Case Name: Maria Cordova v. Safeway, Inc.
Case No.: 17CV320575

I. Background

Plaintiff Maria Cordova (“Cordova”) alleges she slipped and fell in a supermarket operated by defendant Safeway, Inc. (doing business as Safeway Rivermark Market) (“Safeway”). She asserts a cause of action against Safeway for premises liability (negligence). Currently before the Court is Safeway’s motion for summary judgment on the ground the sole cause of action lacks merit, which is accompanied by a request for judicial notice. Both parties filed written objections to evidence.

II. Legal Standard

A defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) A defendant bears the initial burden of proving “a cause of action has no merit [by] show[ing] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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 [ ] shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Evidentiary Matters

A. Safeway’s Request for Judicial Notice

Safeway requests judicial notice of the complaint. A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) Here, the Court necessarily must consider the complaint as it frames the issues for the purpose of the motion. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382.) Thus, it is unnecessary to take judicial notice of the complaint. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Safeway’s request is, therefore, DENIED.

B. Objections to Evidence

1. Cordova’s Objection

Cordova objects to a form declaration completed by Safeway employee Daniel Bond, which is attached as Exhibit D to the declaration of Charles Stone. In large part, Cordova’s objection consists of a number of points that do not concern the admissibility of the form but, rather, what it shows. These points are not proper grounds for objection. (See Burch v. Regents of the University of California (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1119.)

Otherwise, Cordova asserts the form is not a proper declaration because when Mr. Bond signed the form under penalty of perjury, he did not indicate the place where it was signed as required by Code of Civil Procedure section 2015.5, which statute establishes the circumstances when an unsworn declaration will be given the same legal effect as an affidavit. “Code of Civil Procedure section 2015.5 states in part that a declaration made within the State of California must either state the date and place of execution or must state the date of execution and that it is declared under the laws of the State of California.” (Johnson v. Super. Ct. (2006) 143 Cal.App.4th 297, 302, fn. 3.) Mr. Bond completed the inspection form on the date of Cordova’s fall, and so it is possible he completed the form at the store. But Mr. Bond does not actually state that he completed his attestation in California or under California law. And so, the inspection form does not comply with Section 2015.5. Cordova’s objection on that ground is SUSTAINED.

Cordova also raises a hearsay objection, but she does not indicate whether she is objecting on that ground to the form in its entirety or to particular statements therein. And so, Cordova’s hearsay objection is not adequately stated. (See generally People v. Porter (1947) 82 Cal.App.2d 585, 588; Cal. Rules of Court, rule 3.1354.)

2. Safeway’s Objections

Safeway objects to portions of the declaration of Cordova’s expert Zachary M. Moore. The Court need not rule on these objections—which are preserved—because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

IV. Discussion

Premises liability is a specific type of negligence. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529–30.) As such, the essential elements of a claim for premises liability, like a general negligence claim, are duty, breach, causation, and damages. (Ibid.)

As framed by Safeway, its argument is that Cordova’s cause of action for negligence (premises liability) lacks merit because she cannot establish the element of duty. “The court’s task in determining whether a duty exists ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446.) Despite how Safeway frames its argument, it does not engage in an analysis of the issue of duty. Additionally, Safeway acknowledges and proceeds from the premise that “[i]t 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.) Thus, to the extent Safeway intended to argue store owners do not owe any duty of care to patrons, its argument lacks merit. Also, to the extent it intended to advance an argument about the scope of a store owner’s duty, it does not effectively do so. Accordingly, Safeway fails to carry its initial burden of showing Cordova cannot establish it owed her a duty of care.

With that said, Safeway discusses its conduct on the day of Cordova’s injury, arguing that it “satisfied its duty of care….” (Mem. of Pts. & Auth. at p. 6:10–14.) In other words, Safeway is actually arguing it did not breach the duty of care. In opposition, Cordova disputes this conclusion and asserts Safeway was negligent. And so, notwithstanding how Safeway frames its argument, the Court will consider the argument it advances in substance, namely that Cordova cannot establish the element of breach.

