Case Number: BC651339 Hearing Date: June 08, 2018 Dept: 2

Motion for Summary Judgment by Defendant, Ralphs Grocery Company filed on 3/26/18, is DENIED. Defendant has not met its burden of establishing that it is entitled to judgment in its favor based on the material facts proffered, some of which remain disputed or unsupported by the evidence. Cal Code Civ Procedure § 437c(p)(2).

Discussion

Defendant’s duty includes an obligation to make reasonable inspections of the property. Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431. In order to impose liability on the owner for injury arising from a dangerous condition, “it must be shown that a dangerous condition existed and that the defendant knew or should have known of it. … No inference of negligence arises based simply upon proof of a fall upon the owner’s floor.” Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553, 556.

Additionally, the Plaintiff must show that the landowner or occupier had actual or constructive notice of the dangerous condition, “or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal. App. 2d 733, 743.

Establishing the owners’ actual or constructive notice of the dangerous condition is “key,” as the owners are not insurers of the Plaintiff’s personal safety. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.

Constructive notice of the dangerous condition can be shown with evidence of a failure to inspect within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. Ortega v. Kmart Corp. at 1212-1213.

Plaintiffs objections to evidence.

#4. SUSTAIN.

All remaining objections are OVERRULED

The undisputed facts establish that Plaintiff alleges claims for premises liability and general negligence arising out of a slip and fall accident that occurred at Defendant’s grocery store on 4/21/15. UF 1.

Plaintiff fell at approximately 2:09. UF 2.

The motion should be DENIED as triable issues remain.

Fact 3 is disputed by the evidence. Store Manager, Maria Guerra, attests that Maria Gonzalez inspected “at or near” the area at around 2:00 p.m. The sweep sheet indicates that the “Inspection Time” conducted by Gonzalez occurred at 3:04 p.m. Luisa Gonzalez swept at 1:32 p.m, and the next inspection time occurred at 2:12 by Norman Crowder (after Plaintiff’s fall).

Exhibits D purportedly shows the Plaintiff near the entrance and a sweeper sweeping the area at Exhibit E. Defendant’s counsel states she made the typographical error denoting the file name for the video as 4/20/15, while the accident occurred on 4/21/15. UF 1.

This does not explain the date stamp on the screen shots of the video itself. Exhibits D and E, are dated 4/20/15, not 4/21/15, the date of the accident.

The court strictly construes the moving party’s evidence. All doubts are resolved in favor of the opposing party. Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal. 2d 412, 417.

Fact 4 attests to the store policy as articulated by store manager, Maria Guerra, who does not provide foundation for this knowledge, such as a documented official store policy. Plaintiff’s objection thereto is SUSTAINED. Fact 4 is not proved. Therefore, there is no evidence to sustain Defendant’s claim that they engaged in reasonable inspections.

Whether Ms. Gonzalez performed a store wide sweep on the day of the accident is not proved by the video, which is time stamped the day before the accident. The sweep sheet shows Ms. Gonzalez as having first inspected at 3:04 p.m, after the incident. Fact 5 is disputed the by the evidence.

Even if the court accepts Ex. E as showing a sweeper on the day of the incident at 2:00 p.m., which is nine minutes before Plaintiff fell, inferring that the condition existed for at least nine minutes, this does not warrant a conclusion that Defendant exercised due care.

Citing a federal district court decisions in California and other states, Defendant contends that California courts “have repeatedly held” that a 30 minute time span between inspection and a fall is not sufficient to support a claim for premises liability.

Notwithstanding the opinion of the federal district court, the California Court of Appeal for the 2nd District acknowledged that the presence of a condition for 10-15 minutes may justify submitting the question to the jury. Girvetz v. Boys’ Market, Inc. (1949) 91 Cal. App. 2d 827, 831.

“As stated in Louie v. Hagstrom’s Food Stores, supra, at page 608, the exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, but varies according to the circumstances. It may be conceded that ordinary care in the case of a public market involves a more vigilant outlook than in the case of an apartment house lobby. It might also be conceded that the presence of a condition such as was shown in the circumstances of this case for as long as 10 or 15 minutes would in all probability be held to justify submitting the cause to the jury. But where the only evidence is that the foreign object has been on the floor of the market for “a minute and a half,” it must be held that it is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.” Girvetz v. Boys’ Market, Inc. (1949) 91 Cal. App. 2d 827, 831.

Girvetz further stated that it was also possible that the condition (a banana) was on the floor for more than 30 minutes, “but to uphold a verdict based on that possibility would be to fix liability not upon evidence, but upon surmise and conjecture. The same possibility would exist were there no evidence at all as to the length of time the condition had continued.” Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 831–83.

Moving party is ordered to give notice.