Case Number: YC068358 Hearing Date: May 14, 2014 Dept: 91

The motion for summary judgment, filed on 2/25/14 by Defendant, the Vons’ Companies, Inc., is DENIED.CCP § 437c(p)(2). Defendant has not met its burden of establishing it is entitled to judgment based on the material facts proffered, some of which are in dispute. Nor has Defendant established that Plaintiff has no evidence that Defendant had notice of the dangerous condition in a sufficient time to correct it. Where summary judgment is based on absence of evidence as Defendant argues here, Defendant must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom 41 Cal.App.4th 168, 186 (1995).

Defendant “must have either actual or constructive knowledge 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. . . .” Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001). Whether Defendant acted reasonably in conducting sweep/inspections at the intervals that it did is controverted. Therefore, it cannot be determined whether Defendant would have discovered the condition “in the exercise of reasonable care” since whether Defendant was acting reasonably remains in dispute.

There is no dispute that Plaintiff slipped at 1:00 p.m. as Plaintiff walked through the deli aisle. UF 2, 4. There is no dispute that the sweep/inspections immediately preceding the incident were completed at 12:26, 12:42, 12:43, 12:56 and 1:11 p.m. Fact 40 and Defendant’s Ex. C, page 2. However, Plaintiff’s expert opines that the sweep was not properly conducted because it would have taken 20 to 25 minutes to conduct a proper sweep of the entire store with a dry mop. The last interval preceding the incident wherein a sweep was conducted lasted 13 minutes. See evidence offered in opposition to Fact 40, decl of Burns ¶ 12; Plaintiff’s AF 29, 31. Additionally, Defendant’s employee states that a sweep of the entire store is five minutes. AF 30.

Plaintiff’s expert also opines that the floor itself is inherently dangerous because it is made of smooth vinyl composite tile as opposed to an abrasive slip-resistant vinyl tile floor. Therefore, there is some evidence to infer that Defendant created the dangerous condition.

“Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him.” Hatfield v. Levy Bros., 18 Cal. 2d 798, 806 (Cal. 1941)