Judge Michelle C. Kim, Case 21STCV18647 2023-05-08 Tentative Ruling

Plaintiff Duwan Norris (“Plaintiff”) filed this action against Defendant BJ’s Restaurants, Inc. (“Defendant”) for damages relating to Plaintiff’s alleged slip and fall in Defendant’s property. Plaintiff alleges that as she walked near a hostess booth within the subject premises, she stepped on an unknown substance on the floor that caused her to slip and fall. (Compl. at pp. 4, 5.) The complaint alleges causes of action for negligence and premises liability against Defendant.

Defendant now moves for summary judgment, or alternatively, summary adjudication, as to Plaintiff’s claims. Plaintiff opposes the motion, and Defendant filed a reply.[1]

Defendant argues it is entitled to summary judgment because Plaintiff cannot prove that a dangerous condition caused her to fall. Defendant contends that there is no evidence that there was any substance on the floor that caused Plaintiff to fall, which Defendant asserts Plaintiff confirmed at her deposition. Defendant contends that Plaintiff cannot now create a triable issue of fact by “cynically” changing her deposition testimony. Further, Defendant argues that even if there was a substance on the floor, Defendant did not have actual or constructive notice in time to remedy the alleged dangerous condition. Lastly, Defendant asserts that no act or omission by Defendant proximately caused Plaintiff’s fall.

Plaintiff argues that she was entitled to review and correct her deposition transcript, but she did not timely receive it from the Court Reporter. Plaintiff contends that there is evidence, including her deposition testimony, showing that there was some substance on the floor that contributed to Plaintiff’s slip and fall, and that Plaintiff’s expert’s declaration further raises triable issues of material fact, including as to the issue of whether Defendant had notice of the dangerous condition.

In Plaintiff’s Response to Defendant’s Separate Statement submitted with her opposition, and Defendant’s Reply to Plaintiff’s Separate Statement, the parties make objections to certain facts asserted. Objections to a separate statement are improper. (Cal. Rules of Court, Rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections in the separate statements.

Additionally, Plaintiff submits two objections to Scott Montero’s (“Montero”) declaration attached to the motion. Objections 1 is sustained to the extent Montero relies on and relates hearsay statements without establishing personal knowledge for such, including Montero’s statement that he was informed pieces of broken glass and spilt wine on the ground were dropped by Plaintiff when she fell. Objection 2 is sustained to the extent that Montero relates what the surveillance video shows, as the video speaks for itself.

Defendant submits 35 objections to Plaintiff’s evidence. Objection 1 made to the Errata Sheet attached to Exhibit 1 in Plaintiff’s Exhibit Log on the grounds that it is a self-serving change to her deposition testimony is overruled. (See Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [declaration controverting deposition testimony does not make evidence inadmissible].) Nevertheless, assuming Defendant meets its moving burden, whether such evidence is sufficient to raise a triable issue of material fact will be addressed below.

Objection 2 is sustained to the extent the relevant exhibit contains hearsay. Objections 3-9 to Plaintiff’s declaration are overruled.

Objection 10 to the entirety of Plaintiff’s expert’s declaration, Eris J. Barillas (“Barillas”), is overruled. Further, objections 15-16, 19, 23-24, 28, and 33-34 are overruled. Objections 11-12, 20-22, and 25-27 are sustained to the extent Barillas relates what the relevant surveillance video shows, as the video speaks for itself. Objection 13 is sustained as Barillas fails to identify what photographic or video evidence was provided by Plaintiff’s counsel regarding the floor’s condition. Objection 14 is sustained to the extent Barillas fails to explain what constituted “wet conditions” of the subject flooring. Objections 17 and 18 are sustained to the extent Barillas asserts case-specific facts that Barillas has not established independent knowledge of. (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].) Objections 29 and 31 are sustained to the extent Barillas asserts improper legal conclusions. Objections 20, 32, and 35 are not material to the disposition of the motion, and thus, the Court declines to rule on them at this time. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[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.)

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. (CCP §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.) However, “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of these stern requirements applicable in a normal case are relaxed or altered in their operation.” (Id.) “The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220–1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at 22.)

The elements of a negligence and premises liability cause of action are the same: 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 in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

To meet its burden of proof, a “ ‘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.’ ” [Citation].

“The owner of a premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “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, Inc. (1949) 91 Cal.App.2d 827, 829.)

“A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Id. at 1206-1207.) Where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id., at 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 888 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id., at 1205-1206.) The Ortega court also observed that in its review of the case authority, the owner's inspection practice is one of several factors in determining the length of time a condition existed prior to an accident, and none of the cases they considered held that failure to inspect alone could satisfy the plaintiff's burden to prove constructive knowledge. (Ortega, 26 Cal. 4th at 1208.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

Defendant argues that there was no dangerous condition, and assuming there was a dangerous condition, that it did not have notice of any dangerous condition. Further, Defendant contends that the evidence shows that 87 people walked through the area Plaintiff fell without incident, so Plaintiff cannot show how long the condition existed. Finally, Defendant argues the causation element is not satisfied.

