Case Number: BC689420 Hearing Date: June 03, 2019 Dept: 2

Defendant’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication, filed on 2/27/19, is GRANTED. Defendant has established it is entitled to judgment in its favor based on the undisputed material facts proffered. Cal. Code Civil Procedure §437c(p)(2). Plaintiff’s request for a continuance is DENIED.

The undisputed facts establish that on 10/21/17, Plaintiff visited Defendant’s Target store to purchase groceries at approximately 9 p.m. UF 3. Plaintiff arrived at the store with her dog, which she placed in the child’s seat of a Target shopping cart. UF 4. Plaintiff went to the refrigerated section of the store to retrieve a carton of skim milk. UF 5. She retrieved a full carton of milk from the top shelf. UF 8. Plaintiff placed the milk carton upright in the top section of her shopping cart, in the child’s seat. UF 9. She continued shopping to purchase peaches and dog food. UF 10.

Plaintiff pushed her cart back and forth over the same 10-foot path in the aisle five times to collect plastic bags for her peaches and dog food. UF 11. As she pushed her shopping cart over this route a fifth time, she slipped and fell. UF 12. Plaintiff adds that the shape of the puddle of milk on the floor was an imperfect circle, under the shopping art, two to three feet in diameter. Plaintiff’s Additional Fact (“PAF”) 18. Plaintiff testified that as she was laying on the floor, she noticed milk dripping from the bottom her cart. UF 27.

After the incident, Defendant’s employee, Matthew Shaefer, observed a puncture mark in the lid and body of the milk carton, which he believed came from the dog. Plaintiff’s Ex. A, 52:18 – 53:5. He testified that there was a hole in the body of the jug. PAF 12.

Plaintiff filed a complaint against Target alleging claims for premises liability and negligence. UF 1.

A landowner’s duty is to use reasonable care to keep the property reasonably safe and warn of latent or concealed dangers. A landowner is not liable for obvious conditions, or those conditions that could have been observed in the exercise of reasonable care. Edwards v. Cal. Sports, (1988) 206 Cal. App. 3d 1284, 1288.

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; Strongman v. County of Kern (1967) 255 Cal. App. 2d 308, 313.

Plaintiff does not dispute that the only liquid on the ground came from Plaintiff’s dripping shopping cart in the middle of the aisle; there was no other liquid in the aisle. UF 22. Plaintiff admits that she does not know how the liquid she slipped on got on the floor, not does she have evidence to show that Target was aware of the purportedly damaged milk carton. UF 23.

The area where Plaintiff fell was inspected about 15 minutes before the incident. UF 14. The area was free of liquids, substances, or debris, and there had been no prior reports of liquids, substances, or debris prior to Plaintiff’s fall. UF 15-16. Plaintiff fell at about 9:30 p.m., approximately 30 minutes after she arrived. UF 3 and 13.

To impose liability on Defendant, Plaintiff must show that Defendant 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.

Plaintiff claims that Target is liable because she slipped and fell on milk that was coming from a damaged container, creating a dangerous condition. UF 2. There is no dispute that the milk container she selected had a hole in the lid and the body of the jug. UF 8 and PAF 12.

In the approximately 30 minutes that Plaintiff was in the store, about half of the milk container’s contents had been depleted based on the photograph taken of the jug. Declaration of Jeffrey Tsao, Ex. 1. Yet there is no dispute that Plaintiff pulled a full carton of milk from the shelf. UF 8.

These undisputed facts negate Plaintiff’s contention that the milk carton was damaged before she pulled it from the shelf. The carton was inspected at around 3 p.m. on the date of the incident. UF 18. However, by Plaintiff’s own testimony, the carton was full at the time she retrieved it. UF 8. Logically, a carton with a hole in the body would not have been full at the time Plaintiff retrieved it from the case.

These facts negate the required elements that Defendant had actual notice or should have had notice of the defective container in time to remedy the alleged dangerous condition.

Plaintiff’s request for a continuance is DENIED.

Plaintiff asks for a continuance to take the deposition of Mr. Cruz, and “complete necessary discovery.” Declaration of Stefano Formica, ¶¶ 3, 5. Mr. Cruz submits a declaration stating he inspected the containers of milk before placing them in the refrigerator. Cruz Declaration ¶ 3. At the time of the incident, he observed the Plaintiff’s dog licking the milk carton and a bite mark on the container. Cruz Declaration ¶ 5.

The court can continue the hearing to permit Plaintiff to conduct essential discovery “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented … .” Cal Code Civil Procedure § 437c(h). If that showing is met, “the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” Cal. Code Civ. Proc. § 437c(h).

In support of the continuance, the non-moving party must show “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts [citations omitted]. The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion [citation omitted]. It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 254.

Plaintiff does not demonstrate what facts are necessary from Mr. Cruz that are essential to the opposition. The existing undisputed facts establish that the carton of milk was not defective at the time Plaintiff retrieved it from the refrigerator since it was full, and it became depleted in volume by half while in Plaintiff’s shopping cart at the time of the incident. UF 8, Tsao Declaration, Ex. 1.

Moreover, Plaintiff does not dispute that the carton of milk had bite marks. UF 21. Plaintiff attempts to dispute this fact by contending that Mr. Schaefer did not testify there were “gnawing marks.” This does not controvert the fact that the punctures came from a “bite,” inferring it came from a dog.

Plaintiff’s contention that she needs to “complete necessary discovery” is insufficient to demonstrate why a continuance is necessary under Cooksey.

Plaintiff has not demonstrated that Defendant’s failure to keep the milk jug constitutes “spoliation of evidence” that requires denial of the motion as evidentiary sanctions.

“Spoliation” is ‘the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” Reeves v. MV Transportation, Inc. (2010) 186 Cal. App. 4th 666, 681. Intentional destruction of evidence can be considered abuse of the discovery process.Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal. 4th 1, 12.

As the complaining party, Plaintiff has the burden of showing that Defendant destroyed evidence that “had a substantial probability of damaging the moving party’s ability to establish an essential element of his claim or defense.” Williams v. Russ (2008) 67 Cal. App. 4th 1215, 1227.

Plaintiff is also required to show that Defendant had an obligation to preserve the evidence, and that the records were destroyed with a culpable state of mind. Reeves v. MV Transportation, Inc. (2010) 186 Cal. App. 4th 666, 681-682.

Plaintiff has not demonstrated that the failure to keep the milk carton itself destroyed evidence that had a substantial probability of damaging the Plaintiff’s ability to establish an essential element of her claim. Williams at 1227. Defendant took pictures of and produced in discovery photographs depicting the damage to the jug consistent with the witness’s testimony that the puncture marks were bite marks.

Nor has Plaintiff demonstrated that denying the Motion for Summary Judgment is a proper sanction for alleged spoliation of evidence. The “better remedy” in cases of spoliation is to allow the jury to make an inference with respect to the absence of the evidence. New Albertsons, Inc. v. Superior Court (2008) 168 Cal. App. 4th 1403, 1431.

Moving party is ordered to give notice.