Judge: Stephen Morgan, Case: 20AVCV00087, Date: 2022-09-15 Tentative Ruling

Case Number: 20AVCV00087    Hearing Date: September 15, 2022    Dept: A14

Background

This is a premises liability action. Plaintiff Thomas Aitchison (“Plaintiff”) alleges that on or around March 31, 2019 he was on Defendants California Department of Food and Agriculture; State of California; State of California, 50^th Agricultural District, City of Lancaster; Danielle Potts; and Dan Jacobs’ premises located at Antelope Valley Fair and Event Center, 2551 W. Avenue H, Lancaster, California 93536 (the “Premises”) when he stepped onto a laminated bingo card/pull tab, causing him to fall to the ground. Plaintiff father alleges that the fall caused severe injuries, including a fractured elbow.

On February 05, 2020, Plaintiff filed his Complaint, alleging one cause of action for Premises Liability.

On July 29, 2020, Plaintiff amended the fictitious name of Doe 1 to Antelope Valley Fair Association (“AVFA”).

On August 04, 2020, AVFA filed its Answer.

On August 06, 2020, Plaintiff dismissed California Department of Food and Agriculture; State of California; State of California, 50^th Agricultural District; Danielle Potts, and Dan Jacobs.

On January 04, 2021, Applied Risk Services, Inc. for California Insurance Company (“Applied Risk Services”) filed a Motion for Leave to Intervene, subsequently granted on February 09, 2021.

On February 16, 2021, Applied Risk Services filed their Complaint in Intervention against Defendants City of Lancaster and AVFA, alleging three causes of action for (1) General Negligence, (2) Premises Liability, and (3) Subrogation Pursuant to Labor Code Section 3850 et seq.

On June 24, 2021, Plaintiff amended the fictitious name of Doe 2 to Friends of the Antelope Valley Fair, Inc. (“Friends”).

On November 04, 2021, Friends filed their Answer.

On June 29, 2022, AVFA filed their Motion for Summary Judgment, or in the alternative, Summary Adjudication.

On August 29, 2022, Plaintiff filed his Opposition.

On September 09, 2022, AVFA filed their Reply.

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Analysis

Standard for Motion for Summary Judgment – 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.) Cal. Code Civ. Proc.¿§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.)¿¿ 

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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. (Cal.¿Code Civ.¿Proc.¿§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.)¿¿ 

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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.)¿¿ 

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Discussion

Application – AVFA contends that Plaintiff’s evidence is speculative and conjectural, thus rendering it insufficient to oppose a motion for summary judgment.

AVFA presents that Plaintiff is unable to describe how he fell (UMF No. 4; Motion, Exh. C 105:15-16), that Plaintiff does not recall any sensation with regard to his feet and cannot state which foot slipped prior to the fall (UMF No. 5; Motion, Exh. C 105:18-25 and 106:1-16), that Plaintiff did not observe anything on the floor prior to his fall (UMF 6-7; Motion, Exh. C 106:24-25 and 107:1-6, 122:16-18; 122:24 – 123:3; 123:15-17), that Plaintiff did not observe anything on the floor after the fall (UMF No. 8; Motion Exh. C 122:19-20), and that Plaintiff has no idea which of the three items in the photograph he allegedly stepped on (UMF No. 10; Motion, Exh. C 124:4-14). AVFA present that Plaintiff’s allegations are a conclusion, drawn by Plaintiff, based entirely on a photograph of himself on the floor taken after his fall. (UMF No. 9; Motion, Exh. C 123:4-10; 124:19; 125:1-12.) As to the alleged bingo cards on the ground, AVFA presents that Plaintiff does not know where the items came from or when they fell on the floor. (UMF No. 11; Exh. C 123:22-25, 124:4.) Plaintiff admits that it is speculation as to whether the three items on the floor came from the table. (UMF No. 15; Exh. D 105:19-25.)

