Disposed - Dismissed
Personal Injury - Other Personal Injury
GEORGINA T. RIZK
KRISTIN S. ESCALANTE
MARK A. BORENSTEIN
SERENA R. MURILLO
POLK SHIRLEY A.
IKEA U.S. WEST INC.
IKEA DISTRIBUTION SERVICES INC.
EXCEL BUILDING SERVICES LLC - DOE 1
STROTZ R.J. ESQ.
STROTZ R. J. RODRIGUEZ ESQ.
MANNING & KASS ELLROD RAMIREZ TRESTER
ROSS JONATHAN ARTHUR
JOHNSON KAREN MAYANN
NESS MARLA GRACE ESQ.
ROSS JONATHAN ARTHUR ESQ.
JOHNSON KAREN MAYANN ESQ.
SHERWOOD LAURIE ELIZABETH
SHERWOOD LAURIE ELIZABETH ESQ.
9/28/2021: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT) UNCONDITIONAL ...)
9/28/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: DISMISSAL (SETTLEMENT) UNCONDITIONAL ...) OF 09/28/2021
9/28/2021: Order - Dismissal
10/21/2021: Request for Dismissal
12/1/2020: Notice of Rejection Of Electronic Filing
4/27/2021: Notice of Change of Address or Other Contact Information
5/3/2021: Notice - NOTICE NOTICE OF CHANGE OF HANDLING ATTORNEY
5/3/2021: Notice of Change of Firm Name
5/21/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW RE: NOTICE OF UNCONDITIONAL SETTLE...)
5/21/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW RE: NOTICE OF UNCONDITIONAL SETTLE...) OF 05/21/2021
5/21/2021: Notice of Settlement - NOTICE OF SETTLEMENT (UNCONDITIONAL)
7/22/2020: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
7/30/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: TRIAL CONTINUANCE PURSUANT TO STIPULATION OF...) OF 07/30/2020
7/30/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: TRIAL CONTINUANCE PURSUANT TO STIPULATION OF...)
7/10/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: COVID-19;)
7/10/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: COVID-19;) OF 07/10/2020
5/7/2020: Substitution of Attorney
3/30/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: COVID-19;) OF 03/30/2020
DocketRequest for Dismissal; Filed by Shirley A. Polk (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Order to Show Cause Re: Dismissal (Settlement) (Unconditional - filed 05/21/2021) - Held[+] Read More [-] Read Less
DocketOrder - Dismissal; Filed by Clerk[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Order to Show Cause Re: Dismissal (Settlement) Unconditional ...) of 09/28/2021); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement) Unconditional ...)); Filed by Clerk[+] Read More [-] Read Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Jury Trial - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 10:00 AM in Department 29, Serena R. Murillo, Presiding; Final Status Conference - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 1:30 PM in Department 29, Serena R. Murillo, Presiding; Non-Appearance Case Review[+] Read More [-] Read Less
DocketNotice of Settlement ((Unconditional)); Filed by Shirley A. Polk (Plaintiff)[+] Read More [-] Read Less
DocketMinute Order ( (Non-Appearance Case Review Re: Notice of Unconditional Settle...)); Filed by Clerk[+] Read More [-] Read Less
DocketDECLARATION OF PROOF OF SERVICE[+] Read More [-] Read Less
DocketDeclaration of Personal Services; Filed by IKEA U.S. West, Inc. (Defendant)[+] Read More [-] Read Less
DocketOrder; Filed by IKEA U.S. West, Inc. (Defendant)[+] Read More [-] Read Less
DocketSTIPULATION RE DISMISSAL OF IKEA CORPORATION; IKEA DISTRIBUTION SERVICES, INC.; IKEA PROPERTY, INC.; IKEA HOLDING U;S., INC., IKEA NORTH AMERICA CAPITAL, INC. WITHOUT PREJUDICE[+] Read More [-] Read Less
DocketStipulation; Filed by IKEA U.S. West, Inc. (Defendant)[+] Read More [-] Read Less
DocketANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL[+] Read More [-] Read Less
DocketAnswer; Filed by IKEA U.S. West, Inc. (Defendant)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Shirley A. Polk (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
Case Number: ****7380 Hearing Date: February 24, 2020 Dept: 29
Polk v. Ikea Corporation, et al.
