Judge: Steven A. Ellis, Case: 21STCV05805, Date: 2025-02-18 Tentative Ruling
Case Number: 21STCV05805 Hearing Date: February 18, 2025 Dept: 29
Valdes v. Costco Wholesale Corporation
21STCV05805
Defendant’s Motion for Summary Judgment or, in the alternative, for summary
adjudication
Tentative
The motion is denied.
Background
On February 16, 2021, Plaintiff Peter Valdes
(“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation
(“Defendant”) and Does 1 through 50 for general negligence and premises
liability. In the complaint, Plaintiff alleges that of February 17, 2019, he
slipped and fell on spilled gasoline at a Costco fuel station on Hoxie Avenue
in Norwalk.
On March 26, 2021, Defendant filed an answer.
On July
25, 2024, Defendant filed this motion for summary judgment or, in the alternative,
for summary judgment. Plaintiff
filed an opposition on January 29, and Defendant filed a reply on February 7,
2025.
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.)
Objections
to Evidence
Defendant
objects to one portion of the deposition testimony of its employee, Alan
Hernandez-Simon.
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).)
The
objection is overruled.
Discussion
At
approximately 3:17 pm on February 17, 2019, Plaintiff slip and fell on spilled
gasoline on the ground in front of Pump #1 at the Costco fuel station located
on Hoxie Avenue in Norwalk (the “Premises”). (Defendant’s Statement of
Undisputed Material Facts [“DSUMF”], No. 1.)
Prior to
the accident, Plaintiff was waiting in line to purchase gasoline. (DSUMF, No. 3.)
The vehicle in front of Plaintiff pulled forward in front of Pump #1; the
driver stopped momentarily, said something to one of the gas station attendants,
and then pulled forward to Pump #3. (DSUMF, No. 3.) The attendant then walked
briskly or jogged or ran to the south. (DSUMF, No. 4.)
Plaintiff
then pulled his vehicle up to Pump #1. (DSUMF, No. 4.) As he was getting out of
the car, he put his left foot on the ground. (DSUMF, No. 5.) His foot slid out
from under him, and he fell on to the ground. (DSUMF, No. 5.)
It had rained
earlier in the day and there were puddles or pools of water in the area.
(DSUMF, No. 4.) But Plaintiff testified that immediately after his fall, he
smelled gasoline on his sweater and his shoes. (Plaintiff’s Statement of
Additional Material Facts [“PSAMF”], No. 32.) Two other witnesses testified
that after Plaintiff’s fall, Plaintiff and/or the area of the fall smelled of gasoline.
(PSAMF, Nos. 30-31.)
At his
deposition, the gas station attendant, Alan Hernandez-Simon, testified as
follows:
“Q On
the date of the incident before Mr. Valdes slipped and fell, did you become
aware of a potential gas spill?
A I
don't remember, but I think -- I think I did, yes.
Q When
did you become aware?
A When
they told me.
Q Who
told you?
A I
don't remember.
Q Was it
Mr. Valdes who told you or someone else?
A
Someone else.
Q And
that person told you about a potential gas spill before Mr. Valdes slipped and
fell, correct?
A I
think so.
…
Q What
did you do after this gentleman told you about a potential gas spill?
A I
think I went to go get the absorbent pads.
Q Did
you also get the FM-186?
A Yeah,
and a broom.
Q How
long did it take you to get those materials?
A I
don't remember.
Q Was it
more or less than a minute?
A
Definitely less.
…
Q Did
you do anything to guard against the area where the spill happened when you
were going to get the materials?
A No.”
(Defendant’s
Compendium, Exh. D [Hernandez-Simon Depo.], at 59:4-61:13.)
In the
Complaint, Plaintiff asserts causes of action against Defendant for premises
liability and negligence.
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.)
Defendant
now moves for summary judgment or, in the alternative, summary adjudication on
each cause of action in the Complaint. Defendant makes essentially two
arguments: (1) Defendant did not have actual or constructive notice of the
allegedly dangerous condition sufficiently in advance of Plaintiff’s accident
to make the area safe or warn Plaintiff; and (2) the allegedly wrongful actions
or inactions of Defendant were not the legal cause of Plaintiff’s fall and
resulting injuries.
