Judge Michael E. Whitaker, Case 20STCV13051 2023-05-22 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV13051, Date: 2023-05-22 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Leroy West (“Plaintiff”) alleges he sustained injuries when he slipped and fell on water or other similar liquid substance on property owned and controlled by Defendant Costco Wholesale Corporation (“Defendant”). (See Complaint, Attachment One.)

Defendant moves for summary judgment or in the alternative for summary adjudication. Plaintiff opposes the motion. Defendant replies.

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

With respect to Plaintiff’s “Evidentiary Objections,” the Court finds such objections do not comply with the requirements of California Rules of Court, rule 3.1354. Rule 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

Written objections to evidence must follow one of the following two formats: [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats: [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.) Instead of objecting to the evidence in support of Defendant’s Undisputed Material Facts, Plaintiff objects to Defendant’s Undisputed Material Facts Nos. 12 and 13. Accordingly, the Court declines to rule on Plaintiff’s purported “Evidentiary Objections.”

With respect to Defendant’s Evidentiary Objections, the Court rules in part as follows:

However, with respect to Defendant’s “Evidentiary Objections” Nos. 5 through 11, the Court finds such objections do not comply with the requirements of Rule 3.1354 and declines to rule on Defendant’s purported “Evidentiary Objections” for the same reasons noted above in refence to Plaintiff’s “Evidentiary Objections.”

In the complaint, Plaintiff asserts causes of action for negligence and premises liability. “The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. 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, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct. Liability is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. Thus, liability is based on his or her own failure to act reasonably.” (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].)

Stated differently, “because the owner is not the insurer of the visitor's personal safety, the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner's lack of knowledge is not a defense, to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises . . . .” (Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139-1140 [cleaned up]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)

The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.

(Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829 [cleaned up].) And “[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.” (Id. at p. 831.)

It obviously follows that the owner of a store must make reasonable inspections of such portions of his premises as are open to his customers, and, in this connection, it has been held that evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it. Sapp v. W. T. Grant Co., 172 Cal.App.2d 89, 341 P.2d 826 et seq. (patron stepped on a spool of thread; no inspection for a period of 20 minutes); Hale v. Safeway Stores, Inc., 129 Cal.App.2d 124, 128 et seq., 276 P.2d 118 (customer slipped on banana; no inspection for a period of ‘12, 15, or 30 or more minutes’); Louie v. Hagstrom's Food Stores, 81 Cal.App.2d 601, 607-609, 184 P.2d 708 (patron slipped in pool of syrup; no inspection for between 15 to 25 minutes). As declared in these cases, it is ordinarily a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered by an owner who exercised reasonable care.

Here, Defendant moves for summary judgment, or in the alternative summary adjudication, on the ground that Plaintiff cannot establish that Defendant had actual or constructive notice of a dangerous condition of its property that caused or contributed to Plaintiff’s slip and fall.

For purposes of the Court’s analysis of Defendant’s contentions, the Court finds that Plaintiff acknowledges that Defendant did not have actual notice of the purported dangerous condition. (See Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, No. 9.) Thus, the Court’s analysis will focus on whether Defendant had constructive notice of the alleged dangerous condition.

Defendant advances the declaration of Angel Diaz (“Diaz”), an employee of Defendant. In relevant part, Diaz states:

· In June 2008, Costco hired me as a part-time permanent employee working in the Warehouse, and specifically in the food court. My duties in this role were cash registering, helping members, cleaning the patio, prep work (getting food ready for the day), and shopping for the food court in the Warehouse.

· In April 2021, Costco transferred me to the front end of the Warehouse to be a merchandiser stocking product for members to buy.

· When I was working in the food court, including on June 27, 2018, one of my jobs was doing patio checks as I left for and when I returned from rest breaks and meal breaks to identify if there was anything that needed to be cleaned. If I observed something that needed to be cleaned up, I would either do it myself or tell my supervisor to arrange for immediate clean up. Before I left for and also when I returned from my breaks, I would inspect the patio in the food court area. This would include the pedestrian pavement that was on the outer edge of the food court area where the tables were closest to the parking lot. I complied with this inspection practice and procedure throughout my time in the food court, and personally witnessed my co-workers comply with the same inspection policy and procedure.

