SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Elodia Gonzalez (“Plaintiff”) filed this action against Defendants Food 4 Less of California, Inc., Food 4 Less of Southern California, Inc., and The Kroger Co. for damages arising from a slip and fall. The complaint alleges defendants allowed a dangerous condition to exist, specifically a dirty, wet and slippery floor with spilled merchandise. The complaint alleges causes of action for premises liability and general negligence against defendants.   

At this time, Defendant Alpha Beta Company dba Food 4 Less, erroneously sued as Food 4 Less of Southern California, Inc., (“Defendant”) moves for summary judgment as to Plaintiff’s complaint. Plaintiff opposes the motion, and Defendant filed a reply. 

 

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.) 

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.) 

Here, Plaintiff alleges she slipped and fell on December 31, 2019 at the Food-4-Less store located at 1717 S. Western Ave., Los Angeles, CA 9006. (UMF 1.) Plaintiff slipped on blueberries while walking on Aisle 1. (UMF 2.) The video surveillance footage (“video”) from December 31, 2019 shows that less than three minutes before, the blueberries were spilled on Aisle 1 by an unidentified female customer. (UMF 3.) Defendant's employees are trained to conduct and complete sweeps of the store every 60 minutes. (UMF 4.) Upon the completion of each sweep, an employee records it into the Sweeps Floor Inspection Report ("Inspection Report"), a computer based system used to document that employees conduct. (UMF 5.) The video shows that on December 31, 2019, at 4:18:12 p.m., Carlos Romero (“Romero”), a former employee of the Defendant, conducted a formal inspection and sweep of Aisle 1 at the store using a push broom, going directly over the area where the Plaintiff subsequently slipped and fell. (UMF 7.) After completing the sweep, Romero recorded it into the Inspection Report at 4:21:00 p.m. His sweep left the floor clean and clear of debris. There were no foreign substance or hazardous condition of that area. (UMF 8) According to the video surveillance footage, on December 31, 2019, at 04:38:51 p.m., an unidentified female customer spilled blueberries on the floor of Aisle 1. (UMF 9.) On or about 04:40:59 p.m., the Plaintiff stepped on the blueberries on Aisle 1 of the Store and fell on 

the floor. (UMF 12.) No store employees can be seen passing through the area between the time of the unidentified customer spilled the blueberries on the floor of Aisle 1 (04:38: 46 p.m.) and Plaintiff's fall. (04:40 59 p.m.). (UMF 14.) 

The evidence is sufficient to meet Defendant’s moving burden to show that it did not have actual or constructive notice of the spill with sufficient time to remedy it, and that Defendant did not create the dangerous condition. The burden now shifts to Plaintiff to raise a triable issue of fact.   

Plaintiff contends the facts of her case are similar to Lopez v. Superior Ct. (1996) 45 Cal. App. 4th 705. Plaintiff argues that it was foreseeable that produce would commonly spill on the floor such that Defendant should have placed mats in front of the “berry case” to present the floor from becoming slippery from spilled berries. Plaintiff refers to the deposition of Defendant’s PMK, assistant store leader Reginald Heflin (“Heflin”), who testified about the inspection procedures that existed at the time of the incident. Heflin testified that they never pass 60-minute increments and that the floor sweep on an hourly basis is documented on the Kronos time clock. (Plf. Exh. 2; 23:1-13.) Helflin also testified that the criteria for an entire store sweep was to aim for two sweeps within an hour that consists of the entire floor, and there should be anywhere from one to two sweeps completed within an hour and documented on the time clock. (Id. at 23:16-22.) These procedures and protocols are in place because it is foreseeable that produce will spill on the ground, from tomatoes to grapes to blueberries. (Id. at 34:11-22) Defendant argues Plaintiff’s reliance on Lopez is distinguishable, because the facts critical to the decision rendered in Lopez are not present in this matter. The Court agrees. 

In Lopez, the plaintiff slipped and fell on grapes on the floor of a market. Deposition testimony from a witness indicated that before the accident, the witness observed the floor to be wet from a leaking refrigerator, and that every time he went to the store, he saw grapes on the floor. Plaintiff contended the cement floor was improperly constructed and finished such that when it was covered with leaking water or fruit, it became unreasonably dangerous. In this case, there was sufficient evidence to reasonably infer that it was common for the floor to be littered with grapes, and thus the defective condition at issue was not a transient existence. In reversing the trial court’s ruling, the court noted that defendant did not provide sufficient information about the nature and condition of the floor, or the scope of any of its inspections of the premises to determine if defendant discharged its duty to plaintiff. “ “[W]ere facts presented bearing upon the necessity for an inspection, nor facts which showed that any inspection conducted was reasonable under the circumstances. Respondent's failure to provide these facts indicates that granting the summary judgment motion as to the negligence cause of action was inappropriate.” ” (Lopez, supra, 45 Cal. App. 4th at 717.) 

