Judge: Lynne M. Hobbs, Case: 20STCV20667, Date: 2024-04-18 Tentative Ruling

 PLEASE NOTE:    

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.  

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit. 

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.  

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email. 

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar. 

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present. 

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.     

Case Number: 20STCV20667    Hearing Date: April 18, 2024    Dept: 30

MARIA ELENA PRADO BOLANOS vs COSTCO WHOLESALE CORPORATION

TENTATIVE

Defendant Costco Wholesale Corporation’s motion for summary judgment, or in the alternative summary adjudication, is DENIED. Plaintiff is ordered to give notice.

Judicial Notice

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c).) Therefore, Defendant’s request is unnecessary and the Court declines to rule on the request.

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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia 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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) “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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

Discussion

Defendant Costco moves for summary judgment on the grounds that: (1) Costco had no actual or constructive notice of allegedly dangerous condition; (2) Costco did not breach any duty of care because there is no evidence of a grape on the floor; (3) Costco did not have a duty to protect against the conduct of third parties; and (4) Costco’s conduct did not cause the incident because Plaintiff cannot state what caused her to slip and fall beyond mere conjecture.

At 11:20 a.m., Plaintiff was walking in the produce section of the Costco Warehouse with her companion, Luis Avalos (“Avalos”) when she slipped and fell to the floor. (Undisputed Material Fact (“UMF”) No. 9.) Bolanos did not see anything on the floor before she slipped and does not know what she stepped on. (UMF 10.) Costco employee Annette Trejo immediately responded to the scene and observed a smashed grape on the floor in the area where Plaintiff fell. (UMF 15.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)¿¿If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe for their¿[customers’]¿use or to give a warning adequate to enable them to avoid the harm.”¿¿(Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443, 446.)¿

Notice

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant¿either: (1) created the dangerous condition, or (2)¿knew or should have known of the dangerous condition.”¿ (See¿Peralta v. Vons Companies, Inc.¿(2018) 24 Cal.App.5th 1030, 1036; see also¿Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1206.)¿¿“[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.”¿¿(Ortega,¿supra, 26 Cal.4th at¿1207.)¿¿“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.” (See id. at 1207.) “The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (See id.) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers . . . .” (See id. at 1205.) “[A]s to business invitees, the owner should conduct frequent inspections.” (See id. at 1207.)

Defendant argues that it had no actual or constructive notice of any alleged dangerous condition. Costco presents evidence that each hour from opening to close—pursuant to industry standard—Costco’s employees inspected the site of the incident for hazards and any hazards would be remedied as promptly as possible. (UMF Nos. 2, 3.) Roughly one hour prior to Plaintiff’s fall, a floor walk inspection of the site of the incident was conducted (at 10:00 and concluded at 10:25), and no hazards were found. (UMF Nos. 6, 7.) The incident then occurred during a subsequent active floor walk. (UMF No. 8.) These strict standards of frequency and reporting are implemented to ensure the safety of customers and mitigate dangerous conditions that may arise on the premises during operating hours. Further, Costco argues it exercised reasonable care in creating a safe environment. The grapes in the subject area were bundled in clamshell packaging with an additional band around the package, thereby keeping the grapes secure within their packaging, and artificial lights hung from the ceiling throughout the Costco warehouse, thereby providing sufficient quality and brightness to allow persons to easily see. (UMF Nos. 16, 17.)

Defendant then contends that Avalos observed children throwing and dropping green grapes at the site of the incident 10 to 15 steps before Bolanos’ fall. (UMF No. 13.) Defendant concludes that the only existing evidence regarding the duration with which the grape appeared on the floor indicates that it was shortly or immediately prior to the incident, in which case the insufficient duration of time transpiring between the grape appearing on the floor before Bolanos’ fall is greatly heightened.

Defendant has not met its initial burden of showing no triable issue of fact exists as to whether it had constructive notice. The Court agrees that a reasonable inference may be drawn that the children dropped the grapes at issue on the floor because they were running and throwing them on each other where Plaintiff fell. However, while Avalos testified that he did not know how long the grapes were on the floor, he estimated that it was a few minutes by the time they got to that section. He testified that they were not walking fast. They “were walking normal,” and he does not know how long it took for them to get to where the fruit was scattered. (Avalos Depo., 35:9-17.) Even if the Court were to infer that the children dropped the grapes a few minutes prior to Plaintiff’s fall, Defendant cites no authority, and the Court is unaware of any, holding any time greater than one-and-one-half minutes is insufficient time for defendant to have discovered a dangerous condition in a grocery store as a matter of law. (See Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d at p. 831 [holding that one-and-one-half minutes was insufficient time for defendant to have discovered banana on the floor]; but see Tuttle v. Crawford (1936) 8 Cal.2d 126, 131 [case where plaintiff slipped on a wet floor five or eight minutes after an employee had swept the area was presented to a jury].)