· While I was working in the food court, including on June 27, 2018, I would take two rest breaks and one meal break for lunch. Each time I took a break, my manager would record the time that I left for and returned from my break. These records would be made at the same time that I left for and returned from my break and reflect accurately the time I left for and returned from my break.

· During my patio checks I would check for spills, debris, or other substances and clean those up; I would check the soda and ice machine for spills; and I would check for straws, lids, and loose trash in the area. Spills include any liquid on the patio surfaces, including floors, tables, seats, and counters. In addition, if I saw any spills, substances, or debris in the regular scope of my work, I would either clean it up myself or let my manager know to assign another employee to clean up the spill.

· Throughout the time I have worked in the food court, my manager stressed the importance of cleaning the patio and making sure there were no spills. This message was repeated by Warehouse General Manager Joe Washington, Assistant General Manager Russell Lee, and my supervisor Brian Griffin.

· I was working on June 27, 2018. According to the break records from June 27, 2018, I left for my first break at 1:00 p.m. and returned at 1:15 p.m. As was my pattern and practice, I would have completed my patio check at or before 1:00 p.m. when I left for my first break, and against at 1:15 p.m. when I was returning from my rest break. As part of my inspection, I would have walked through the area between the food court tables and the parking lot, and inspected the pedestrian pavement in that area for spills, debris, or other substances that may be a slip-and-fall hazard. A true and correct copy of my rest break record on June 27, 2018 is attached hereto as Exhibit 9. [2]

· I do not recall seeing any spills, debris, or substances on the floor, or in the patio area, on June 27, 2018 before my 1:00 p.m. break. If I had observed any spill, debris, or substances, would have followed my pattern and practice and either cleaned it up myself, or I would have notified my supervisor of the spill to have another employee assigned to clean up the spill.

Defendant’s evidence meets its initial burden of production/persuasion in establishing that there is no triable issue of material fact because Defendant did not have constructive notice of a dangerous condition that caused or contributed to Plaintiff’s fall. Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether Defendant had constructive knowledge of the alleged dangerous condition before Plaintiff’s fall.

In opposition, Plaintiff advances the Declaration of Boris Briskin (“Briskin”), counsel for Plaintiff, who avers (subject to the Court’s Evidentiary Rulings above) as follows:

· Plaintiff, Leroy West, propounded written discovery to Defendant, Costco Wholesale Corporation.

· In its responses, Costco Wholesale Corporation agreed to produce multiple documents, including the Daily Floor-walk/ Safety Inspection report for the date of Mr. West's slip and fall, if one existed, after this Court signed a Stipulated Protective Order.

· Attached as Exhibit "B" is a true and correct copy of Defendant Costco Wholesale Corporation's January 14, 2021 responses to Plaintiff Leroy West's Request for Production of Documents.

· The corresponding Stipulated Protective Order was signed by the Honorable Michael E. Whitaker on January 26, 2021.

· Attached as Exhibit "C" is a true and correct copy of the signed Stipulated Protective Order.

· Defendant, Costco Wholesale Corporation, produced documents it labeled "Confidential".

· Plaintiff will produce the documents labeled "Confidential" if requested by the Court or in camera.

(Declaration of Boris Briskin, ¶¶ 4-10.) Further, Plaintiff advances his own deposition testimony in which he testified as follows:

· Q. Okay. So what happened after you fell? What was the next thing you remember?

· A. You know, I remember grabbing my head, you know, and looking at my arm where I hit that side of the table and my knee. I pulled my pants up. You know, I was wet in the back and so -- and that's what I did.

(Declaration of Boris Briskin, Exhibit A, 39:18-40:3.) Plaintiff also testified:

· A. When I got up and looked, it looked like it had been there for a little while.