Motion for Summary Judgment or in the Alternative Summary Adjudication of Issues as to Plaintiff Shirley Polk’s Complaint, Filed by Defendant IKEA U.S. West and joined by Defendant Excel Building Services, LLC is DENIED. Defendants have failed to establish that they are entitled to judgment as a matter of law. Code Civ. Proc. ; 437c, subd. (c).
In this action, Plaintiff alleges that she slipped and fell on a slippery substance on the floor of the cafeteria in Defendant IKEA U.S. West, Inc.’s Burbank store. Plaintiff asserts claims for negligence and premises liability against Defendants IKEA U.S. West, Inc. (“Ikea”) and Excel Building Services, LLC. (“Excel”). Ikea has moved for summary judgment, or in the alternative, summary adjudication. Excel joins in the motion.
A. Admonishment to counsel
The Court notes that although the moving papers cited to a Declaration of Annie Reyes, the Court could not find that declaration among the papers, and thus the Court did not consider it. The Court’s review of the papers was difficult because the parties did not comply with California Rule of Court Rule 3.1350(g) which requires each party’s evidence in support of or in opposition to the summary judgment motion to be bound together in a single volume with a table of contents. Declarations should not be attached to the memorandum of points and authorities and should not be filed separately; they should be included in the separately bound volume of evidence. Counsel for both sides are admonished that they must comply with the rules in future motions. In addition, the electronically filed documents do not contain the bookmarks that are required by the general order on electronic filings. The absence of bookmarks increased the burden on the Court in ruling on this motion.
Plaintiff contends that on September 28, 2015, at about 12:30 p.m. that she went to the IKEA cafeteria for lunch. After obtaining food and finding a table, she walked toward the beverage island to obtain drinks for her mother and herself. As she approached the station, her left foot and leg slid out in front of her and she fell. As she was down on the floor, Plaintiff realized that her left foot slid on something wet or slick on the floor that caused her to fall. Plaintiff saw that the floor was wet.
In the moving papers, Ikea presented evidence that it utilized Excel Building Services, LLC for maintenance and cleaning services in the Ikea dining hall and cafeteria.
In addition to the services provided by Excel, Ikea employees patrolled the dining hall and cafeteria looking for spills and other hazards. One such person was Citlali Herrera, the Kitchen Production Team Leader, who was responsible for patrolling the cafeteria and dining hall at least once an hour. She performed visual inspections of the cafeteria and dining hall at least once an hour for approximately 10-15 minutes at a time, looking for, among other things, liquid spills.
Another person was Jose Arroyo Nieto, Team and Food Services Leader. He also patrols the dining hall once an hour for at least 10-15 minutes, looking for, among other things, spilled liquids. There are at least two Ikea Team and Food Services Leaders who perform the same patrol. In addition, there were two Excel day porters working in the dining area. The Excel housekeepers walk through the dining area looking for spills.
Other Ikea personnel also had responsibility for monitoring the cafeteria for spills (among their other duties), including the food and services manager and cashiers, during their downtime. It was the regular policy and practice that all Ikea employees were tasked with looking out for spilled liquid. The employee who detects a spill is supposed to summon help and remain at the location of the spill until it is cleaned up.
On the day in question, Ms. Herrera had performed her usual hourly patrols on the day in question and did not see any liquid spills on the cafeteria or dining hall floor before or after Plaintiff’s fall. Mr. Nieto does not remember if he was working on the day of the incident, but if he had been, he would have performed the patrol outlined above. Plaintiff does not dispute that on the date in question, before Plaintiff’s fall, there were no reports of any spills on the ground.
