2018-00229183-CU-PO

Imelda M. Enriquez vs. Target Corporation

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Reihl, Lori A.

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Defendants Target Corporation and Chris Nezbeth’s motion for summary judgment, or in the alternative, summary adjudication, is ruled upon as follows.

In this slip and fall action, Plaintiff Brandie Daniel alleges a cause of action for premises liability against Defendants. Plaintiff alleges that she was injured when she slipped and fell on a “wet substance” during an April 8, 2017 visit to a Target store on Fulton Avenue.

Any party may move for summary judgment in any action or proceeding if the party contends that (1) the action or proceeding has no merit or (2) there is no defense to the action or proceeding. CCP 437c(a). A cause of action has no merit if one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded, or a defendant establishes an affirmative defense to that cause of action. CCP §437c(o).

The Court must grant a motion for summary judgment 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. (CCP §437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35). Section 437c(c) imposes an affirmative duty on a Court to grant summary judgment motion in appropriate case. (Preach v. Moister Rainbow (1993) 12 Cal. App. 4th 1441, 1450). The Court must decide if a triable issue of fact exists; if none does, and the sole remaining issue is one of law, the Court has a duty to determine it. ( Pittelman v. Pearce (1992) 6 Cal. App. 4th 1436, 1441; see also Seibert Sec. Servs., Inc. v. Superior Court (1993) 18 Cal. App. 4th 394, 404).

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the

pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997,1009.)

Defendants’ separate statement includes the following. Plaintiff was shopping at the subject Target store on April 8, 2017. On the day of the fall it had been raining on and off. Plaintiff went to the subject Target with her daughter, Monica Wood, who got a cart as they entered. Carts were dried by employees with towels and towels were available for customer use. The pavement outside was wet. Plaintiff testified that the bottom of her shoes were wet and that she entered the store without thinking about them and assumed they would be dry when she stepped from the carpeted entrance onto the tile floor. There was a yellow wet floor warning sign at the entrance of the store warning customers to be cautious of slippery floors since it was raining. Plaintiff walked directly by the sign and approximately 20 feet after passing the sign she slipped and fell. She testified that had she noticed the sign she would have been cautious.

Plaintiff did not see any water of the floor before she fell. At her deposition Plaintiff

testified that she saw water after she fell and that she did not know where the water came from or how long it had been there. Chris Nezbeth, the Target employee that investigated the incident found 3 to 5 drops of water less than an inch in size on the floor where Plaintiff fell. Target team member Melanie Walthour walked through the area at 11:30 a.m., approximately 20 minutes before the incident and did not see any water on the floor even though she had a routine of looking at the floors as she walked. Target team members are continuously inspecting the floor as they travel the store and it is their responsibility to stop and clean a spill if they see one. Mr. Nezbeth was the Leader on Duty at the time of the fall. He had been in that role for approximately 50 minutes before the fall.

Defendants move for summary judgment on the basis that the condition at issue was trivial, that Plaintiff has no evidence that Target was negligent in maintaining its premises, and that she has no evidence that they had actual or constructive notice. In addition, Defendant Nezbeth argues that there is no basis for liability against himself as an individual.

Trivial Condition

Defendants first argue that summary judgment is proper because of the trivial nature of the condition at issue. Premises liability is a form of negligence. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.) Generally speaking, “a landowner has a duty to act reasonably in the management of property in view of the probability of injury to others.” (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 CaI.App.4th 1448,1453.) A failure to fulfill this duty is negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) In the case of a landowner’s liability for injuries to persons on the property, the determination of whether a duty exists involves balancing the Rowland factors. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138,1145; accord, Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 CaI.App.4th 419, 430.) The owner or occupier of business premises owes to invitees a duty to exercise reasonable care in keeping the premises reasonably safe for such invitees. (Tuttle v. Crawford (1936) 8 Cal.2d 126, 130.)

“It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388.) “The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.) Defendants argue here that the only evidence is that the condition consisted of 3-5 drops of water less than an inch in size which Mr. Nezbeth could only see after kneeling down.

A court is permitted to determine that a particular defect is trivial as a matter of law “when reasonable minds can reach but one result.” (Bartell v. Palos Verdes Peninsula School District (1978) 83 Cal.App.3d 492, 497.) To elucidate, under appropriate circumstances a court may determine, as a matter of law, that a given walkway defect is trivial. However, it cannot make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 29-30.)

