Case Number: EC060311    Hearing Date: August 22, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

GREGORY LUSKIN,

Plaintiff(s),
v.

THE CHEESECAKE FACTORY RESTAURANTS, INC., et al.,

Defendant(s). Case No.: EC060311

Hearing Date: August 22, 2014

[TENTATIVE] ORDER RE:
DEFENDANT THE CHEESECAKE FACTORY RESTAURANTS, INC.’S MOTION FOR SUMMARY JUDGMENT

Defendant The Cheesecake Factory Restaurants, Inc.’s Motion for Summary Judgment is DENIED.

Evidentiary Objections

Plaintiff’s objections to the statements of fact in support of Defendant’s motion are overruled in their entirety.

Defendant’s objections to the evidence filed in support of Plaintiff’s opposition are ruled on as follows:

To Burns Decl.: Objections Numbered (by objection or page number) 1, 9, 11, 12, 13 sustained; Numbers 2-8, 10 overruled.

To Burns Decl. Objections 1 through 4 to Exhibits C through F: overruled.

Factual Background

This matter arises out of a slip and fall at a Cheesecake Factory in Glendale, California on December 2, 2012. (UMF 1, Motion, Exh. B (“Motion Luskin Depo.”), pp. 60:15-20, 130:20-131:14.) Plaintiff fell near the hostess table, as he was exiting the restaurant. (UMF 1, Motion Luskin Depo., pp. 60:15-20, 130:20-131:14.) It appears to be undisputed that it was raining outside at the time of the incident. (Ex. A in Support of Plaintiff’s Opposition (“Opp. Luskin Depo.”), pp. 123:18-124:4.) When Plaintiff was seated at the restaurant, about 45 minutes before the fall, he did not see any liquid on the floor. (UMF 4; Motion Luskin Depo., pp 125:14-16, 133:17-134:14.) It is also undisputed that prior to his fall Plaintiff did not see any water on the floor. (UMF 5; Motion Luskin Depo., p. 138:22-24.)

Defendant moves for summary judgment on the grounds that it lacked actual or constructive notice of the dangerous condition—liquid on the floor—that allegedly caused Plaintiff’s fall. With his Opposition, Plaintiff submits the declaration of Mark Burns, as a safety expert, to support an argument that the polished marble floor at the restaurant was slippery and posed a hazard when wet, and that it was prone to become wet when it is raining because of the lack of an awning outside. (Ex. E to Opposition (“Burns Decl.”), ¶¶8,9.) Burns also opines that Defendant should have taken safety precautions during the rain to prevent falls, including more mats to cover the floors and caution signs. (Id. ¶10.) Plaintiff argues that Defendant was therefore on constructive notice that the floor was wet, and that it therefore breached its duty of care to Plaintiff.

Defendant responds that the issue in this motion is not whether Defendant had a sufficient rainy day policy, but rather, whether it had actual or constructive notice on the day of the incident that there was water on the floor where Plaintiff fell.

Discussion

“Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed.” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206).) As the court held in Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431:

An injured plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so. (Moore, supra, at p. 476). 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. (Ortega, supra, at pp. 1210–1213).

To carry its initial burden of proof regarding notice, Defendant presents evidence that Plaintiff has no evidence as to how long the water was on the floor prior to his fall. (UMF 9, Luskin Depo., pp. 148:9-15.) To the best of Plaintiff’s knowledge, the water was dragged into the restaurant by other patrons who were walking in, as it was rainy that day. (UMF 10, Luskin Depo., pp. 145:22-146:13). As noted above, Plaintiff did not notice water on the floor when he entered the restaurant 45 minutes before the fall. Plaintiff also does not know whether the area of his fall was dry five minutes prior to his fall. (UMF 11, Luskin Depo., pp. 149:5-8.) Based on this, Defendant argues that Plaintiff has no evidence that Defendant had actual or constructive notice of water on the floor.

Constructive Notice

Defendant argues that there is no evidence to show constructive notice because the water was not on the ground long enough for Defendant to have known of its existence, and further, Defendant had a practice of taking precautionary steps when it is raining, including inspecting the floors for spills and placing mats at all entrances when it is raining. (Ex. C in Support of Motion (“Anderson Decl. ¶¶5-7.) Defendant relies on Brown v. Poway Unified School District (1993) 4 Cal.4th 820, 824, and Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733-34, to argue that summary judgment should be granted because, as in those cases, there is no evidence that anyone saw anything on the floor before the fall (Brown) or that there was anything on the floor before the fall (Buehler).
However, both Brown and Buehler are distinguishable. In Brown, it was undisputed that the deliveryman slipped on lunch meat on the floor of a school district building, but there was no evidence that anyone saw the lunch meat on the floor before the fall. (Brown, supra, at 4 Cal.4th at 824.) In Buehler, both the plaintiff and an eyewitness testified that the floor in the supermarket where she fell was not slippery, there was nothing on the floor where she fell, and she didn’t know why she fell. (Buehler, supra, 224 Cal.App.3d at 733-34.)

This case is more similar to the case relied on by Plaintiff, Scott v. Alpha Beta Co. (1980) 104 Cal.App.3d 305, 308. In Scott, the Court held that the trial court correctly denied defendant’s motion for judgment notwithstanding the verdict where there was no evidence of how long water was on the floor prior to the Plaintiff’s fall, but there was evidence that it was a rainy day, that water was tracked into the store by customers, and that the floor would be slippery when wet. The court held:

In terms of notice to the store owner of the existence of a dangerous condition, the occasional spilling of a product on the floor is factually distinguishable from rainwater being deposited on the floor as customers enter on a rainy day. Defendant already knew that it was raining, that water from the customers’ shoes and clothing or umbrellas would inevitably be deposited on the floor as they entered,, and that the floor would be slippery when wet. That is the very reason defendant’s employees put down a long rubber mat …. In these circumstances defendant had sufficient notice, and it was an issue for the jury to determine whether the steps defendant took to remedy or warn about the danger were sufficient ….

(Id. at 308.)

Similarly in this case, it is undisputed that it was raining at the time of the fall. Plaintiff has created a triable issue of fact by presenting the expert declaration of Mark Burns to show that water would be tracked into the restaurant when it was raining and the marble floor would become slippery when wet. Moreover, as in Scott, Defendant knew that this was a potential problem as is shown by the policy of placing mats at the entryways to the restaurant. Accordingly, there is at least a question of fact as to whether the fact of the rainy day and slippery nature of the floor placed Defendant on notice of the dangerous condition of the floor at the time of the incident.

Actual notice

Defendant has also failed to meet its burden as to actual notice. While Defendant argues that Plaintiff has not presented evidence that any of the employees knew that there was water on the floor prior to the fall, Defendant fails to present any evidence that it lacked actual notice of the dangerous condition. Defendant submits the declaration of its restaurant manager Rick Anderson in support of the motion, but Anderson only states that he and the other employees are trained to take precautions when it is raining, including inspecting the premises throughout the day and placing mats on the floor. (UMFs 12-14, Anderson Decl. ¶¶1-7.) No declaration is provided by Defendant’s employees stating that they were not aware of the water prior to Plaintiff’s fall. No declaration is submitted from the host or hostess, despite the fact that Plaintiff fell near the hostess table. “But the defendant must present evidence and may not simply point out through argument that the plaintiff lacks needed evidence.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 652.)

Therefore, Defendant has failed to demonstrate that no triable issue of fact exists with respect to its constructive or actual notice of the water that allegedly caused Plaintiff to fall. Accordingly, Defendant’s motion for summary judgment is denied.

Plaintiff is ordered to give notice.

DATED: August 22, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court