Judge Stephen Morgan, Case 21AVCV00427 2023-02-21 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

This is a personal injury action. Plaintiff Gregoria Valdovinos (“Plaintiff”) alleges that on July 09, 2020, she was a customer at Vallarta Supermarkets located at 440 E. Palmdale Blvd., City of Palmdale, CA, when she fell due to a dangerous condition, sustaining injuries. Plaintiff further alleges that Defendants Vallarta Food Enterprises, Inc. dba Vallarta Supermarkets (“Vallarta”) and Enrique Gonzalez, Jr. (“Gonzalez, Jr.” and collectively “Defendants”) negligently owned, operated, cleaned, maintained, managed, supervised and/or monitored the floor and premise and had actual and/or constructive notice of the dangerous condition.

On May 25, 2021, Plaintiff filed her Complaint, alleging two causes of action for General Negligence and Premises Liability.

On November 03, 2022, Vallarta filed this Motion for Summary Judgment, or in the alternative, Summary Adjudication (the “Motion”).

A timely Opposition was not filed. “An opposition to the motion shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Cal. Code Civ. Proc. § 437c(b)(2).) An Opposition was due by January 17, 2023. On January 27, 2023, Plaintiff filed her untimely Opposition.

Due to the nature of this hearing, the Court continued the hearing to February 21, 2023 to allow (1) the surveillance video to be reviewed by Plaintiff, (2) allow time for any updated Opposition by Plaintiff, and (3) allow Vallarta to file a Reply.

Standard 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.)¿¿¿¿¿

As to each claim as framed by the complaint, the party 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.)¿¿¿¿¿

Once the defendant has met that burden, the burden shifts to the opposing party 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.)¿¿¿¿¿

Issues Framed by the Pleadings – As an initial matter, the Court’s review of the issues framed by the pleadings indicates that the entirety of the complaint is predicated upon whether Vallarta was negligent in maintaining its store premises, ultimately causing a dangerous condition to be left on the floor leading to Plaintiff’s fall, causing her to suffer an injury. (See Complaint.) While Plaintiff has alleged two causes of action sounding in General Negligence and Premises Liability, the gravamen of the complaint is one sounding entirely in premises liability, as the standard of review of negligence and premises liability are identical.[1] Accordingly, the Court will assess the instant motion for summary judgment or adjudication on that basis.[2]

Plaintiff’s Objection No. 1 [Defendant’s Notice of Lodgment of Exhibits in Support of Motion for Summary Judgment, Exhibit C: Surveillance Video and lodgment of video disc, in its entirety.] – OVERRULED. Plaintiff has provided evidence showing that Vallarta provided the video footage to Plaintiff via a secure link. Vallarta provided the same type of link to the Court. The email thread provided by Plaintiff shows Vallarta’s counsel requesting immediate notice if the link doesn’t work, a response by Plaintiff’s counsel requesting attachments or another link, and Vallarta’s counsel providing both various PDF attachments and an html attachment. (See Plaintiff’s Exh. B.) Prior to this email thread, Vallarta had provided the video via zip file. (See Plaintiff’s Exh. C.) Essentially, Plaintiff requests the Court disregard highly relevant video footage because Plaintiff did not communicate with Defendant to find a method to view the video. Vallarta makes this argument in its Response to Plaintiff’s Objections to Evidence. Plaintiff objects to the surveillance video under Cal. Evid. Code §§ 210, 350, 352, 1200, and 1523.) Cal. Evid. Code § 210 defines “relevant evidence” and § 350 states “no evidence is admissible except relevant evidence.” The surveillance video is patently relevant. Cal. Evid. Code § 352 provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” Here, the surveillance video would neither necessitate undue consumption of time nor create a substantial danger of undue prejudice. Cal. Evid. Code § 1200 is the statute governing the hearsay rule. This video is not hearsay. Cal. Evid. Code § 1523 discusses the use of oral testimony. This evidence is not oral testimony. Further, Plaintiff’s argument, based on the aforementioned sections of Cal. Evid. Code as well as two cited cases, is that the Cal. Evid. Code sections bar the use of the video as it would create an improper legal conclusion. This argument is a red herring as it has little relevance to the cited statutes or cases. (See Hayman v. Block (1986) 176 Cal.App.3d 629, 638-39 [discussion of personal knowledge in affidavits; “In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. However, summary judgment shall not be granted based on inferences from such evidence if contradicted by other inferences or evidence, raising a triable issue as to any material fact.”]. See also Marriage of Heggie (2002) 99 Cal.App.4th 28, 30 fn.3 [discussion of declarations of attorneys in which the Court opined that the proper place for argument is within the memorandum of points and authorities].)