Ikea also relies on Plaintiff’s interrogatory responses, which are discussed in the argument section.
In opposition, Plaintiff presents evidence showing that the beverage station area was separated from the rest of the dining room by a short pony wall. There were three anti-slip mats right under the beverage station and immediately abutting the beverage station. They did not extend to the adjacent walking area in between the beverage station and the pony wall.
Plaintiff was not on the anti-slip mats when she fell, but instead was on the walkway in between the mats and the pony wall. It is only when she fell that she noticed the liquid, which had soaked her clothing. She was looking straight ahead as she approached the beverage station. There was a lot of light coming from the wall windows to the left of this area and the overhead lighting, causing reflections off the uncovered walking surfaces.
Plaintiff presented testimony of Annie Reyes, who at the time of the accident was a human resources generalist at Excel. Excel had a policy of keeping spill logs. There was no spill log for September 2015 for that location. The manager, Mr. Hernandez, did not submit one for that month. She doesn’t recall whether there were any accidents reported for the months that he failed to turn in spill logs. Excel used the spill logs to verify that Excel employees had performed their job duties. She did not understand, from the absence of spill logs, that there were no spills. She doesn’t know if there were undocumented spills during that month.
Plaintiff also presented a declaration of Philip Rosescu, offered as a premises liability expert. Mr. Rosescu is a safety engineer who claims expertise in, among other things, the analysis of walking surfaces and the analysis and examination of usual/ expected customer behaviors in using walking surfaces. Mr. Rosescu opines that the vinyl composite tile used in the IKEA cafeteria was unreasonably dangerous because certain clear liquid spills could not be seen, especially in the presence of reflective light conditions. He states that in the early part of the 21st century, this type of flooring was generally removed and replaced because of these dangers.
Because of the type of flooring, employees would not have been able to see spills unless they were right on top of them. Defendants were negligent in not diligently examining the floor walking surface around the entire beverage station. Further, defendants could have placed caution signs in the areas in front of the beverage station without anti-slip mats. Alternatively, they should have placed anti-slip mats in the entire area in front of the beverage area. He states that “[d]efendants had sufficient time to inspect, find and remedy the dangerous spill that caused plaintiff’s accident had they actually been inspecting the surface where plaintiff fell.”
1. Legal Standard for Constructive Notice
“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205). “A plaintiff meets the causation element by showing that (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff's harm, and (2) there is no rule of law relieving the defendant of liability.” (Id.) These are factual issues for the jury to decide.
“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.” (Id.) For example, “[i]f the owner operates a self-service grocery store . . . , the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition.” (Id. (internal quotations omitted).) “[T]he basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.” (Id.)
In order to make out a claim, the plaintiff must prove that the that the owner had actual or constructive notice of the defect in sufficient time to correct it. The plaintiff may rely on circumstantial evidence to prove constructive notice. Specifically, if a plaintiff can show that the owner did not make an inspection within a time period that was reasonable under the circumstances, the plaintiff could raise the inference that the defective condition existed long enough so that the failure to discover it was not reasonable. (Id.) Whether the inspection was reasonable and whether such an inference arose is a question of fact for the jury.
2. Absence of Evidence Theory
Ikea argues that Plaintiff’s factually devoid interrogatory responses were sufficient to shift the burden of proof on constructive notice. This argument fails.
“A defendant moving for summary judgment must make a prima facie showing either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. [Citations.] A defendant ... may satisfy this initial burden of production by presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” (Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119; see, Aguilar, supra, 25 Cal.4th at p. 850.) “Under the latter approach, a defendant’s initial evidentiary showing may ‘consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action’.” (Leyva v. Garcia (2018) 20 Cal. App. 5th 1095, 1102–03.) “In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred.” (Id. (quoting Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)).
