On 07/05/2017 MADELINE MARTINEZ filed a Personal Injury - Other Personal Injury lawsuit against SAMS WEST INC DBA SAMS CLUB. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is AMY D. HOGUE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
AMY D. HOGUE
STORE MANAGER LONI
SAM'S WEST INC. (DBA) SAM'S CLUB
DOES 1 TO 50
SAM'S WEST INC. DBA SAM'S CLUB
MITCHELL TIMOTHY P. ESQ.
SMITH ANDREW O.
12/10/2018: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
7/14/2017: PROOF OF SERVICE SUMMONS
8/7/2017: Other -
at 08:30 AM in Department 7, Amy D. Hogue, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
at 10:00 AM in Department 7, Amy D. Hogue, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Madeline Martinez (Plaintiff)Read MoreRead Less
Answer; Filed by Sam's West, Inc. (DBA) Sam's Club (Defendant)Read MoreRead Less
Demand for Trial by JuryRead MoreRead Less
AnswerRead MoreRead Less
Demand for Jury Trial; Filed by Sam's West, Inc. (DBA) Sam's Club (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Madeline Martinez (Plaintiff)Read MoreRead Less
Summons; Filed by Madeline Martinez (Plaintiff)Read MoreRead Less
Complaint; Filed by Madeline Martinez (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC666884 Hearing Date: February 11, 2020 Dept: 27
[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On July 5, 2017, plaintiff Madeline Martinez filed this action against defendants Sam’s West, Inc. dba Sam’s Club (“Defendant”) for negligence and premises liability. Plaintiff alleges she slipped on a grape and fell while shopping at one of Defendant’s warehouses. Video surveillance shows that a grape rolled onto the floor at 2:18:33 p.m., and Plaintiff fell 12 minutes and 30 seconds later at 2:31:03 p.m. (UMFs 3-4.) No employee of Defendant passed through the area of the incident during that time period. (UMF 6.)
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.) 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 exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) 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 argues it did not create the dangerous condition of the grape on the floor, did not have actual or constructive notice of the grape on the floor, and did not have enough time as a matter of law to discover and remedy the dangerous condition. The video shows the grape had been on the floor for 12 minutes and thirty seconds when Plaintiff slipped and fell. (UMF 5.)
Defendant has not met its initial burden. Defendant cites no authority, and the Court is unaware of any, holding twelve minutes is insufficient in a grocery store as a matter of law. (See 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 [where plaintiff slipped on a wet floor five or eight minutes after an employee had swept the area, case 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 had 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.)
Likewise, here, a jury could draw a reasonable inference that Defendant should have discovered the grape in the twelve minutes before the fall.
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 SSCDEPT27@lacourt.org indicating intention to submit on the tentative.
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