Judge: Serena R. Murillo, Case: 20STCV49528, Date: 2023-03-09 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV49528    Hearing Date: March 9, 2023    Dept: 29

TENTATIVE
Defendant's Unopposed Motion for Summary Judgment is GRANTED.

Background

On December 29, 2020 Tomas Bustos (“Plaintiff”) filed a Complaint against The Kroger Co., Inc. operating as Food 4 Less Holdings, Inc. (“Defendant”) alleging two causes of action:

(1) Premise Liability

(2) Negligence

The Complaint alleges that on March 19, 2019, Plaintiff slipped and fell on a lemon while in Defendant’s supermarket.

On March 11, 2022, Defendant Ralph’s Grocery Company d.b.a. Food 4 Less filed this instant Motion for Summary Judgment (“Motion”).  

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “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.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. 

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Discussion

Legal Standard for Premises Liability and Negligence

“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.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

In California, a store owner owes patrons a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp., 26 Cal.4th 1200, 1205 (2001), citing Rest. 2d Torts § 332.) “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.” (See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443). The owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. (Ortega, supra, at 1206).

"As a general proposition, if there is undisputed evidence that an active inspection of the relevant area occurred less than 30 minutes before the accident, summary judgment in favor of the store owner is appropriate; if not, the question should be resolved by a jury." (Mirtaheri v. Sprouts Farmers Mkt., Inc., 2021 U.S. Dist. LEXIS 252179)

Here, Plaintiff entered the Defendant’s supermarket at around 6:00 p.m. in the afternoon. (See Defendant Ralphs Grocery Company d.b.a. Food 4 Less’s Compendium of Evidence in Support of its Motion for Summary Judgment, hereinafter, “Compendium”, Exh. F). Per video surveillance, Plaintiff stepped on a lemon at about 6:20:25 p.m. (See the Motion, 7:28, and 8:1).

Defendant states that, on the date of the incident at about 6:04:43pm and 6:05:34 p.m., Defendant’s employee conducted an inspection and sweep of the area where Plaintiff subsequently fell, and that this sweep was then logged in the Sweeps Floor Inspection Report (“Report”). (See Motion, 7:16-20 and Compendium, Exh. B). Subsequently, per video surveillance, at about 6:16:30 p.m. a lemon was dropped on the ground by another customer. About four minutes later, the Plaintiff then slipped on the lime.

Here, Defendant demonstrated that not only are regular inspections conducted, but that an inspection was conducted just 14 minutes prior to Plaintiff’s fall, placing this controversy well within Mirtaheri’s scope.

There is no actual notice here because within the four-minute time span between when the lemon was dropped (at about 6:16:30 p.m.) and when the Plaintiff slipped on it (at about 6:20:25 p.m.), there were no store employees present at or near the area to observe the lemon on the floor. Additionally, there is no evidence that an employee was informed of the hazard. 

Additionally, Plaintiff has failed to show constructive notice. In Ortega, a supermarket patron was injured when he slipped on a puddle of milk on the supermarket floor. The Court allowed an inference that the dangerous condition existed long enough for it to be discovered by the owner because the plaintiff in that case provided evidence that the supermarket operator had not inspected the aisle for at least 15 to 30 minutes and that the milk could have been on the floor for as long as two hours. (Ortega, supra, at 1210). No such evidence is provided here. Thus, Ortega is distinguishable. Defendant has shown that only 14 minutes had passed before Plaintiff’s fall, and that the lemon had only been on the floor for four minutes.            

Conclusion 

There is no dispute as to a material fact. Defendant has successfully negated the element of breach because (1) Defendant has demonstrated that a reasonable inspection occurred at regular intervals, thereby exercising reasonable care (2) an inspection occurred 14 minutes before the fall, (3) Defendant provides uncontroverted evidence that the lemon was only on the floor for four minutes before Plaintiff slipped on it, and (4) Defendant had no actual nor constructive notice of the dangerous condition, even after a reasonable inspection had been conducted. 

Accordingly, Defendant Ralphs Grocery Company d.b.a. Food 4 Less’ Motion for Summary Judgment is GRANTED.  

Moving party is ordered to give notice.