Plaintiff’s Objection No. 2 [“Pages 1-94.”] – OVERRULED. California Rules of Court Rule 3.1350(g) does not specify any consequence for the failure to comply with these requirements. “[T]he interpretation of a rule of court is governed by the same precepts that apply to statutory interpretation.” (Kahn v. Lasorda's Dugout, Inc. (2003) 109 Cal.App.4th 1118, 1122 [interpreting the following sentence which reads “ ‘The usual rules of statutory construction are applicable to the interpretation of the California Rules of Court.’ ”].) The Court turns to case law interpreting statutes. The Legislature identifies mandatory requirements and permissive requirements. However, it is not uncommon for obligatory statutory provisions to be accorded only directory effect. (Morris v. County of Marin (1977) 18 Cal.3d 901, 908–909, fn. 4.) Of course, when the Legislature imposes particular statutory requirements, it generally does not intend for them to be disregarded. (Cox v. California Highway Patrol (1997) 51 Cal.App.4th 1580, 1587.) But when “the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them.” (Ibid. [quoting Sutherland, Statutory Construction (5th ed.1992) § 57.01, p. 2].) There is “‘no simple, mechanical test’” for making this determination. Instead, “courts look to the procedure's purpose or function. If the procedure is essential to promote the statutory design, it is ‘mandatory’ and noncompliance has an invalidating effect. If not, it is directory.” (Cal–Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 673.) California Rules of Court Rule 3.1350(g) reads: “If evidence in support of or in opposition to a motion exceeds 25 pages, the evidence must be separately bound and must include a table of contents.” It is clear that this is made for the efficiency of both the Court and the parties. Here, Vallarta has provided its exhibits electronically as a separate document from its memorandum, separate statement, etc. Vallarta has labelled each exhibit from A to G, explained what documents constituted each exhibit in a declaration, placed a sheet between each exhibit with the exhibit’s label, and made the document text searchable. The failure to follow California Rules of Court Rule 3.1350(g) does not have an invalidating effect on this motion. Further, Vallarta has substantially complied[3] with California Rules of Court Rule 3.1350(g) as a separate document, with a table of contents, was filed electronically.[4]

Plaintiff’s Objection No. 3 [The Declaration of Giselle Escobar, paragraph 6 and 7 in its entirety] – SUSTAINED in part, OVERRULED in part. The Court sustains the objection as to the following:

Giselle Escobar’s opinion that the video and the inspection logs are consistent is not a relevant lay opinion. If anything, it is a lay opinion regarding a question of fact for the factfinder. However, her testimony regarding the training she and Crites received, viewing the video, Vallarta’s policies regarding inspection logs, and her review of the inspection log for the day of the incident are relevant, from her personal knowledge, and not hearsay.

Plaintiff’s Objection No. 4 [The Declaration of Robert Haro in its entirety] – OVERRULED. The Decl. of Robert Haro lays the foundation for the surveillance video. Plaintiff cites to the same Cal. Evid. Code sections as in her Objection No. 1. This declaration is not irrelevant. (See Pl.’s Obj. No. 1 for analysis as to each Cal. Evid. Code section). Further, Plaintiff’s argument is that the declaration has “no probative value as to whether the item on the floor was a dangerous condition, and as to whether any of the Defendant’s employees had actual/constructive notice of this dangerous condition as contemplated by law during the incident—which occurred in 2018.” It is not necessary for the declaration to discuss whether the item on the floor was a dangerous condition as it lays the foundation for the video, which shows various sweeps of the area of incident and must be taken into consideration for an argument related to actual and/or constructive knowledge.

