Case Number: BC659222 Hearing Date: June 29, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Jane Gunsher,

Plaintiff,

v.

Target Corporation, et al.,

Defendants.

Case No.: BC659222

Hearing Date: June 29, 2018

[TENTATIVE] order RE:

DEFENDANT’s motion for summary judgment

BACKGROUND

Plaintiff Jane Gunsher (“Plaintiff”) alleges that on July 24, 2015, Plaintiff suffered personal injuries when she slipped and fell on liquid on the floor of the store owned and controlled by defendant Target Corporation (“Defendant”). Plaintiff filed this action against Defendant on April 26, 2017 and alleges a cause of action for general negligence.

Defendant moves for summary judgment. Plaintiff opposes,[1] and Defendant has replied.

Evidentiary Objections

Defendant’s Objections to Plaintiff’s Evidence:

The Court first notes that Defendant’s objections to Plaintiff’s evidence were not made in the proper manner as required by California Rules of Court, rule 3.1354. CRC Rule 3.1354 requires that the objecting party:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

Here, Defendant simply included the objections within Defendant’s response to Plaintiff’s separate statement of facts.

Regardless of the procedural errors, the Court will nonetheless rule on Defendant’s objections. The Court will refer to each objection by the fact number listed in Defendant’s response to Plaintiff’s separate statement.

· Objections 28 and 29: Overruled. The objections offered by Defendant are in actuality refutations of Plaintiff’s interpretation of the evidence. Facts 28 and 29 cite to the Video lodged by Defendant. First, the Court notes that the subject video presents very little evidence for either party. The video shows a large stretch of the subject store, and Plaintiff’s fall occurs in the top right most corner of the screen at the point farthest from the camera. It is nearly impossible to make out any of the actions of any persons in the area of the fall. As such, Plaintiff attempts to assert what actions are occurring in the video at the relevant time before the accident. Defendant’s objections merely show that Defendant disagrees with Plaintiff’s interpretation of the evidence. This disagreement is not grounds that would render the video inadmissible. Further, the video was introduced into evidence by Defendant. Thus, it does not seem likely that Defendant is requesting that the Court find the underlying video evidence inadmissible.

· Objection 35, 36, and 37: Sustained for the purposes of this motion. The extent of damages sustained by the Plaintiff is not relevant to the analysis of this motion. Even if these objections were overruled, it would not affect the analysis below.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

Plaintiff alleges that she slipped and fell while walking in an aisle between the men’s clothing and girl’s clothing sections. (Fact 4, 6.) After Plaintiff fell, she looked on the ground and saw a yellow liquid on the floor similar in color to apple juice. (Fact 6.) Approximately eight minutes before Plaintiff fell, Defendant’s employee Vianey Melendez walked through the area of the fall while she was within her scope of employment.[2] (Fact 21.) Defendant moves for summary judgment on the sole ground that it did not have sufficient notice of the condition of the liquid on the ground in sufficient time to correct it before Plaintiff fell.

While a dangerous condition may give rise to a claim of liability, that is not the end of the analysis. The elements of a premises liability claim are the same as a negligence claim: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner, supra, 1 Cal.5th at 1158.) “Because a landowner is not the insurer of a visitor’s safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

An owner’s lack of knowledge of a dangerous condition is not a defense. (Ibid.; Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.) In order to impose liability for injuries suffered due to a defective condition of the premises, “the owner or occupier ‘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, supra, 26 Cal.4th at 1206.) A landowner “has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.” (Swanberg, supra, 157 Cal.App.3d at 330.)

The plaintiff has the burden, at trial, of showing that the landowner had notice of the defect in sufficient time to correct it. (Ortega, supra, at 1206.) The plaintiff does not need to show actual knowledge where evidence, including circumstantial evidence, suggests that the condition “was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ibid.) Each accident should be analyzed in light of its own unique circumstances. (Id. at 1207.) Therefore, “[w]hether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.” (Ibid.) Evidence that an inspection was not made within a particular period of time prior to an accident “may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.” (Id. at 1210.)

Here, Defendant does not argue as to the reasonableness of its inspection policy or of the reasonableness of the actions of its employees, Melendez’s, inspection of the area before Plaintiff fell. Defendant does not offer evidence as to the inspection policy implemented in its stores. Nor does Defendant offer evidence to show what steps Melendez took to examine or inspect the ground when she walked through the area before Plaintiff’s fall. Instead, Defendant argues only that the liquid was spilled on the ground at some time during the eight minutes between when Melendez walked through the area and when Plaintiff fell.

To support its argument that the liquid was spilled in too short a time to be perceived and corrected, Defendant offers a surveillance video of the incident, as well as the Declaration of Vianey Melendez. Melendez states that when she walked with a shopping cart through the subject area of the store at approximately 4:27 pm, “there was no liquid spill.” (Melendez Decl., at ¶ 5.) Melendez states that as an employee she follows Defendant’s policy to “constantly inspect aisles of the store for safety hazards, including spills” as she performs her duties. (Id. at ¶ 6.) Melendez “followed this custom and practice on July 24, 2015. (Id. at ¶ 6.)

Defendant also offers the Declaration of Moises Mejia, another employee. Mejia states that he arrived in the area after the Plaintiff fell and that he “could easily observe a liquid spill that spanned a large portion of the aisle way.” (Mejia Decl., at ¶ 3.) Mejia also observed that the “liquid was yellowish in color and was easily observable against the white floor.” (Ibid.) The spill did not appear disturbed to Mejia except for one small part of the spill, “which looked like where Ms. Gunsher had skidded in the spill.” (Ibid.) Mejia also notes that there were no foot print marks or cart marks in the spill when he arrived. (Id. at ¶ 5.) The absence of these marks indicates to Mejia that the spill was not present at the time Melendez pushed a shopping cart through the area before the fall. (Ibid.)