AVFA cites to the relevant Cal. Gov. Codes alleged in the Complaint and concedes that these sections apply to them as well since they are an agent of a government entity performing a valid public function. The relevant Cal. Gov. Code sections highlighted in the motion read:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Cal. Evid. Code § 835.)

(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

(Cal. Gov. Code § 835.2.)

AVFA presents that a “condition of property” may mean public property that is “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” (Bonnano v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.) Next AVFA cites Cal. Gov. Code § 830(a), stating that a “dangerous condition” is statutorily defined as a “condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” AVFA argues that Plaintiff cannot establish the facts required under Gov. Code §§ 830 and 835.2(b) as (1) res ipsa loquitor is inapplicable to slip and fall cases; (2) a property owner is not an insurer or its patron’s safety, Plaintiff must prove that AVFA’s conduct was a substantial factor in causing the harm and that proof of causation cannot be based on inferences, speculation, and conjecture.” (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th763, 777 and Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06 [applying the standard to slip and fall cases; “a plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not the conduct of the defendant was a cause in fact of the result. There mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” ].) AVFA argues that Plaintiff cannot meet this burden as all the facts presented show that Plaintiff’s action is based on speculation.

Plaintiff believes there is a clear triable issue of material fact. Specifically, Plaintiff focuses on the second volume of his deposition in which he testifies that there was trash on the floor the night before that he believes to be extra bingo cards, specifically pull cards (Opposition Exh. C 58:14-24); he is certain that he stepped on and slipped on something laminated on the floor (Id., Exh. C 89:17-20); he felt something slippery under his foot (Id., Exh. C 105:5-8); and he is certain that it was a bingo card that he stepped on (Id., Exh. C 125:19-25.) Plaintiff argues that, as the bingo tabs were on the floor since the night before (last bingo game was on Saturday and Plaintiff slipped and fell Sunday evening), AVFA had constructive notice of the dangerous condition. (See Id., Exh. C 58:14-24 and Exh. A Nos. 38 and 44.)

The elements of¿a premises liability and¿negligence¿cause of action are the same:¿duty, breach, causation and damages.¿ (Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿ “The owner of premises is under a duty to exercise ordinary care in the management of such premises¿in order to¿avoid exposing persons to an unreasonable risk of harm.¿ A failure to fulfill this duty is negligence.”¿ (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619;¿Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿While an¿owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe.¿ (Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1205.)¿ “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.”¿ (Ibid.)¿¿

“ ‘[P]roperty owners are liable for injuries on land they own, possess, or control.’ But . . . the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162. (“Alcaraz”).) In Alcaraz, the California Supreme Court determined that the superior court erred in excluding evidence regarding defendants’ maintenance of the lawn and their construction of a fence surrounding the lawn subsequent to the incident at issue. (Id. at 1166.) With regards to maintenance, “[e]vidence that defendants maintained the lawn on the strip of land owned by the city certainly has some "tendency in reason to prove or disprov whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control.” (Id. at 1167; see also Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054 [“ ‘Premises liability ‘ “ ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’ ” ’; accordingly, ‘ “ ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’ ” ’ ” ].)

The Court notes that neither party disputes that AVFA was in charge of the janitorial duties at the location of the incident. (See Id., Exh. A Nos. 32, 36-38.)

The plaintiff has the burden to prove the owner, or in this case, the entity with control, had actual or constructive notice of the defect in sufficient time to correct it.¿ (Louie v.¿Hagstrom’s¿Food Stores¿(1947) 81 Cal.App.2d 601, 606.)¿ “There must be some evidence . . .¿ to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.”¿¿(Girvetz¿v. Boys’ Market¿(1949) 91 Cal.App.2d 827, 829.)¿ The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1206.)¿¿However, the plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient¿period of time¿to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence.¿ (Ibid.)¿ A plaintiff may prove a dangerous¿condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular¿period of time¿prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it.¿ (Id. at p. 1210.)¿¿“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies¿according to the circumstances.”¿ (Louie,¿supra, 81 Cal.App.2d at p. 608.)¿ “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1213.)¿¿To meet her burden of proof, Plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.¿ A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”¿ (Ortega,¿supra, 26 Cal.4th at pp. 1205-1206.)¿¿

