Case Number: BC667495 Hearing Date: October 19, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Ora Faye Goodman,

Plaintiff,

v.

Albertson’s LLC, et al.,

Defendants.

Case No.: BC667495

Hearing Date: October 19, 2018

[TENTATIVE] order RE:

DEFENDANTs’ motion for summary judgment

BACKGROUND

Plaintiff Ora Faye Goodman (“Plaintiff”) alleges that on February 5, 2017, Plaintiff suffered personal injuries when she slipped and fell on liquid on the floor of the store owned and controlled by defendant Albertson’s LLC (“Albertson’s”). Plaintiff filed this action against defendant Albertson’s and defendant Ron Spurlock (collectively, “Defendants”) on July 7, 2017 and alleges causes of action for general negligence and premises liability.

Defendants move for summary judgment, or in the alternative summary adjudication. Plaintiff opposes, and Defendants have replied.

Evidentiary Objections

Plaintiff’s Objections to Defendants’ Evidence (Declaration of Ron Spurlock)

Objection 1: Overruled.

Objection 2: Sustained as to the language “which depicts a customer with a shopping cart leaving the front end of the aisle after bumping stacked cases of liquor bottles.” The witness states that he was not at the store at the time of the incident and thus has no personal knowledge of the events. To the extent that the testimony is based on the witness’s interpretation of the video, such testimony is inadmissible. The video speaks for itself, and allowing this witness’s interpretation of the video is not proper.

Objection 3: Sustained as to the language “which depicts a liquor bottle on the floor as the customer with a shopping cart was leaving the aisle.” The witness states that he was not at the store at the time of the incident and thus has no personal knowledge of the events. To the extent that the testimony is based on the witness’s interpretation of the video, such testimony is inadmissible. The video speaks for itself, and allowing this witness’s interpretation of the video is not proper.

Defendants’ Objections to Plaintiff’s Evidence

The Court declines to rule on Defendant’s objections to Eris J. Barillas’s declaration. CCP § 437c subdivision(q) states in relevant part: “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” The Court finds that Defendants’ objections are not material to the disposition of the motion.

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 as aisle on Defendants’ property. (Fact 4.) Plaintiff slipped on what she believes was spilled vodka. (Ibid.) Defendant moves for summary judgment or in the alternative summary adjudication on the grounds that neither Defendant had 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, Defendants do not argue in the motion as to the reasonableness of their inspection policy or of the reasonableness of the actions of their employees.[1] Instead, Defendants argue only that the liquid was spilled on the ground only 27 seconds before the incident, and thus, Defendants did not have sufficient notice of the spill to prevent harm to the Plaintiff.

If a defective condition existed for a sufficiently brief period of time, then as a matter of law, a defendant did not have constructive notice of the condition. (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 831-32.) In Girvetz, the plaintiff was injured after slipping on a banana peel in a grocery store. (Ibid.) The only evidence presented relating to the time that the defective condition existed, was one witness’s testimony that the banana peel was seen on the floor for “a good minute and a half” before the accident. (Ibid.) Given this undisputed evidence, the Court found that the time interval of one minute and thirty seconds was not a long enough time to create constructive notice of the defective condition. (Ibid.)

In the instant case, Defendants offer a surveillance video of the incident, as well as the Declaration of Defendant Spurlock, to support their argument that the liquid was spilled in too short a time to be perceived and corrected. As discussed above, what the video depicts speaks for itself. Spurlock’s testimony as to what the video shows is not admissible. Spurlock was not present at the store on the day of the incident, and he does not have any specialized expertise in video evidence. There is no foundation for his attempt to explain the events depicted in the video.

Moreover, even if Spurlock’s description of the events depicted in the video were admissible, Spurlock’s declaration would not be enough to show that as a matter of law Defendants did not have notice of the dangerous condition. Spurlock’s description of events is based solely on his perception and examination of the video and not on his having perceived the spill on the date of Plaintiff’s fall. If, upon viewing the video, the Court finds that a reasonable juror may disagree with Spurlock’s description of what the video depicts, then there is a triable issue of material fact as to the evidence presented by Defendant. Therefore, the pivotal question is whether the video itself supports Defendants’ contention that the spill occurred a mere 27 seconds before the fall.

The Court finds that the video evidence does not support Defendants’ contentions. The quality of the video is relatively poor. Even upon enlarging the video on a large screen, the image is extremely pixilated and grainy, and it is very difficult to determine what occurred in the area of the fall before Plaintiff steps into frame. The angle of the camera is such that the incident occurs at a point that is difficult to perceive. The camera from which the video is recorded appears to be situated at one end of an aisle, and the fall occurs at the other end of the aisle that is furthest from the camera. There are a number of people both in the aisle and at the end of the aisle in the area of the fall before, during, and after the fall. Particularly, there is a gentleman in a grey sweatshirt and black baseball cap pacing for approximately 30 seconds before the fall between the camera lens and the area of the fall. The gentleman’s head and body obstruct the view of the subject area at many points during the 30 seconds before the fall so that it is difficult to discern what, if anything, occurred before the Plaintiff fell. Even upon viewing the video numerous times, the Court cannot perceive a bottle being knocked onto the ground.

Focusing on the screenshots attached as Exhibits B and C, the Court finds that the screenshots also do not clearly depict a shopping cart ever “bumping stacked cases of liquor bottles” or “a liquor bottle on the floor.” The camera is far from the areas that are circled on Exhibits B and C, and the circled area is small in each exhibit. It is difficult to make out minute details of what is depicted in the circled area. To the extent that there appears to be an individual wearing white with arms extended to what might be a shopping cart, it is impossible to distinguish whether the shopping cart is even touching a display case or if the shopping cart is simply behind the display case and further from the camera because the images are two-dimensional and do not allow for depth perception. Whatever is circled in Exhibit C may equally be construed as a reflection of light from the shiny floor; there are numerous such reflections of light from the floor in Exhibits B and C. As such, the Court finds that a reasonable juror could determine that the video does not show when the dangerous condition was created. There is a triable issue of material fact as to when the spill occurred and whether Defendants had sufficient notice of the condition in time to correct it.

Accordingly, Defendants have failed to meet their burden, and the burden does not shift to Plaintiff. Defendants’ motion for summary judgment, or, in the alternative, summary adjudication[2] is denied.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment or in the alternative summary adjudication is denied.

Defendants are ordered to provide notice of this order and file proof of service of such.

DATED: October 19, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Defendants offer brief evidence as to the inspection policy implemented in its stores by the declaration of Defendant Spurlock. Spurlock states that each employee was responsible for monitoring the store for dangerous conditions and that employees would immediately respond to any reports of dangerous conditions to correct them. (Spurlock Decl., ¶¶ 6, 7.) Spurlock does not describe how inspections are conducted or the frequency of the inspections. This evidence is insufficient to support a finding that Defendants’ inspection system was sufficient as a matter of law or that it was properly operating on the day of the incident.

[2] Defendants state in the notice that there are eight grounds for summary adjudication. However, each of these issues is based on whether either or both of the Defendants had actual or constructive notice of the dangerous condition. Each issue is also based on the same evidence discussed above. Thus, the Court’s ruling on the insufficiency of the moving party’s evidence above defeats the motion for summary adjudication as to each issue identified in Defendants’ notice.