“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.” (Ortega, supra, 26 Cal.4th at p. 1205.) “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.” (Ibid., quoting Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 448.) Ultimately, the guiding principle is what a reasonably prudent person would have done. (Ortega, supra, 26 Cal.4th at p. 1205.)

A shopkeeper breaches the duty of care owed to patrons when he or she has actual or constructive knowledge of a dangerous condition in sufficient time to correct it and fails to do so. (Ortega, supra, 26 Cal.4th at p. 1206.) “[T]he plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ibid.) “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.” (Id. at p. 1207.) “Each accident must be viewed in light of its own unique circumstances.” (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.) Safeway addresses both actual and constructive knowledge in its motion.

Safeway first seeks to show Cordova lacks and cannot reasonably obtain evidence that it had actual knowledge of a spill on the floor based on her factually-devoid discovery responses. A defendant may carry its initial burden of showing an element of a claim cannot be established by presenting evidence, such as discovery responses, showing the plaintiff lacks and cannot reasonably obtain needed evidence. (Union Bank v. Super. Ct. (1995) 31 Cal.App.4th 573, 579–81, 589–91.) For example, if a defendant serves a contention interrogatory and the plaintiff fails to respond with the facts supporting the contention—instead restating the contention or allegation—the defendant may rely on the discovery response to carry its initial burden of showing an element cannot be established by the plaintiff’s own admission. (Ibid.) Cordova’s responses to Safeway’s contention interrogatories seeking the facts that support her negligence claim lack substance. For example, in response to SI No. 15—which seeks facts supporting the contention that Safeway knew or could have discovered the allegedly dangerous condition—Cordova restated her allegation that she slipped and fell. (Stone Decl., Ex. C at p. 8.) Thus, Safeway carries its initial burden of showing Cordova cannot establish it had actual knowledge of a hazardous substance on the floor of its store.

While Cordova purports to dispute this point, the statements set forth in her separate statement are a mix of facts and legal contentions that are nonresponsive. (See Sep. Stat., ¶ 9.) She does not present any evidence showing she has since obtained new evidence of Safeway’s actual knowledge. Additionally, she does not present evidence affirmatively showing Safeway had actual knowledge. Thus, Cordova does not raise a triable issue of fact with respect to actual knowledge.

Next, Safeway seeks to show Cordova lacks and cannot reasonably obtain evidence showing it had constructive knowledge of the spill. For the same reasons articulated above, Safeway shows and Cordova fails to effectively dispute that she lacks and cannot reasonably obtain evidence establishing Safeway had constructive knowledge of a hazardous substance on the floor of its store.

Additionally, Safeway endeavors to affirmatively show it lacked constructive knowledge of the spill. The undisputed evidence establishes the following facts. “Safeway clerks are trained to conduct floor sweeps of the customer areas of the store floor to ensure that they are clean and free of debris, spills, or hazards.” (Schwinges Decl., ¶ 8.) “Safeway policy at the time of the incident was to conduct at least one sweep per hour.” (Schwinges Decl., ¶ 8.) Employee Daniel Bond conducted a sweep of the area where Cordova fell on January 3, 2016, at 11:08 a.m. (Schwinges Decl., Ex. C.) Cordova slipped and fell at approximately 11:33 a.m. (Sep. Stat., ¶¶ 12–13, citing Schwinges Decl., ¶¶ 5–6.) This evidence is sufficient to make a prima facie showing that Safeway lacked constructive knowledge of the spill based on its routine sweep of the area roughly 20 minutes before the fall.

Cordova’s opposition focuses on whether Safeway’s flooring had sufficient slip-resistance and is predicated nearly in its entirety on an expert declaration discussing the same. Cordova’s approach is problematic. A defendant is not required to negate unpleaded theories. (See Bostrom v. County of San Bernadino (1995) 35 Cal.App.4th 1654, 1663–64.) And so, a plaintiff cannot raise a triable issue of material fact by raising new theories that are not set forth in the pleading. (Ibid.) “If either party wishes the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend.” (Ibid.) “Declarations in opposition to a motion for summary judgment ‘are no substitute for amended pleadings.’ [Citation.]” (Id. at p. 1664.) “If the motion for summary judgment presents evidence sufficient to disprove the plaintiff’s claims, as opposed to merely attacking the sufficiency of the complaint, the plaintiff forfeits an opportunity to amend to state new claims by failing to request it.” (Ibid.) Cordova’s theory about the quality of the flooring is an entirely new theory that is not set forth in her pleading or in her responses to contention interrogatories about the basis for her negligence claim. She has not sought leave to amend her complaint. Accordingly, Cordova cannot raise a triable issue of material fact by asserting the flooring should have been made of a different more slip-resistant material.

