Case Number: BC711305 Hearing Date: June 06, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT THE VONS COMPANIES, INC.’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On June 22, 2018, Plaintiff April Aparicio (“Plaintiff”) filed this action against Defendant The Vons Companies, Inc. (“Defendant”) for premises liability arising out of a March 25, 2018 slip and fall. Defendant moves for summary judgment on grounds no dangerous condition existed that caused Plaintiff’s injuries, and it did not have adequate time to discover or remedy any dangerous condition.

II. FACTUAL BACKGROUND

On March 25, 2018, Plaintiff was shopping at a Vons store in Covina, California. She slipped and fell on what she believes was slippery ice cream on the floor. (Undisputed Material Fact “UMF” Nos. 1, 8.) Security surveillance footage shows that at 2:55 p.m., Vons employee Dylan Priestly (“Priestly”) pushed a dust mop through the frozen food aisle over the exact area, and several people walked through the area, where Plaintiff then fell approximately one minute later at 2:56 p.m. (UMF Nos. 5, 7.)

III. 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.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Objections

Objections Nos. 1-4 are OVERRULED.

Defendant’s Objections to Rosescu Declaration

Objections Nos. 1-4 are OVERRULED, but the opinions are beside the point because Plaintiff does not claim she slipped on water, and Rosescu does not say whether he tested the floor surface with melted ice cream on it. Objections No. 5 is SUSTAINED regarding what the surveillance video shows, which is not the proper subject of expert opinion. Object Nos. 6 and 7 are SUSTAINED as conclusory and lacking foundation. The expert does not define the “industry standards” and “policies and procedures” to which he refers or his expertise in the grocery industry. Objection No. 8 is SUSTAINED as to the conclusion that Defendant tampered with the surveillance video and failed to retain the video because the expert has no personal knowledge about how the video was handled and does not establish he has any expertise in video technology or tampering.

Defendant’s Objections to Aparicio Declaration

Objection No. 1 is OVERRULED. The reference to items in the cart could be to boxes in the cart, which does not directly conflict with Aparicio’s testimony that she did not know if there was anything in the boxes.

Objection Nos. 2, 4 are OVERRULED.

Objection No. 3 is SUSTAINED regarding wetness on her pants, which contradicts her deposition testimony that she did not remember any wetness on her clothing.

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.) “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.)

However, the plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence. (Ortega, supra, 26 Cal.4th at p. 1206.) A plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular period of time prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it. (Id. at p. 1210.) “The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie, supra, 81 Cal.App.2d at p. 608.)

First, Defendant argues there is no evidence a dangerous condition existed. On March 24, 2018, the day before Plaintiff’s accident,[1] Vons had removed all of the ice cream because the freezers were not holding their temperature. (UMF Nos. 10, 11.) On March 25, 2018, Vons did not have any ice cream for sale. (UMF No. 9.) Plaintiff confirms that the freezer in the aisle where she fell had no items in it. (Declaration of April Aparicio, ¶ 4.) In the approximately thirty minutes (Plaintiff says it was 24 minutes) before Plaintiff’s fall, multiple customers walked over the area where Plaintiff fell without incident. (Declaration of David Barragan, ¶ 4.) Surveillance footage shows customers walked over the exact area where Plaintiff fell, seconds before she fell without incident. Those customers turned around to help Plaintiff up after she fell. (Declaration of Maximillian Lee, ¶ 2; Exh. A, CD surveillance footage at 2:56:35.) Further, Emelda Sadler (“Sadler”), assistant store director, came to the scene of Plaintiff’s fall within three minutes of the incident. She testified at her deposition that Plaintiff said she slipped on ice cream but when she and Plaintiff went down the aisle together, there was nothing there. She did not ask any store clerk to clean up the aisle because there was nothing there. (Def’s Exh. D, Sadler Depo., 38:3-4, 46:25-48:1.) Sadler testified there was nothing on the floor and they did not have ice cream in the store that day. (Def’s Exh. D, Sadler Depo., 48:11-12.)

