Case Number: BC671871 Hearing Date: June 17, 2019 Dept: 4A

Motion for Summary Judgment or Adjudication

Having considered the moving the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On August 10, 2017, Plaintiff Elmisha Cecil (“Plaintiff”) filed a complaint against Defendant Superior Grocers Inc. (“Defendant”) alleging negligence and premises liability for a slip-and-fall that occurred on July 9, 2016.

On February 13, 2019, Defendant filed a motion for summary judgment on the grounds that Defendant did not have notice of the dangerous condition.

Trial is set for October 9, 2019.

PARTY’S REQUEST

Defendant requests an order granting summary judgment against Plaintiff pursuant to California Code of Civil Procedure section 437c arguing that there is no triable issue of material fact and Defendant is entitled to judgment as a matter of law. Specifically, Defendant contends that there is no evidence demonstrating Defendant had knowledge of the alleged dangerous condition.

PROCEDURAL ISSUES

In its discretion, the Court will not consider the new evidence submitted by Defendant in its reply brief. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”); Alliant Insurance Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 (“the trial court had discretion whether to accept new evidence with the reply papers”)).

Similarly, the Court is not considering Defendant’s separate statement on reply. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (recognizing there is no provision in the summary judgment statute for a reply separate statement); see also Cal. Rules of Court, rule 3.1350 (providing no authorization for a reply to the opposing party’s separate statement)).

EVIDENTIARY OBJECTIONS

Plaintiff’s evidentiary objections Nos. 3-4 to the Horton Declaration are OVERRULED on the stated grounds. The Court sustains Plaintiff’s objections No. 6-7 on the grounds that the statements lack foundation, constitute speculation and are improper characterization of a hearsay video that is not before the Court. In addition, the Court sustains Plaintiff’s objection No. 9 on the grounds stated. The Court declines to rule on the remaining objections to the Horton Declaration as they are not material to the Court’s disposition of this motion. (Code Civ. Proc. § 437c(q)).

Defendant’s objections to the Balian Declaration are OVERRULED, except as described below. Specifically, the Court rejects Defendant’s objections to statements of fact, on which Mr. Bailian relies, because they are supported by evidence in the records and, with respect to several of them, are undisputed facts. With respect to the statement implying that Mr. Balian saw the substance on the floor when he reviewed Defendant’s videos, the Court sustains the objection that it lacks foundation. As to Mr. Balian’s statement that the 10:37 sweep occurred “a little more than an hour prior to the incident,” the Court sustains the objection on the grounds statement. The Court sustains Objection No. 8 to the extent that Mr. Balian purports to provide a legal opinion.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843). “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119).

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c(p)(2)). “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.” (Ibid). “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c)).

DISCUSSION

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998). Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37). The existence and scope of duty are legal questions for the court. (Id. at 36). If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446).

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition. (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206). “[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Ortega, supra, 26 Cal.4th at p. 1207).

“[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ortega, 26 Cal.4th at 1206). The plaintiff may prove the owner’s notice with circumstantial evidence, and “evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so a person exercising reasonable care would have discovered it.” Id. at 1210 [citation omitted]).

Defendant’s undisputed material facts establish the following. Plaintiff alleges she suffered injuries in a slip and fall accident on July 9, 2016, before noon, at Superior Grocers located at 10211 S. Avalon Blvd., Los Angeles, California. (UF 1). The alleged slip and fall took place in the back of the store in the frozen food aisle. (UF 2). As Plaintiff walked through the frozen food aisle, Plaintiff was looking in the doors of the freezer to her left. (UF 3). The freezer to the right of Plaintiff was a “deep freezer” which Plaintiff could reach down into. (UF 4). At the time of the accident, Plaintiff had her hands on a cart as she pushed it. (UF 5). Plaintiff was looking in the frozen doors to her left when her right foot slipped underneath her cart and Plaintiff fell. (UF 6). Although immaterial for purposes of this motion, the parties dispute the part of Plaintiff’s body that struck the floor.

Plaintiff’s right foot had slipped sideways in a puddle of a white liquid and went underneath the car. (UF 7). The liquid appeared to be about a cup in amount, which had formed into a puddle that Plaintiff estimated to be about the size of a redwell – about 8 x 14. (UF 8). Plaintiff did not see the liquid until she was getting up from her fall. (UF 9). Plaintiff does not know how long the liquid had been on the floor, or how it got there. (UF 10).

Defendant argues that it is entitled to summary judgment because “Plaintiff has no evidence as to how long the liquid had been present and no evidence that any store employee knew of it.” (Mot. 1:23-25). Plaintiff responds that she has presented evidence sufficient to create a genuine issue of material fact regarding whether the spill existed long enough such that a reasonable store owner would have discovered it.

Defendant argues that the following evidence demonstrates that there is no genuine issue of material fact as to constructive notice: (1) Plaintiff cannot say how long the alleged dangerous condition existed and Plaintiff did not observe the condition prior to the incident (Ryan Decl., ¶¶ 5-6, Exh. E [Plaintiff’s Response to Special Interrogatories, Set No. One, Nos. 8, 9], Exh. F [Cecil Depo., 72:16-73:2, 79:9-80:6]); (2) Plaintiff does not know when the floor was last swept, or whether any of Defendant’s employees knew of the spill prior to Plaintiff’s fall (id., Exh. F [Cecil Depo., 79:24-80:6]); (3) Darryl Horton, assistant store director of the store, reviewed surveillance video and says it depicts Plaintiff being in the freezer aisle from approximately 11:26 to 11:28 p.m., and that employee Maria Reyes walked three-quarters of the freezer aisle about six to eight minutes before the alleged incident (Horton Decl., ¶¶ 3-5, 10); (4) Horton attests that the surveillance video depicts an employee, Jose Cruz, pull a pallet jack past Plaintiff at the end of the freezer aisle without taking any action concerning any substance on the floor (Horton Decl., ¶ 16); and (5) Superior Grocers’ policy is that hourly sweeps are conducted throughout the store, and that the Sweep Report for July 9, 2016 shows the freezer aisle was inspected and cleaned prior to the incident beginning at 11:01 a.m. (Horton Decl., ¶¶ 7-9, Exh. C [Sweep Report, p. 6]).