Ikea relies on Plaintiff’s response to interrogatory no. 37, but Plaintiff’s response to that interrogatory was an objection that it called for the disclosure of expert opinion. Plaintiff cannot show an absence of evidence based on an objection. If Plaintiff believed that the objection was improper, Plaintiff should have brought a motion to compel.
The response to interrogatory no. 35 does not support an absence of evidence theory; the responses indicate that Plaintiff’s theory is that Ikea was not sufficiently vigilant in monitoring the area for spills and that more extensive safety mats should have been provided. Further, the responses are not sufficient to show that Plaintiff could not reasonably obtain evidence that Ikea’s inspections were unreasonable. At the time the responses were served, the time for expert discovery had not passed; whether the inspections were reasonable could be the subject of expert opinion.
Special interrogatories No. 16 and 18 ask Plaintiff to state all facts in support of her claim against Excel, not Ikea. Ikea cannot rely on these to show an absence of evidence on the claim against it.
Special Interrogatory No. 36 asks Plaintiff to state the duration of the defect based on her personal knowledge. The fact that Plaintiff does not have personal knowledge of the duration of the spill does not support an absence of the evidence theory. Plaintiff’s response to Excel’s interrogatory no. 22 is not sufficient to shift the burden because Plaintiff is not required to have evidence of the amount of time that the slippery substance was on the cafeteria floor to prevail on her claim. (See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1202 [holding that when a “plaintiff has no evidence of the source of the dangerous condition or the length of time it existed,” “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discovery and remedy it.”]).
In sum, Defendant has not met its initial burden by showing an absence of evidence.
3. Whether Ikea’s Evidence is Sufficient to Meet Its Initial Burden on Constructive Notice
Ikea argues, essentially, that the Court should determine, as a matter of law, that it engaged in inspections that a reasonably prudent cafeteria owner would have engaged in under the circumstances.
As an initial matter, the Court notes that the description of the evidence on page 20 of its memorandum of points and authorities is not accurate. Ikea has not presented sufficient evidence to make a prima facie showing that eleven individuals that Ikea refers to had actually inspected the area in question and found it clear of potential hazards several times within the hour of Plaintiff’s fall. Even if the evidence were sufficient to meet Defendant’s initial burden, Plaintiff’s evidence would be sufficient to raise a factual issue on this point.
Ikea presented evidence that it had a policy that all employees, including managers, various team leaders and cashiers, had responsibility for monitoring for spills but the evidence does not establish, as a matter of undisputed fact, that the policies were actually followed on the day in question. The evidence establishes, at best, that Ms. Herrera had patrolled the area for within an hour and had not seen any spills. There is at least a factual issue as to whether Mr. Nieto conducted inspections; he admits that he does not know if he was on duty on the day in question. With respect to the Excel employees, Plaintiff’s evidence raises a triable issue as to whether they conformed with the policies on the day in question. For example, the Excel employees were required to keep logs of their inspections, but they failed to do so for that day. Ikea has provided no records of any inspections by its own employees.
Further, while Ikea presents evidence that its employees “patrolled” the area, Ikea does not present evidence as to how the inspections were conducted. Plaintiff presents evidence that the flooring made it difficult to detect spills; the Court cannot conclude as a matter of law that “patrolling” the area was sufficient to detect spilled water on the floors here. Nor can the Court decide, as a matter of law, that the frequency, duration or manner of inspections met the relevant standard of care.
The case law makes clear that the issue of whether an owner’s inspections are reasonable is a question of fact for the jury. (See Moore v. Wal-Mart (2003) 111 Cal. App. 4th 472, 479; Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1210-11). The Court cannot decide this issue as a matter of law based on the record presented here.
The Court also notes that Plaintiff mischaracterizes the Court’s holding in Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472. The Court did not rule as a matter of law that the plaintiff had failed to establish constructive notice based on the evidence presented. Rather, the Court reversed the judgment because the trial court failed to instruct the jury that it had to find that the defendant had actual or constructive notice. The Court repeatedly stated that the issue of constructive notice was a question of fact for the jury, and, as the subsequent history makes clear, the case was remanded to the trial court for retrial.