Defendant argues even if there was ice cream or some other substance on the floor, Defendant had no actual or constructive knowledge of it in time to remedy it. Surveillance video at approximately 2:55:27 p.m. shows Priestly pushing a dust mop over the exact area where Plaintiff fell. (Lee Decl., ¶ 2; Exh. A, CD surveillance footage at 2:55:27.) At approximately 2:56:35 p.m., the surveillance footage shows customers walking over the area where Plaintiff fell and at approximately 2:56:44 p.m., Plaintiff slips and falls. (Lee Decl., ¶ 2; Exh. A, CD surveillance footage at 2:56.)

Defendant has met its initial burden of showing no dangerous condition existed and that it had no actual or constructive knowledge of a dangerous condition with time to remedy it. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff argues Defendant left a shopping cart full of boxes with unknown contents in the frozen food aisle for more than 25 minutes before her fall, which presented a dangerous condition because: (1) the shopping cart spilled its melted, liquified contents onto the floor and (2) it interrupted Plaintiff’s fall to the ground causing her to sustain more serious injuries than she would have sustained if she was able to fall straight to the ground without interruption. However, Plaintiff’s complaint does not allege the shopping cart was a dangerous condition, that it caused her to fall, or that she was injured by the cart.

Vons employee Fabio Gaitan testified at his deposition that when the freezers were not working, Defendant emptied ice cream and frozen foods and some co-workers used shopping carts to bring the frozen items to the back freezers. (Lee Decl., ¶ 6; Exh. E, Gaitan Depo., 24:9-25:10.) Based on this, Plaintiff argues that Defendant caused or created the dangerous condition by leaving a shopping cart containing boxes of melting ice cream in the aisle. The shopping cart can be seen in the surveillance footage and screen shots of the incident. However, Plaintiff has presented no evidence establishing what the boxes contained, if anything. Plaintiff even identifies the contents as “unidentified.” (Plaintiff’s Additional Material Facts “PAMF” No. 1.) Gaitan’s deposition testimony is insufficient to establish that the boxes contained melting ice cream that leaked onto the floor. In fact, Gaitan testified that he did not see any coworkers leaving shopping carts with boxes of frozen food in the aisle, and he never noticed any liquid pooling on the ground on the frozen food aisle while the freezers were broken. (Lee Decl., ¶ 6; Exh. E, Gaitan Depo., 24:5-8, 25:17-20.) Salda testified that she never looked inside the boxes. (Def’s Exh. D, Sadler Depo., 49:7-17.) At her own deposition, Plaintiff testified that she believed the slippery substance to be ice cream because she was in the ice cream aisle (Def’s Exh. C, Pltff’s Depo., 65:12-13), she did not know where the ice cream came from (Def’s Exh. C, Pltff’s Depo., 86:22-24), and she did not see any visible substance on the floor (Def’s Exh. C, Pltff’s Depo., 88:1-14). Therefore, it is speculation that the shopping cart contained boxes of ice cream that leaked onto the floor.[2]

The only evidence Plaintiff presents as to the existence of a substance on the floor is that she felt wetness on her hands, elbows, and pants and slippery wetness on the floor after she fell. (Def’s Exh. C, Pltff’s Depo., 65:19-25; Aparicio Decl., ¶ 6.) (At her deposition, she said she did not remember wetness on her clothes, which she then contradicted in a declaration submitted with the summary judgment opposition.) However, this is insufficient to impose liability on Defendant. To meet her burden of proof, 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.)

In Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, the plaintiff slipped on an allegedly slippery floor. (Id. at p. 1035.) However, the plaintiff did not see anything on the floor before her fall, and an employee, who responded immediately to the scene of the fall, inspected the surrounding area and did not find any substances on the floor. (Ibid.) The court found this was insufficient to establish the floor was dangerously slippery. (Ibid.) “Without any evidence showing that a slippery substance was in fact on the floor at the time she fell, or that others had slipped in the same location, there is no legitimate basis to support an inference that Vons’s breach caused [plaintiff] to fall. Speculation does not establish causation . . .” (Id. at p. 1036.)

Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553 is also instructive. There, the plaintiff alleged she slipped and fell on an oily, slippery, liquid substance which she speculated was due to the store owner’s use of a myco-sheen liquid resin solvent to treat the hardwood maple floors. (Id. at pp. 554-555.) The area where the plaintiff fell was examined approximately fifteen to twenty minutes after her fall and there was no foreign material or dirt. (Id. at p. 555.) The only evidence as to the presence of a foreign substance were oily spots on her clothes that she stated were not there before she fell. (Ibid.) The court found “it must be held that, as a matter of law, the evidence fails to support the implied finding that defendant was negligent. Interpreted most strongly in favor of plaintiff, as it must be, the evidence shows that plaintiff slipped and fell, and, that after she fell, there was a greasy substance on her stocking, coat and skirt. There is no evidence of any foreign substance on the floor. There is no evidence that the floors were recently oily or waxed. There is no evidence, in fact, that the floor was slippery. If it may be inferred from the spots on her clothing that there was oil on the floor, there is no evidence as to how long it had been there or that defendant knew or should have known of its presence.” (Id. at p. 557.)

Similarly, here, Plaintiff speculates that the shopping cart left in the aisle contained frozen food or ice cream that leaked a slippery substance onto the floor where Plaintiff slipped. Plaintiff has not established what, if anything, the boxes contained and has not established there was any substance on the floor.

Even if there was a substance on the floor, Priestly swept over the exact area where Plaintiff fell one minute before her fall and did not notice anything, and other customers walked on the exact area where Plaintiff fell seconds before Plaintiff fell. Plaintiff’s speculation that Priestly’s use of a dry mop spread wetness from a different location is insufficient because there is no evidence of wetness on the floor in a different location. A customer who had walked over the spot where Plaintiff fell, then helped Plaintiff up when she fell, can be seen pointing at something on the floor at 2:57:46 p.m. of the surveillance footage. However, absent evidence or testimony from this customer, the Court cannot infer that her pointing establishes the presence of a substance on the floor rather than simply a gesture. If something melted onto the floor in the minute between when Priestly mopped and Plaintiff fell, that was insufficient time for Defendant to have noticed and remedied the condition.

Finally, Plaintiff submits the Declaration of Philip Rosescu, a civil engineer, who opines that the slip resistance of the floor with water on it was below the standard of care; a dry mop is insufficient for cleaning liquid spills; and Defendant performed a wholly insufficient sweep of the frozen food aisle. Rosescu is incompetent to opine as to the sufficiency of Defendant’s sweeps and inspections as he does not establish an expertise in the grocery industry. Further, Rosescu attests to the slip resistance of the floor when wet with water, but Plaintiff does not claim water was on the floor, and Rosescu did not test the floor with melted ice cream on it. Rosescu’s declaration is of little evidentiary value where Plaintiff has failed to establish the floor was wet.

Based on the Rosescu declaration, Plaintiff argues Defendant removed 30 seconds of surveillance video from right before Plaintiff began her walk down the frozen food aisle, which could have shown something dripping onto the ground or an employee noticing the hazard without cleaning it up. Plaintiff argues an adverse inference should be drawn from Defendant’s improper removal of this video content. Rosescu opines that Defendant altered the surveillance video by removing the thirty seconds. Rosescu has no expertise or basis for asserting Defendant tampered with the surveillance video. But even if the video has thirty seconds missing, thirty seconds is not enough time for an employee to notice something on the floor and clean it up or post a warning sign.

Accordingly, Plaintiff failed to meet her burden.

VI. CONCLUSION

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

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

[1] Plaintiff says it was on March 25, but at the latest, it was before Plaintiff fell because nothing was in the freezers when she fell.

[2] Plaintiff alleges the following additional material facts: (1) Defendant allowed an unattended shopping cart full of boxes with unidentified contents and a dolly to be left in the aisle where Plaintiff fell for more than 25 minutes, (2) Defendant lacks any policies, practices, or procedures for stocking or unloading products and goods in the freezers, (3) Defendant lacks any kind of time limit for its employees to put frozen items from outside of the freezer into the freezer, (4) Defendant lacks an official policy that frozen items should not be left out in the aisle rather than put into the freezer; (5) Defendant lacks any kind of policy regarding keeping customers safe when the freezer is broken; (6) Defendant lacks any written policy requiring recorded inspection and sweep of the floor at least once per hour; (7) Defendant lacks any policy to remove shopping carts full of boxes in the middle of an aisle within a reasonable period of time; and (8) Defendant failed to provide Priestly with training as to how to properly sweep the floor. These facts about Defendant’s policies are immaterial where there is no evidence of a foreign substance from melting frozen items on the floor.