Defendant’s Objection No. 3 [Declaration of Alan S. Turlington, ¶ 2] – SUSTAINED. Counsel for Plaintiff Alan S. Turlington (“Turlington”) portrays allegations of the incident as the basis of this action as fact. Turlington does not have personal knowledge of this matter. (Cal. Evid. Code § 702.)

Defendant’s Objection No. 4 [Declaration of Alan S. Turlington, ¶3: “Due to Plaintiff’s injuries, the Plaintiff had to make a visit to the emergency room the day after the slip and fall, and continued treatment with chiropractors, diagnostics, and orthopedics doctor.] – SUSTAINED. Turlington does not have personal knowledge of this matter. (Cal. Evid. Code § 702.)

Defendant’s Objection No. 5 [Declaration of Alan S. Turlington, ¶4: “Disputed facts exist as to whether Defendant’s “sweep” was done at all, much less done properly and pursuant to Defendant’s policy and procedures for maintaining the premises, and as to whether the Defendant’s employees had actual/constructive notice of the dangerous condition created by the grapes on the floor of the aisle where customers like Plaintiff were walking given that Defendant’s inspection of the store was completed a few minutes before the subject incident occurred and given Defendant purports to have surveillance camera pointing at the produce aisle where Plaintiff fell at all times.”] – SUSTAINED. The issue of the sweeps and actual and/or constructive is the basis of this Motion for Summary Judgment. Turlington’s statement is an improper legal conclusion. (Cal. Evid. Code §310.)

Vallarta objects to the requests for judicial notice. (See Objs. To Pl.’s Evidence Nos. 1 and 2.) The Court addresses these objections in this Judicial Notice section.

Request No. 1 [Department of Health and Human Services, National Institute for Occupational Safety and Health, “Slip, Trip, and Fall Prevention for Healthcare Workers”, DHHS (NIOSH) Publication No. 2011–123. (https://www.cdc.gov/niosh/docs/2011-123/pdfs/2011-123.pdf)] – DENIED. Plaintiff requests judicial notice under Cal. Evid. Code § 452. While judicial notice may be taken of the document, the Court declines to do so as the document is not tied in to any other opposing paper submitted by Plaintiff.

Request No. 2 [Appendix A to Part 1191 – Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities “Americans with Disabilities Act (ADA) - Accessibility Guidelines for Buildings and Facilities” (29 U.S.C. 792(b)(3); 42 U.S.C. 12204.) https://www.access-board.gov/files/ada/adaag-2002.pdf] – DENIED. Plaintiff requests judicial notice under Cal. Evid. Code § 452. While judicial notice may be taken of the document, the Court declines to do so as the document is not tied in to any other opposing paper submitted by Plaintiff.

Summary Judgment –Plaintiffs do not request a continuance in their papers; however, Turlington seems to set up an argument for continuation in his declaration.[5] “If it appears from the affidavits submitted in opposition to a motion for summary judgment or a summary adjudication, or both, that the facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Cal. Code Civ. Proc. § 437c(h).) Turlington presents that he intended to obtain an expert to review the surveillance footage and implies a future deposition of Vallarta’s Person Most Knowledgeable (“PMK”). The Court continued the Motion for Summary Judgment to allow Plaintiff to review the surveillance video and file any updated Opposition briefing. It also allowed Vallarta to file a Reply. Plaintiff did not file any new documents. Further, based on Turlington’s presentations, Plaintiff completed Vallarta’s PMK deposition on February 01, 2023 during the continuance. (See Decl. Turlington ¶¶ 12-13.) As mentioned, ante, no new documents were filed by Plaintiff. The crux of this Motion for Summary Judgment is the surveillance video. The Court has given ample time to Plaintiff to update her filings with the continuation. The continuation also encompassed the completion of Vallarta’s PMK. The interests of justice do not require a further continuation as the surveillance video was turned over discovery that Plaintiff presented that she needed for the Motion for Summary Judgement was obtained. The Court addresses the Motion for Summary Judgment on its merits.