Here, even assuming Defendants’ evidence on this point were sufficient, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. To that

end she offers the testimony of her daughter Ms. Wood who described the water as
“[n]ot big puddles, but puddles, not drops, or it was more puddles.” (Plf’s Exh. E p.
21:12-13 [Wood Depo.]) Ms. Wood also testified that she observed cart marks through
the puddles. (Id. p. 22:8-9, 22:24-23:8.) This evidence directly disputes Defendants’
UMF 6 which states that there were only 3 to 5 drops of water on the floor. While
Defendants’ reply highlights Ms. Wood’s testimony that she did not know how many
puddles she saw or the exact size of the puddles this does not mean that the evidence

does not dispute Defendants’ stated fact. Plaintiffs have demonstrated a triable issue
of material fact as to whether any condition was trivial. Indeed, if reasonable minds can
differ on the question it is one of fact, and that it is only when reasonable minds must
come to the conclusion that the defect is so trivial that a reasonable inspection would
not have disclosed it, that the question becomes one of law. Each case must be
determined on its own facts. Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719,
731. The motion on this basis is denied.

Negligence

Defendants next argue that Plaintiff cannot show that Target was negligent in maintaining its premises. “It 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.) “To exercise a degree of care that is commensurate with the risks involved, the owner must make reasonable inspections of the portions of the premises open to customers.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431.) Plaintiff has the burden to show that “the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so.” (Id.) “One way to carry that burden is to raise an inference that the hazardous condition existed long enough for the owner to have discovered it, if an owner exercising reasonable care would have learned of it.” (Id.) The fact that an accident occurred alone is not sufficient and a landowner has no duty “to correct defects of which the owner is unaware and that cannot be discerned by reasonable inspection.” (Id. at 432.)

Defendants again cite to their evidence that there were only 3 to 5 drops of water on the floor, that Plaintiff did not see the water before she fell, that one employee did not see the water and that Mr. Nezbeth only saw it after kneeling down. They also cite to the warning sign at the front of the store to argue that safety precautions were in place and that Plaintiff herself testified that she did not pay attention to the sign and the fact that carts were being wiped down with towels and team members are always on the lookout for hazardous conditions.

Again, even assuming Defendants’ evidence was sufficient, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. As set forth above, Plaintiff offered evidence that there were “puddles” on the ground which directly disputed UMF 6 that only 3 to 5 drops were present. This alone creates a triable issue of material fact on the issue of whether Target was negligent because from this evidence alone, a reasonable finder of fact might infer that the condition had existed for a substantial period of time. In addition, Plaintiff testified that while she could not describe the exact amount of water she indicated that she believed it was a lot because the workers brought a “bunch of towels.” (Plf’s Exh. B p. 68:6-9 [Plf’s Depo.]) While there was a yellow warning cone at the entrance of the store, Plaintiff’s fall was approximately 20 feet away and there was no warning sign where she fell. (Plf.’s Decl ¶ 8.) This directly disputes Defendants’ UMF 20 which states that had Plaintiff acknowledged the sign it would have warned her that water could be present. Further, while Defendants presented evidence that carts were being wiped with towels because of the rain, Plaintiff presents evidence that only parts of the carts, specifically the handles and merchandise baskets were wiped and not the lower shelf or wheels. (Plf’s Exh. F p. 17:1-18:1 [Tuleshkov Depo.].) This directly disputes Defendants’ UMF 12 which states that the carts were dried with towels by employees. Any one of these disputed material facts requires that the motion be denied.

Further, while Defendants presented evidence that it is the general practice of all Target Team Members to continuously inspect the floors, Plaintiff presented evidence that no records are kept of the inspections and that Mr. Nezbeth did not know the last time that an employee entered the aisle where Plaintiff fell. (Plf’s Exh. G p. 46:11-24 [James Chen Depo]; (Plf’s Exh. C p. 51:25-52:5 [Nezbeth Depo.]) Further, Plaintiff presents evidence that a customer alerted Ms. Walthour to Plaintiff’s fall, not an employee. (Plf’s Exh. D p. 38:2-5 [Walthour Depo.]) While Ms. Walthour walked down the aisle approximately 20 minutes before the fall and testified that she has a habit of looking at the floor when she walks she also testified that she did not recall if she looked around to see if there was water on the floor. (Id. 35:14-25.) This evidence directly disputes Defendants’ UMF 22.

Plaintiff presented evidence disputing a number of Defendants’ material facts any one of which requires that the motion be denied. In short, she demonstrated the existence of a triable issue of material fact as to whether Target was negligent in maintaining the subject store. The motion on the basis that Plaintiff cannot show Target was negligent is denied.

Notice

Defendants next argue that they are entitled to summary judgment on the basis that Plaintiff cannot show they had actual or constructive notice of the water prior to her fall. “Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at 1205 [citations omitted].) “There must be some evidence, direct or circumstantial, 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. The Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.) 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. The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability. Hatfield v. Levy Brothers (1941) 18 Cal. 2d 798, 806; Girvetz v. Boys’ Market, Inc. supra at p. 829. Defendants rely upon the exact same material facts for this argument as they did with their unsuccessful arguments above. They point to plaintiff’s testimony that she does not know where the water came from or how long it had been there and that she would have to speculate on these points. They also again cite to the evidence that Ms. Walthour walked through the area 20 minutes prior to the fall and did not see water and that Target Team Members are trained to continuously look for spills.