Ikea repeatedly argues that Plaintiff’s claim fails because she does not have evidence of the source of the dangerous condition or the length of time that it existed. Ikea’s argument is directly contrary to Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200.
In Ortega, the California Supreme Court held that when a “plaintiff has no evidence of the source of the dangerous condition or the length of time it existed,” “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discovery and remedy it.” (Id. at 1202.) Whether inspections had occurred within a reasonable period of time is a question of fact for the jury. Id. at 1210-11.
In that case, the plaintiff was shopping at a Kmart store when he slipped on a puddle of milk on the floor adjacent to the refrigerator and suffered significant injuries. The plaintiff had no direct evidence of the length of time the milk had been on the floor. Kmart’s store manager testified that “all Kmart employees are trained to look for and clean up any spills or hazards, that several employees worked in that department, and that they usually walked that aisle every 15 to 30 minutes. The manager stated that it would be “hard for something to be on the floor for more than 15 or 30 minutes,” but admitted that the milk could have been on the floor for as long as two hours.
The jury found in favor the plaintiff, and the Supreme Court ultimately affirmed, holding that there was a question of fact for the jury whether the inspections were reasonable and, if the inspections were not reasonable, whether an inference arose from the failure to conduct reasonable inspections that the condition was on the floor long enough to give the owner the opportunity to discover and remedy the condition. The evidence presented was sufficient to uphold the jury’s verdict on this theory.
Ortega makes clear that Plaintiff’s claim does not fail simply because she does not have evidence regarding the source or length of time that the spill existed.
4. Ikea’s Other Arguments Fail
Ikea states that the undisputed evidence establishes that there was no dangerous condition. That argument is frivolous. Plaintiff claims that she slipped on puddle of water in a walkway; that evidence is sufficient to raise a triable issue as to the existence of a dangerous condition.
Ikea’s arguments regarding causation fail for the reasons stated above.
RULINGS ON OBJECTIONS
A. Overruled as to the first two sentences. Sustained as to last sentence.
C. Sustained as to the first and last sentences; otherwise overruled.
The Court has not found a Reyes declaration submitted by defendants in support of the summary judgment motion in the Court file and therefore the Court declines to rule on the objections.
General objection: Not material to the Court’s ruling. The Court declines to rule on the objection.
3. Overruled as to Covina. Sustained as to Carson.
4. Overruled. Foundation provided by other witnesses.
15. Sustained as to the sentence starting “Perhaps the employees . . . . “ Otherwise, overruled.
Exhibits 1-6 – Overruled
Defendant also includes “objections” in the response to the separate statement. Those do not appear to be evidentiary objections, and, if they are meant to be, they are not in the proper format. Further, if they are meant to be evidentiary objections, the Court cannot determine precisely what evidence the objections apply to, and thus the Court does not rule on them.Moving party is ordered to give notice.
Case Number: ****7380 Hearing Date: February 10, 2020 Dept: 29
On the Court’s motion, the hearing on Defendant’s Amended Motion for Summary Judgment/Adjudication is being continued to Monday, February 24, 2020 at 1:30 p.m. in Department SS-2.
Please be further advised that pursuant to the First Amended General Order filed on 5/3/19 regarding mandatory electronic filing, electronic documents including exhibits and declarations must be bookmarked and hyperlinked within the document pursuant to California Rules of Court, rule 3.1110(f)(4).
Regardless of the time of electronic filing, a printed courtesy copy (along with proof of electronic submission) is required for pleadings and motions including attachments of 26 pages or more, pleadings and motions that include points and authorities, demurrers, motions for summary judgment/adjudication, and motions to compel further discovery, among other documents. Amended General Order, ¶ 9.
Accordingly, please submit courtesy copies of all moving papers, joinders, opposition, and reply (including all evidentiary objections) directly in Department SS-29 forthwith.
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