Plaintiff, in opposition, asserts that Plaintiff’s changed deposition testimony shows there was a dangerous condition. Further, Plaintiff asserts there was adequate notice because there is documentation showing that no “cleaning/sweeps” were done during business hours, and that Defendant’s manager does not know if any “cleaning/sweeps” were done on the day of the incident. (Opp. Pl’s Additional UMF 14-15.) Plaintiff avers that Defendant’s manager does not know when the area where Plaintiff slipped and fell was last swept or mopped before the incident. (Id. at 16.) Finally, Plaintiff attempts to distinguish case law cited by the Defendant.

Here, Plaintiff patronized Defendant’s restaurant on May 25, 2019, to celebrate her sister’s birthday. (Mot. Undisputed Material Facts (“UMF”) 1.) At some point, Plaintiff left her table to the bar area to purchase a glass of wine. (Id. at 3.) Plaintiff did not see anything on the floor anywhere in the dining area while she walked up to the bar, nor did she see anyone slipping. (Id. at 4.) At approximately 9:15 p.m., Plaintiff walked back towards her table with her wine glass, and she did not see anything on the floor as she was walking back. (Id. at 5-6.) Plaintiff slipped and fell on her way back to the table. (Id. at 7.)

Defendant asserts, based on Plaintiff’s original deposition testimony, that the floor was clean and dry before Plaintiff’s fall, and that Plaintiff cannot identify what caused her foot to slip. (Id. at 8-9.) When Plaintiff checked the shoes she was wearing, there was nothing on the bottom of the shoes.[2] (See Id. at 10.) Defendant avers that Plaintiff testified that the only thing Plaintiff saw on the ground after her fall was her spilt wine and broken wine glass. (Id. at 11.) Defendant further asserts that its restaurant manager inspected the area where Plaintiff fell about 40 seconds after the fall, and other than wine and a broken wine glass, the manager did not observe anything else on the ground. (Id. at 12-13.) Defendant contends that in the 15 minutes before Plaintiff’s fall, approximately 87 people walk through or near the location of Plaintiff’s fall, and that none of those 87 people have trouble walking through the area where Plaintiff fell or drop or spill anything. (Id. at 14-16.)

The foregoing is sufficient to meet Defendant’s moving burden to show that a dangerous condition was not present on the floor where Plaintiff fell. The burden shifts to Plaintiff to raise a triable issue of material fact in this regard.

In opposition, Plaintiff submits an Errata Sheet with her deposition transcript that substantively changes Plaintiff’s testimony regarding the incident and whether there was anything on the floor that caused Plaintiff’s slip and fall. (Opp. Exhibit Log Exh. 1.) Plaintiff also submits a declaration in support of Plaintiff’s opposition to this motion declaring that she “prepared an Errata Sheet listing my corrections to the deposition transcript.” (Opp. Norris Decl. ¶7.) As an example of the changes made, when asked if there was “anything on the floor that [Plaintiff] can identify that caused [her] foot to slip?”, Plaintiff responded at her deposition, “No, that I can think of, no.” (Id. at p. 119:13-15.) However, in the Errata Sheet attached to her transcript, Plaintiff changed her response to, “Liquid or slippery substance on the floor.” (Id.) Plaintiff argues that while Defendant relies on Plaintiff’s original deposition testimony in moving for summary judgment, (Mot. UMF 8-11), Plaintiff was entitled to review and correct her deposition testimony.

Defendant took Plaintiff’s deposition on April 22, 2022. (Mot. Tsao Decl. ¶ 4.) Defense counsel provides that on May 10, 2022, the parties were electronically served with a copy of the deposition transcript for Plaintiff to review and make changes. (Id. at ¶ 6; see Mot. Compendium of Exhibits Exh. 5.) Plaintiff’s Errata Sheet attached to her deposition transcript is signed and dated June 13, 2022. (Opp. Exhibit Log Exh. 1.) Plaintiff does not dispute these facts. Rather, Plaintiff provides that following her deposition, she waited for the transcript, “but it never arrived.” (Opp. Norris Decl. ¶¶ 4-5.) At some point, Plaintiff called her attorney and advised them that she had not received her deposition transcript. (Id. at ¶ 6.) Plaintiff’s counsel then communicated with the Court Reporter, (Id. Fradkin Decl. ¶ 6), and Plaintiff attests she then received the transcript on June 10, 2022. (Id. Norris Decl. ¶ 7.) Plaintiff claims she then prepared the Errata Sheet, listing her purported corrections, and provided them on June 13, 2022. (Id.; Opp. Fradkin Decl. ¶ 6.) Defendant, however, contends that Plaintiff’s changes fail because Plaintiff failed to comply with CCP § 2025.520, and because the changes are contradictory, self-serving amendments done to oppose summary judgment.

