Gomez v. Food 4 Less of Cal., Inc.

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MARIA GOMEZ, Plaintiff and Appellant v. FOOD 4 LESS OF CALIFORNIA, INC., Defendant and Respondent.

B317138

California Court of Appeals, Second District, Seventh Division

March 10, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. 19STCV01629, Daniel M. Crowley, Judge.

Levin &Nalbandyan, LLP and Harry Nalbandyan for Plaintiff and Appellant.

Stone Dean LLP, Gregory E. Stone and Suzanne R. Feffer for Defendant and Respondent.

SEGAL J.

INTRODUCTION

Maria Gomez filed this action against Food 4 Less of California Inc., alleging she slipped on grapes and fell at a Food 4 Less store. Food 4 Less moved for summary judgment, arguing it did not have actual or constructive knowledge of the grapes because, a few minutes before the fall, one of its employees inspected and swept the floor where Gomez fell. The trial court granted the motion and entered judgment in favor of Food 4 Less. We conclude that, because Gomez submitted evidence the employee did not conduct a thorough inspection or comply with Food 4 Less's sweeping policies, there were triable issues of material fact regarding whether the inspection and sweep were reasonable and thus whether Food 4 Less had constructive knowledge of the grapes. Therefore, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A Gomez Files This Action After She Slips at a Food 4 Less Store

While shopping at a Food 4 Less store, Gomez slipped on grapes and fell to the floor. Gomez sued Food 4 Less for negligence and premises liability (a form of negligence), alleging Food 4 Less "failed to maintain the floor in a reasonably safe condition," "[a]llowed a dangerous substance to come into contact with and remain on the floor," and "[f]ailed to warn" her about the grapes. Gomez alleged that, "[a]s a direct and proximate result of the negligence of [Food 4 Less], who employed the individuals responsible for mopping the area and who failed to place warning signs," she slipped and fell and suffered, among other injuries, "a fracture to her patella on her right knee" and "some permanent disability."

B. Food 4 Less Files a Motion for Summary Judgment

Food 4 Less moved for summary judgment, arguing that the undisputed evidence showed it "conducted reasonable inspections" and did not "have a reasonable time to discover and correct any hazard" and that there were no triable issues of material fact. Food 4 Less submitted a declaration by the manager of the store, who stated that Food 4 Less "requires a recorded inspection and sweep of the sales floor at least once per hour," that the employee who conducts the sweep must clean up any debris or spill, and that the employee enters the time of the sweep on a log and, by doing so, "affirms that the floor was free and clear of debris." Food 4 Less submitted a document titled "Sweeps Floor Inspection Report," which indicated a Food 4 Less employee, Michael Norton, logged a sweep of the store at 2:41 p.m. the day Gomez fell.

Food 4 Less also submitted surveillance footage of the area of the store on the day Gomez fell. The video showed Gomez slipped and fell at 2:17 p.m. According to Food 4 Less, the video also showed that there was "an inspection of the subject area . . . at 1:39 p.m.," that Norton was "pushing a dust mop over the exact area of the alleged incident at 2:14 p.m.," and that "four customers walked over the subject area" between Norton's sweep and Gomez's slip.

In opposition to the motion Gomez submitted deposition testimony from four employees who stated Food 4 Less instructed them to sweep the aisles of the store in an "S" or "zigzag" pattern. As one employee explained, the purpose of sweeping that way was to "pick up more stuff with the dust mop ...." Food 4 Less did not dispute it trained its employees to conduct sweeps in an "S" or zigzag pattern. Gomez argued the surveillance video showed Norton walking in a straight line down the aisle where Gomez fell, pushing the broom in front of him, rather than sweeping in the required pattern. Gomez also argued it was not clear from the surveillance video whether Norton swept "directly over" the spot where Gomez slipped.

