Judge: Michael E. Whitaker, Case: 21STCV31189, Date: 2023-06-22 Tentative Ruling

Case Number: 21STCV31189    Hearing Date: June 22, 2023    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Request for Judicial Notice in Support of Motion for Summary Judgment
3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
4. Notice of Lodging and Lodging of Video and Screen Shots in Support of Motion for Summary Judgment
5. Evidence in Support of Motion for Summary Judgment
6. Appendices of Non-California Authorities in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment
2. Objections to Summary Judgment Evidence
3. Plaintiff’s Response Separate Statement of Disputed Material Facts and Additional Undisputed Material Facts[1]
4. Declaration of Abraham Sandoval in Support of Opposition to Motion for Summary Judgment
5. Declaration of Eris J. Barillas in Support of Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply Memorandum of Points and Authorities in Support of Motion for Summary Judgment

BACKGROUND

Plaintiff Mary-Carmen Galarza (Plaintiff) sued Defendant Super Center Concepts, Inc., dba Superior Grocers (Defendant) based on injuries Plaintiff alleges she sustained as a result of slipping and falling on Defendant’s premises.  Plaintiff asserts causes of action for general negligence and premises liability against Defendant in her complaint. 

Defendant moves for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion.  Defendant replies.

On April 20, 2023, the Court continued the hearing to allow the parties to submit supplemental briefing on the limited issue of whether Plaintiff should be granted leave to amend her complaint to add an additional theory of liability against Defendant.  Plaintiff filed and served her supplemental brief on May 10, 2023.  Defendant filed and served its supplemental brief on May 23, 2023. 

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451:  . . . (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States  . . . .”  (Evid. Code, § 452, subd. (d).)  And pursuant to Evidence Code section 453, “the trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and:  (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and  (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.  (Evid. Code, § 453, subds. (a)-(b).) 

Here, under Evidence Code sections 452 and 453, the Court grants Defendant’s unopposed request for judicial notice of Plaintiff’s complaint.   

EVIDENCE

            With respect to Plaintiff’s evidentiary objections to Defendant’s evidence advanced in support of the motion for summary judgment, the Court rules as follows:

1. Overruled
2. Overruled
3. Overruled
4. Overruled
5. Overruled
6. Overruled
7. Overruled
8. Overruled
9. Overruled
10. Overruled
11. Overruled

In the reply, Defendant contends that the Declaration of Eris Barillas (Barillas) is inadmissible.  Yet the Court finds that the purported evidentiary objection does 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;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

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.)  By including the contention in the reply, Defendant has failed to comply with Rule 3.1354.  As such, the Court declines to rule on Defendant’s ostensible evidentiary objection. 

LEGAL STANDARDS – SUMMARY JUDGMENT

“[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.)  “[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.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  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.”  (Id. 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”].) 

DISCUSSION

Defendant argues that it did not have actual or constructive notice of the alleged dangerous condition which caused Plaintiff to slip and fall.  In particular, Defendant contends that the substance on the floor materialized about one to two minutes before Plaintiff slipped and fell which was insufficient time to charge Defendant with actual or constructive notice.  Hence, Defendant contends that Plaintiff will be unable to prevail on her claims of negligence and premises liability.

1.     Negligence and Premises Liability

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Liability in a premises liability action 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  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.) 

Stated differently, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.  (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; 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.) 

2.     Defendant’s Evidence

Defendant advances the following undisputed material facts (hereinafter UMFs) in support of its contention that the dangerous condition resulting in Plaintiff’s fall existed for an extremely short period of time before the incident occurred, and thus Defendant did not have actual or constructive notice of the dangerous condition:

·       Plaintiff alleges she slipped and fell due to an oily substance left on the store ground. 

·       There was something on the ground that caused or contributed to plaintiff’s slip-and-fall.

·       The substance was like oil, like a type of oil that comes out of the cakes or comes out of the chickens.

·       Plaintiff did not see the substance before her slip.

·       Plaintiff does not know who had dropped or placed the substance on the floor.

·       Plaintiff does not know how long this substance was on the floor before her slip.