The
Court considers each of these arguments in turn.
Actual
or Constructive Notice
“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.) “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 v. Kmart Corp. (2001) 26 Cal.4th 1200, 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.) “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.)
Defendant
argues that Plaintiff cannot show Defendant had actual or constructive
knowledge of the alleged gas spill sufficiently in advance of Plaintiff’s
accident to make the area safe or warn customers. In support of this argument,
Defendant points to (among other thing) the following facts: (1) that Plaintiff’s
expert witness Brad Avrit opines that it was “most likely” that the gasoline
was spilled by the person who used Pump #1 immediately before Plaintiff (DSUMF,
No. 6); and (2) that as soon as Mr. Hernandez-Simon learned of the spill, he
immediately went to retrieve the cleaning supplies, which took less than a
minute (Hernandez-Simon Depo., at 60:22-61:6.)
The
Court has considered all of the evidence in the record and the arguments made
by both sides. The Court concludes that there is a triable issue of material
fact on the issue of actual or constructive notice. Viewing the evidence in
light most favorable to Plaintiff, and drawing all reasonable inferences in his
favor, the Court concludes that a finder of fact could reasonably determine:
(1) that there was a gasoline spill in front of Pump #1, which was a dangerous
condition; (2) that Defendant’s employee Mr. Hernandez-Simon was on actual
notice of the dangerous condition before Plaintiff’s accident; and (3) Mr. Hernandez-Simon
had adequate time to warn Plaintiff and other customers of the dangerous
condition (by, for example, placing cones around the spill) and failed to do
so. (See DSUMF, Nos. 3-5; PSAMF, Nos. 18-20, 22-25, 30-32; Hernandez-Simon
Depo, at 59:4-61:13.) Of course, a finder of fact might also
reasonably make contrary determinations, but it is not the role of the Court on
summary judgment to weigh the evidence or predict a likely outcome of trial. On this
record, the issue of actual or constructive notice cannot be adjudicated in
Defendant’s favor as a matter of law.
Defendant’s
request for summary judgment or summary adjudication based on a lack of actual
or constructive notice is denied.
Causation
“[T]he
causation element of negligence is satisfied when the plaintiff establishes (1)
that the defendant's breach of duty (his negligent act or omission) was a
substantial factor in bringing about the plaintiff's harm and (2) that there is
no rule of law relieving the defendant of liability.” (Leslie G. v. Perry
& Associates (1996) 43 Cal.App.4th 472, 481.) Even when a plaintiff proves breach, the
plaintiff cannot recover absent evidence “that it was more probable than not
that, but for the [defendant’s] negligence, the [injury] would not have
occurred.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775.
“Proof of causation cannot be based on mere speculation,” and a “mere
possibility of such causation is not enough.” (Ibid.; see also Rinehart
v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 435 [“speculative
possibility” of causation is not sufficient],)
Defendant
argues there is no causal link between any action or omission by Defendant and
Plaintiff’s accident. Defendant points out that it did not cause the alleged
spill of gasoline and contends that there is no evidence that Plaintiff’s fall
would have been avoided in the absence of any alleged breach.
For
reasons similar to those already stated, the Court concludes that, on this
record, there is a triable issue of material fact on the element of causation. Viewing
the evidence in the light most favorable to Plaintiff, and drawing all
reasonable inferences in his favor, the Court concludes that a finder of fact
could reasonably determine: (1) it was a breach for Defendant’s employee to
leave the scene of the spill unguarded while he went to retrieve the cleaning
supplies; and (2) that if Defendant’s employee had used cones to block off the area
containing the spill, it is more likely than not that Plaintiff would not have
encountered the dangerous condition, slipped, and fell. On this record, the
issue of causation cannot be adjudicated in Defendant’s favor as a matter of
law.
Defendant’s request for summary
judgment or summary adjudication based on its argument regarding causation.
Conclusion
The
Court DENIES the motion for summary judgment or, in the alternative, for
summary adjudication of issues.
Moving
Party is to give notice.