Gomez also submitted a declaration from Brad Avrit, a licensed civil engineer. Using a tribometer,^[1] Avrit tested the slip resistance "under wet conditions" of the surface of the floor where Gomez slipped. Avrit stated that "the subject flooring had a slip resistance index as low as 0.25" and that safety professionals "agree that a floor surface is considered sufficiently slip-resistant and safe if it has a slip resistance of 0.50 or above under expected environmental conditions ...."

Food 4 Less objected to all of Avrit's opinions, arguing he was not qualified to offer any opinions because he "never worked in the grocery store industry." Food 4 Less also contended Avrit's opinion regarding the slip resistance of the floor was "irrelevant" because Avrit only tested the slip resistance of the floor "under 'wet' conditions" with water, and Gomez "slipped on grapes."

C. The Court Grants the Motion and Enters Judgment

The trial court granted Food 4 Less's motion for summary judgment. The court ruled that Food 4 Less met its moving burden to show it did not have notice of the grapes on the floor and that Gomez failed to raise a triable issue of material fact because it was "not disputed that an inspection was performed 38 minutes before the fall [or] that a sweep was performed 3 minutes before the fall ...." The court stated that Gomez's "arguments" the sweep was insufficient were "contrasted by the fact that [Gomez] admit[ted] to not knowing how the grapes got on the floor or how long they had been there, as well as the fact that multiple patrons had walked through the area immediately preceding [Gomez's] fall." The court overruled Food 4 Less's objection that Avrit was not qualified to offer opinions on safety standards in grocery stores, but agreed with Food 4 Less that Avrit's opinion about the slip resistance of the floor was irrelevant because he tested the floor under "a condition that [was] not alleged to have existed on the day in question."^[2] Gomez timely filed a notice of appeal from the ensuing judgment.^[3]

DISCUSSION

A. Standard of Review

"A court may grant a motion for summary judgment '"only when 'all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'"'" (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 225; see Code Civ. Proc., § 437c, subd. (c);^[4]Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; Randle v. Farmers New World Life Ins. Co. (2022) 85 Cal.App.5th 53, 61.) "A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense." (Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054, 1068; see § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Randle, at p. 61.)

"Where, as here, the defendant moves for summary judgment on the grounds that one or more elements of the plaintiff's [cause of action] cannot be established, the defendant 71 Cal.App.5th 806, 820; Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1189.) While the appeal was pending, however, the trial court entered judgment in favor of Food 4 Less and against Gomez. We construe the notice of appeal as a premature notice of appeal from the subsequently entered judgment. (See Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 652-653; Los Angeles Nat. Bank v. Bank of Canton (1991) 229 Cal.App.3d 1267, 1274, fn. 3; Morales v. Coastside Scavenger Co. (1985) 167 Cal.App.3d 731, 733, fn. 1.) must present evidence that either 'conclusively negate[s] an element of the plaintiff's cause of action' or 'show[s] that the plaintiff does not possess, and cannot reasonably obtain,' evidence needed to establish an element ...." (White v. Smule, Inc. (2022) 75 Cal.App.5th 346, 354; see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 853-855; Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668.) "'Only after the defendant carries that initial burden does the burden shift to the plaintiff "to show that a triable issue of one or more material facts exists as to the cause of action ...."'" (Fajardo v. Dailey, supra, 85 Cal.App.5th at pp. 225-226; see § 437c, subd. (p)(2); Aguilar, at pp. 849-850; Roman Catholic Archbishop of Los Angeles, at pp. 668-669.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850; see Lemm v. Ecolab Inc. (2023) 87 Cal.App.5th 159, 169; Roman Catholic Archbishop of Los Angeles, at pp. 668-669.)

"'"'"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see Lemm v. Ecolab Inc., supra, 87 Cal.App.5th at pp. 168-169; Fajardo v. Dailey, supra, 85 Cal.App.5th at p. 711.)

B. The Trial Court Erred in Granting the Motion for Summary Judgment

1. Premises Liability

Civil Code section 1714, subdivision (a), codifies the state's "'basic policy . . . that everyone is responsible for an injury...