Judge: William A. Crowfoot, Case: 20STCV34509, Date: 2022-10-03 Tentative Ruling

Case Number: 20STCV34509    Hearing Date: October 3, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On September 10, 2020, plaintiff Vicente Monterroza (“Plaintiff”) filed this action against defendant Bodega Latina Corporation (“Defendant”) arising from a slip and fall that occurred on October 10, 2018.  Plaintiff asserts causes of action for: (1) general negligence and (2) premises liability. 

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).) 

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at 855.)

“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.”  (Id.)  “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.)

IV.     EVIDENTIARY OBJECTIONS

          Defendant objects to Plaintiff’s evidence submitted in opposition to its motion.  However, as the Court finds that Defendant did not meet its moving burden, the Court does not need to rule on those objections.  (Code Civ. Proc., § 437c, subd. (q).) 

V.      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.)  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.) 

Defendant moves for summary judgment on the grounds that Plaintiff cannot show that it was the cause of his fall.  To meet their burden of proof, the plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.  A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”  (Ortega, supra, 26 Cal.4th at pp. 1205-1206.) 

Defendant argues that Plaintiff has been unable to identify what he slipped on.  As evidence, Defendant cites to Plaintiff’s deposition testimony.  (Def.’s Compendium of Evidence, Ex. 5.)  Plaintiff testified that as he approached the area where he fell, he did not observe anything unsafe or dangerous on the floor, nor did he see any shadows or issues with the lighting.  (Ex. 5, 75:20-25; 76:5-15.)  Plaintiff was asked if he ever slipped in the store that day and he responded, “No.”  (Ex. 5, 77:18-22.)  He was then asked if he ever fell in the store that day, and he said, “I don’t understand that question, because at the moment of the accident, that was when I fell.”  (Ex. 5, 77:23-25.) When asked why he fell, he said, “I don’t understand. An accident is an accident.  That is why I fell.  The floor might be wet or something else.”  (Ex. 5, 78:7-10.)  He was asked if he knew what made him fell and he responded, “The floor – the floor was damp.  I don’t know.  I fell – I fell.  I fell and after that, I didn’t know anything.”  (Ex. 5, 78:11—14.)  He described the area where he fell as “wet” and said that he would say that “[he] fell on a wet floor, but after that, I don’t know what happened to me.”  (Ex. 5, 78:15-79:2.)  He denies seeing his foot step on the wet floor when he fell and denies seeing any liquid on the floor.  (Ex. 5, 79:3-20.)  Later, defense counsel asked Plaintiff if he was “assuming or speculating that [he] slipped on liquid that was on the floor,” Plaintiff responded: “Assuming would be a lie, no.  But there was something that was either wet or damp, because in all of the years that I had been going there, I had never fallen.”  (Ex. 5, 80:16-21.)  When further prompted about any evidence that he had about the liquid on the floor, Plaintiff testified that he did not understand the question and that he “[had] none of that.”  (Ex. 5, 80:25-81:15.) 

Defendant has not met its moving burden to show there are no triable issues of material fact.  Although Defendant analogizes the facts of this case to Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036, the Court finds Peralta distinguishable because the defendant’s objections to plaintiff’s testimony that there was a “foreign substance” on the floor were sustained.  (Peralta, supra, 24 Cal.App.5th at p. 1033, n.2.)  Additionally, the defendant’s employee inspected the surrounding area and did not find any substances on the floor other than crumbs that fell from the plaintiff’s package of pastries.  (Id. at p. 1035.)  Here, in contrast, Plaintiff testified that the floor was wet or damp.  This is testimony about Plaintiff’s sensory experiences, which is more than an assumption as to whether “foreign substance” was on the floor.  A reasonable factfinder could infer from this testimony that that the floor was wet and that Plaintiff fell on a wet floor. 

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is DENIED.

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.