In Hale v. Safeway Stores (1954) 129 Cal.App.2d 124, the plaintiff slipped on a banana on the floor. A store employee testified that he conducted a sweep of the area shortly before the accident and did not see a banana on the floor. He estimated that between 5 and 12 minutes elapsed from when he finished sweeping until he came out of the storeroom and saw plaintiff after the accident. (Id. at pp. 127-128.) The court in Hale found a jury could have drawn a legitimate inference that the defendant, in the operation of its fruit and vegetable section, should have, in the exercise of ordinary prudence, discovered the dangerous condition and remedied it. (Id. at p. 131.)

As such, the Court cannot determine that a few minutes, as a matter of law, is insufficient time for Defendant to have discovered and remedied the condition in the exercise of reasonable care, especially considering the fall took place in the produce section at Costco, a self-service store, which sells food items and triggers a greater need to make frequent inspections. (See Ortega, supra, 26 Cal.4th at 1205 (“If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, ‘the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise’ and creating potentially hazardous conditions.”); see also Louie v. Hagstron’s Food Stores (1947) 81 Cal.App.2d 601, 608.)

Further, Defendant has also failed to show as a matter of law that the one hour of time that passed between the inspection of the subject area and Plaintiff’s fall is too short a time for constructive knowledge to be found. Whether the dangerous condition has existed long enough for a reasonably prudent person to have discovered it thus remains a question of fact for the factfinder. The Court cannot determine as a matter of law that there is no triable issue of material fact regarding notice of a dangerous condition.

Duty of Care

Defendant argues it owed Plaintiff no duty to protect against the conduct of third parties. Defendant argues whether the children observed by Avalos or another third-party caused the grape in question to be on the floor, Costco had no reason to anticipate such conduct.

The Court disagrees. The owner's duty of care also extends to dangerous conditions on the premises “which are not due to the negligence of the owner,” such as those caused “by natural wear and tear, or third persons, or acts of God or by other causes.” (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806; See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447.) In such cases, the owner's liability turns on whether it has made reasonable efforts to discover and remedy those dangerous conditions. 

As discussed above, there are triable issues of fact as to whether there was a dangerous condition that existed on the floor that Defendant failed to discover and make the condition reasonably safe or warn its customers. The Court finds that this duty extends to dangerous conditions caused by third parties. Thus, summary judgment is also denied on this basis.

Causation

Lastly, Defendant argues that Plaintiff’s cause of the fall is impermissibly speculative and attenuated. Plaintiff cannot state what caused her to slip and fall beyond mere conjecture:

“Q. . . . Did you see anything on the ground before you slipped?

A. No. . . .

Q. Do you remember stepping on anything?

A. No

Q. . . . So you didn’t feel any resistance when you stepped down?

A. No.”

(Bolanos Depo., Exh. A at pp. 24:7-9; 35:24-25, 26:1-3.) Defendant contends that Bolanos assumes that she slipped on a grape because “[s]omebody said that there was a grape or there was [sic] grapes around on the floor.” (Id. at p. 34:1-3.)

In order to “demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor or omission’ in bringing about the injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4thh 763, 774.) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor.” (Mayes v. Bryan (2006) 139 Cal.App.4thh 1075, 1095, citing CACI No. 430.) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Ibid.) “ ‘ “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” ’ ” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104, citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.)

In Beuhler v. Alpha Beta Company (1990) 224 Cal.App.3d 729, 734, the Court held that “Conjecture that the floor might have been too slippery at the location where appellant happened to fall is mere speculation which is legally insufficient to defeat a summary judgment. Accordingly, all appellant can argue is that she slipped and fell…She did not see anything on the floor which caused her to slip and fall and did not know what caused her to slip. In such a situation, ‘[n]egligence is never presumed.’ Nor did the facts here indicate negligence, either directly or indirectly through any circumstances from which it might be inferred. The trial court properly found that no triable issue of any material fact existed and that respondent was entitled to summary judgment as a matter of law.” (Id.)

However, this case is not like Beuhler. The Court there specifically stated the facts did not indicate negligence, either directly or indirectly through any circumstances from which it might be inferred. (Id.) Here, on the other hand, there is indirect evidence that Plaintiff slipped on a grape that was on the floor, as multiple sources saw a grape on the floor after Plaintiff fell, including Avalos, and Costco employee Trejo. Whether Plaintiff observed the grapes or another person did makes no difference. Moreover, in opposition, Plaintiff provides a photo which sheds more light on the issue. In the photo, there is a smashed grape on the floor surrounded by a wet skid mark, about a foot away from where Plaintiff is sitting on the floor after her fall. (Plaintiff’s Exh. 6.) The reasonable inference drawn from the smashed grape being on the floor with a wet skid mark where Plaintiff fell is that she slipped on it. In any event, this is sufficient to raise a triable issue of material fact as to whether the grape caused the slip and fall. 

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.