SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Gloria M. Tellez (“Plaintiff”) filed this action against Defendant Vallarta Food Enterprises, Inc., (“Defendant”) for damages arising from a slip and fall on December 16, 2018, on a “dirty, wet and slippery floor.” (Compl. p. 4.) The Complaint alleges causes of action for general negligence and premises liability.   

Defendant now moves for summary judgment.  Plaintiff opposes the motion, and Defendant filed a reply.   

A. Moving Argument  

Defendant asserts there existed no dangerous condition, because Plaintiff did not step on anything which caused her to slip and fall. Defendant’s employee checked the floor after Plaintiff’s accident and found nothing. Furthermore, Defendant argues it had its floors testified that its floors are slip resistant. The only thing found on the floor after Plaintiff fell was a black skid mark, which Plaintiff admits came from her brand new black heels. Defendant contends Plaintiff speculates that she slipped on lard inside Defendant’s store, but there is no evidence of any lard on the floor. Lastly, Defendant asserts its dedicated store inspector properly inspected the store prior to Plaintiff’s incident, and the inspection indicated the area was clean and hazard free based on the inspection log and the inspector’s conversation with Defendant’s Third Assistant Store Director after the incident. 

  

B. Opposing Argument 

Plaintiff contends she testified she slipped on lard on the floor, and that her testimony is evidence to create a triable issue of material fact to deny Defendant’s motion.  

 

C. Reply Argument 

Defendant contends Plaintiff speculates and conjectures it was lard that caused her fall. Defendant avers there is no evidence of any lard on the floor to create a triable issue of material fact.  

 

II. Evidentiary Objections 

Defendant submits two objections to the Declaration of Plaintiff Gloria M. Tellez. Objections 1 and 3 are sustained. Defendant also submits one objection to the Declaration of Yesenia Sanchez, Esq. Objection 2 is overruled.  

 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

 

B. Negligence/Premises Liability  

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 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.)  

“Ordinarily the existence of a dangerous condition is a question of fact.  [Citation.]  However, … whether a condition is dangerous may ‘“be resolved as a question of law if reasonable minds can come to but one conclusion.”’  [Citations.]”  (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)  As illustrated in Davis, supra, steps and stairs are certainly not considered per se “dangerous conditions.”  (Id. at pp. 704-05.)  “[A] possibility of injury exists in almost all circumstances…,” and there must be something about their design or condition that poses some sort of heightened risk of injury.  (Ibid.)   

“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, 26 Cal.4th at 1207.)    

The preliminary issue is whether Plaintiff’s evidence is sufficient to support an inference that a dangerous condition existed. In most cases where a dangerous condition involved some substance on the floor, the plaintiff has offered evidence of some dangerous condition either created by the owner or known to him. (Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 557.) For example, evidence that a floor had been recently waxed, a plaintiff had wax on her clothes, and witnesses and employees both testified that the floor was slippery was sufficient for a court to infer that an excessively waxed floor was a dangerous condition that existed at the time of the fall. In Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036, the court found the plaintiff had not established a slippery substance on the floor existed, as “Absent any evidence that there was a foreign substance on the floor, or some other dangerous condition created by or known to Vons, Peraltas cannot sustain their burden of proof.”  (Id. at p. 1036.)   

In essence, Defendant argues that Plaintiff cannot prevail on her negligence and premises liability claim because there is no evidence to show a dangerous condition existed at the time of the incident.   

Plaintiff testified she only saw a black line from her shoe after she fell. Plaintiff also testified it is her opinion that she slipped on lard from bread. 

 

Q. Okay. While you were on the ground after you had fallen, and before the man helped you up, did you look at the floor to determine what caused you to fall? 

A. Yes. In -- where I slipped, I saw this black line. And that's where I saw the like a straight 

black line on the place where the fall happened. 

Q. Okay. Did you touch the black line at all? 

A. Because of the fall that I had, I didn't have desire to do anything else. And I got up any way I could. 

Q. Okay. So yes or no, did you physically touch the black line to determine what it was? 

A. No. 

Q. Did you take any photographs of the black line? 

A. No. I think the manager must have taken pictures. 

Q. Okay. Did you smell the black line? 

A. No. 

Q. To your knowledge, I just want to know what you think -- what you think, not what any expert thinks, do you think that the black line was just a skid mark from your heel? 

A. I think it was the shoe. But I do not know what it was there on the floor. 

 

… 

 

Q. Did you ever see anything on the floor, such as like a liquid or trash or something else that caused you to fall? 

A. So I think -- I mean, and I can give my opinion, right? I think that it was lard from the bread. That's what I -- that's why I fell there. That's why I slipped there. 

(Def. SSUMF; Plf. Depo. 70:2-22, 25; 71:1-6.)    