Plaintiff does not dispute the absence of evidence about how long the alleged dangerous condition existed prior to the incident. Rather, Plaintiff’s opposition focuses on whether the activities of the Defendant’s employees shown in the surveillance video constituted reasonable inspections – that is, whether Defendant enforced its own policies and procedures regarding maintaining the floor in a safe condition.

Plaintiff first argues that that the supposed inspections revealed on the video were inadequate to maintain the floors in a safe condition. With respect to Ms. Reyes’ walk through a portion of the aisle, Plaintiff notes that the surveillance video does not depict Ms. Reyes even reaching the location where the incident occurred, because Plaintiff fell about three or four freezer doors from the back of the store. (Fradkin Decl., ¶ 2, Exh. 1 [Cecil Depo., 67:21-68:4]). Plaintiff also contends that the surveillance video exposes that Ms. Reyes did not look for or see the dangerous condition on the floor. Thus, it cannot be inferred from this video clip that the spill had not happened as of the time of Ms. Reyes’ walkthrough but rather only that Ms. Reyes did not inspect the floor or find the spill.

Thus, Plaintiff argues that the surveillance video demonstrates that, even if Defendant’s employee did begin a timely sweep, there was no sweep conducted in the part of the aisle where Plaintiff was injured. (See Opp. 7:5-6). Plaintiff’s expert, Alex J. Balian, MBA, testifies that while Superior Market had a procedure in place for conducting hourly sweeps in conformity with accepted practice of the supermarket industry, the video surveillance showed a sweep taking place at 11:01 a.m. down the main aisle of the store, but not in the aisle where Plaintiff fell, and that the video surveillance revealed a sweep done down the aisle of the incident at approximately 10:37 a.m. – about 50 minutes before the incident. (Balian Decl., ¶ 6). Even then, Plaintiff asserts that the inspection of the floor during the 10:37 a.m. sweep was not a reasonable inspection. Mr. Balian attests that the 10:37 a.m. sweep through the isle was not being done in a side-to-side motion, and overlooked and passed the substance on the floor. (Id).

Turning to Mr. Cruz, Plaintiff argues that the video depicts him pulling a pallet jack past Plaintiff after she fell, not before. This timing is corroborated by Plaintiff’s deposition testimony that she told a passing employee that she had fallen and asked for the manager, but that the employee kept walking. (Id., Exh. 1 [Cecil Depo., 77:12-79:5]). Plaintiff argues that Cruz’s presence in the video, therefore, does not create the inference that there was a timely inspection of the floor prior to the fall.

In response, Defendant argues that the surveillance video establishes that during the 10:37 a.m. sweep, “the sweeper started along the right side of the aisle (along the deep freezer) but before she got to the point where Plaintiff allegedly fell, she angled across the aisle and swept the area at the base of the freezer bunker until reaching the end of the aisle.” (Reply 3:14-17). Thus, Defendant argues that the video surveillance infers that the sweeper would have seen the dangerous condition, and that the mop would have passed over the liquid, if it had been there at the time. (Reply 3:17-19). In regards to Mr. Cruz, Defendant essentially argues that because Mr. Cruz was the person responsible for the safety and the condition of the floor, he would have seen any liquid on the floor and taken action. (Reply 6:24-27).

The parties disagree about whether the video surveillance shows the Defendant engaged in reasonable inspections such that Defendant had constructive notice of the dangerous condition. Because both parties have presented evidence on this issue, there is a genuine question of fact.

On the one hand, a fact finder could believe the declaration of Mr. Horton, which essentially states that employees walking through the aisle, as depicted in the surveillance video, scanned the ground for dangerous conditions and that the dangerous condition did not present itself for a sufficient amount of time to give Defendant constructive notice of such. The jury could disbelieve the testimony of Mr. Balian that Defendant’s employees did not conduct a reasonable inspection and sweep of the aisle in which Plaintiff fell.

On the other hand, a jury could credit Mr. Balian’s interpretation of the video surveillance that the sweep done at 10:37 a.m. – approximately 50 minutes prior to the incident occurring – was neither done in a reasonably thorough manner nor was the area in which the incident occurred swept or inspected. The jury could also disbelieve Mr. Horton’s testimony that Ms. Reyes and Mr. Cruz would have have noticed and remedied the dangerous condition, if the spill had been on the floor when they walked through the aisle. Under these circumstances, the jury could determine that no inspection of the area occurred before at least 10:37 a.m. – approximately 50 minutes prior to Plaintiff’s fall.

The jury could draw a reasonable inference that “the defective condition [that led to Plaintiff’s fall] existed long enough so that a person exercising reasonable care would have discovered it.” (Ortega, 26 Cal.4th at 1210). This is especially true since Defendant’s store is a self-service grocery store, a fact which potentially triggers a greater need to make frequent inspections. (Id., 26 Cal.4th at 1205; see also Louie v. Hagstron’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Whether a dangerous condition has existed long enough for a reasonable prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. (Ortega, 26 Cal.4th at 1207).

For the stated reasons, Defendant’s motion for summary judgment is DENIED.

Defendant is ordered to give notice of the Court’s ruling.