Judge: Serena R. Murillo, Case: BC708124, Date: 2022-10-18 Tentative Ruling
Case Number: BC708124 Hearing Date: October 18, 2022 Dept: 29
Alba Cochran v. Costco Wholesale
Corporation
Tuesday, October 18, 2022
Motion for Summary Judgment filed by
Defendant Costco Wholesale Corporation
TENTATIVE
Defendant
Costco Wholesale
Corporation’s motion for summary
judgment 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 Defendant’s
evidence:
The following objections are
overruled: 1, 2, 3, 4, 5, 6, 7, 8, 9
The following objections are
sustained: n/a
Defendant’s objections to Plaintiff’s
evidence:
The following objections are
overruled: 1
The following objections are
sustained: n/a
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.)
Here,
Plaintiff Alba Cochran alleges that she sustained injuries at Defendant Costco
Wholesale Corporation’s store when she slipped on wet fruit in the frozen food
section at approximately 6:30 p.m.
Defendant argues that it did not have actual or constructive notice of the
dangerous condition. Defendant provides the declaration of its store
employee Adrian Martinez. At 6:01 p.m., 29 minutes before
Plaintiff’s fall, Martinez had completed his inspection of the warehouse which
included checking the temperatures of all the coolers. (Separate Statement “SS”
19; Martinez Decl. ¶ 6.) While inspecting the dairy cooler, Martinez did not
observe anything on the floor. (SS 20.)
Defendant also argues it exercised ordinary care by
completing reasonable inspections of the area. Costco has an inspection system
in place wherein its employees perform hourly floor- walk and safety
inspections of the warehouse. (SS 21.) Defendant trains its employees to
constantly be on the lookout for any dangerous conditions. (SS 22.) If any
condition presents itself, employees are required to immediately address it by
picking it up or cleaning it. (SS 23.) If it is not something that can be
immediately remedied, the employee is required to stand by the condition to
warn customers until another employee can assist. (SS 24.) Once the hourly
floor walk is done, a manager is required to sign their initials at the bottom
of the floor-walk sheet for the specific floor-walk that was completed, which
is below the signature of the employee who completed the floor-walk. (SS 25.)
If a condition needed tending to, a manager is prohibited from signing their
initials until the condition identified during the floor-walk is remedied. (SS
26.)
Defendant’s evidence is
sufficient to show that Defendant did not have actual notice of the
dangerous condition. However, the Court finds Defendant has failed to
demonstrate that, as a matter of law, it should be found to have lacked
constructive notice of the condition. Defendant has failed to show that,
as a matter of law, the 29-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. Whether the dangerous condition has existed long enough for a
reasonably prudent person to have discovered it thus remains a question of fact
for the factfinder, especially when Defendant’s store is a self-service store selling produce that 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.)
While Defendant argues that a
condition present for less than 30 minutes before Plaintiff’s fall is
insufficient time for Defendant to have discovered the condition by ordinary
care and inspection as a matter of law, case law has provided that “the exact time the condition must exist before it should, in the
exercise of reasonable care, have been discovered and remedied, cannot be
fixed, but varies according to the circumstances.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)
Defendant has thus failed to meet its burden
of demonstrating that Plaintiff cannot establish that Defendant had
constructive notice of the condition. Therefore, the burden does not shift to Plaintiff. Summary judgment is denied on this basis.
Causation
A
defendant “causes” harm when the defendant’s act or omission was a substantial
factor in bringing about the injury. (Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th
763, 778.)
A court may grant summary judgment because
there is no triable issue of material fact regarding causation only when there
is no other reasonable conclusion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)
Defendant argues its actions were not a
substantial factor in causing Plaintiff’s fall. The Floor- Walk/Safety
Inspection sheet shows that Defendant’s employee Martinez began his floor-walk
of the subject warehouse just 50 minutes before Plaintiff’s fall and inspected
the dairy cooler just 29 minutes before the incident. (Raya Decl. Exh. J, K at
¶ 6.)
However, the owner's duty of care also
extends to dangerous conditions on the premises “which are not due to the
negligence of the owner,” such as those caused “by natural wear and tear, or
third persons, or acts of God or by other causes.” (Hatfield v. Levy
Brothers (1941) 18 Cal.2d 798, 806; See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447.) In such cases, the owner's liability turns on whether it
has made reasonable efforts to discover and remedy those dangerous conditions.
As discussed above, there are
triable issues of fact as to whether there was a dangerous condition that
existed on the floor that Defendant failed to discover and make the condition
reasonably safe or warn its customers. The duty extends to dangerous conditions
caused by third parties. As such, triable issues of fact exist as to whether
Defendant’s failure to remedy the situation led to Plaintiff’s injuries. Thus,
summary judgment is also denied on this basis.
Open and Obvious
“As a general rule, an owner or possessor of land owes no duty
to warn of obvious dangers on the property.” (Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.)
“‘Generally, if a danger is so obvious that a person could reasonably be
expected to see it, the condition itself serves as a warning, and the landowner
is under no further duty to remedy or warn of the condition.” (Kinsman
v. Unocal Corp. (2005) 37 Cal.4th 659, 673.)
Defendant argues that the fruit on the floor is an
open and obvious condition to anyone exercising due caution as they walk, and
thus, Defendant had no duty to warn. Defendant presents evidence that Plaintiff
admitted that she was not looking where she was walking prior to her fall. (Raya
Decl., Exh. “B” at 28:17-20.) Additionally, given Plaintiff’s deposition
testimony regarding the frequency of her trips to Costco, Plaintiff was aware
that there may be hazards occasionally on the ground. (Id., Exh. “B” at
21:18-23:9.)
Defendant has not met its burden on
summary judgment to show no triable issues of fact exist as to whether the
fruit was an open and obvious condition. Defendant does not present any
evidence bearing on the issues of whether the fruit was so obvious that a
person could reasonably be expected to see it. Plaintiff’s frequent trips to
Costco or whether she was using due care is not relevant in this regard.
Summary judgment is also denied on this basis.
Conclusion
Accordingly, Defendant Costco Wholesale Corporation’s motion for summary judgment is DENIED.
Moving party
is ordered to give notice.