Judge: Steven A. Ellis, Case: 20STCV30503, Date: 2024-04-17 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) 
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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: 20STCV30503    Hearing Date: April 17, 2024    Dept: 29

Motion for Summary Judgment or, in the Alternative, for Summary Adjudication filed by Defendants Costco Wholesale Corporation.

TENTATIVE

The motion is denied.

Background

On August 12, 2020, Maria Velasco Rodas (“Plaintiff”) filed a complaint against Costco Wholesale Corporation (“Defendant”), Lisa Doe, and Does 1 through 25, asserting causes of action for negligence and premises liability arising out of a slip and fall that occurred on November 18, 2018, in a Costco store on Century Boulevard in Inglewood.

The Court does not see an answer to the complaint in the file. Defendant appeared in this action in November 2021 and has been litigating the matter.

On February 2, 2024, Defendant filed this Motion for Summary Judgment or, in the Alternative, for Summary Adjudication. On April 3, Plaintiff filed her opposition to the motion, along with objections to Defendant’s evidence. Defendant filed its reply on April 8.

Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)

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.)

Evidentiary Objections

Plaintiff objects to some of Defendant’s evidence. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)

Plaintiff’s objection to paragraph 3, lines 1-2, of the Declaration of John K. Flock is SUSTAINED. Lack of personal knowledge.

Plaintiff’s objection to Exhibit B is SUSTAINED. Lack of foundation/authentication. Litigation counsel does not have sufficient personal knowledge to authenticate the exhibit.

Plaintiff’s Objections Nos. 1-2 to the Declaration of Johanna Diaz are OVERRULED. The Court notes that the declarant is providing testimony with regard to current practices; the testimony is admissible, but it does not establish that the store’s current practices (as of the date of the declaration) were in place and followed on the date of the accident in 2018.

Plaintiff’s Objections Nos. 3-6 to the Diaz Declaration are SUSTAINED. Lack of personal knowledge; failure to establish that the document comes within the business records exception (or any other exception) to the hearsay rule.

Plaintiff’s Objection to Exhibit C is SUSTAINED. Lack of personal knowledge; failure to establish that the document comes within the business records exception (or any other exception) to the hearsay rule.

Discussion

Plaintiff asserts causes of action for negligence and premises liability. The basic elements of a cause of action for negligence and for premises liability are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)

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, supra, 232 Cal.App.4th at p. 37.) 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.)

“It is well established in California that although 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.” (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.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) “The care required is commensurate with the risks involved.” (Ibid.)

“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, supra, 26 Cal.4th at p. 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.” (Id. at p. 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.” (Ibid.) “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.” (Ibid) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers...” (See id. at p. 1205.) “[A]s to business invitees, the owner should conduct frequent inspections.” (See id. at p. 1207.)

“Because the owner is not the insurer of the visitor’s personal safety …, the owner’s actual or constructive knowledge of the dangerous condition is [in many cases] a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at p. 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) “Most Courts of Appeal hold that 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.” (Id. at p. 1207.)

Here, Defendant argues that the undisputed evidence shows, as a matter of law, that Defendant did not have actual or constructive notice of the dangerous condition in its store (also referred to in the evidence as a “warehouse”).

Plaintiff alleges that she slipped and fell on a sausage on the floor of the store. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 3; see also Complaint, ¶¶ 8, 14.) The dangerous condition at issue is the sausage on the floor.

Disregarding the evidence as to which objections have been sustained, Defendant presents the declaration of Johnny Mercado. Mr. Mercado testifies that he is an employee of Defendant and that he performed an hourly walk/safety inspection of the store on the date of the accident that began at 3:02 pm and ended at 3:30 pm. (Mercado Decl., ¶¶ 1, 3.) He testifies that he “walked every single aisle and areas of the warehouse,” specifically looking for “potential slipping hazards, including but not limited to food present on the floor,” and that he “did not observe any slipping hazards during [the] floor walk.” (Id., ¶¶ 4-5.)

Defendant has not, with this evidence and its supporting argument, met its initial burden on summary judgment of presenting facts that show that one or more elements of Plaintiff’s causes of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) That is so for a number of reasons.