(a) If the deposition testimony is stenographically recorded, the deposition officer shall send written notice to the deponent and to all parties attending the deposition when the original transcript of the testimony for each session of the deposition is available for reading, correcting, and signing, unless the deponent and the attending parties agree on the record that the reading, correcting, and signing of the transcript of the testimony will be waived or that the reading, correcting, and signing of a transcript of the testimony will take place after the entire deposition has been concluded or at some other specific time.

(b) For 30 days following each notice under subdivision (a), unless the attending parties and the deponent agree on the record or otherwise in writing to a longer or shorter time period, the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.

(f) If the deponent fails or refuses to approve the transcript within the allotted period, the deposition shall be given the same effect as though it had been approved, subject to any changes timely made by the deponent.

Defendant contends that because the reporter served the parties with a copy of the deposition transcript on May 10, 2022, Plaintiff’s deadline to make changes was June 9, 2022, which was 30 days after. However, Defendant’s evidence shows that the reporter served the transcript on the parties through email. (Mot. Compendium of Exhibits Exh. 5.) The parties each fail to address the effect of the reporter’s electronic service. Nonetheless, CCP § 1010.6(a)(3)(B) states, “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days…” (See also Cal. Prac. Guide: Civ. Proc. Before Trial Ch. 8E-14 ¶ 8:770 [“The deponent has 30 days (extended for manner of service) after the reporter sends written notice to review and sign the transcript and make any corrections to it.”].) An additional two court days to account for electronic service would mean that Plaintiff was required to make any corrections or changes to her deposition transcript by Monday, June 13, 2022, which Plaintiff thus timely made on that date. Consequently, the Court will consider Plaintiff’s changes to her deposition.

Defendant asserts the changes were made in response to Defendant’s motion for summary judgment. Plaintiff’s changes were made on June 13, 2022. Plaintiff avers that Defendant’s claim that the changes were made in response to the motion for summary judgment is “fallacious” because Defendant’s motion for summary judgment was not served until November 4, 2022. (Opp. Decl. Fradkin ¶7.) However, Defendant gave notice of a motion to continue trial on June 10, 2022, stating that time was needed in order to hear the motion for summary judgment. Thus, Plaintiff’s deposition changes were made 3 days after being notified of the intended motion for summary judgment. Plaintiff’s opposing papers do not address the June 10 notice to continue trial.

Plaintiff’s amended deposition testimony shows that Plaintiff claims that a liquid or slippery substance on the floor caused her to slip and fall. (Opp. Pl.’s Additional UMF 5.) Plaintiff’s changed testimony asserts that she is not certain the floor was dry and clean before she slipped and fell, and that the slippery substance, along with the spilt wine and broken glass, had to be cleaned up after the incident. (Id. at 8-9.) Plaintiff’s changed testimony asserts there was thus a slippery substance on the floor that caused her to fall. (Id. at 10.)

In this Court’s view, this case falls squarely within the D’Amico rule which gives deference to admissions made in the course of discovery, which govern and control over contrary declarations lodged at a hearing on a motion for summary judgment. This is because, as the California Supreme Court explained in D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal.Rptr. 786, 520 P.2d 10], “ 'Where ... there is a clear and unequivocal admission by the plaintiff ... in his deposition ... [the trial court is] forced to conclude there is no substantial evidence of the existence of a triable issue of fact [notwithstanding a contradictory declaration in opposition to summary judgment].' ... [¶] ... [A]dmissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at pp. 21-22, italics omitted; see also Benavidez v. San Jose Police Dept. (1999) 71 Cal. App. 4^th 853, 860; Visueta v. General Motors Corp. (1991) 234 Cal. App.3d 1609, 1613.)

Furthermore, this Court agrees that in this case, “[t]here is no reason to draw a distinction between an attempt to counter an admission by affidavit and an attempt to counter an admission by changing the content of an answer given by a party directly in the deposition, especially where there is no assertion the original answer was incorrectly transcribed or the question was misleading or ambiguous.” (Gray v. Reeves (1977) 76 Cal. App.3d 567, 574.) Plaintiff argues that Gray v. Reeves is distinguishable because, in that case, the changed testimony was made 19 months after the deposition. However, in this Court’s reading of the case, the outcome in Gray v. Reeves does not turn on the length of time that has elapsed after a deposition, rather, the length of time was a factor to consider in determining the credibility of the original admission, considering the changed testimony was “diametrically opposed to” the original admission. (Id.) As the Gray court stated, “This choice is particularly called for where, as here, the deponent waits 19 months to make the changes and is then inspired to make the changes by pressures attending an apparently grantable motion for summary judgment. (Id.) This Court believes the gravamen of the holding in Gray v. Reeves rests on the fact that the changed testimony was “diametrically opposed to” the original admission. This is especially so in this case where Plaintiff offered no explanation for her contradictions to her original deposition testimony either in her notice of errata or with her opposition. Plaintiff’s declaration submitted with the opposition concerns only when she received the deposition transcript, but she offers no explanation for the changes she made. For example, the following exchange occurred at the deposition:

Q And in this situation, your fall at the restaurant, this is a situation where there's nothing on the ground that would have caused [your fall]–

(Opp. Pl.’s Exhibit Log Exh. 1 at p. 135:1-5.) Plaintiff offers no explanation for her contradictory change that there was instead a slippery substance on the floor.

Finally, there is additional case law that suggests that a contradiction may not be avoided by changing the deposition transcript. (See Shapero v. Fliegel (1987) 191 Cal.App.3d 842, 849.) In Shapero, the Plaintiff “took pages from her deposition, crossed out her original answers and supplanted them with answers more in keeping with her later recollection of events before submitting them to the trial court. The trial court properly rejected these emendations.” (Id. at 849-850.) Thus, this Court agrees with the defense argument that while Plaintiff is permitted to change her deposition testimony pursuant to CCP 2025.520, Plaintiff cannot by so doing create a triable issue of fact in order to defeat a motion for summary judgment.

Moreover, even assuming Plaintiff’s amended deposition testimony to be true, the Court finds that the case of Peralta v. The Vons Companies, Inc (2018) 24 Cal. App. 5^th 1030 to be instructive. There, plaintiff admitted she did not see anything on the floor before or after the fall, but testified at her deposition that she felt her foot slip on “some sort of oil or grease.” The evidence further showed that the plaintiff could not identify what had caused her to slip, and that employees who inspected the scene after the fall similarly could not find anything that caused the fall. In opposing summary judgment, the plaintiff submitted an expert declaration claiming that oils and greases were difficult to observe, and that the floor was a dangerous condition when wet. (Id. at 1032-1034.) The court found that the “mere possibility that there was a slippery substance on the floor does not establish causation.” (Id. at 1036.) Here, assuming the truth of the deposition changes, Plaintiff makes a general assertion that there was a slippery substance on the floor, and the declaration of her expert Eris Barillas does not provide anything more than mere speculation. Barillas appears to base her opinion on video evidence not before this Court (Barillas Decl. ¶7.) Furthermore, Barillas’ opinion seems to rely on the improper “Mode of Operations” theory. See Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App.4^th 472, 479.) Finally, the Court sees little evidentiary value in Barillas’ opinion that the floor was a dangerous condition due to its low slip resistance when wet, as she offers no explanation whatsoever for how the “wet conditions” were replicated.

Additionally, the Court has reviewed the video provided by Defendant. The video shows approximately 1 hour of footage. During this hour, dozens and dozens of patrons traverse the walkway where Plaintiff slipped. During this hour, there is nothing to suggest that something was spilled in the area where Plaintiff slipped. During this hour, employees, patrons, and the manager traverse back and forth in the area where Plaintiff slipped. At approximately 9:08:18, Plaintiff can be seen walking on the walkway towards the steps. At approximately 9:15:45, Plaintiff can be seen returning from the opposite direction, when she slips in the area just past the steps. During these 7 minutes, and for the entire duration of the video prior to that, there is no evidence of anything being spilled on the floor. This video evidence, combined with the undisputed material fact #4 that Plaintiff did not see anything on the floor anywhere in the dining area while she walked up to the bar, shows that there was no dangerous condition, or in the alternative, no notice of a dangerous condition. Plaintiff cannot create a factual dispute in reliance on her changed deposition testimony where the testimony is contradicted by video evidence. (See Swigart v. Bruno (2017) 13 Cal. App. 5^th 529, 534 fn.4; see also Scott v. Harris (2007) 550 U.S. 372, 379-380.)

Based on the foregoing, Defendant’s evidence is sufficient to show there was no dangerous condition, notice, or causation, and Plaintiff fails to raise a triable issue of fact.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] On February 24, 2023, Plaintiff submitted two seemingly identical memorandums of points and authorities with her opposition. One was electronically filed at 5:26 p.m., and the other at 5:29 p.m. The Court considers Plaintiff’s memorandum of points and authorities filed at 5:29 p.m.

[2] At her deposition, Plaintiff was asked if she “ever looked at the bottom of those shoes before you tossed them?” (Mot. Compendium of Exhibits Exh. 3 at p. 102:1-2.) Plaintiff responded that she did check them and there was nothing on the bottom. (Id. at p. 102:3-5.) However, it is unclear exactly when after the incident Plaintiff checked the bottom of her shoes.