Case Number: BC698712 Hearing Date: December 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On April 18, 2016, plaintiff Jan Cleverdon (“Plaintiff”) allegedly fell at a store at a gas station of G&M Oil Company, Inc. (“Defendant”). A surveillance video shows Defendant’s employee Eleterio Galindo mopping the floor at or near the area of the incident at 18:30:49 p.m. Two customers walk through the area at 18:31:49. Plaintiff walks through the area at 18:31:58 and falls at 18:32:04.

On March 19, 2018, Plaintiff filed this action alleging she fell due to negligently maintained premises and that Defendant failed to make the premises safe or warn her of the dangerous condition. Defendant moves for summary judgment on the grounds that Plaintiff cannot establish a triable issue of fact as to whether Defendant had actual or constructive notice of the dangerous condition.

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

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, supra, 25 Cal.4th at p. 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 p. 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.” (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. EVIDENTIARY OBJECTIONS

Defendant listed objections to certain facts in its response to Plaintiff’s separate statement of material facts and did not comply with California Rule of Court 3.1354. Defendant did not specify any particular evidence (e.g., deposition testimony, exhibits) to which it objected.

IV. 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.) “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 plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it. (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 606.) “There 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.) 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.” (Ortega, supra, 26 Cal.4th at p. 1206.) “Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.” (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)

As framed by the pleadings, Plaintiff alleges she slipped on the wet floor or oily residue on the floor. She alleged Defendant’s employee had recently mopped the floor but not placed adequate warning signs or blocked off the area. Plaintiff also alleges Defendant had actual notice of the condition because its employee wetted the tile with soap and water, which created the known dangerous condition.

Defendant contends Plaintiff slipped on grease marks and it did not have actual or constructive notice of the grease marks. Defendant cites to Plaintiff’s deposition and argues she testified that she slipped on grease marks on the floor. Defendant also submits the declaration of the employee on duty at the time of Plaintiff’s fall, Eleuterio Galindo, who testified that he did not see any grease marks during his inspection and maintenance of the store’s floor. However, Plaintiff was asked whether she “[saw] any liquid or debris on the floor in the area where accident [sic] happened.” (Deposition of Jan Cleverdon at 38:5-16.). Plaintiff responded that she “saw the grease marks.” Plaintiff did not definitively testify that she fell because of grease on the floor as opposed to a wet, recently-mopped floor.

Defendant does not address Plaintiff’s allegations that Defendant had actual notice because its employee created the dangerous condition when cleaning and mopping the store floor. Instead, Defendant argues that Plaintiff knew the floor was wet and saw warning signs. That may be, but it is for the jury to decide whether Defendant took adequate precautions regarding the wet floor, whether the warning signs were sufficient, or whether as Plaintiff alleges the area should have been blocked off.

Accordingly, the Court DENIES Defendant’s motion for summary judgment.

V. CONCLUSION

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

Moving party to give notice.