Vallarta moves for summary judgment on the basis of Cal. Code Civ. Proc. §437(c) on the grounds that Vallarta has no liability to Plaintiff. Alternatively, Vallarta seeks summary adjudication.

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.)¿

Vallarta contends that it did not have actual or constructive knowledge of the alleged grapes which cause Plaintiff to fall. In support, Vallarta highlights to the Court that, on July 09, 2020, the day of the incident, employees conducted sweeps of the premises every 30 minutes during the time the store is open (Decl. Giselle Escobar ¶ 3, Defendant’s UMF No. 2) and that Nathan Crites (“Crites”) performed the inspection of the produce section, where the incident occurred, without issue from 2:35-2:37 pm (Decl. Giselle Escobar ¶ 6 and Defendant’s UMF No. 4). The notes in the inspection log answer the question “Is the Area Clean and Hazard Free?” affirmatively. (See Exh. B at p. 20.) The surveillance video also confirms that Crites was in the area that Plaintiff fell at 2:35 pm. (See Exh. C.) The Court notes that the inspection log mistakenly states that Giselle Escobar (“Escobar”) conducted the sweep (see Exh. B at p. 20); however, Escobar has written a declaration addressing this matter as Crites is no longer employed with Vallarta (see Decl. Giselle Escobar ¶ 6.) Additionally, Vallarta states that had a liquid or other hazard on the ground been discovered, employees would mark the hazard using the Gleason system and ensure that the floor is cleaned up and free before they moved on to the next section. (See Exh. D [policies and procedures].)

Plaintiff fell at 2:37 pm. (Exh. C. See also Defendant’s UMF No. 7.) The Court uses the surveillance video timestamps. Vallarta contends that the two minutes between Crites’ inspection of the area and Plaintiff’s fall shows that it did not have actual notice. (Ortega, supra, 26 Cal. 4th at 1205; Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035; Henderson v. Progressive Optical System (1943) 57 Cal.App.2d 180, 184.) Further, Vallarta argues that its inspection policy shows that its premises was inspected in a reasonable manner. (See Ortega, supra, 26 Cal. 4th at 1210-11; Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 828-29; Peralta, supra, 24 Cal.App.5th at 1032.) Vallarta also cites to several federal cases to show that two minutes is reasonable as a matter of law and urges the Court to find them persuasive.

A defendant may meet its initial summary judgment burden in a slip-and-fall case if it shows it had no actual or constructive knowledge of the dangerous condition, or if it shows that the plaintiff does not possess, and cannot reasonably obtain, this evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889-890.) With respect to the constructive knowledge element, a defendant may satisfy this burden by affirmatively showing that it (or its agent) conducted regular reasonable inspections of the area where the plaintiff was injured and/or that the plaintiff has no evidence the defendant did not conduct reasonable inspections. If this showing is made, the burden then shifts to the plaintiff to show a triable issue of fact on these issues. (See Ortega, supra, 26 Cal. 4th at 1210-11; Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 828-29; Peralta, supra, 24 Cal.App.5th at 1032.)

Accordingly, Vallarta has presented sufficient evidence to meet its burden of showing that it did not have actual or constructive notice of the grapes in the subject area. This shifts the burden to Plaintiff to offer evidence that Vallarta had actual or constructive notice of the grapes.

