SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff Jean McDade (“Plaintiff”) filed this action against Defendants Hong Holdings LLC d/b/a Conico Management and Royal Dutch Shell PKC for injuries Plaintiff sustained after falling at Defendant’s property located at 2477 Lomita Blvd., Lomita, CA 90717, because of an alleged dangerous condition.  Plaintiff alleges that on August 15, 2021, as she was walking near gasoline pump, “she stepped on an unknown substance on the floor causing her to slip and fall,” which caused her injury.  (Complaint p. 4, 5.)  The operative complaint alleges causes of action for negligence and premises liability.  

Defendant Hong Holdings LLC d/b/a Conico Management (“Defendant”) now moves for summary judgment, or in the alternative summary adjudication.  Plaintiff opposes the motion, and Defendant filed a reply.   

  

2. Motion for Summary Judgment 

a. Moving Argument  

Defendant argues it is entitled to summary judgment because Plaintiff has no evidence of how long the substance on the ground was there to demonstrate that Defendant had actual or constructive notice of the alleged slippery condition. Furthermore, Defendant contends that the video surveillance of the incident demonstrates that Plaintiff tripped over the concrete curb of the pump island when she stepped backwards.    

 

b. Opposing Argument 

Plaintiff argues Defendant’s moving papers fail to address all theories of liability. Plaintiff relies on her expert, Enrique Rivera (“Rivera”), to contend that Plaintiff tripped and fell when Plaintiff’s right foot impacted the pump island curb, which caused her to trip and fall backward. Rivera contends that the pump island was unsafe because of its shape. Plaintiff further argues that the video surveillance does not clearly show Plaintiff’s feet at the time of the fall due to the island curb’s obstruction, and therefore does not accurate depict the defect from Plaintiff’s perspective.   

 

c. Reply Argument 

In reply, Defendant contends that it did properly address all of Plaintiff’s theories of liability as set forth in Plaintiff’s operative complaint. Further, Defendant argues that Plaintiff does not discuss or present any evidence to create a triable issue of material fact, and instead relies on Rivera’s declaration, which lacks foundation and is speculative.  

 

d. Evidentiary Objections 

Defendant submits 15 evidentiary objections to Plaintiff’s evidence - Rivera Declaration. Objection 1 is overruled, objections 2-3 are sustained, objections 4-5 is overruled, objection 6 is sustained, objection 7 is overruled, objections 8-9 are sustained, objection 10 is overruled, objections 11-13 are sustained, objections 14-15 are overruled.  

Plaintiff submits 12 evidentiary objections to Defendant’s evidence. Objections 1-12 are overruled.   

 

e. Burdens on Summary Judgment 

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.4th 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.)  

 

(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.) 

 

f. Analysis 

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.) 

In this case, Plaintiff alleges that on August 15, 2021, she slipped and fell at a Shell gas station in Lomita. (Mot. Undisputed Material Facts (“UMF”) 2.) Defendant contends that the surveillance video captured the incident. (UMF 3.) Plaintiff fell as she was putting the gas nozzle into the vehicle she was operating. (UMF 4.) Plaintiff contends that she slipped and fell on a wet substance on the ground. (UMF 5.) Defendant avers that Plaintiff is unable to identify any facts or evidence to support that Defendant had actual or constructive notice of the alleged dangerous condition that caused her fall. (UMF 11-12.) Defendant further asserts that Plaintiff speculates that a slippery substance caused her to fall, but the surveillance video demonstrates that Plaintiff tripped over the pump island’s concrete curb as she was stepping backwards. Therefore, Defendant contends that there is no evidence to establish that any act or omission by Defendant caused her to fall. 

The Court has reviewed the surveillance footage submitted by Defendant. (Def. Appendix Exh. G; link to video.) Plaintiff positively identified herself and the vehicle she was driving when the video was shown to her at her deposition.  (Def. Appendix Exh. B; 20:5-19.) The 29 minute and 25 second surveillance video shows Plaintiff, in a red vehicle, pull up to the gas station at around the 12 second mark. At around the 20 second mark, Plaintiff gets out of her vehicle and walks across the subject area where she fell to enter the convenience store located on the premises. Between the 2 minute and 11 second mark to 18 second mark, Plaintiff walks across the area again to reach her gas tank, turns around, and removes the gas nozzle from the holder. At the 2 minute 19 second mark, while holding the gas nozzle, Plaintiff’s right foot appears to impact the gas pump island curb and she falls backwards over the curb, and lands in the space between the two island curbs. While on the floor, a witness at the adjacent gas station pump walks over and removes the gas nozzle from Plaintiff to put it away. At this point, two other witnesses come to assist Plaintiff, both who walk over the subject area to do so. The initial person who assisted Plaintiff stands in or around the subject area of her fall from the 3 minute 30 second mark to the 5 minute and 22 second mark. Throughout the video, the first and second persons who assisted Plaintiff remain in the subject area for a length of time, and the video demonstrates both witnesses fueling Plaintiff’s vehicle while standing in and around the subject area. Until the end of the video, multiple people walked across the subject area of Plaintiff’s fall without issue. 

