Judge: Steven A. Ellis, Case: 21STCV21407, Date: 2023-11-22 Tentative Ruling
Case Number: 21STCV21407 Hearing Date: February 5, 2024 Dept: 29
Motion for Summary Judgment, or in the
alternative, Summary Adjudication, filed by Defendant Super Center Concepts,
Inc.
TENTATIVE
The Court will hear from counsel.
Background
Plaintiff Ingrid L. Avila
(“Plaintiff”) alleges that she slipped on liquid on the floor of a Superior
Grocers store located on South Vermont Avenue in Los Angeles on July 25, 2019,
fell, and was injured. On June 7, 2021, Plaintiff filed the Complaint in this
action asserting causes of action for negligence and premises liability against
Defendants Super Center Concepts, Inc., dba Superior Grocers (“Defendant”) and
Does 1 through 50.
On September 16, 2022,
Defendant filed its Answer to the Complaint.
On October 27, 2023,
Defendant filed this Motion for Summary Judgment, along with supporting
evidence. On December 28, 2023, Plaintiff filed her
opposition to the motion, along with supporting evidence. On January 5, 2024,
Defendant filed its reply brief, further evidence, and objections to Plaintiff’s
evidence.
The hearing was initially scheduled for January
11, 2024, and was continued, on the Court’s own motion.
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 passage of the declaration of Plaintiff’s counsel and one part of Plaintiff’s
notice of lodgment.
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 Court will
hear from counsel as to these objections. The Court is interested in hearing from
counsel as to whether (among other issues) Plaintiff’s Exhibit 4 has been
properly authenticated. For example, has someone with personal knowledge stated,
under oath, what the photograph represents, when and where it was taken, etc.
Additional
Information for Counsel Relating to Evidence
The Court
informs counsel that it has not reviewed the video that is described as
Defendant’s Exhibit B. For security reasons, the Court will not place a non-Court
thumb drive into a Court computer. Defendant’s counsel may display the video at
the hearing and/or may provide the video to the Court as an attachment to an
email sent to Department 29.
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, Plaintiff
alleges that on July 25, 2019, she slipped on a liquid substance on the floor
of Defendant’s store, fell, and was injured. (Defendant’s Statement of Undisputed
Material Facts [“DSUMF”], No. 1.) The store’s video security system captured
footage of the area before, during, and after the alleged slip and fall. (DSUMF,
No. 2.)
There is some
dispute between the contentions of the parties regarding whether there is
evidence of liquid on the floor. Defendant contends that the video footage (Defendant’s
Exhibit B) shows that there was no liquid on the floor. Plaintiff contends that
a photograph produced in discovery shows a roll of soaked paper towels on the
floor against the base of the dairy refrigerator, the location of the alleged
slip and fall. (Plaintiff’s Exhibit 4.)
There is some
dispute between the contentions of the parties regarding whether Plaintiff slipped
and/or fell. Defendant claims that the security video shows that she did not.
(Defendant’s Exhibit B.) Plaintiff claims that she did, and that the video
supports the claim, at least in part.
At some point
afterwards (the time is disputed), Plaintiff advised a cashier at the store that
there was a spill in the milk section and that someone should clean it up.
(DSUMF, Nos. 20-22.) The cashier stated that Plaintiff did not state that she
had fallen; Plaintiff stated in her deposition that she reported to the cashier
that she had slipped and injured herself. (DSUMF, No. 23, and response.)
The security
video does not show any employee of Defendant or any customer spilling anything
on the floor. (DSUMF, Nos. 12-13.) Defendant has a policy requiring employees
to inspect the premises regularly and to clean up any spills. (DSUMF, No. 14.)
Defendant
makes essentially three arguments in support of its motion for summary judgment
or, in the alternative, for summary adjudication: (1) that because Plaintiff
did not fall, any dangerous condition on the floor (if it existed) did not
cause any injury to Plaintiff; (2) that there was no liquid on the floor or any
other dangerous condition; and (3) even if there was a dangerous condition on
the floor, Defendant did not cause the dangerous condition or have actual or
constructive notice of it.
Causation
Defendant
argues that although Plaintiff initially contended that she injured herself
when she fell, the evidence shows – at most – that she slipped, without
falling. But there is no merit to Defendant’s argument that this somehow proves,
as a matter of law, that Plaintiff was not injured. One can be injured from a
slip, even without a fall, and, indeed, that is what Plaintiff testified to in
her deposition. (Defendant’s Exhibit E, at 44:21-45:9.)
Dangerous
Condition
The Court will
hear argument from counsel, including (but not limited to) regarding Defendant’s
Exhibit B and Plaintiff’s Exhibit 4.
Actual
Knowledge
In a negligence
and premises liability case, a plaintiff must show one of the following: (1) that
the Defendant caused the dangerous condition; or (2) that Defendant actually knew
of the dangerous condition in time to remedy it; or (3) that Defendant had
actual knowledge of the dangerous condition in time to remedy it.
The Court will
hear argument from counsel, including (but not limited to) regarding Plaintiff’s
Exhibit 4. If Exhibit 4 is admissible, it would appear to support an inference
that one or more of Defendant’s employees actually knew that something (one of
the store’s refrigerator cases or other equipment) was leaking and had actually
attempted to clean it up prior to Plaintiff’s accident.
If there is
evidence that would support an inference of actual knowledge by Defendant’s
employees, Plaintiff need not also show that Defendant caused the liquid to be
on the floor or had constructive knowledge of it.
Conclusion
The Court will hear from counsel.