Judge: Serena R. Murillo, Case: BC706577, Date: 2023-01-18 Tentative Ruling
Case Number: BC706577 Hearing Date: January 18, 2023 Dept: 29
TENTATIVE
Defendants Macerich Management Company,
Interstate Cleaning Corporation, Macerich Cerritos, LLC’s motion for
summary judgment, or in the alternative summary adjudication, is DENIED.
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.)
Evidentiary Objections
Plaintiff’s Objections to Defendants’ Evidence are OVERRULED.
The Court declines to rule on Defendants’ objections to Plaintiff’s
evidence because Defendant did not shift the burden of proof to Plaintiff, and
thus, this evidence was not relied on by the Court.
Judicial
Notice
The court must
consider all of the evidence set forth in the papers, except the evidence to
which objections have been made and sustained by the court. (Code Civ.
Proc., § 437c(c).) Therefore, Defendants’ request is unnecessary as the
Court will consider this evidence regardless; thus, the Court declines to rule
on the request.
Plaintiff’s
Opposition
California Rules of Court Rule 3.113(d)
requires all opening and responding memorandum for summary judgment, not to
exceed 20 pages non-inclusive of exhibits, table of contents, and notice. A
party seeking to submit a memorandum exceeding 20 pages may apply to the court
ex parte and provide written notice of the application to all other parties at
least 24 hours before the due date. (C.R.C 3.113(e))
Plaintiff’s opposition includes pages in
excess of the allowable amount as noted in California Rules of Court Rule
3.113. Plaintiff is advised against such action in the future. Nevertheless, the
Court will consider the full opposition. (Code Civ. Proc. § 437c.) Furthermore, the Court may, in its
discretion, make decisions in the interest of justice. (City of Los Angeles
v. Gleneagle Dev. Co.¿(1976) 62 Cal.App.3d 543, 558.)
Discussion
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.)¿¿Those who own, possess, or control property generally have a duty to
exercise ordinary care in managing the property¿to¿avoid exposing others to an
unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014)
232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions
for the court.¿¿(Id.¿at¿36.)¿¿If a dangerous condition exists, the
property owner is “under a duty to exercise ordinary care either to make the
condition¿reasonably safe for their¿[customers’]¿use or to give a warning
adequate to enable them to avoid the harm.”¿¿(Bridgman v. Safeway Stores,
Inc.¿(1960) 53 Cal.2d 443, 446.)¿
“A plaintiff
alleging injuries based on a dangerous condition must prove the
defendant¿either: (1) created the dangerous condition, or (2)¿knew or should
have known of the dangerous condition.”¿ (See¿Peralta v. Vons Companies,
Inc.¿(2018) 24 Cal.App.5th 1030, 1036; see also¿Ortega v. Kmart Corp.¿(2001)
26 Cal.4th 1200, 1206.)¿¿“[A] defendant¿is
entitled to judgment as a matter of law if the plaintiff fails to show that the
dangerous condition existed for at least a sufficient time to be discovered by
ordinary care and inspection.”¿¿(Ortega,¿supra, 26 Cal.4th at¿1207.)¿¿“Whether
a dangerous condition has existed long enough for a reasonably prudent person
to have discovered it is a question of fact for the jury.” (See id. at
1207.) “The owner must inspect the premises or take other proper action
to ascertain their condition, and if, by the exercise of reasonable care, the
owner would have discovered the condition, he is liable for failing to correct
it.” (See id.) “A store owner exercises ordinary
care by making reasonable inspections of the portions of the premises open to
customers . . . .” (See id. at 1205.) “[A]s
to business invitees, the owner should conduct frequent inspections.”
(See id. at 1207.)
Defendants present evidence that, as
confirmed by the incident report, the incident occurred at 2:00 p.m. on Friday,
June 3, 2016 in area 300 of the Shopping Center between the Solar City kiosk
and Sweet Factory kiosk but off to one side of the common area.
(Defendant’s Undisputed Material Fact (“UMF”) 48.)
Defendants argue that they had no actual or constructive notice of any
alleged dangerous condition. At the time of the June 3, 2016 incident, Defendant
Interstate Cleaning Corporation (“ICC”) porters including those working at the Shopping Center
on June 3, 2016 were trained by ICC managers to perform cleaning and portering
services, such as cleaning up spills they encountered while walking their
designated porter routes in the Shopping Center. (UMF 54.) A porter’s primary,
if not sole task, was to inspect and clean floors when the Shopping Center was
open to the public. (UMF 55.) ICC porters were trained to complete their porter
routes every 20 to 30 minutes. (UMF 56.) When performing their duties on their
porter routes, ICC porters were and are trained to constantly look right to
left, and left to right, and to crisscross the common area to look at all areas
of the Shopping Center flooring for such things as any three-dimensional
debris, including spilled liquids or any substance on the ground. This was and
is their primary job responsibility. (UMF 57.) If ICC porters encountered a
spill, they were and are trained to block it personally and use the pop-up
floor warning sign carried in their fanny packs so that patrons do not enter
the area before it is cleaned up. (UMF 58.) ICC porters were and are trained
how to clean up spills themselves, and in the case of larger spills, they
personally block the spill and never leave it unattended as they radio for
additional help from one of their co-workers to clean up the spill (UMF 59.)