· A. You can tell, once you look down there. After I got up and looked down there, you could see where it appeared like it was wet there, but it seemed to be drying. It seemed like it was drying up.

· Q. What does that mean, it looked like it was drying up? How can you tell that?

· Q. So how much of the edge was -- appeared to be drying; all of the edge or some of it or --

· A. Once I stepped in it, you know, it was hard to really see, was it round and all that, because, you know, I was wet at that point. And but I saw -- I could definitely see it was drying, but I couldn't see how round it was before that because I never looked at it.

· Q. And did you sit in the water or was it on your shirt? Where did you land in it?

· A. Once my foot hit, my feet went up in the air and my thigh and my pants, it was wet. And the jacket I had on also was wet on the edge and, you know, down near my pants leg.

· Q. Do you know whether Costco, any Costco employees knew the spill was there before you fell?

Plaintiff’s proffered evidence is insufficient to support an inference that the liquid substance that Plaintiff slipped and fell on was present on Defendant’s property for a period of time, amounting to constructive notice of the alleged dangerous condition. In particular, Plaintiff’s testimony that the liquid substance had been on the ground for “a little while” and had been “drying a little bit” or seemed to be drying up indicates the subject liquid substance was on the ground for a short period of time.

Plaintiff’s deposition testimony parallels Defendant’s argument that it did not have constructive knowledge of the liquid substance because it had not been on the ground for a sufficient period of time for Defendant to be made aware of it. From the record, Diaz took his break at 1:00 PM and did not observe any liquid spill in the subject area of Defendant’s premises after he conducted an inspection shortly before his break. Plaintiff fell approximately at 1:10 PM. Thus, there is a 10 minute interval between Diaz inspecting the premises and Plaintiff slipping in the liquid substance. That interval alone, without other evidence that Defendant could have detected the alleged dangerous condition with reasonable diligence, does not raise a triable issue of material fact regarding whether Defendant in the exercise of reasonable care would have discovered the spill and corrected it. (See, e.g., Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1210 [“even though plaintiff did not present evidence of the length of time the milk was on the floor, the general manager, in fact, testified that the milk could have been on the floor for as long as two hours, and at best the floor was not inspected for 15–30 minutes”].)

This Court readily acknowledges that in general “[q]uestions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are properly left to the jury. Such questions cannot be resolved by summary judgment unless reasonable minds can come to but one conclusion.” (Gonzalez v. Mathis (2018) 20 Cal.App.5th 257, 273–274 [cleaned up].) But, as the record stands, the Court determines that reasonable minds can come to but one conclusion: Defendant did not have constructive notice of the alleged dangerous condition – the liquid substance.

Based on the evidence advance by Plaintiff, Plaintiff has not met his burden of production to make a prima facie showing of the existence of a triable issue of material fact regarding Defendant’s constructive notice of a dangerous condition which caused or contributed to his fall. Absent that showing, Plaintiff cannot prevail.

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorable toward Plaintiff, the Court finds that there are no triable issues of material facts regarding Defendant’s Undisputed Material Facts Nos. 1 through 15, and determines, as a matter of law, that Defendant is not liable for negligence or premises liability because Plaintiff has not established with sufficient, competent evidence that a triable issue of material fact exits regarding whether Defendant had notice, actual or constructive, of a dangerous condition that caused or contributed to Plaintiff’s harm.

Therefore, the Court grants Defendant’s motion for summary judgment. Defendant is ordered to give notice of the Court’s ruling and to file a proof of service of the same.

[1] Defendant Costco Wholesale Corporation advances additional evidence through the declaration of James A. Harris in connection with the reply papers. The Court declines to consider the evidence as Plaintiff has not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

[2] The Court notes that Exhibit 9 does not comport with the date of, or time period related to, the subject incident. Therefore, the Court did not consider it.

DEPARTMENT	32
HEARING DATE	May 22, 2023
CASE NUMBER	20STCV13051
MOTION	Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication
MOVING PARTY	Defendant Costco Wholesale Corporation
OPPOSING PARTY	Plaintiff Leroy West