Case Number: BC630889 Hearing Date: December 26, 2017 Dept: 92

ROSA ORTIZ,

Plaintiff(s),

vs.

9221 CORBIN ATM, LLC, ET AL.,

Defendant(s).

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CASE NO: BC630889

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

December 26, 2017

1. Background Facts

Plaintiff, Rosa Ortiz filed this action against Defendants, 9221 Corbin ATM, LLC and ADR/Preferred Business Properties for damages arising out of a slip and fall in Defendants’ bathroom.

2. Motion for Summary Judgment

At this time, Defendants move for summary judgment on the complaint. They argue (a) they had no notice of a dangerous or defective condition in the bathroom, and (b) they did not cause or contribute to Plaintiff’s fall.

a. Notice

Defendants’ primary argument is that they lacked notice of a dangerous condition in the bathroom. In order to negate notice, Defendants must negate both actual and constructive notice.

i. Initial Burden re: Actual Notice

At page 4, lines 24-25 of their motion, Defendants argue that the motion must be granted because there is “no evidence” that they had notice of the condition. Defendants, at the summary judgment stage, have the initial burden to show lack of notice; Plaintiff does not need to submit any evidence of notice unless and until the burden is met.

The Court has reviewed Defendants’ separate statement, and finds Defendants failed to introduce any facts that, if proven, would establish lack of actual notice of the alleged dangerous condition. ¶¶23-26, supported by ¶15 of the Tack Declaration, arguably establish lack of a dangerous condition at the time the bathroom remodel was completed, in May of 2014. Plaintiff’s fall, however, occurred in September of 2014. The only fact proffered by moving party concerning the state of the bathroom between May and September of 2014 is fact 27, which states that the bathroom is inspected twice a day. This is based on Tack’s Declaration. Tack did not do the inspections. Moreover, nothing in fact 27 indicates the results of those inspections. Additionally, there is no declaration from anyone who actually conducted the inspections concerning the results of the inspections.

Defendants failed to meet their initial burden to show lack of actual notice of the alleged defect in the sink. The Court declines to consider whether Defendants met their initial burden to show lack of constructive notice, as doing so is not necessary to the resolution of the merits of the motion.

ii. Triable Issues of Material Fact

Even if Defendants had met their burden concerning lack of notice, the Court finds there are triable issues of material fact in this regard. Plaintiff, in opposition to the motion, argues these facts are disputed for two primary reasons. First, she contends Tack admitted to her, shortly after her fall, that the sink at issue was at a slant and had been dripping water onto the floor prior to the accident. Second, she contends Defendants, shortly after the accident, repaired the sink by placing shims to ensure it was level.

Defendants, in reply, argue Plaintiff’s evidence is not admissible. They contend the statement of Dieter is inadmissible hearsay, and they contend the evidence concerning the shims is inadmissible evidence of a subsequent remedial measure.

The Court agrees that the evidence concerning shims amounts to evidence of a subsequent remedial measure, which is inadmissible to show negligence per Evidence Code §1151. Defendants’ objection number two is therefore sustained, and the Court has not considered this evidence in connection with this ruling.

The Court also agrees that Tack’s statements are hearsay – they are out-of-court statements made for the purpose of establishing the truth of the matter asserted. The statements are, however, subject to exception. The statements are an “admission against interest.” An admission for purposes of the hearsay exceptions is any out-of-court statement or assertive conduct by (or on behalf of or imputable to) a party to the action that is inconsistent with a position the party is taking at the current proceeding. The statement need not necessarily have been against the party’s interest when made; even a statement self-serving when made may be admissible as a party admission if contrary to the party’s present position at trial. People v. Richards (1976) 17 Cal.3d 614, 617-618.

A third person’s hearsay statement is admissible against a party (as if it were an express party admission) if:

• The third person was authorized by the party to speak for the party concerning the subject matter of the statement (Evidence Code. §1222(a)); and

• The hearsay statement is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the court’s discretion as to the order of proof, subject to the admission of such evidence (§1222(b)).

In effect, § 1222 covers agency or employment relationships, where a third person (the agent or employee) is authorized to speak for the party (the principal or employer). This hearsay exception recognizes that an agent’s statements within the scope of the agent’s actual or implied authority are binding on the principal. Therefore, a statement by a party’s agent who is authorized to speak for the party on the subject matter of the statement is imputed to the party and, when offered against the party, is admissible as a party admission. §1222; Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1150.

In this case, Tack, in his own declaration, identifies himself as Defendants’ property manager. He is therefore an “agent” and satisfies the above test. His statement, that the bathroom was not level and was dripping water on the floor, is contrary to the position Defendants are taking now. It therefore qualifies as an admission against interest. Defendants’ first evidentiary objection is therefore overruled. Plaintiff’s testimony concerning Tack’s statements raises a triable issue of material fact concerning Defendants’ notice of a dangerous condition on the premises.

The Court notes that Defendants, in reply, argue at length that Tack has disavowed making this statement. The Court cannot, on summary judgment, weigh competing evidence; that is for the jury to do at trial. At the summary judgment stage, there are triable issues of material fact, and the motion is denied.

Additionally, the Declaration of Olivia Romero raises triable issues of material fact concerning notice. Romero testifies that she consistently saw water pooling in the area where Plaintiff fell after construction was complete, and that she reported the problem to maintenance about a week before Plaintiff fell. Defendants, in reply, argue that the Declaration of Romero is not mentioned in Plaintiff’s statement of additional facts and therefore cannot be considered. The Declaration is referenced in opposition to Defendants’ facts 21 and 22.

Even if the declaration were not referenced in the opposing separate statement, under San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 310-311, the Court has discretion to consider ALL evidence submitted with the papers. Notably, San Diego Watercrafts was decided in connection with the moving party’s failure to include facts in the MOVING separate statement.

b Causation

Defendants also argue Plaintiff cannot show Defendants caused her damages. Defendants’ lack of causation argument essentially mirrors their lack of notice argument, and no additional analysis is necessary concerning this argument; notably, Defendants do not provide any evidence, in their moving papers, that Plaintiff did not actually fall on water, as alleged in the complaint.

c.Conclusion

Defendants failed to meet their initial burden to show lack of notice of the dangerous condition at issue in the lawsuit (water pooling on the floor near the sink). Even if they successfully met that burden, Plaintiff raised triable issues of material fact through admissible evidence, including Tack’s admissible statement that he knew there was a problem with the sink, and also including Romero’s declaration that she told maintenance about an ongoing problem with the sink. The motion for summary judgment is therefore denied.