·       Plaintiff has no information that any store employees knew about this liquid substance on the ground before her slip.

·       The only thing that caused or contributed to plaintiff’s incident was the liquid that was on the floor.

·       Superior has a surveillance camera system that covers the produce section of the market in an overhead bird’s eye view and records the time in military time.

·       Superior retrieved and saved the record of the surveillance camera above the aisle in the produce department where plaintiff slipped on July 4, 2021 from 14:39:00 (2:39:00 p.m.) to about 16:08:58 (4:08:58 p.m.).

·       On July 4, 2021, Isabel Rivera was working as a Utility Clerk (“Porter”) at the Superior supermarket located at 10211 S. Avalon Blvd., Los Angeles, CA 90003. 19

·       As a Porter, Ms. Rivera’s role was to perform hourly inspections and sweeps of the entire sales floor at the supermarket, including the produce department, and to clean up any debris, liquids or other hazards.

·       At or about 15:16:01 (3:16:01 p.m.) to at or about 15:16:31 (3:16:31 p.m.), Ms. Rivera swept in the aisle and location where plaintiff later slipped.

·       At or about 15:34:10-15:34:11 (3:34:10 p.m.-3:34:11 p.m.), Ms. Rivera swept with her wide mop in the area of the aisle where plaintiff falls at or about 15:39:18 (3:39:18), just five minutes (and seven seconds) later.

·       Right after Ms. Rivera swept the exact aisle and location at or about 15:34:10-15:34:11 (3:34:10 p.m.-3:34:11 p.m.) where plaintiff later slipped, there was no liquid on the ground such as plaintiff described in her deposition (the type of oil that comes out of cakes or a chicken). The floor was clean and free from any debris, liquid or any other hazard.

·       The surveillance video shows that there was no such liquid as plaintiff described (the type of oil that comes out of cakes or a chicken) when Ms. Rivera swept and right after she completed her sweep.

·       Between Ms. Rivera’s sweep at or about 15:34:10-15:34:11 (3:34:10 p.m-3:34:11 p.m.) and plaintiff’s slip five minutes and seven seconds later at 15:39:18 (3:39:18 p.m.), numerous individuals can be seen on the surveillance video walking in the produce department in the aisle and location without any incident.

·       At approximately 15:37:45 (3:37:45 p.m.) to 15:37:57 (3:37:57 p.m.), two customers with shopping carts walk into the area where plaintiff slips less than two minutes later.

·       At or about 15:38:12 (3:38:12 p.m.), one of the customers with a shopping cart lifts something up from her cart.

·       At or about 15:38:22 (3:38:22 p.m.) and after, less than two minutes before plaintiff slipped, a spot can be seen on the floor that was not there previously in the exact location where plaintiff slips.

·       When these customers leave the aisle at or around 15:38:36 (3:38:36 p.m.), there is a spot on the floor that was not there at 15:37:44 (3:37:44 p.m.), just before these customers arrived in that aisle.

·       Plaintiff slips on the spot at 15:39:18 (3:39:18 p.m.), less than a minute later.

(UMFs 2, 7-15, 19-20, 23, 25-28, 31-35.)  The foregoing evidence sufficiently establishes the following: (1) the oily liquid substance on the floor of Defendant’s store caused Plaintiff to slip and fall, and (2) the oily liquid substance materialized on the floor about one to two minutes before Plaintiff slipped on the oily liquid substance. 

            As Girvetz holds, one to two minutes is not long enough for Defendant, in the exercise of reasonable care, to have discovered and remedied the subject oily liquid substance on the floor.  As such the Court finds Defendant has met its initial burdens of production and persuasion to show that it did not have actual or constructive notice of the oily liquid substance on the floor, negating an element of Plaintiff’s claims for negligence and premises liability.  Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether Defendant had actual or constructive notice of the dangerous condition of the floor which resulted in Plaintiff’s injuries. 