Though AVFA presents that Plaintiff did not know when the items on the floor became present (UMF No. 11; Exh. C 123:22-25, 124:4), Plaintiff has presented that the night prior to the incident, there was trash, including bingo pull tabs, on the floor pathway where the incident occurred. (Opposition Exh. C 58:14-24.) Thus, “[i]t remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care[,]” and a jury could reasonably infer that Friends had constructive notice of the condition. (See Ortega,¿supra, 26 Cal.4th at pp. 1205-06, 1210.)

AVFA attempts to meet its burden for summary judgment by introducing Plaintiff’s Deposition testimony. The Court has read both Plaintiff’s depositions (Vol. 1 and Vol. 2.) Regarding Plaintiff’s recollection of what happened, the testimony is inconsistent. The Court has reviewed all of the evidence presented by the parties in support and opposition to AVFA’s Motion for Summary Judgement. It would strain credulity to conclude, as a matter of law, that a jury could not reasonably find that Plaintiff had actual awareness that he slipped. Further, in both depositions, Plaintiff believes that he slipped on a bingo pull tab/card. (Opposition, Exh. B 112:25, 113:1-4 and Exh. C 125:19-25.) While the Court does not believe that such inconsistent statements are enough to negate an essential element, or to establish a defense of the Premises Liability cause of action, they can provide fertile ground for impeachment at trial. (See Cal. Evid. Code §§769–770; Cal. Code Civ. Proc. §2025.620(a).)

Cal. Code Civ. Proc.¿§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.) As a liberal construction of the evidence can create an inference that (1) AVFA had constructive knowledge that items were on the floor, and (2) that Plaintiff slipped on the items on the floor, Defendant fails to satisfy its initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.)

The Court also highlights a recent case involving inferences as AVFA’s main argument is that Plaintiff is basing his slip and fall on speculation and conjecture. The case is Perez v. Buffet (2022) 2022 Cal. App. LEXIS 743. The case is one in which a Plaintiff slipped and fell at Hibachi Buffet on a trail of water and provided a commonplace explanation as to how the floor got wet: Buffet employee spilled the liquid taking dishes to the kitchen for washing. While the trial court granted a motion for judgment notwithstanding the verdict, highlighting the explanation was impermissible speculation, the appellate court reversed. The appellate court held that “[l]ogical inferences are permissible but speculation is not” and “[a] careless Buffet employee remains the best explanation for the liquid on this hallway floor. This analysis is common sense, which tort law incorporates.” (Perez v. Buffet (2022) 2022 Cal. App. LEXIS 743 at 11 and 14 [internal citations omitted].) The appellate court relied on Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206, a case integral to the Court’s analysis in this action, to draw this conclusion. (Id. at 11.)

Here, not only does a liberal construction of the evidence support a denial of summary judgment, it is also a logical conclusion that bingo cards may have fallen in a location that holds bingo games. Alternatively, there were two people at a table nearby that were working on bingo cards and a logical conclusion could also support that the bingo cards had fallen from that table. (See Opposition, Exh. C 71:3-7.) However, the Court notes that this last logical construction of the evidence would lead to a different analysis of constructive notice.

Accordingly, the Motion for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.

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Reply

AVFA’s Reply highlights the Court’s previous ruling on Friends’ Motion for Summary Judgment. AVFA attempts to distinguish their Motion for Summary Judgment from that of Friends. AVFA contends that Plaintiff’s testimony from the second deposition should not be considered. Plaintiff highlights the following cases: Archdale v. American International Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449 (“Archdale”); D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (“D’Amico”); and Cohen v. Kabbalah Centre Internt., Inc. (2019) 35 Cal.App.5th 13 (“Cohen”).