The plaintiff has the burden to prove the owner 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 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.¿(Ortega,¿supra, 26 Cal.4th at 1206.) 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.)¿

As to Plaintiff’s argument regarding a heightened standard, the standard is one of ordinary care. (See Id. at 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. (See Bridgman, supra, 53 Cal. 2d at p. 448.)”.] Plaintiff’s argument of the standard reflects this: “A possessor of property such as Defendant must keep the floors in a reasonably safe condition for those people who pass over them. Sanders v. MacFarlane's Candies (1953) 119 Cal. App. 2d 497, 501-502” (Opposition 6:17-19 [emphasis added].) Sanders v. MacFarlane's Candies itself states that the standard is ordinary care: “Storekeepers are under duty to use ordinary care to keep the floors of their premises reasonably safe for the business invitees who must pass over them. (Tuttle v. Crawford, 8 Cal.2d 126, 130 [63 P.2d 1128].)” (Id. at 501 [emphasis added].)

First, there is no allegation regarding either Vallarta packaging the grapes or of construction. The packaging of the grapes in not in question for this Motion for Summary Judgment. The argument regarding construction and the dust it caused appears to be in error. That aside, Plaintiff’s cited cases are all distinguishable:

Second, while the log inaccurately states that Escobar conducted the search, Plaintiff fails to provide any citation as to why the Court should disregard the rest of the information in the log, especially in light of the surveillance video which shows a sweep conducted at the logged time of the sweep.

In a case where the logsheets were questioned because the notation of the defendant's entry on the date of incident in that case was made by someone other than the gatekeeper on duty, the California Supreme Court has held:

Many business records are prepared through the activities of several persons, and one employee may report facts he or she knows to a second employee, who then records those facts in the regular course of business. (1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 1997) § 4.9, p. 121.) So long as “the person who originally feeds the information into the process [has] firsthand knowledge,” the evidence can still qualify as a business record. (2 McCormick on Evidence (6th ed. 2006) p. 314.) In this case, Smith's testimony explained the handwriting discrepancy and verified that the notation was made at his direction by another employee during the regular course of business.

The California Supreme Court determined that the trial court in the action did not abuse its discretion in finding [the party presenting the evidence] had satisfied the burden of showing the logsheets were sufficiently trustworthy to qualify as business records under Cal. Evid. Code § 1271(d). (Ibid.)

Without evidence that the log is wholly inaccurate, the Court believes that Vallarta has met the burden to show that the logs are trustworthy to qualify as business records under Cal. Evid. Code § 1271(d) as the logs provided evidence that Vallarta is composed of several employees who perform the routine sweep and the log accurately notates the time of the sweep, as proved by Plaintiff’s Exh. C.

Third, log aside, the video shows clearly that an employee, purported to be Crites, conducted a search of the area approximately two minutes prior to the slip and fall. (See Plaintiff’s Exh. C.) Plaintiff argues that because an employee did a sweep two minutes prior, constructive knowledge is imputed upon Vallarta. Plaintiff provides no citation for this argument. In essence, Plaintiff would like the Court to disregard case precedent that a defendant may satisfy this burden by affirmatively showing that it (or its agent) conducted regular reasonable inspections of the area where the plaintiff was injured and/or that the plaintiff has no evidence the defendant did not conduct reasonable inspections. (See Ortega, supra, 26 Cal. 4th at 1210-11; Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 828-29; Peralta, supra, 24 Cal.App.5th at 1032.) The Court adheres to binding California case precedent.

Further, Plaintiff’s arguments are of conjecture. The arguments presented assume that Vallarta negligent displayed the grapes without making a showing, assume that the entirety of the Inspection Log is wrong, and assume that Vallarta’s employee must have seen grapes on the floor and elected not to sweep them up or block of the area despite Vallarta’s policies, as provided in Exh. D. Esobar also testifies to the training she had, though she cannot affirmatively say whether Crites received the same training as her. Plaintiff must raise more than a mere possibility of causation, speculation, or conjecture that Defendant's conduct (or failure to act) caused her injury. "In the context of a business owner's liability to a customer or invitee, speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiff's burden." (Ortega, supra, 26 Cal.4th at 1206.) Plaintiff has not done so here in the Opposition.