 

Q. Okay. Did you ever see lard on the floor at any point while you were at the store, on the date of 

the incident?  

A. When I was walking? 

Q. At any point -- while you were in the store on the date of the incident, at any point did you ever see lard on the floor in the area where you fell? 

A. No. I did not see anything. Otherwise, if I would have seen that, I would've been on alert. You 

know, like if I would've seen that, I would not have had the fall. 

Q. Okay. How about after you fell? Did you see lard on the floor in the area where you fell? 

A. I mean, yes. Because of the fall, you know, how it was a zigzag. So I saw the line. So I think it 

was lard, because of the zigzag. 

Q. Okay. But you only saw the black line, correct? 

A. Yes. 

(Id. at 71:7-25.) 

Plaintiff confirms she did not see lard on the ground in the area in which she fell: 

 

Q. Okay. Thank you. So at any point while you were inside the Vallarta Market on the date of your 

accident, did you ever see lard on the ground in the area where you fell? Did you ever see it with your eyes? 

MS. SANCHEZ: Objection. It has been asked and answered. 

THE WITNESS: No. 

(Id. at 75:14-21.) 

Plaintiff further testified that her shoes were clean, and it did not have grease or anything on it. (Id. at 72:18-22.) When Plaintiff got home, she saw that her shoes were clean. (Id. at 74:20-22.)  

Defendant submits a video surveillance of the incident. The Court reviewed the video, and Plaintiff appears to be wearing shoes with a low heel. Further, at the time of the incident, the view of Plaintiff and subject floor area are obstructed by shelves, and the Court is therefore unable to determine the existence of any condition from the video surveillance. Defendant’s employee, Jose Reynoso (“Reynoso”) declares he was the on-duty store manager at the store on December 16, 2018, between 8:00 p.m. to 8:30 p.m. (Reynoso Decl. ¶ 1.) Reynoso was informed by Front End Manager, Estefany Turush (“Turush”), that a customer named Gloria Tellez fell near the bakery at approximately 8:15 p.m. (Id. at ¶ 2.) Reynoso performed an inspection of the area where Plaintiff stated she slipped and fell, and he saw nothing on the floor. (Id. at ¶ 3.) Reynoso also watched Turush and bakery employee James Huerta (“Huerta”) inspect the area, and there was nothing on the floor. (Id. at ¶ 4.) Lastly, Plaintiff does not dispute Defendant’s inspection policy or the inspection log demonstrating that a store inspection occurred between 8:00 to 8:30 p.m., and that each area inspected was reported as clean and hazard free. (UMFs 11-13.) 

Here, Defendant met its prima facie burden that no dangerous condition existed. Therefore, the burden shifts to Plaintiff to produce evidence showing a triable issue of material fact as to whether there are sufficient facts to infer a dangerous condition existed, and if so, that it was long enough for a reasonable person exercising reasonable care to have discovered it. 

Plaintiff’s only argument is her testimony that she slipped on lard. However, Plaintiff’s testimony is couched merely as an opinion, and there is no evidence in support of this inference, especially when Plaintiff also testified her shoes were clean and she did not actually see any lard on the floor. Further, Defendant’s employees inspected the area immediately after Plaintiff’s fall and they did not see anything on the floor. An “opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Buehler v. Alpha Beta Company (1990) 224 Cal.App.3d 729, 733.) Plaintiff did not see anything on the floor aside from the black skid mark she attributes as coming from the heel of her shoe. Plaintiff’s conclusion that there must have been lard on the floor is speculative and unsupported by any evidence.  

The Buehler case has similarities to the present case. There, the plaintiff/appellant, “did not notice any liquid or solid debris on the floor, and she had no problem keeping her footing and did not slip at all until the accident.” (Id. at p. 732.) The plaintiff/appellant in Buehler did not see anything on the floor which caused her to fall. (Id.) Similarly here, Plaintiff testified she slipped and fell, but she is unable to point to any evidence verifying the slippery condition or any potential source of the condition. Accordingly, a reasonable trier of fact would not be able to find in Plaintiff’s favor on the presence of something slippery on the floor given that Plaintiff’s the lack of evidence of any slippery substance, and the absence of evidence to indicate there is a basis for concluding the subject area actually was slippery/dangerous. All Plaintiff can argue is that she slipped and fell. In such a situation, “[n]egligence is never presumed.” (Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, 145.) 

Based on the foregoing, Plaintiff failed to meet the shifted burden to prove the existence of a dangerous condition, either directly or by facts and circumstances from which negligence may be inferred. There is no evidence to support an inference that a dangerous condition existed when Plaintiff fell. 

 

IV. Conclusion  

Defendant’s motion for summary judgment is GRANTED.