3.     Plaintiff’s Evidence

In opposition, Plaintiff advances two arguments regarding notice.  First Plaintiff argues that Defendant had constructive notice of the subject oily liquid substance on the floor but failed to detect and remedy the condition because of Defendant’s failure to meet the industry standard of care in maintaining the store’s floor surface in a reasonably safe condition.  Plaintiff advances the following Responses to Undisputed Material Facts (hereinafter RUMFs) in support of the contention:

• Ms. Rivera testified that her only training for the porter position was to put a roll of paper on a broom and to pick something up if it gets dropped.
• As observed by Plaintiff’s Forensic Expert, Eris Barillas, after reviewing the Surveillance Video, Ms. Rivera does not cover all areas of the Walkway surface as she is performing her sweeping, often stopping short and turning in a different direction or going around customers and going on her way; she also fails to sweep using the proper S-motion as she moves through the produce department. 
• Defendant’s Human Resource Assistant, Wendy Reyes testified that it is optional for employees to pick up something spilled on the ground of the store. 

(RUMFs 21, 25, 37.)  Plaintiff further advances the following Additional Material Facts (hereinafter AMFs) in support of the foregoing contention:

• The incident occurred on the 4th of July, in 2021, at approximately 3:39 pm. 
• Prior to starting to work for Superior in 2018, Rivera had no experience as a cleaner.
• Ms. Rivera’s only training for cleaning procedures in the store was to put a roll of paper on a broom and to pick something up if it gets dropped.
• Unless the store assigns someone else to help, Rivera is the only person doing cleaning for her shift.
• On the date of the incident, July 4th, “the store was extremely busy” because it was a “big holiday.”
• The store manager, Rosales, started “super early” on the date of the incident and was “ready to go home that day” and the employees were “tired” that day.
• The store sometimes adds more porters on holidays and has up to five porters available.
• On busy days, the extra porter(s) will answer the spill calls and they will randomly go and check behind the other porter.
• On the date of the incident on July 4, 2021, the store only had one porter working when the incident occurred.
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), including the review of the Video Surveillance Footage, it is the opinion of Ms. Barillas that the sweep performed by the porter, Rivera, was insufficient to detect and adequately clean spills on the Walkway surface.
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), including the review of Rivera’s and Rosales’ deposition testimony, Ms. Barillas concluded that it should have been reasonably anticipated that the subject store would be very busy on a holiday, especially a holiday such as July 4th, and “should have had more than one person performing sweeps, as was apparently done at other times.” Ms. Barillas added that “[p]roperly coordinated sweeps performed by two or more individuals would have increased Defendant’s ability to maintain the floor surface in a reasonably safe condition for pedestrians, especially in such a high-traffic environment.”

(AMFs 38, 40-41, 44-45, 47-50, 64-65.)  Although the foregoing facts are relevant generally to the issue of whether Defendant met its applicable duty of care in maintaining the premises in a reasonably safe condition, the Court determines that Plaintiff’s evidence fails to raise a triable issue of material fact as to whether Defendant had actual or constructive notice of the subject dangerous condition, the oily liquid substance on the floor. 

            As Defendant establishes above, Isabel Rivera, one of Defendant’s porters (Rivera), conducted a sweep of the area where Plaintiff fell about four minutes before the oily liquid substance appeared, and five minutes before Plaintiff’s fall.  Further, less than two minutes elapsed between the spill of the oily liquid substance on the floor, and Plaintiff walking onto the oily liquid substance and slipping.  Moreover, the Court finds that the supposed deficiencies in Defendant’s monitoring and maintenance of the floor do not counter (by raising triable issues of material fact) Defendant’s evidence that it did not have actual or constructive notice of the dangerous condition simply because it was not on the floor for a sufficient period of time. 

            Second, Plaintiff argues that she slipped and fell because of the introduction of the oily liquid substance onto inadequate slip resistance flooring which Plaintiff asserts Defendant had notice of due to incidents that occurred at Defendant’s other premises.  Plaintiff advances RUMF 13 as well as the following AMFs in support of this contention:

