Judge: Steven A. Ellis, Case: 22STCV19314, Date: 2025-05-08 Tentative Ruling

Case Number: 22STCV19314    Hearing Date: May 8, 2025    Dept: 29

Manavi v. Costco Wholesale
22STCV19314
Motion for Summary Judgment filed by Defendant Costco Wholesale Corporation.

Tentative

The Court will call this matter.

The Court has not been able to review the video lodged by Defendant (Exhibit C). If Defendant wishes for the Court to consider Exhibit C in connection with ruling on this motion, Defendant must be prepared to display Exhibit C to the Court during the hearing.

The Court’s tentative ruling is that the motion for summary judgment is denied.

Background

On June 13, 2022, Orna Manavi (“Plaintiff”) filed a complaint against Costco Wholesale, Costco Warehouse Marina Del Rey, Costco Wholesale Store #479, Costco Wholesale Corporation (“Defendant”), Costco Wholesale Corp., Cesar Aguila, and Does 1 through 50 for negligence action arising out of an incident on July 28, 2020, in which, Plaintiff alleges, she was injured when she slipped and fell at a Costco location in Culver City.

On August 2, 2023, Defendant filed a notice of removal.

On August 3, 2023, while the action was pending in federal court, Defendant filed an answer to the complaint.

On October 11, 2023, the federal district court issued an order of remand.

On February 22, 2024, Defendant filed this motion for summary judgment.

On April 24 and 25, 2025, Plaintiff filed an opposition to the motion.

No reply has been filed.

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.)

Discussion

On July 28, 2020, Plaintiff slipped and fell at the Costco Warehouse (the “Warehouse”) located in Culver City. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 2; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 1.) Plaintiff fell when she slipped on crushed raspberries on the floor near the entrance to the walk-in dairy cooler section of the Warehouse. (DSUMF, No, 3; PSAMF, Nos. 3-4.)

Costco employees conduct and document daily floor walks of the Warehouse every hour between opening and closing hours to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others. (DSUMF, No. 6.) Defendant’s policy is that if a hazard is noted during a walk, the floorwalker will try to remedy the issue as promptly as possible and will remain on the scene or mark the hazard until the hazard is resolved. (DSUMF, No. 8; Barrio Decl., ¶ 5.)

On the day of the incident, Costco employee Daniel Benitez performed an hourly floor walk starting at 2:00 pm and ending at 3:06 pm. (DSUMF, No. 9; Benitez Decl., ¶ 3; Barrio Decl., Exh. D.) Mr. Benitez testified that he “walked every single aisle and area of the warehouse” and “specifically inspected the warehouse for potential slipping hazards, including but not limited to food present on the floor.” (Benitez Decl., ¶ 4; DSUMF, No. 11.) This was one of the first floor walks performed by Mr. Benitez, and as a result he “tried to be very diligent and methodical.” (Benitez Decl., ¶ 3.) During this walk, Mr. Benitez “did not observe any slipping hazards” and “did not record any spilled food on the Daily Floor-Walk/Safety Inspection sheet.” (Id., ¶ 4; see also DSUMF, Nos. 10, 12.)

The precise time of Plaintiff’s accident is the subject of some dispute.

Plaintiff testified that after the fall, she told Defendant’s employees that she was in pain, and the employees brought her a folding chair to sit in inside of the dairy cooler section. (PSAMF, Nos. 12-13; Plaintiff’s Depo. [Daniels Decl., Exh. A], at 54:13-19, 55:1-15.) Plaintiff estimated that she sat there for “about 10 to 15 minutes” but then got up “because it was just extremely cold, and I had to get out of that room.” (PSAMF, No. 13; Plaintiff’s Depo., at 55:16-20.)

Plaintiff then sat down again (outside of the dairy cooler section) for “[m]aybe another 20 minutes or so.” (PSAMF, No. 14; Plaintiff’s Depo. at 60:3-61:1.)

Costco employees then helped Plaintiff walk to the front of the store with her shopping cart to pay for her items. (PSAMF, No. 14; Plaintiff’s Depo. at 62:10-19.) According to the surveillance video, she was in line near to the cash register area at approximately 2:39 to 2:41 pm. (DSUMF, No. 4; PSAMF, No. 16.)

After she paid for her items, she went to the manager’s office and filled out a document entitled Member First Report of Incident. (PSAMF, Nos. 15-16; Plaintiff’s Depo., at 98:19-25; Barrio Decl., Exh. B.). In that document, Plaintiff identified the time of the incident as 2:40 pm. (DSUMF, No. 5; PSAMF, No. 15; Barrio Decl., Exh. B.)

In her deposition, Plaintiff testified that she was mistaken when she wrote that the time of the fall was at 2:40 pm. (Plaintiff’s Depo., at 99:1-5.) “I was really shaken up and in a lot of paid,” Plaintiff testified, “so I must have made a mistake.” (Id., at 99:21-22.)

