not address the primary argument that Defendant did not have actual or constructive notice of the hazardous condition to timely act. More specifically, Plaintiff does not address the evidence that shows a third party caused the spill, which was on the store ground for approximately 10 seconds before Plaintiff slipped and fell. (UMF 11, 13.) The law makes clear that 10 seconds is an insufficient amount of time to give the property owner notice of the hazardous condition. (Girvetz, supra, 91 Cal.App.2d at p. 831.)

Third, Plaintiff’s opposition presents no evidence to dispute when or how the spill occurred, or how long the spill was on the ground before Plaintiff slipped and fell. Thus, Plaintiff’s argument regarding whether Defendant acted reasonably by sweeping the subject area 50 minutes before the incident is beside the point and does not establish the existence of a triable issue of material fact.

Finally, to the extent Plaintiff argues in her Separate Statement that she was unable to view the surveillance video in the format provided by Defendant for this motion, that does not help Plaintiff. (See generally, Plaintiff’s Response to Defendant’s Separate Statement.) Defendant served the motion on January 3, 2024, almost three months before the hearing on this motion. If Plaintiff had trouble viewing the video, Plaintiff’s counsel had ample time to contact Defendant’s counsel to provide a viewable copy, but Plaintiff provides no evidence of having attempted to do so.

The Court also notes that Defendant submitted declarations regarding the surveillance video footage, which indicate that a copy of the video was previously produced to Plaintiff during discovery. (Leon Decl., ¶ 5; Martinez Decl., ¶ 5; Diamond Decl., ¶ 6.) Accordingly, even if the copy of the video submitted with the motion was unviewable, Plaintiff should have been able to view the copy previously produced during discovery. Plaintiff’s Separate Statement does not otherwise indicate that it was not produced to her previously or that she was unable to view any such prior copy. (See generally, Plaintiff’s Response to Defendant’s Separate Statement.)

Based on the foregoing, the Court GRANTS Defendant’s motion for summary judgment.

CONCLUSION

The Court GRANTS Defendant’s motion for summary judgment. Defendant must submit a proposed judgment.

Defendant is further ordered to give notice of the Court’s ruling within five calendar days of this order.