First, Defendant presents no admissible evidence regarding the time of Plaintiff’s accident. Defendant contends it occurred at 3:43 pm, but the Court sustained the objection to the evidence Defendant offered to establish the time of the accident. Without admissible evidence of the time of the accident, evidence that Mr. Mercado performed a safety walk that began at 3:02 pm and ended at 3:30 pm is not particularly helpful or probative of any issue before ethe Court.

Second, even if there were admissible evidence that the accident occurred at 3:43 pm, the Court, viewing the evidence in the light most favorable to the non-moving party, would need to conclude for purposes of this motion that the interval of time between the inspection and the accident could have been as long as 41 minutes.

There is no simple benchmark or fixed time period that applies in all cases with regard to the frequency of inspections. As the California Supreme Court stated in the landmark case Ortega v. Kmart Corp.: 

“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.”

"’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. A person operating a grocery and vegetable store in the exercise of ordinary care must exercise a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious.’” 

(Ortega, supra, 26 Cal.4th at pp. 1205, 1210 [quoting Bridgman, supra, 53 Cal.2d at p. 448 and Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.])

“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, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.”  (Ortega, supra, 26 Cal.4th at p. 1207; see also id. at pp. 1209-10.)

The Court is mindful that a store owner “must have a reasonable time to make an inspection in order to discovery the dangerous condition and correct it.” (Ortega, supra, 26 Cal.4th at pp. 1210-11.) There are undoubtedly some time periods between inspection and accident that are so brief that, under all of the facts and circumstances, no fact finder could draw an inference of constructive notice. (See Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 831-32 [affirming judgment for defendant notwithstanding the verdict where evidence indicated that banana or banana peel was on floor for approximately one-and-a-half minutes].) 

Here, however, given the nature of the market, and the period of up to 41 minutes between the last inspection and the accident, there are competing inferences regarding Defendant’s constructive knowledge that the finder of fact could reasonably draw. (See Ortega, supra, 26 Cal.4th at pp. 1204, 1211-13 [affirming judgment in favor of plaintiff where evidence indicated aisle in which spill occurred was usually inspected every 15 to 30 minutes]; Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1293 [noting that “a 15- to 30-minute interval between inspections at a busy commercial retail center may lead to an inference of negligence”]; Hale v. Safeway Stores (1954) 129 Cal.App.2d 124, 127-28 [time from inspection to accident estimated to be five to twelve minutes]; Tuttle v. Crawford (1936) 8 Cal.2d 126, 131 [five to eight minutes].) A reasonable trier of fact could conclude that the exercise of ordinary care required more frequent inspections, under these circumstances, than Defendant conducted. Accordingly, on these facts, these are issues for the jury to decide.

Third, and independently, Plaintiff raises a question about whether a 28-minute inspection of a store as large as a Costco market (or “warehouse”) by a single store employee is truly a sufficient inspection for potential safety hazards. A reasonable trier of fact could find that the exercise of ordinary care required a more thorough inspection, under all of the circumstances, than Defendant conducted and, based on that finding, draw a reasonable inference of constructive notice.

The Court has considered all of the admissible evidence and all of the arguments presented by both sides. Defendant’s motion for summary judgment, or in the alternative for summary adjudication, is denied.

Finally, although it is not clear, it appears that Defendant in its reply brief (and supporting declaration) may be requesting a continuance of the hearing so that Defendant may obtain additional evidence in support of its motion. Continuances are available under certain circumstances for the non-moving party to obtain additional evidence to oppose a summary judgment motion. (See Code Civ. Proc., § 437c, subd. (h).) The Court is not aware, however, of any statute or case law that would authorize a continuance for the moving party to obtain additional evidence. The moving party chooses when to file the motion and must serve all of its supporting evidence with the motion. (Id., subds. (a)(2) & (b)(1).) If that evidence is not sufficient to support the motion, the motion will be denied – without regard to whether some other motion, supported by some other set of evidence, might have been granted or denied.

Conclusion

The Court DENIES Defendant’s motion for summary judgment or, in the alternative, for summary adjudication.

Moving Party to give notice.