While the Court understands the arguments, the Court believes that this case is markedly different from AVFA’s cited cases:

First, AVFA has highlighted that an individual in Archdale, Godinez, attempted to change his deposition testimony regarding the filed complaint by submitting a declaration that directly contradicted his deposition testimony. (See Archdale, supra, 154 Cal.App.4th at 472.) A reading of the full Archdale case shows that Godinez was trying to make the following changes with the declaration: (1)  a change in the date of when he spoke to Girardi & Keese law firm and authorized their representation from September of 2004 (date of first contact) and October 04, 2004 (“retainment” in the form of an assignment of action in exchange for covenant not to execute”) to prior to September 12, 2003 (date of contact) and that he had authorized the firm prior to that date, and (2) a change in his answer to the question as to whether he had spoken to anyone at the Girardi & Keese law firm prior to September 2004 from “No, sir” to “Yes, sir.” (Id. at 460.) The appellate court, citing D’Amico and Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1515, 1521–1522, held that Godinez is bound by his deposition testimony that he (1) first spoke to the Archdales' attorney, Mr. Finnerty, in September 2004, (2) signed the written assignment to the Archdales on October 4, 2004, and (3) never spoke with Finnerty or with anyone at Finnerty's office before September 2004. Here, unlike Archdale, we do not have a declaration contrasting a deposition. Instead, we have two depositions that were noticed by AVFA, with AVFA’s counsel participating in both (Decl. Thomas J. Skane ¶¶ 5-6), and inquiring as to how Plaintiff fell. Both depositions carry the same weight. Additionally, though the depositions are inconsistent regarding Plaintiff’s ability to recall how he fell (see Motion, Exh. C 105:15-25 and 106:1-16), Plaintiff has maintained in both depositions that he fell on a bingo card (see Opposition, Exh. B 112:25, 113:1-4 and Exh. C 125:19-25). Unlike Archdale, there is no direct contradiction in Plaintiff’s deposition testimony in this instant action.

Next, as to D’Amico, AVFA cites to the holding that, (1) “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation [, and (2)] ‘[w]here. . .there is a clear and unequivocal admission by the plaintiff, himself, in his deposition. . .we are forced to conclude there is no substantial evidence of the existence of a triable issue of fact.’ ” (D’Amico, supra, 11 Cal.3d at 22 [internal citation omitted].) As mentioned, ante, Plaintiff has maintained in both depositions that he fell on a bingo card (see Opposition, Exh. B 112:25, 113:1-4 and Exh. C 125:19-25). Thus, there is a clear and unequivocal admission by Plaintiff, consistent in both depositions, that he slipped on a bingo card, though in the first deposition he could not remember how he slipped.

Finally, as to Cohen, AVFA highlights that the appellate court held that “[t]he tactic of changing one's story to avoid summary adjudication is improper.” (Cohen, supra, 35 Cal.App.5th at 18 [internal citation omitted].) However, as discussed, Plaintiffs story has not changed – he maintains throughout both depositions that he fell on a bingo card. (See Opposition, Exh. B 112:25, 113:1-4 and Exh. C 125:19-25).

AVFA’s Reply also argues that Plaintiff cannot establish Defendant’s liability under Cal. Gov. Code §§ 835 and 835.2 as the Court should exclude Plaintiff’s testimony related to the trash on the ground. The Court declines to do so. Following case precedent, a logical conclusion could be found that (1) bingo cards may have fallen from a bingo game in a location that holds bingo games, or (2) as there were two people at a table nearby that were working on bingo cards, that the bingo cards had fallen from that table during their work. (See Opposition, Exh. C 71:3-7.)  The issue of notice is, therefore, an issue for the jury.

The Court’s analysis and holding remains the same.

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Conclusion

Defendant Antelope Valley Fair Association’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.