Thus, the evidence presented before the Court shows a reasonable inspection was done in the area that Plaintiff was injured and Plaintiff provides no evidence to raise a triable issue of material fact.

Vallarta’s Reply emphasizes the holdings in Ortega. That is, it highlights that Ortega has held: (1) a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe (id. at 1200); (2) a customer who is injured by a dangerous condition on a store owner's property may recover damages against the owner only if the owner was somehow negligent in its maintenance and care of the premises (id. at 1205); and (3) an owner acts unreasonably only if it had actual or constructive notice of the dangerous condition in a sufficient time to correct it or warn of it, and it is not enough to show that the dangerous condition existed and that the plaintiff was injured by it (id. at 1203-06). Vallarta also distinguishes the cases Plaintiff has cited and argues that there is no evidence that it created the dangerous condition and highlights that there was also no evidence presented as to where the grapes came from.

Vallarta reiterates that it had no actual knowledge of the grapes as Crites conducted a sweep of the area of incident, walked in the area of incident, and even cleaned something up in the video. Vallarta presents that Plaintiff’s arguments are assumptions. Vallarta further argues that there is no evidence that shows it failed to adhere to its policies and procedures.

As to the inspection log, Vallarta contends: “Whether or not the name of the individual on the log is accurate or not, does not dispute the fact a sweep was done. The fact that the name may not be accurate is irrelevant and it likewise has no bearing on the cause of the slip and fall.” (Reply 9:4-6.)

Vallarta’s Reply does not change the Court’s analysis. The Court’s decision remains.

[1] As discussed more fully infra.

[2] For these purposes, the Court will strike the Second Cause of Action for General Negligence pursuant to its own authority in Code of Civ. Proc. §436, as the First and Second Causes of Action are duplicative. Alternatively, as the legal issues are identical, the Court adopts its Premises Liability analysis, infra, for the First Cause of Action as discussed for the Second Cause of Action.

[3] Vallarta argues that it has complied with Cal. Rules of Court, Rule 3.1350(g) in its Response to Plaintiff’s Objections to Evidence.

[4] Electronic filing has become more commonly accepted due to the COVID-19 pandemic. On Nov. 05, 2018, the Superior Court of California, County of Los Angeles implemented a mandatory e-filing for civil claims, updated May 03, 2019. (See Superior Court of California, County of Los Angeles, First Amended General Order RE: E-Filing <https://www.lacourt.org/division/efiling/pdf/GenOrdCivilEfiling.pdf> [as of Feb. 07, 2023]; See also See Superior Court of California, County of Los Angeles, General Order RE: E-Filing < https://www.lacourt.org/division/civil/pdf/GeneralOrderreMandatoryElectronicFilingforCivil.pdf> [as of Feb. 07, 2023].)

[5] Turlington presents the following in his declaration:

Should the hearing on this motion be continued for supplemental briefing,

Plaintiff intends to retain Mark Burns, BSME, JD, CXLT, CPSI, who is a Forensic Engineer and

certified accessibility inspector/plans examiner, to review the surveillance video of the subject

incident, the subject premises, and the future deposition transcript of Defendant’s PMK, in order

to provide a declaration concerning the hazardous condition caused by the spilled grapes on the

floor in support of Plaintiff’s opposition to the motion for summary judgment. (Plaintiff’s

Compendium of Evidence in support of Oppositon to Motion for Summary Judgment, Exhibit

“G”)

Given discovery has yet to be completed, and given the existence of disputed

facts, this Defendant’s Motion for Summary Judgment is prematurely filed, and to grant this

motion would cause irreparable harm and prejudice to the Plaintiff’s interest. It is in the interest

of justice to promote the full and final discovery of a case prior to any ruling which would

dispose of, or resolve, the case.

(Decl. Turlington ¶¶ 14-15.)

[6] Plaintiff’s argument that Defendant created the danger is based on packaging and displaying the grapes. The Court has discussed this, ante.