Judge: Richard S. Whitney, Case: 37-2020-00038264-CU-PO-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 21, 2023

12/22/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00038264-CU-PO-CTL BARRAZA VS 7 ELEVEN INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT KAREN GILL'S MOTION FOR SUMMARY JUDGMENT is DENIED.

Defendant KAREN GILL ('Defendant') asserts there are no issues of fact as to its liability to Plaintiff JOE BARRAZA ('Plaintiff') in this slip and fall case based on factually devoid discovery responses.

In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Plaintiff's complaint includes a cause of action for premise liability and negligence. 'The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.' (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) '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.) Generally, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed. (Id. at 1206.) 'Because the owner is not the insurer of the visitor's personal safety (Girvetz, supra, 91 Cal.App.2d at p. 829), the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability.' (Id. at 1206.) Defendant points to evidence that: Plaintiff did not see any liquid on the ground in the area where he ultimately slipped and fell when he passed by it; Plaintiff passed by the area without incident; Plaintiff slipped and fell after passing through the area again; and Plaintiff did not see any water on the ground before the incident occurred. (Defendant's Separate Statement ['SS'] Nos. 3-10.) Defendant asserts Plaintiff does not know who created the condition, but points to evidence that: a wet floor sign was near where Plaintiff fell; the sign is placed after rush hour and a quick cleaning; and that the mop used to clean the floor is wet, but not to the point where you can see water. (SS Nos. 13, 24-28.) Calendar No.: Event ID:  TENTATIVE RULINGS

3006617  64 CASE NUMBER: CASE TITLE:  BARRAZA VS 7 ELEVEN INC [IMAGED]  37-2020-00038264-CU-PO-CTL The Court finds Plaintiff has raised triable issues of fact. Plaintiff provides evidence that an employee mopped in the area where Plaintiff fell approximately 15-20 minutes before the fall, that there was only one wet floor sign placed 4-5 feet away from where Plaintiff fell, and that where Plaintiff fell Plaintiff saw water spanning 3 tiles. (Plaintiff's Additional Material Facts ['AMF'] Nos. 34 and 37; Plaintiff's response to SS No. 11.) Further, Plaintiff testified that no other customer spilled liquid where Plaintiff fell. (AMF No.

38.) While Plaintiff could not speak to whether customers spilled while Plaintiff was not present, Plaintiff provides evidence to support that it was not caused by a customer while he was present. Further, the evidence helps support the reasonable inference that the liquid on the floor was from a mop used by an employee. While Defendant cites evidence of the practice of not using a mop that is so wet that you can see water, Defendant cannot point to any evidence that the mop used 15-20 minutes before the incident was not too wet. Finally, Plaintiff provides evidence that the placement of the sign could mislead customers, the floor was too slippery, whether wet or dry, and Defendant did not have a policy to track when and where a mopping or cleaning of a spill would take place. (AMF Nos. 39-49.) The Court finds a trier of fact should decide whether the condition was caused by Defendant.

'To comply with this duty, a person who controls property must ' ' ' 'inspect [the premises] or take other proper means to ascertain their condition' ' ' ' and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.' (Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 833 [Citations omitted].) The Court also finds Plaintiff has raised issues of fact as to notice. Plaintiff saw water on the floor where he fell. There is no evidence before the Court that the water there was from anything other than from the mopping that occurred in the area 15-20 minutes before the incident. The Court finds that is sufficient time for an employee to have discovered it such that a trier of fact should decide whether Defendant has actual and/or constructive notice. (See Sapp v. W. T. Grant Co. (1959) 172 Cal.App.2d 89, 92.) Plaintiff has raised triable issues of fact. The motion is denied.

Defendant's Objections to Evidence: Objections 1-21: Overruled Calendar No.: Event ID:  TENTATIVE RULINGS

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