Case Number: BC506986    Hearing Date: July 15, 2014    Dept: 91

The Motion by Defendant, J.C. Penney Corporation, Inc., for Summary Judgment, or alternatively, for Summary Adjudication, filed on 2/28/14 is DENIED. Defendant has not met its burden of proving it is entitled to judgment in its favor based on the facts proffered. Cal Code Civ Procedure § 437c(p)(2).

In a premises liability action, Plaintiff must show that the landowner/possessor had actual knowledge of a dangerous condition, or would have been able to discover the condition through the exercise of ordinary care. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001). Whether a condition has existed long enough for Defendant to have discovered it is ordinarily a question of fact. Girvetz v. Boys’ Market, Inc., 91 Cal. App. 2d 827, 829 (Cal. App. 1949).

Defendant’s objection #1 is OVERRULED. Mr. Correa’s deposition is not “misstated.”
Defendant’s objection #2 is SUSTAINED. Hearsay.

Plaintiff’s objections to the Declaration of Jose Correa Nos. 1-6 are SUSTAINED. Mr. Correa’s declaration gives a detailed account of his walk through the store and through the shoe department (where Plaintiff fell), prior to the incident. UF 2. The declaration is contrary to his deposition testimony wherein he testified that he didn’t remember visiting any other specific areas of the store other than the loading dock. At most he walked the entire floor during his shift. Correa deposition 22: 11-16; 23: 2-4; 23:23-25 – 24:1-4; 24:8-10, 24:20-25. He doesn’t remember if he looked in the shoe department or not. 48:19-24. 60:15-20; 66:15-19. He also specifically denies being the store manager, despite that his declaration now says he is. 81:1-7.

Because Mr. Correa’s declaration is contrary to the testimony given at his deposition, the court disregards the whole declaration. It also lacks foundation given his testimony.

“Because of their high credibility value, a party’s admissions against interest in the course of deposition testimony are given special deference on a motion for summary judgment. Such admissions cannot be contradicted solely by that party’s declarations in opposition to summary judgment. D’Amico v. Board of Medical Examiners 11 Cal.3d 1, 21 (1974).

“In reviewing motions for summary judgment, the courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive.” Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co., 199 Cal. App. 3d 791, 800 (Cal. Ct. App. 1988).

Accordingly, Facts 10-15 and 27, which depend largely on the Correa Declaration, are not proved.

The motion is also denied because Defendant relies on facts that are not material or are not proved.
Facts relevant to Defendant’s general policies are irrelevant since the issue is Defendant’s conduct prior to the time Plaintiff fell. Facts 3-10. There is no evidence that Defendant complied with their “best practices” before the incident.

Defendant’s claim that Plaintiff has no evidence that J.C. Penney was aware of the liquid prior to her fall is not proved by the evidence submitted. Defendant relies on Plaintiff’s deposition testimony wherein she testified that she did not see what caused her to slip. This does not prove JCP’s lack of knowledge. Fact 19 is not proved.

Facts 20-24, are relevant to Plaintiff’s personal knowledge about the spill, which is irrelevant to Defendant’s knowledge of the condition. Fact 20 is in dispute to the extent Defendant implies there was no “puddle” at the scene. Mr. Correa testified that he saw water on the floor when he arrived at the scene. 8:20-21.

Fact 25 attempts to prove Defendant did not have actual notice of the presence of the liquid. Defendant relies generally on its responses to Interrogatories (total of 60 pages), without specific citation to a particular question and response which violates Cal Rules of Court, Rule 3.1350. Regardless, Defendant’s burden is not merely to show that Plaintiff has no evidence but that she cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995).