The evidence is sufficient to meet Defendant’s moving burden.  The burden thus shifts to Plaintiff to raise a triable issue of material fact.   

First, Plaintiff asserts that Defendant failed to address Plaintiff’s alternative theories of liability for how the fall happened. Plaintiff relies on her expert Rivera to contend that there is an issue with the pump islands having protruding ends. There is no argument that the defect was due to a slippery substance as alleged in the operative complaint; instead, Rivera’s opinions rest entirely on the design of the island curb and even seems to acquiesce that Plaintiff fell because of the impact with the island curb (“Mr. Rivera developed a series of 5 still-shots from the surveillance footage that depict the plaintiff immediately after grabbing the pump nozzle and she is turning to her left to insert the nozzle into her vehicle, and her left foot is planted at the time the back of her right foot impacts the pump island curb causing her to trip and fall backward.”). (Opp. 3:27-28; 4:1; Decl. Rivera ¶ 9.)  

In ruling on a motion for summary judgment, the Court is bound by the issues framed the complaint.  “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.’”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493; Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [“The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’  [Citations.]”].)  “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.  [Citations.]”  (Hutton, supra, 213 Cal.App.4th at p. 493.) 

New factual issues presented in opposition to a summary judgment motion should be considered if the pleading, construed broadly, encompasses them.  (Ibid.)  “In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.”  (Ibid.)  In cases that find new factual issues are not encompassed by the original pleadings, “the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint.  Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.”  (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 226.) 

Several cases are instructive on this issue.  (See, e.g., Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 646-647 [finding that three additional claims of how defendant breached its fiduciary duties were not pled or encompassed by plaintiff’s second cause of action for breach of fiduciary duty and therefore trial court correctly disregarded them from plaintiff’s opposition to motion for summary judgment]; but see Blair, supra 218 Cal.App.3d at p. 226 [finding that broad allegations of negligent construction and maintenance of highway encompassed later allegations of negligent placement of highway guard rails, slope of road, and inadequate warnings signs because they were predicated on the same fundamental facts].) 

In Lackner v. North (2006) 135 Cal.App.4th 1188, the plaintiff alleged in her complaint that defendant Mammoth Mountain negligently operated, maintained, and controlled the slopes so as to create a dangerous condition and that it did so by permitting race participants to practice on runs not designed for training or racing, failing to warn its other patrons that participants were authorized to train on ordinary runs, and failing to take other precautions for the safety of persons using the slope.  (Id. at p. 1202.)  For the first time, in her separate statement in opposition to defendant’s motion for summary judgment, plaintiff alleged that Mammoth failed to properly post signs in the area where the incident occurred, warning that the area is a rest stop where slowing should occur.  (Id. at p. 1201, fn. 5.)  The appellate court held that a separate statement of material facts is not a substitute for an amendment of the complaint and that because her complaint fails to allege facts that give rise to a duty to post such signs, she could not assert Mammoth’s breach of that duty.  (Ibid.) 

Similarly, in Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, plaintiff alleged a dangerous condition of public property in that there the City and County were negligent in designing, constructing, maintaining, controlling, and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals which caused an accident between a truck and a vehicle on the highway.  (Id. at p. 1258.)  However, in opposition to defendant’s motion for summary judgment, plaintiff included additional facts in the separate statement alleging that the vehicle struck a luminaire, pole, or some other object which was an additional basis for dangerous condition liability.  (Id. at p. 1252.)  The court held that the additional fact shifted the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint and attempts to predicate liability on a totally different condition.  (Id. at p. 1258.) 

Here, Plaintiff alleged in her complaint: “As Plaintiff was walking near a gasoline pump within the subject premises, she stepped on an unknown substance on the floor causing her to slip and fall, thereby causing Plaintiff to endure severe injury and pain… [Defendants] caused and permitted said premises to be and remain in a dangerous and unsafe condition in that…Defendants, and each of them, caused or permitted structures and/or components and/or other parts of said building to be and remain, wet, and otherwise deficient…By reason of the aforesaid negligence, carelessness and recklessness of Defendants, and each of them, as aforesaid, and as a direct and proximate result thereof, dangerously dirty and/or wet floor that was not properly installed, maintained, cleaned and/or protected at said property causing Plaintiff to sustain the injuries and damages as hereinafter alleged.”  (Complaint, p. 4.) 