Plaintiff contends that, on this record, the accident “likely occurred between 2:04 pm and 2:09 pm.” (Opp. at 11:24.) Viewing the evidence in the light most favorable to the Plaintiff (as the non-moving party), the Court concludes that this is a reasonable inference that can be drawn from the evidence in the record, including the following (as set forth above): (1) after the accident, Plaintiff sat in the dairy cooler section for approximately 10-15 minutes; (2) then Plaintiff sat for another 20 minutes outside the dairy cooler section; (3) then Plaintiff went to pay for her items; and (4) Plaintiff was in line to pay for her items by 2:39 pm.

On these facts, Plaintiff asserts one cause of action for negligence. The basic elements of a cause of action for negligence are: (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.)

Defendant moves for summary judgment on the ground that it did not have actual or constructive knowledge of the dangerous condition in the Warehouse (crushed raspberries on the floor) prior to Plaintiff’s accident and therefore did not breach any duty of care owed to her.

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]s to business invitees, the owner should conduct frequent inspections.” (Ortega, supra, 26 Cal.4th at p. 1207.)

“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, supra, 26 Cal.4th at p. 1206.)

Here, there is no evidence that Defendant created the dangerous condition or that Defendant had actual knowledge of the dangerous condition prior to Plaintiff’s accident. (See DSUMF, No. 13.) Thus, any liability in this matter must be based, if at all, on constructive knowledge.

“[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.” (Ortega, supra, 26 Cal.4th at p. 1206.) “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.)

One common factual scenario that arises is that a plaintiff alleges an injury sustained as a result of a dangerous condition in a store, but plaintiff does not know how long the dangerous condition existed. For example, if the dangerous condition is liquid on the floor of a supermarket, the plaintiff often does not know when the spill occurred.

The California Supreme Court addressed this precise situation in the landmark case of Ortega v. Kmart Corp., supra. There, the court described the issue as “under what circumstances, if any, a store owner may be liable for injuries to a business invitee from a dangerous condition on its premises where the evidence fails to show how long the dangerous condition existed prior to the injury.” (26 Cal.4th at p. 1203.) After analyzing the extensive precedent in this area, the court reaffirmed the basic rules that there must be evidence of the defendant’s actual or constructive notice and that the plaintiff has the burden of proof on this issue. (Id., at pp. 1205-1209.)

The court went on to hold in Ortega, however, that a plaintiff may make the showing necessary to meet this burden of proof through circumstantial evidence, including evidence of a failure to conduct frequent inspections. (Id., at p. 1210.) “‘[E]vidence that an inspection has not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.’” (Ibid. [quoting Bridgman, supra, 53 Cal.2d at p. 447.) “[T]he failure to inspect the premises within a reasonable time prior to the accident [may] give rise to an inference that the defective condition lasted long enough to have been discovered and remedied.” (Id., at p. 1211.)

The burden remains on plaintiff, the court emphasized, to produce evidence of the defendant’s actual or constructive knowledge. (Id., at p. 1212). Nonetheless, the court held:

“[P]laintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. 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.”

(Id., at pp. 1212-1213 [citations omitted].)

As set forth above, a finder of fact could reasonably determine, on this record, that the accident occurred between 2:04 and 2:09 pm. Defendant produced evidence that its employee, Daniel Benitez performed a 66-minute floor inspection walk beginning at 2:00 pm and ending at 3:06 pm. (DSUMF, No. 9; Benitez Decl., ¶ 3; Barrio Decl., Exh. D.) There is no evidence, however, regarding whether Mr. Benitez inspected the area of the Warehouse in which the accident occurred – at or near the entrance to the walk-in dairy cooler section of the Warehouse (DSUMF, No, 3; PSAMF, No. 3) – before or after 2:04 or 2:09 pm. Viewing the evidence in the light most favorable to the non-moving party (as the Court must on summary judgment), a reasonable inference can be drawn that Mr. Benitez did not inspect this area of the Warehouse within the first nine minutes of his 66 minute floor inspection and therefore did not inspect the accident scene before Plaintiff’s accident.

There is scant evidence in the record regarding when a prior inspection occurred. The Warehouse General Manager, Carl Barrio, testified that there were inspection walks of the Warehouse every hour. (Barrio Decl., ¶ 3.) Assuming that this is so, and that the prior inspection began at 1 pm, a reasonable inference can be drawn that there was a period of between 64 and 69 minutes (from 1 pm to 2:04 or 2:09 pm) between the last floor inspection and Plaintiff’s accident.

There is no single benchmark or fixed time period that applies in all cases with regard to the frequency of inspections. As the California Supreme Court stated in 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 period of up to 69 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. Alternatively, the trier of fact could reasonably agree with Defendant and not draw any inference of constructive knowledge. On these facts, this is an issue for the jury to decide.

The Court has considered all of the admissible evidence and all of the arguments presented by both sides. The Court determines that there is a triable issue of fact as to constructive knowledge. Accordingly, Defendant’s motion for summary judgment is denied.

Conclusion

The Court DENIES the motion for summary judgment filed by Defendant Costco Wholesale Corporation.

Moving Party is to give notice.