The janitorial check-in report (called a “Deggy Downloads
Report”) combined with 30 minutes of video footage from a roaming CCTV camera
confirms that two ICC porters inspected the area of the incident multiple times
before 2:00 p.m., with one (Bernardo Moctezuma) inspecting the area eight and a
half minutes before the incident and the other porter (Maria Rojo) just
four minutes prior to the Incident. The spill had to occur after the
last inspection – during the four minutes between 1:56 and 2:00 given the
inspection staffing, policies, practices and procedures of ICC. (UMF
78-81.)
Defendants have
not met their initial burden of showing no triable issue of fact exists. Defendants cite no authority, and the Court
is unaware of any, holding any time greater than one-and-one-half minutes is
insufficient in a grocery store as a matter of law. (See Girvetz, supra, 91 Cal.App.2d at
p. 831 [holding that one-and-one-half minutes was insufficient time for
defendant to have discovered banana on the floor]; but see Tuttle v.
Crawford (1936) 8 Cal.2d 126, 131 [case where plaintiff slipped on a wet
floor five or eight minutes after an employee had swept the area was presented
to a jury].)
In Hale v.
Safeway Stores (1954) 129 Cal.App.2d 124, the plaintiff slipped on a banana
on the floor. A store employee testified
that he conducted a sweep of the area shortly before the accident and did not
see a banana on the floor. He estimated
that between 5 and 12 minutes elapsed from when he finished sweeping until he
came out of the storeroom and saw plaintiff after the accident. (Id. at pp. 127-128.) The court in Hale found a jury could
have drawn a legitimate inference that the defendant, in the operation of its
fruit and vegetable section, should have, in the exercise of ordinary prudence,
discovered the dangerous condition and remedied it. (Id. at p. 131.)
Defendants cite federal cases involving slips in
Target stores to argue that four minutes is insufficient time to have discovered
the dangerous condition and remedied it.
The slips in those cases occurred near the lingerie section (Eidem v. Target Corp.), near the
electronics and toy departments (Cardoza
v. Target Corp.), a couple steps away from the entertainment section (Alacan v. Target Corp.), and near the
checkout area (Barta v. Target Corp.). None occurred in an area next to
a self-service candy kiosk, which is similar to a produce section, as food
items can be dropped. The Court cannot conclude as a matter of law that a
reasonable inspection system for those non-food departments would be reasonable
in an area next to a kiosk that sells candy, which potentially triggers a greater need to
make frequent inspections. (See Ortega, supra,
26 Cal.4th at 1205 (“If the owner operates a self-service grocery store, where
customers are invited to inspect, remove, and replace goods on shelves, ‘the
exercise of ordinary care may require the owner to take greater precautions and
make more frequent inspections than would otherwise be needed to safeguard
against the possibility that such a customer may create a dangerous condition
by disarranging the merchandise’ and creating potentially hazardous
conditions.”); see also Louie v. Hagstron’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Defendant also cites to an unpublished federal case involving Wild Oats
Market. There, the inspection had occurred approximately five minutes before
the accident. (Lively v. Wild Oats Markets (C.D. Cal. Nov. 3, 2006) 2006 WL
5085248 at p. *2.) However, the case is unpublished and it is federal law, and
thus, it is not sufficent to establish, as a matter of law, the four minute period of time between the inspection of the subject
area and Plaintiff’s fall is too short a time for constructive knowledge to be
found.
As such, the Court cannot determine that four minutes is, as a matter
of law, insufficient time for Defendants to have discovered and remedied the
condition in the exercise of reasonable care.
A reasonable trier of fact could conclude that the exercise of ordinary
care requires more frequent inspections near a self-service candy kiosk. Therefore, Defendants have not met their
initial burden of showing there are no triable issues of fact. It is for a trier of fact to determine whether
the inspection system constitutes reasonable care.
Defendants also argue that based upon targeted Special Interrogatories, Nos.
7 and 11, that Plaintiff lacks non-speculative evidence that a dangerous condition
existed on the floor in the area where she claimed that she fell for a
sufficient time to raise a triable issue of material fact of actual or
constructive notice. Defendants argue she cannot do so. She was looking forward
at the time of the incident. (UMF 34.) She did not see anything on the ground
before her fall. (UMF 36.) She did not feel anything under her feet. (UMF 37.)
She had no knowledge how long the substance had been on the floor before the
fall. (UMF 38.) She did not see anyone drop the substance. (UMF 39.) Her sole
theory of notice was there the mere presence of a substance on the ground. (UMF
21.) Defendants argue this is not acceptable evidence on the issue of
constructive notice, as it invites the court to engage in pure speculation as
to how long the substance was present.
Defendants have again not met
their burden to show no triable issues of fact exist. Their own evidence shows
that Plaintiff observed a substance on the floor she believed caused her to
slip. (UMF 41.) She testified the
substance looked like ice cream or yogurt and was a whitish color. (UMF 42.)
The substance was not on her hand, but on her clothing. (UMF 40.) The substance
seeped into her clothes, which Plaintiff stated was sticky but not warm or cold
and it had no smell. (UMF 46.) The reasonable inferences drawn from the
evidence show that there was a substance on the floor where Plaintiff fell, as
she saw it after she fell and it seeped into her clothes. As to proving how
long the substance was present, this evidence creates an inference that the
substance was on the floor prior to the fall. In the context of this motion for
summary judgment, Defendants have the burden of establishing that an element of
Plaintiff’s case cannot be met. The burden is on Defendants to show that
Defendants did not have constructive notice of the alleged dangerous condition.
Defendants have not established that in this motion.
Conclusion
Based on the foregoing,
Defendants’ motion for summary judgment, or in the alternative, summary
adjudication is DENIED.
Moving party is ordered to give notice.