Distinguishable from Lopez, there is no evidence that the floor was commonly littered with blueberries, and Defendant here provides evidence that it had an inspection policy in place. Just because there is foreseeability that produce may spill in the produce aisle, thus necessitating the need for Defendant’s inspection policy, is different from Lopez where there was a reasonable inference that grapes on the floor were a continuous issue left unchecked. The Lopez case does not go against the long-standing principal that, “Because the owner is not the insurer of the visitor's personal safety [citation], the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.) In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472, 476.)  

In Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472, plaintiff argued that Wal-Mart created an unreasonable risk of harm, because Wal-Mart knew or should have known that McDonald’s customers were routinely dropping drinks and fries on its floors, and therefore it had constructive notice of the French fry that caused plaintiff’s slip and fall. The Moore court confirmed that the law, as restated by the Supreme Court in Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, and as illustrated by the jury instruction adopted in response to Ortega, is: 

 

 “A store owner is not negligent unless [he][she][it] actually knew or reasonably should have known of the dangerous or defective condition a sufficient time before the accident to have either remedied the condition or provided warning or protection against it. An owner reasonably should know of a dangerous or defective condition if it existed for a sufficient length of time before the accident 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 or protection before the injury occurred.”  

(Id. at 479.) 

As the Moore court explained, “Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries, i.e., they would be insurers of the safety of their patrons. For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding.” (Id. at 479.) 

“The decisive point of inquiry is the length of time the condition had existed.”  (Perez, supra, 200 Cal.App.2d at p. 560.) The video evidence provides a clear and close view of the subject incident. It is undisputed that Defendant’s employee can be seen directly sweeping the area with a push broom at 4:18 p.m., and at that time the floor appears free of any debris. It is also undisputed that a customer spilled blueberries on the floor at 4:38 p.m. and Plaintiff stepped and fell on the blueberries at 4:40 p.m., within approximately two minutes of the condition being created. Further, Plaintiff provides no authority that Defendant’s policy of one to two sweeps within 60-minute increments is insufficient. 

Plaintiff also argues that the exact location of Defendant’s employees leading up to the incident is unknown, and that there is not enough evidence to determine Defendant’s employees’ locations prior to and at the time of Plaintiff’s incident. In Girvetz, the plaintiff sought to recover for injuries she sustained when she slipped on a banana or banana peel while shopping in a market operated by the defendant.  (Id., supra, 91 Cal.App.2d at 828.)  The only evidence as to how long the dangerous condition existed was a customer’s testimony that she saw the banana on the floor for a minute and a half before the incident.  (Id.)  The Court of Appeal noted that while “the exact time that a dangerous condition must exist in order to charge the proprietor cannot be stated as a matter of law[,] [i]t can only be held that, in the circumstances of the case now before the court, one and one-half minutes is too short a period,” notwithstanding that there were “many employees” in the immediate vicinity where the plaintiff fell.  (Id. at 832.) Here, the evidence is even stronger in that it is undisputed by the video evidence that the blueberries were on the floor for approximately two minutes. Like in Girvetz, the condition of the blueberries on the floor for about two minutes is too short of a period to provide notice of a dangerous condition, notwithstanding the possibility of any employees within the immediate vicinity. 

Plaintiff also contends, in her November 6, 2023 declaration in opposition to the motion, that she noticed the floor had been recently polished and waxed, and was therefore slippery. However, Plaintiff’s contention about the polished and waxed floor is a theory of liability presented for the first time on summary judgment, because Plaintiff did not identify this in her prior discovery responses. 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.) Plaintiff responded to Defendant’s special interrogatory No. 6 (“Describe in specific detail what caused you to fall.”), No. 7 (“Describe in detail what you believe to be the source of what caused you to fall.”), No. 8 (“Describe in specific detail the appearance of what you allege is the dangerous condition.”), and No. 58 (“Describe in detail what you believe to have caused the accident.”) that “she slipped on some blueberries that were on the ground” and that the “color of the blueberries was a dark pigment.” (Def. Exhs. D, E.) Plaintiff does not dispute blueberries caused her slip and fall. The additional claim of a dangerous condition by way of a recently waxed or polished floor is inconsistent with Plaintiff’s prior responses to written discovery. Therefore, the Court will not consider it.  

There is thus no evidence showing that Defendant had actual or constructive notice of the blueberries prior to the incident. The evidence shows that the subject blueberries that caused Plaintiff’s fall were on the floor for approximately two minutes. A period of two minutes is too short of a time to require Defendant to have discovered the condition and remedied it, and thus, to establish constructive notice.  (Girvetz, 91 Cal. App. 2d at 831; see also Barta v. Target Corporation (C.D. Cal. 2017) 2017 WL 6551145, 4-5 [applying California law, summary judgment granted for defendant on constructive notice where video showed inspection of area about 5½ minutes before the plaintiff's fall].)    

Defendant met its moving burden to show it lacked sufficient notice of the spill on the floor, which occurred shortly before the fall.  Plaintiff failed to raise a triable issue of fact concerning notice.   

 

IV. Conclusion  

Defendant’s motion for summary judgment is GRANTED.  

 

Defendant is ordered to give notice.   

 

 

Dated this 27th day of November 2023