Cordova also attempts to create a triable issue of material fact by disputing the adequacy of Safeway’s aisle inspections. First, Cordova asserts that the floor was not adequately cleaned before she fell. Even if true, this shows at most that there may have been some residue on the floor. In other words, this point goes to the existence of a dangerous condition and not Safeway’s actual or constructive knowledge of the dangerous condition. Consequently, this assertion does not establish the existence of a triable issue of material fact.

Second, Cordova asserts the sweeps were inadequate because a visual inspection on its own is insufficient. In other words, her position appears to be that Safeway had constructive knowledge because it could have discovered the alleged spill had it conducted a more rigorous inspection. In support, she relies exclusively on the opinion of her expert, namely a mechanical engineer that inspected the store and conducted slip-resistance tests in 2019. Because Cordova does not present admissible evidence to support her argument, it is not well-taken.

It is true that “[t]he declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “This does not mean that courts may relax the rules of evidence in determining the admissibility of an opposing declaration.” (Ibid.) “Only admissible evidence is liberally construed in deciding whether there is a triable issue.” (Ibid.) “An expert declaration is admissible to support or defeat summary judgment if the expert’s testimony would be admissible at trial in accordance with Evidence Code section 720.” (Ibid.) “An expert may testify to an opinion on a subject ‘that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’” (Ibid., quoting Evid. Code, § 801, subd. (a).) Additionally, “the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) “Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Ibid.) A court’s role as gatekeeper—at summary judgment and trial—“is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” (Sanchez v. Kern Emergency Medical Transportation Co. (2017) 8 Cal.App.5th 1456, 156 [internal quotation marks and citations omitted].)

Cordova’s expert opines that a visual inspection is insufficient and a dust mop must be utilized to properly inspect an aisle for hazards because clear liquid spilled on the floor can be missed by employees during a visual inspection. (Moore Decl., ¶¶ 6–7, 9.) But there are a number of problems with this opinion. First, the fact of whether it is difficult to see a puddle on the floor is not a matter beyond common knowledge such that an expert opinion on the subject is warranted. Second, the expert makes conflicting statements about whether a puddle of clear liquid is capable of observation. (Moore Decl., ¶¶ 6–7, 9.) Third, the expert does not adequately set forth the evidentiary bases and reasons for his conclusion. He does not specify how he concluded there was a clear liquid on the floor when Cordova slipped; indeed, his entire declaration appears to be based primarily on his own inspection of the floor conducted three years after the fact, in 2019. Moreover, he does not explain why he concludes a dust mop would remedy this problem. Finally, while Cordova’s expert does set forth his qualifications for opining on slip-resistant flooring and building standards, it is not apparent that he is qualified to testify to additional matters, either as an expert or lay witness. For these reasons, the Court disregards the improper testimony presented on the subject of the sufficiency of the aisle inspections. In light of that conclusion, Cordova does not raise a triable issue of fact on that subject.

To summarize, Safeway presents evidence showing Cordova lacks and cannot reasonably obtain evidence to show it had actual or constructive knowledge of a hazardous spill. Safeway also presents evidence affirmatively showing it inspected its aisles at regular intervals, including shortly before Cordova’s fall, such that it lacked constructive knowledge. Cordova does not clearly and directly respond to Safeway’s legal arguments and the cases it cites. Also, she neglects to present admissible evidence raising a triable issue of fact that is material to her theory as pleaded and the applicable legal standard. Accordingly, the undisputed facts show Cordova cannot establish Safeway had actual or constructive knowledge and, thus, breached its duty to her. Safeway is, therefore, entitled to judgment as a matter of law. Safeway’s motion for summary judgment is GRANTED.