The additional claims added in Plaintiff’s separate statement in opposition to this Motion are not predicated on the same fundamental facts such that they can be broadly construed to be encompassed by the allegations of Plaintiff’s complaint. Plaintiff’s complaint states that the dangerous and unsafe condition was the unknown substance on the floor, which Plaintiff alleges was wet or dirty. Like in Lackner and in Laabs, new allegations that the trip hazard was actually created by the protruding curb of the pump island and that Defendant fell below the standard of care by allowing a low-lying tripping hazard are wholly outside the allegations of Plaintiff’s complaint. Therefore, these improper arguments will not be considered in this motion for summary judgment. Further, in response to Defendant’s special interrogatory asking Plaintiff to describe in full detail the incident that forms the basis of this lawsuit, Plaintiff responded: “Defendant failed to properly inspect, warn, control, put up caution signs and/or other warning device alerting guests about a slippery substance that existed in the ground. Defendant’s negligent conduct caused Plaintiff to slip and fall, thereby causing Plaintiff to endure severe injuries.” (Def. Appendix Exhs. E and F; Spec. Rog. No. 1.) In response to Defendant’s special interrogatory requesting Plaintiff to identify what she factually contends was the cause of the incident which forms the basis of her complaint, Plaintiff responded: “Defendant left a slippery substance on the ground where Plaintiff slipped and fell thereby causing Plaintiff to sustain severe injuries.” (Id. at Spec. Rog No. 2.) 

A plaintiff may not create a triable issue of fact by submitting declarations or evidence contrary to prior testimony or discovery responses.  (See, e.g., Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)  “In determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party.”  (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.)  The Court gives “great weight” to admissions made in discovery, as they “‘have a very high credibility value,’ particularly when they are ‘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.”  (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 2010.) The additional claims of dangerous conditions are inconsistent with Plaintiff’s complaint, deposition testimony, and responses to written discovery.  Therefore, the Court will not consider them. 

Accordingly, the only argument and evidence that the Court may consider are those relating to the alleged wet substance on the floor as the relevant theory of liability presented by Plaintiff.  “The decisive point of inquiry is the length of time the condition had existed.”  (Perez, supra, 200 Cal.App.2d at p. 560.)  However, Plaintiff presented no evidence showing the condition existed long enough that Defendant should have discovered and remedied in the exercise of ordinary care.  Case law is clear that “[t]he plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it.”  (Ortega, supra, 26 Cal.4th at p. 1203.)  In opposition to this Motion for summary judgment, Plaintiff must show there was a triable issue of material fact as to whether Defendant had actual or constructive notice.  Plaintiff failed to meet this burden. 

In Girvetz, supra, the plaintiff slipped on a banana near the check out aisles with approximately fifteen employees within a radius of fifteen feet from the scene of the accident.  (Girvetz, supra, 91 Cal.App.2d at p. 831.)  The only evidence as to the length of time the banana was on the floor was the testimony of another shopper who stated she saw the banana on the floor approximately one-and-one-half minutes before Plaintiff slipped.  (Id. at p. 828.)  Absent evidence that the condition was caused by the defendant, the court could not reasonably infer from the circumstances that the dangerous condition had existed for such a length of time as to justify charging the defendant with lack of ordinary care.  (Id. at p. 831.) 

Here, Plaintiff testified that she did not see any substance on the floor when she first arrived at the Shell station, but that her clothes were wet after she fell. (Def. Appendix Exh. B; 16:1-5; 21:1-3.)  No other witnesses testified to seeing any wet substance on the floor. The Court agrees that the video surveillance is partially obstructed in terms of the curb blocking full view of Plaintiff’s feet. However, the arguments presented in Plaintiff’s opposition and the opinions proffered by Plaintiff’s expert appear to concede that Plaintiff fell because her foot hit the island curb, although Plaintiff’s deposition testimony provides that her foot first slipped on a substance. (Id. at 22:1-3; 24:3-8.) Construing the evidence in a light most favorable to Plaintiff, even if Plaintiff did fall because there was a wet substance on the floor, it cannot be inferred from these circumstances that the dangerous condition of a wet substance existed for such a length of time to as to justify charging Defendant with lack of ordinary care in failing to discover and remedy the condition before Plaintiff was injured. The Court also notes that in reviewing the 29-minute surveillance video, that multiple people walked across the same area of Plaintiff’s fall, and more than one person even stood in the same area without issue.  

Furthermore, Plaintiff presents arguments that do not correlate with the facts of this matter to create a triable issue of material fact. Plaintiff contends that Defendant’s PMK Mr. Trillo could not say inclement weather protocols were followed leading up to Plaintiff’s trip and fall – there is no PMK named Mr. Trillo provided, there are no arguments about weather condition as a factor in this matter, and Walmart is not a party to this case. Further, Plaintiff contends there was visible rainwater on the floor and there were no mats – again, the facts do not track with this case, which does not involve rainwater or mats. Plaintiff’s arguments that Defendant created the condition are also incongruent, again arguing rainy day procedures, flooring material, and mats, when this case involves an outdoor gas station on a bright and sunny day. The Court will not consider Plaintiff’s factually inconsistent arguments about store procedures, products on shelves, mats, rainy-day protocols, and persons who do not exist in this case. In sum, Plaintiff has presented no evidence of any actual or constructive notice of the wet condition to create a triable issue of material fact.   

Defendant brings this motion for summary judgment or in the alternative a motion for summary adjudication. As the motion for summary judgment is granted, the Court need not address Plaintiff’s contentions regarding summary adjudication.  

 

3. Conclusion  

In light of the foregoing, Defendant’s motion for summary judgment is granted.  

 

Defendant is ordered to give notice.   

 

 

Dated this 2nd day of August 2023