Defendant’s evidence indicates that the liquid was easily observable and thus would have been observed by Melendez at the time she walked past the area of the fall less than eight minutes prior to the fall. There is no indication as to how soon after Melendez’s inspection the spill occurred. However, based on Defendant’s evidence, a reasonable trier of fact could only conclude that the spill occurred less than eight minutes before Plaintiff’s fall.

As Defendant acknowledges, whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. (Def. Motion p. 6.) However, Defendant contends that where the amount of time that a dangerous condition has existed is short and not disputed, the issue becomes a matter of law for the Court’s determination. The first case cited by Defendant in support of this contention – Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 831-32 – involved a banana peel that was seen on the floor of the defendant’s grocery store “a good minute and a half” before the accident, which is a considerably shorter time period than the approximate eight-minute time span in the instant case. The other case on which Defendant relies – Parker v. McCrory Stores Corp. (1954) 376 Pa. 122, 101 A.2d 377 — involves a more comparable period of three to five minutes, but it is a Pennsylvania case, which is non-binding on this Court. Nonetheless, for the purpose of this analysis, the Court assumes that Defendant’s evidence is sufficient to meet Defendant’s burden in demonstrating that the spill did not exist for such a duration as to allow Defendant a reasonable period of time to correct the condition. The burden therefore shifts to Plaintiff.

In opposition, Plaintiff offers evidence to show that the spill may have occurred before Melendez walked through the area. Juan Martinez had gone to Defendant’s store on June 24, 2015 with Plaintiff (Fact 3.) At his deposition, Martinez testified that the liquid was difficult to see on the shiny floor. (Pl. Exh. 9, Martinez Depo., at pg. 22:13-23.) Martinez stated: “Q: Could you see the yellow spill on the white floor? A: No, not when you are walking by it, no, not until, like, we were like I guess staring at it. Like if you were just walking by, you can see shiny, that’s all you can see, just shiny.” (Ibid.) Plaintiff also cites to the surveillance video provided by Defendant. Plaintiff points out that the video shows that Melendez is pushing a shopping cart and that she spends very little time in the area where Plaintiff fell. (Video, at 4:27:00- 4:27:35.) Plaintiff also argues that Melendez does not appear to examine the floor while she is in the vicinity of the area where Plaintiff later fell. (Ibid.)

The Court finds that Plaintiff’s offer of evidence creates a triable issue of material fact as to the period of time that the liquid was on the ground before Plaintiff slipped and fell. Specifically, Plaintiff’s evidence raises a triable issue of material fact as to whether the liquid was on the ground when Melendez purportedly inspected the subject area. Plaintiff’s evidence tends to show that the witnesses provide different accounts as to how easily detectable the liquid on the floor was. Martinez’s testimony shows that the liquid was not detectable to one walking through the area, and it was visible only upon staring directly at it. It is difficult to discern any amount of detail from the video, but upon the Court’s viewing, it appears that Melendez is pushing a shopping cart and moves through the area relatively quickly. Further, the fact that Melendez was pushing a shopping cart tends to show that her view of the ground was partially obstructed when she passed the area. As such, Plaintiff has met its burden to show a triable issue of material fact.

Plaintiff also offers evidence to show that there is also a triable issue of material fact as to why the shopping cart may not have created marks when Melendez walked through the area of the spill. At her deposition, Plaintiff testified that the liquid was not in one centralized puddle, but rather was spread out over about 10 or 20 feet. (Pl. Exh. 8, Gunsher Depo., at pg. 35:1-10.) Specifically, Plaintiff testified that the liquid was “spread out into sections of bigger drops.” (Ibid.) This evidence tends to challenge Defendant’s claim that the liquid should have resulted in foot prints or cart marks if it had been left at a time earlier than when Melendez walked past it. If there was space between liquid drops, then a reasonable juror could conclude that a cart or other pedestrians may have navigated the area without making contact with the drops. As such, Plaintiff has shown a triable issue of material fact as to whether the liquid would have necessarily disturbed by prior traffic.

Based on the above, a reasonable juror could conclude that the liquid had been spilled on the ground prior to when Melendez walked through the area, but Melendez failed to notice it. Defendant’s motion for summary judgment is denied. Plaintiff has provided sufficient evidence to show a triable issue of material fact as to whether the liquid was present for long enough for Defendant to identify and correct the condition. In light of the disputed facts identified above, whether the spilled liquid existed long enough for a reasonably prudent person to have discovered it is a question of fact better reserved for the jury. (Ortega, supra, 26 Cal.4th at 1206-07.)

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied.

The Court orders that Plaintiff’s opposition papers be sent to imaging after the hearing of this motion, and that the opposition papers filed nunc pro tunc as of June 14, 2018.

All parties should note that the hearing on this motion and all future hearings will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 29, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Plaintiff served the opposition on Defendant by mail on June 13, 2018. Plaintiff also attempted to mail the opposition papers to the Court for filing. However, the papers were not filed. The papers were mistakenly sent directly to this department rather than the filing counter at the central filing location. The Court did not receive and open the parcel until approximately 3 pm on June 27, 2018. Defendant received the papers in a timely manner and was able to file a timely reply based on the opposition. Thus, the Court finds that the filing mishap has not prejudiced Defendant. Further, Defendant has not objected to the timeliness of the documents before the hearing. As such, the Court will order that the opposition papers of Plaintiff be sent to imaging and filed nunc pro tunc to the intended date of filing (the intended date of overnight delivery) of June 14, 2018.

[2] The parties dispute whether Melendez was performing an “inspection” at the time she was in the area. However, it is undisputed that Melendez did walk through the area while performing her job duties approximately 8 minutes before the fall.