Judge: William A. Crowfoot, Case: 20STCV12368, Date: 2023-01-06 Tentative Ruling

Case Number: 20STCV12368    Hearing Date: January 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On March 27, 2020, plaintiff Ana Melara (“Plaintiff”) filed this action against defendant Alpha Beta Company dba Food 4 Less (“Defendant”) for negligence and premises liability.  On April 14, 2018, at approximately 3:1:52 p.m., Plaintiff tripped on a folded-over floor mat at Defendant's store located at 1717 South Western Avenue, Los Angeles, California 90006.

          On July 15, 2022, Defendant filed this motion for summary judgment arguing that it did not have actual or constructive notice of a dangerous condition that contributed to Plaintiff’s incident.        

II.      LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  “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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III.     DISCUSSION

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.)  “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’  [Citation.]”  (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.) 

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.)  For example, 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.)  The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances.  (Ibid.) 

To establish liability for negligence, “[t]here 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; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].)  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.”  (Ibid.)

The following is undisputed:

-      Plaintiff's incident is captured on the store surveillance system in front of the ice machine at approximately 3:13:52 p.m. (UMF 1.)

-      Before Plaintiff tripped and fell, at 3:11:56 p.m. an unidentified customer pushed his cart over the mat, causing it to fold over. (UMF 9.) 

-      Then another customer in a motorized cart ran over the mat, further rolling the mat at approximately 3:12:58 p.m. (UMF 10.) 

-      No store employees passed through or near the area where the mat was folded between 3:11:56 p.m. (when the unidentified customer caused the mat to fold) and 3:13:52 p.m. (when Plaintiff tripped). (UMF 11.) 

Defendant argues that there is no evidence that its employees created the condition the mat was in (i.e., folded-over or bunched-up), were informed of the mat’s condition, or discovered it between its creation (at 3:11:56 p.m.) and the accident (at 3:13:52 p.m.).  Defendant's employee, Kimberly Reyes, inspected the incident area eleven minutes before Plaintiff entered the area.  (Def.’s Compendium, Tab 3, Reyes Decl., ¶¶ 5 .)  At the time of the inspection, the floor mat was flat, without any crinkles or folded-over parts. (Ibid.)  Defendant argues that the evidence shows that only two minutes elapsed between the creation of the hazard and Plaintiff's fall, which is an insufficient amount of time to place it on constructive notice of the condition.

In opposition, Plaintiff relies on the declaration of her expert, Philip L. Rosescu, who opines that the defective condition was created by Defendant because the mat was not secured to the ground.  Plaintiff argues that because Defendant created the defective condition, Defendant’s analysis of actual or constructive notice is not relevant because notice is imputed to Defendant. Where a plaintiff produces evidence from which a reasonable inference can be drawn that the dangerous condition was created by defendant or its employees, defendant is charged with notice of the dangerous condition.  (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 382.)

Defendant informs the Court that this expert declaration was not served with Plaintiff’s opposing papers and it does not appear that Plaintiff filed or served it until December 28, 2022 after reading Defendant’s request to exclude Rosescu’s declaration in Defendant’s reply brief.  Therefore, in order to allow Defendant an opportunity to review and incorporate Plaintiff’s expert’s opinions into its reply, the Court CONTINUES the hearing on this motion to January 13, 2023 at 1:30 p.m.  Defendant is to file any supplemental brief addressing the Declaration of Philip L. Rosescu, PE, M.S. no later than January 10, 2023. 

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.