• Plaintiff’s Forensic Expert Eris Barillas, CPSI, XCLT, (“Barillas”) has opined that incident was caused or contributed to by multiple breaches by Defendant of applicable standards of care.
• At her site inspection on May 12, 2022, Ms. Barillas tested the Property floor for slip resistance and determined that it has a slip index as low as .22 when wet.
• Based on her inspection, testing, background, training, and review of relevant ANSI standards and other evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), Ms. Barillas determined that the subject floor surface area was a hazardous condition on the date of Plaintiff’s subject slip and fall incident because the floor did not have a minimum .50 slip resistance under reasonably foreseeable environmental conditions as required by ANSI standards.
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), Ms. Barillas concluded that the Defendant had a duty to determine the contaminants that are likely to be present on the floor surface and to provide a floor surface that is sufficiently slip resistant under the presence of those contaminants to provide a safe walking surface for building occupants.
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), Ms. Barillas further concluded that Defendant’s failure to provide a sufficiently slip resistant floor to maintain reasonably safe pedestrian walkways resulted in the subject area posing an unreasonable risk of harm to Plaintiff at the time of the subject incident.
• Based on her background, training, and testing of previous slip and fall incidents in other Superior Grocers stores owned and/or operated by Defendant throughout Los Angeles, where she identified similar vinyl floors with smooth vinyl surfaces with a slip resistance range between 0.20 and 0.35, it is Ms. Barillas’ opinion that Defendant knew or should have known of the potential for slip and fall incidents occurring on the smooth vinyl tile floors in their stores under reasonably foreseeable conditions and Defendant further knew or should have known that vinyl tile left untreated in an appropriate manner to increase slip resistance is slippery when contaminants such as liquids are introduced onto the floor surface.
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), Ms. Barillas opined that “it is not likely that any policy of inspection and cleaning of contaminants as they occur would be capable of meeting the minimum industry standard of providing a sufficiently slip resistant walking surface for all building occupants at any time the building is occupied,” due to “the slip resistant characteristics of the subject smooth vinyl tile floor (slip resistant while dry, but less than half the minimum allowable slip resistance when wet).”
• Based on her inspection, testing, background, training, and review of the relevant evidence provided to her in this case (see Barillas Decl. at ¶¶ 5-6), Ms. Barillas concluded that a the installation and use of carpet tiles, which will “maintain sufficient slip resistant characteristics, even when subjected to liquid floor contaminants such as water or any oil like liquid substances” was a “reasonable” and “relatively minimal” cost alternative that was readily available to Defendant prior to the time of the incident, and commonly used in the retail store industry. Despite this reasonable alternative, Ms. Barillas observed in her review of the file materials that Defendant only placed one such carpeted carpet tile (mat) in the entire produce section on the date of the incident, placed in the corn section away from where the Plaintiff fell.

(RUMF 13; AMFs 58-62, 66-67.) 

“The pleadings play a key role in a summary judgment motion.  The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.  As our Supreme Court has explained it:  The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment.  Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].) 

            Here Plaintiff alleges in the complaint the following:

• This action is based on a slip and fall incident where Plaintiff was severely injured on or about July 4, 2021 as a result of slipping and falling due to an oily substance left on the store ground at the Superior Grocery store located at 10211 S. Avalon Boulevard, Los Angeles, California, 90003 (the “Store”).
• Plaintiff is informed and believes and thereon alleges, Defendants and each of them, failed to provide any warning of such dangerous condition to store patrons such as Plaintiff, thereby causing the instant injuries to Plaintiff when she slipped on the oily substance and fell on the floor and injured various parts of her body.
• It was reasonably foreseeable that a store patron purchasing groceries on sale by Defendants and each of them, would not see the oily substance and slip and fall and injure themselves such as happened to Plaintiff.

(Complaint, ¶¶ 8, 14, 20, emphasis added.)   

            Thus, Defendant has addressed the factual issues in the motion that were framed by Plaintiff in her complaint:  whether Plaintiff fell or slipped on an oily liquid substance and/or whether Defendant had actual or constructive knowledge of the oily liquid substance before Plaintiff fell or slipped?  Plaintiff did not previously raise in her complaint that she slipped and fell because the flooring in Defendant’s store had low slip resistance when a foreign substance materializes on said flooring.  Consequently, Plaintiff cannot defeat the motion for summary judgment by attempting to raise a triable issue of material fact based on a factual assertion not raised in the pleadings.  

