CIV537844 LEE GWEE VS. SAFEWAY, INC.

LEE GWEE SAFEWAY, INC.
BRIAN L. LARSEN KENNETH D. SIMONCINI

MOTION FOR SUMMARY JUDGMENT TENTATIVE RULING:

Defendant Safeway’s motion for summary judgment is DENIED.

Based on the evidence set forth in the moving papers, the court finds there is a triable issue of fact with respect to whether Defendant breached its duty to exercise ordinary care.

Defendant contends that “Safeway did not breach its duty because the store conducted reasonable inspections to keep the store safe from hazards.” [MPA, p.4] The question of the reasonableness of Safeway’s inspections, however, is a matter to be decided by the trier of fact. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1208, 36 P.3d 11 (2001).

Defendant’s reliance on Ortega, Moore v. Wal-Mart Stores, Inc., 111 Cal. App. 4th 472, 477, 3 Cal. Rptr. 3d 813, 817 (2003), and Peralta v. Vons Companies, Inc., 24 Cal. App. 5th 1030, 1032–33, 235 Cal. Rptr. 3d 212, 214 (Ct. App. 2018) is misplaced.

In Ortega, 26 Cal. 4th at 1203, our Supreme Court held that “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it.” The Court approved of the reasoning in Sapp v. W. T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92, 341 P.2d 826. In that case, the court determined that the issue of whether a 20-minute interval between inspections was commensurate with the exercise of ordinary care was properly a question for the trier of fact:

“We are of course mindful of the rule … that an invitor is entitled to have a reasonable time within which to discover and correct a dangerous condition on his premises. We are also mindful of defendant’s contention that there is nothing in the evidence to indicate the length of time the spool had been on the floor. However, this latter factor loses significance when placed vis-a-vis the fact that the notions department remained unsupervised for a period of 20 minutes; for no matter what the interval of time the spool lay there it would have gone undetected during this 20-minute period. In effect, therefore, the critical question in this case was this: Was a 20-minute interval between inspections of the aisles commensurate with the exercise of ordinary care by defendant? This is a question that was properly left with the jury to decide.”

Id., at p.94. Consistent with this reasoning, Ortega, 26 Cal.4th at 1212-13 held as follows:

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. (Ibid.) 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.

In Moore, the court of appeals reaffirmed the principles set forth in Ortega. The court reversed a jury verdict in favor of the plaintiff, however, because “the jury was not told that liability in this slip-and-fall situation required that the store owner have actual or constructive knowledge of the dangerous condition that caused the accident.” Moore, 111 Cal. App. 4th at 477. Contrary to Safeway’s suggestion, the court did not reverse the judgment because it found that a 30-minute interval between inspections was insufficient to establish notice as a matter of law.

Finally, in Peralta, 24 Cal. App. 5th 1030, 1036–37, the court of appeals affirmed an award of summary judgment in favor of Von’s because the plaintiff failed to provide any evidence that there was a foreign substance on the floor and accordingly, “failed to show that a dangerous condition existed at all.” Safeway does not contend that Plaintiff has failed to show the existence of a dangerous condition.

Even if the court accepts as undisputed the fact that Defendant Safeway conducted an inspection of the premises at 7:59 p.m. and 8:32 p.m. and the fact that Plaintiff’s accident occurred at approximately 8:50 p.m., in accordance with the principles set forth in Ortega, the court is not at liberty to determine that the interval between Safeway’s inspections is commensurate with the exercise of ordinary care as a matter of law.

In reaching this conclusion, the court has not relied on Plaintiff’s declaration or the exhibits attached thereto. Accordingly, the court need not address Defendant’s objections to Plaintiff’s declaration or exhibits.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.