Pending - Other Pending
Personal Injury - Other Personal Injury
LAURA A. SEIGLE
AMY D. HOGUE
B&V ENTERPRISES INC
TROSTLER MATTHEW JASON ESQ.
LENKOV JEFFREY MYLES
LEWIS ROSEMARIE SUAZO ESQ.
4/23/2018: INFORMAL DISCOVERY CONFERENCE FORM FOR PERSONAL INJURY COURTS
4/23/2018: INFORMAL DISCOVERY CONFERENCE FORM FOR PERSONAL INJURY COURTS
3/8/2019: Substitution of Attorney
3/13/2019: Substitution of Attorney
3/26/2019: Minute Order
3/26/2019: Notice of Ruling
3/26/2019: Ex Parte Application
4/17/2019: Association of Attorney
4/18/2019: Minute Order
4/18/2019: Minute Order
4/18/2019: Ex Parte Application
4/19/2019: Notice of Ruling
6/4/2019: Motion for Summary Judgment
6/4/2019: Request for Judicial Notice
12/11/2017: SUBSTITUTION OF ATTORNEY
DocketSeparate Statement; Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketDeclaration (Declaration of Mark Schroeder in Support of Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication); Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketDeclaration (Declaration of Jeffrey Tsao); Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketMotion for Summary Judgment; Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Continued - Party's Motion[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Party's Motion[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Informal Discovery Conference (IDC) - Held[+] Read More [-] Read Less
Docketat 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (for Order Setting Hearing Date for Motion for Summary Judgment/Adjudication) - Held - Motion Granted[+] Read More [-] Read Less
DocketEx Parte Application (for Order Setting Hearing Date for Motion for Summary Judgment/Adjudication); Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketDemand for Jury Trial; Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketAnswer; Filed by B&V Enterprises Inc (Defendant)[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketDEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES[+] Read More [-] Read Less
DocketANSWER TO COMPLAINT[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Arman Tasci (Plaintiff)[+] Read More [-] Read Less
DocketPROOF OF SERVICE OF SUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Arman Tasci (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
Case Number: ****7483 Hearing Date: November 06, 2019 Dept: 4B
[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On July 19, 2018, Plaintiff Virginia Figueroa Nieto (“Plaintiff”) filed this action against defendant Alpha Beta Company dba Food 4 Less (“Defendant”) for claims of general negligence and premises liability. On June April 8, 2018, Plaintiff slipped and fell in the meat department of a store operated by Defendant. (Defendant’s Undisputed Material Fact (“UMF”) Nos. 1-2.) Defendant moves for summary judgment on the grounds that Plaintiff cannot prove Defendant had actual or constructive notice of the alleged dangerous condition, and that any dangerous condition was open and obvious to Plaintiff.
II. LEGAL STANDARDS
In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., ; 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., ; 437c, subd. (f)(2).)
“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., ; 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)
To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)
“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 the cause of action or a defense thereto.” (Code Civ. Proc., ; 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)
While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) For example, a “store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)
To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].) However, “[t]he plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.)
Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)
Defendant contends Plaintiff testified that she slipped on a grape. Defendant argues Plaintiff cannot show Defendant had actual or constructive notice of the grape on the floor because it had a policy of sweeping the store floor at least once an hour. Defendant argues that a surveillance video shows a sweep at 6:53 p.m., approximately 15 minutes before Plaintiff’s slip and fall at 7:09. Defendant contends that its policy of sweeps every 60 minutes is reasonable as a matter of law.
Defendant has not met its initial burden of showing no triable issue of fact exists. Evidence of an inspection system and that an inspection took place does not necessarily show a landowner has met its duties. Rather, the reasonableness of the inspection system is a question left to the trier of fact. (Hatfield, supra, 18 Cal.2d at p. 807.) Defendant cites no authority, and the Court is unaware of any, holding any time greater than one-and-one-half minutes is an insufficient amount of time, as a matter of law, for a grocery store to discover a dangerous condition. (Girvetz, supra, 91 Cal.App.2d at p. 831 [one-and-one-half minutes was insufficient time for defendant to have discovered banana on the floor]; Tuttle v. Crawford (1936) 8 Cal.2d 126, 131 [case where plaintiff slipped on a wet floor five or eight minutes after an employee had swept the area was presented to a jury].)
In Hale v. Safeway Stores (1954) 129 Cal.App.2d 124, the plaintiff slipped on a banana on the floor. A store employee testified that he conducted a sweep of the area shortly before the accident and did not see a banana on the floor. He estimated that between 5 and 12 minutes elapsed from when he finished sweeping until he came out of the storeroom and saw plaintiff after the accident. (Id. at pp. 127-128.) The court in Hale found a jury could have drawn a legitimate inference that the defendant, in the operation of its fruit and vegetable section, should have, in the exercise of ordinary prudence, discovered the dangerous condition and remedied it. (Id. at p. 131.)
Defendant cites federal cases involving slips in Target stores to argue that thirty minutes is insufficient time to have discovered the dangerous condition and remedied it. The slips in those cases occurred near the lingerie section (Eidem v. Target Corp), and a couple steps away from the entertainment section (Alacan v. Target Corp.). The Court cannot conclude as a matter of law that a reasonable inspection system for those non-food departments would be reasonable in the food section of a grocery store. Defendant’s citations to unpublished federal cases under Georgia law regarding inspections every 20 or 30 minutes illustrates the lack of California law holding that inspections every 20 or 30 minutes are reasonable as a matter of law.
The Court cannot determine that 15 minutes is, as a matter of law, insufficient time for Defendant to have discovered and remedied the condition in the exercise of reasonable care. A reasonable trier of fact could conclude that the exercise of ordinary care requires more frequent inspections in a grocery store.
B. Open and Obvious
Defendant argued that the grape on which Plaintiff allegedly slipped was open and obvious because she saw some customers eating and playing with grapes.
“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) However, this is not always the case. (Ibid.) “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.) The obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)
Plaintiff’s deposition testimony does not support the finding that any grapes on the floor were open and obvious as a matter of law. (Kasparian, supra, 156 Cal.App.4th 11, 26 (trial court erroneously relied on plaintiff’s testimony that she observed a drain before the date of her fall to determine whether drain was “open and obvious” danger).) Defendant also submits a surveillance video show people eating and children running around, but the video does not show grapes on the floor. Thus, the Court finds that Defendant has not met its burden to show there are no triable issues of fact.
In light of the foregoing, the Motion for summary judgment is DENIED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.
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