Again, assuming Defendants’ evidence is sufficient, Plaintiff has met her burden to demonstrate the existence of a triable issue of material fact. Indeed, as set forth above, Plaintiff has at a minimum disputed UMFs 6, 12 and 22 which state that there were only 3 to 5 drops of water on the floor, that the carts were dried off and that Ms. Watlhour did not observe any water on the floor. These same disputes highlighted above require that the motion on the issue of notice be denied. Indeed, the as noted above, the evidence that there were “puddles” on the floor with cart tracks through them and that employees brought a “bunch of towels” to clean it up allows for a reasonable inference that the water existed for a sufficient amount of time for it to have been discovered and remedied in the exercise of due care. Moreover as mentioned above Plaintiff presented evidence that records were not kept of inspections and that Mr. Nezbeth did not know when the area was last actually inspected. Evidence of a store owner’s “failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant’s negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.” (Ortega, supra, 26 Cal.4th at 1211.) A store 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.” (Id. at 1207.) “We also conclude, however, that plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. [citation] In other words, if the plaintiffs can show an inspection was not made within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. [citation] It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” (Ortega, supra, 26 Cal.4th at 1212-1213 [emphasis added].) As a result, the motion on the basis that Plaintiff cannot show Defendants had notice of a dangerous condition is denied.

This is not like the case cited by Defendants dealing with an individual slipping on a french fry in a Wal-Mart where the area had been swept 30-45 minutes prior and there was no evidence of the presence of the french fry. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) Here by contrast, Plaintiff has presented evidence that the water on the floor consisted of “puddles” with cart tracks through it and also that a “bunch of towels” were needed to clean it up. This alone could lead a trier of fact to reasonably infer that the water was present for a sufficient amount of time such that it should have been discovered in the exercise of reasonable care. Further, it was a rainy day and there was a sign at the front of the store regarding potentially slippery floors which could further strengthen the inference.

Defendant Nezbeth

Lastly, Defendant Nezbeth moves for summary judgment on the basis that he is not a proper defendant. “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess or control. Where the absence of ownership, possession, or control has been unequivocally established summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) “In the ordinary slip-and-fall case, as in Ortega, the cause of the dangerous condition is not necessarily linked to an employee. Consequently, there is no issue of

respondeat superior.” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.) While Defendant’s separate statement for this portion of the motion contains the same 23 facts that both Defendants relied upon for the three arguments above, some of which were disputed, it contains three additional facts. UMFs 24-26 state that Defendant Nezbeth was the Leader on Duty at the subject Target store at the time of Plaintiff’s fall, that he had been in that role for approximately 50 minutes before the fall and that Plaintiff’s theory of liability is premised on her allegation that he was the “Lead of the Day” in charge of the store. Further, Defendant only discusses these three UMFs in the memorandum and in reality are the only ones that are relevant to the issue of whether Defendant Nezbeth can be individually liable. The Court finds that Defendant’s evidence demonstrates that he was simply the Leader on Duty at the time of the incident. The evidence is sufficient to shift to Plaintiff the burden of demonstrating the existence of a triable issue of material fact as to whether Defendant Nezbeth can be individually liable, specifically, that he owned, possessed or controlled the property.

Plaintiff has failed to meet her burden in this regard. First, she failed to even respond to UMFs 24-26. In any event, she presented no evidence that Defendant Nezbeth owned, possessed or controlled the property. As defined by the CACI jury instructions, one controls property that he or she does not own or lease “when he or she uses the property as if it were his or her own.” (CACI 1002.) Plaintiff simply cites to evidence that Defendant Nezbeth testified in his deposition that it was store policy to place a yellow cone at the front of the store when it rained as a general warning that there could be water near the entrance. She labels this an admission by Defendant Nezbeth that water could get into the store regardless of precautions taken by employees. She argues that despite this knowledge Defendant Nezbeth failed to take extra precautions to discover the water by, for example, assigning employees to inspect for water on a regular basis. This however, has no tendency, in any manner, to show that Defendant Nezbeth owned, possessed or controlled the property such that he can be liable on a premised liability theory. Acting as Leader on Duty at one’s place of employment is not ownership, possession or control of the property.

Plaintiff failed to demonstrate a triable issue of material fact as to Defendant Nezbeth’s liability on this premises liability claim. Defendant Nezbeth’s motion for summary judgment is therefore granted.

In short, Defendant Target’s motion for summary judgment is denied. Defendant Nezbeth’s motion for summary judgment is granted on the sole ground that there is no evidence that he owned, possessed or controlled the property.

Plaintiff’s and Defendants’ objections to evidence are overruled.

Defendants’ counsel shall submit an order pursuant to CRC 3.1312 and CCP § 437c (g).