Judge: Lynne M. Hobbs, Case: 21STCV46688, Date: 2024-01-29 Tentative Ruling

Case Number: 21STCV46688    Hearing Date: February 21, 2024    Dept: 30

MARIA SANCHEZ RUBIO vs BODEGA LATINA CORPORATION, et al.

TENTATIVE

Defendant’s motion for summary judgment is DENIED. Plaintiff to give notice.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.) “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 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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Evidentiary Objections

Plaintiff’s objections made within the separate statement are improper and the Court declines to rule on them. (See Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff’s evidentiary objections made in plaintiff’s separate statement, to overlook plaintiff’s deficiency, or to permit plaintiff the opportunity to reformat his opposing papers).)

The Court declines to rule on the majority of Defendant’s objections to Plaintiff’s evidence. While the Court “must” rule on all evidentiary objections made at the summary judgment stage, it is permitted to focus its attention on those which are “important.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; see also Code Civ. Proc., § 437c, subd. (q) [the court need only rule those objections to evidence that were material in the disposition of the MSJ].) Most of the evidence objected to was not relied upon by this Court.

As to the objections that were relied upon by the Court, the Court OVERRULES Objections 17 through 19.

Discussion

Defendant moves for summary judgment on the ground that Plaintiff cannot establish her causes of action for negligence and premises liability.

In this case, Plaintiff fell in the front end of Defendant’s store in the vicinity of several vending machines and a trash can. (UMF No. 2.)

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.)¿

“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.)

Here, as to whether Defendant had actual or constructive notice of the dangerous condition, Defendant argues Plaintiff has acknowledged in discovery that she does not know how long any slippery substance over which she alleges she fell may have been located on the floor at the Subject Premises. (UMF No. 9.) Plaintiff does not even know what it was that she may have slipped on. (UMF No. 8.) Plaintiff’s responses in discovery demonstrate that she has no evidence to suggest that Bodega was on any actual notice of an allegedly dangerous condition in that area. (UMF No. 10- 11.) Further, Defendant presents evidence that a store employee swept in that same area in the time period of between 11-16 minutes before Plaintiff’s fall, without any indication in the security video that the employee saw any slippery substance on the floor. (UMF No. 4.) Numerous people walked in that same area in the 45 minutes before Plaintiff’s fall without any indication of any slip hazard. (UMF No. 3.)

Defendant argues the most that a jury might infer is from circumstantial evidence that approximately 3 to 4 minutes before the incident a child may have dripped some melted ice cream in the area where Plaintiff fell. (UMF Nos. 3-5, 7.) The only substance employees found after the fall was a milky substance that resembled melted ice cream. (UMF No. 7.) Just 3 to 4 minutes before the fall a child eating what a jury may surmise was an ice cream cone was in that area, and the child looked at the floor in a way that a jury might infer the child dropped something on the floor. (UMF No. 5.) Defendant argues even if the Plaintiff could raise a triable issue that a slippery substance was present for 3 to 4 minutes, that is an inadequate period of time as a matter of law to hold a storeowner liable on a theory of constructive notice. (See v. Boys' Market (1949) 91 Cal.App.2d 827, 831 (stating “ten or fifteen minutes would in all probability be held to justify submitting the cause to the jury.”)

In opposition, Plaintiff argues that the surveillance video footage reveals the child was holding what appeared to be a stuffed toy. (Burns Decl., ¶ 17.) The child was wearing a mask the entirety of the time she was captured on video. (Id., ¶ 18.) It is clear from the surveillance video that the child was holding a stuffed toy and not holding ice cream. (Burns Decl., Exh. 9.) Additionally considering the child was wearing a face mask the entirety of the time she was seen on video; it is highly improbable that the child was eating or attempting to eat ice cream. (Id.) Furthermore, at one point the child balances the stuffed toy on her head, crawls onto the bagging area of a check stand, then gets down and removes the toy from the top her head. (Id., Exh. 10.) The surveillance video footage confirms no ice cream or other substance is visible on the child’s head or hair after removing the object from her head. (Burns Decl., ¶ 19, Exh. 10.)

The Court has reviewed the surveillance footage submitted, and disagrees with Defendant that a reasonable inference may be drawn that the child was the cause of Plaintiff’s slip and fall. The child is wearing a mask the entire time in the video, and thus, she could not have been eating ice cream. She further places whatever it is she has in her hands on her head, indicating that it was not ice cream, because if it was ice cream, it would not have balanced upon her head without smudging her. The evidence does not show any such substance on the child’s head. The Court notes the item in the child’s hand is a light color and the child’s hair is dark, so any milky substance would have been apparent on her hair in the video.

Further, Plaintiff points to a person in the video who, 22 minutes prior to Plaintiff’s slip and fall, drinks out of an open can of liquid exactly at the very spot that Plaintiff slipped and fell. (Burns Decl., ¶ 11; Exhs. 4-6; Defendant’s Exh. A.)

The Court finds that there are triable issues of material fact as to whether Defendant had constructive notice of the liquid on the ground because a reasonable inference may be drawn that the person drinking, out of the bottle or can, exactly at the spot Plaintiff fell spilled the liquid on the floor where Plaintiff fell. This occurred 22 minutes prior to Plaintiff’s fall. Therefore, Defendant’s cited caselaw does not establish that, as a matter of law, a 22-minute period of time is too short for constructive knowledge to be found. (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.) Moreover, the incident occurred at the front of the store, where there would be more foot traffic, and next to a trash can, where there would be a greater chance that food articles would be left on the ground.

Further, while the parties disagree about whether the substance Plaintiff slipped on was milk or some other liquid/water, these are conflicting pieces of evidence that must be resolved by a jury. As stated above, the surveillance footage shows a person was drinking what appeared to be water or another form of liquid, and a reasonable inference may be drawn that she spilled this liquid on the floor. On the other hand, Defendant has evidence it was a milky substance. The jury must decide which version, if any, it believes.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is DENIED.