            In short, the Court finds Plaintiff has failed to meet her burden of production in raising triable issues of material fact as to whether Defendant had actual or constructive notice of a dangerous condition -- the oily liquid substance on the floor of the store.

2. Leave to Amend

On April 20, 2023, in her presentation on oral argument and in response to the Court’s contention that Plaintiff cannot defeat the motion for summary judgment by attempting to raise a triable issue of material fact based on a factual assertion not raised in the pleadings, Plaintiff requested leave to amend her complaint to conform to the additional theory of liability she advanced in opposition to Defendant’s motion for summary judgment.

A defendant’s motion for summary judgment or summary adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings.  (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375 (hereafter Prue).)   

If summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment. (Prue, supra, 242 Cal.App.4th at p. 1384; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)  Furthermore, a request for leave to amend a complaint need not be made before a hearing on a motion for summary judgment; rather, it may be made at the hearing or any time before entry of judgment.  (Prue, supra, 242 Cal.App.4th at p. 1385; Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 264.) 

The Court has wide discretion to allow either party to amend pleadings “upon any terms as may be just.” (See Code Civ. Proc., § 473, subd. (a)(1).). “The trial court should exercise considerable liberality in allowing amendments that do not completely depart from ‘the general area of the cause set up in the pleadings.’”  (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 128.)

Plaintiff argues that leave to amend her complaint is appropriate here, relying on the following contentions: (1) she has advanced ample evidence in her opposition to the instant motion in support of her alternative theory that Defendant was on notice that the floor did not meet required ANSI standards for slip resistance when wet and failed to address this known danger; (2) this alternative theory is consistent with her original claims for negligence and premises liability and not completely and entirely depart form the general area of cause alleged in her original complaint; and (3) Plaintiff’s proposed amendment would not prejudice Defendant because trial is roughly six months away and the exchange of exert witnesses between parties has not yet occurred.

In reply, Defendant contends that Plaintiff’s unwarranted delay in attempting to amend her complaint warrants a denial of her request for leave to amend, particularly in light of the fact that Plaintiff’s proposed amendment seeks to introduce new and substantially different issues from those raised in the original complaint.  Defendant highlights that the declaration of Plaintiff’s expert, Eris Barillas, indicates that Plaintiff has been aware of her new potential theory of liability long before Plaintiff filed her opposition papers, based on the fact that Barillas conducted his inspection of Defendant’s store on May 12, 2022.  Yet, Defendant notes that Plaintiff has failed to show justification for her delay in seeking leave to amend her complaint despite knowing of this alternative liability theory for months in advance.  Finally, Defendant argues that it would be unduly prejudiced by the Court’s granting of Plaintiff’s request to amend her complaint to add the proposed alternative theory of liability based on the added costs and legal fees as well as the significantly increased burden of discovery the proposed amendment would impose upon Defendant. 

In light of the fact that there remains six months before the current trial date, and further in light of the public policy that cases should be tried on their merits (see Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24 [“the law strongly favors trial and disposition on the merits”]), the Court finds Defendant has failed to establish that the proposed amendment would result in undue prejudice or harm to Defendant such that would warrant a denial of Plaintiff’s request for leave to amend her complaint.

            Accordingly, the Court finds Plaintiff has met her burden in establishing a factual and legal basis for leave to file an amended complaint.

CONCLUSION AND ORDER

In considering the evidence proffered by Plaintiff and Defendant, the Court finds that Defendant did not have actual or constructive notice of the subject oily liquid substance on the floor of its store before Plaintiff slipped and fell.  Consequently, Plaintiff cannot prevail on the causes of action for negligence and premises liability as those claims are currently alleged against Defendant.

But based on Plaintiff’s request for leave to amend the complaint, the Court shall consider Defendant’s motion for summary judgment as a motion for judgment on the pleadings.  As such, the Court grants Defendant’s motion for judgment on the pleadings, and further grants Plaintiff’s request for leave to amend her complaint.  The Court further orders Plaintiff to file and serve the proposed amended complaint on or before July 7, 2023. 

The Clerk of the Court shall provide notice of the Court’s ruling.