Case Number: BC664486 Hearing Date: August 08, 2018 Dept: 2

The Motion for Summary Judgment by Defendant, Wal-Mart Stores, Inc., filed on 5/24/18, is GRANTED. Plaintiff has not met her burden of establishing with evidence that a triable issue of fact remains with respect to actual notice. Cal Code Civ. Procedure § 437c(p)(2).

Plaintiff’s opposition was served on 7/23/18, well before it was due to be filed and served on 7/25/18 (14 calendar days before the hearing). Defendant admits it received the Opposition the next business day on 7/24/18. Reply 5:21-23. Service of the opposition was not defective.

Plaintiff’s objections to evidence.

All objections are OVERRULED.

The undisputed facts establish that on 8/6/15, Plaintiff went to Defendant’s store and slipped and fell due to a dangerous condition left on the floor. Plaintiff testified that she saw a hairspray can on its side in a shopping cart immediately before the incident. UF 2-4.

Plaintiff testified she grabbed the can, felt a sticky, oily substance on her hand, and placed the can back into the cart. UF 7. She turned to grab the next available cart and subsequently fell. UF 8.

Premises liability is a form of negligence, which involves the duty of a premises owner to exercise ordinary care in the management of the premises to avoid exposing others to an unreasonable risk of harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619

The affirmative duty to act for the protection of individuals coming upon the land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” Preston v. Goldman, (1986) 42 Cal.3d 108, 118-119.

The Plaintiff must show that the landowner had actual or constructive notice of the dangerous condition, “or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal. App. 2d 733, 743.

Establishing the owners’ actual or constructive notice of the dangerous condition is “key,” as the owners are not insurers of the Plaintiff’s personal safety. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.

Plaintiff has not met her burden of providing sufficient evidence to controvert the fact that a cloud of liquid dispersed into the air at 11:08:43 p.m. UF 18. At 11:13:06, Plaintiff walked towards and slipped directly over the area where the cloud of liquid dispersed. UF 18-20. There is no dispute that approximately four minutes and twenty-three seconds elapsed from the time the cloud of liquid dispersed into the air, creating the spill, to the time Plaintiff fell. UF 27.

Plaintiff does not address these facts directly but refers to other evidence Defendant does not have, including other witnesses. The absence of any other evidence does not controvert the surveillance video evidence referred to above.

Accordingly, there is no dispute that Defendant did not have actual or constructive notice of the dangerous condition in a sufficient time to remedy it.

Moving party is ordered to give notice.