Case Number: BC644639 Hearing Date: December 12, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

martina maldonado ;

Plaintiff,

v.

city of los angeles, et al.,

Defendants.

Case No.: BC644639

Hearing Date: December 12, 2018

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff alleges that on September 27, 2015, she slipped and fell due to vomit on the floor near the baggage claim area of the Los Angeles International Airport (“LAX”), Terminal Seven. (See Complaint, pp. 4-5.) Plaintiff filed her initial complaint on December 22, 2016, seeking damages for premises liability and negligence, and Plaintiff subsequently filed first and second amended complaints raising the same claims. Defendants City of Los Angeles and Los Angeles World Airports (collectively, “Defendants”) move for summary judgment. The Court denies the motion because there is a triable issue whether Defendants had actual or constructive notice of the vomit and failed to take appropriate action.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff’s evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid. (emphasis in original).)

DISCUSSION

California Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Government Code section 835 delineates the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) Government Code section 835 provides as follows:

[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code § 835.) In other words, in order to defeat summary judgment, Plaintiff must establish that Defendants’ employees committed a negligent or wrongful act or omission that caused the vomit, or that Defendants had actual or constructive notice of the vomit early enough to have cleaned it up before Plaintiff fell. A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity has constructive notice of a dangerous condition only if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code, § 835.2, subd. (b).)

There is no evidence that any of Defendants’ employees created the vomit or acted in a negligent manner that caused someone else to vomit. However, there is a triable issue whether Defendants had actual or constructive notice of the vomit early enough to have cleaned it up before Plaintiff fell. Defendants rely on the Declaration of Alvin Duncan, who, at the time of Plaintiff’s accident, was a custodial supervisor at LAX. Duncan states that any calls or reports of incidents or substances on the floors at LAX are directed to the custodial supervisor, and then logged in a daily report at the Airport Response Coordination Center (“ARCC”). Duncan states that he has reviewed Defendants’ internal document system and the ARCC’s reporting system for the date of Plaintiff’s accident, and there were no reports of vomit or any other substance on the floor in the vicinity of the Terminal Seven’s baggage claim area before Plaintiff’s accident. Duncan further states that Otoneil Cabrera was the custodian assigned to work in the vicinity of the Terminal Seven’s baggage claim area at the time of Plaintiff’s accident. According to Duncan, Cabrera was responsible for monitoring and cleaning the area. (Declaration of Alvin Duncan ¶ 6.)

However, this evidence is not sufficient to satisfy Defendants’ burden. As an initial matter, Alvin Duncan has no personal knowledge concerning the condition of Terminal Seven’s baggage claim area on the night of the incident. During his deposition, Duncan admitted that he was not working at the time of the incident. (Declaration of Christopher G. Weston, Exh. 6.) Indeed, Duncan’s declaration states that his knowledge is based on reviewing records from “the internal document system and the ARCC’s reporting system.” (Declaration of Alvin Duncan at ¶¶ 4-5.) Defendants do not proffer these records. Nor do they provide any evidence that they would be admissible at trial as business or public records. In sum, Duncan lacks personal knowledge and his declaration is based largely on hearsay. Regardless, even if the Court were to consider those records in the absence of evidence that they are admissible as business or public records, they do not advance Defendants’ argument because Duncan testified that if a custodian had seen the vomit, the custodian would not be expected to make a report. (Declaration of Christopher G. Weston, Exh. 6.) In other words, the absence of a report does not mean that a custodian did not see the vomit and delay in marking and cleaning the area.

At best, Duncan can testify that Otoniel Cabrera was the custodian assigned to Terminal Seven’s baggage claim area; he was responsible for monitoring and cleaning the area; and that the policy is to mark and clean vomit immediately. (Id. at ¶ 6.) In other words, the declaration states that Mr. Cabrera “was responsible for” monitoring and the area “continuously,” not that he actually did so on the night in question. (Ibid.) Nor does Duncan’s declaration state how often the spot with the vomit is monitored. Duncan would testify that the baggage claim area is monitored “continuously,” but it also states that the assigned custodian must clean the bathroom, which means the custodian was not “continuously” monitoring the spot with the vomit. (Id. at ¶ 6.) Duncan’s declaration does not state how long it takes to clean the bathroom, i.e., how long the custodian would have been distracted from monitoring the spot with the vomit.

Defendants provide no declaration from Otoneil Cabrera or someone else, like Octavia Crosby, who may have been responsible for cleaning Terminal Seven’s baggage claim area. Had Defendants proffered such a declaration stating that there was no vomit, or that the declarant continuously monitored the spot in question and consistently marked and cleaned vomit immediately, per the policy, Defendants would have a better argument. But in the absence of a declarant with personal knowledge, Defendants cannot prevail.

Based upon the foregoing, Defendants cannot satisfy their burden. Therefore, the Court denies the motion for summary judgment.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment is denied. The Court declines to rule on Plaintiff’s evidentiary objections, which are not in the proper format. (Cal. Rules of Court, Rule 3.1354.) However, given the Court’s ruling, the evidentiary objections are moot. (Code Civ. Proc. § 437c, subd. (q).) Defendants are ordered to provide notice of this order and file proof of service of such.

DATED: December 12, 2018 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court