Maria Rosengren v. SF Markets, LLC

Opinion

Case 2°22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page1of11 Page ID #:329

10! MARIA ROSENGREN, CV 22-8 48-RSWL-PD x

Plaintiff, DEFENDANT’ S MOTION FOR SUMMARY JUDGMENT [18] be SF MARKETS, LLC, Defendant. 8. $a Plaintiff Maria Rosengren (“Plaintiff”) brings this Action, asserting claims for general negligence, premises liability, and negligent infliction of emotional distress. Currently before the Court is 53 Defendant SF Markets, LLC’s (“Defendant”) Motion for DA Summary Judgment. Plaintiff failed to file an opposition or an objection. Having reviewed all papers submitted pertaining to 54 the Motion, the Court NOW FINDS AND RULES AS FOLLOWS: the Court GRANTS Defendant’s Motion.

Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 2 of 11 Page ID #:330

2 A. Factual Background

3 Defendant operates a grocery store (the “Store”) in 4 Simi Valley, California. Def.’s Statement of 5 Uncontroverted Facts (“Def.’s SUF”) No. 1, ECF No. 18- 6 3.1 In 2019, it was the Store’s regular policy to 7 conduct an hourly visual inspection “sweep” of the 8 entire Produce Department floor, which includes the 9 Store’s entrance. Sobrino Decl. ¶ 7, ECF No. 18-1. When conducting the sweeps, employees would use a mop or push broom to clear trash and dropped items off the floor. Id. ¶ 8. Employees conducting the sweeps were required to clock-in upon completion. Id. Employees were further instructed that they must clean up any potential slipping or tripping hazards when spotted. Id. ¶ 9. On July 9, 2019, Plaintiff entered the Store at 1:14:24 p.m. See Def.’s Mot., Ex. A, ECF No. 18-6. Four seconds after entering the Store, Plaintiff slipped and fell on a cherry on the floor next to the front left corner of the Produce Display. See id. Before falling, 1 The Court relies on Defendant’s Statement of Uncontroverted Facts [18-3] as Plaintiff has not disputed the facts stated therein. See C.D. Cal. L.R. 56-3 (“the Court may assume that the material facts as claimed and adequately supported by the moving party are admitted to exist without controversy except to the extent such facts are . . . controverted by [] written evidence filed in opposition to the motion.”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (holding that a fact is considered controverted only where a “genuine” factual dispute exists). 2 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 3 of 11 Page ID #:331

1 Plaintiff was not looking at the floor nor did she see

2 the cherry. Def.’s SUF Nos. 46-47. Plaintiff does not

3 know how the cherry came to be on the floor nor does she 4 know how long the cherry was on the floor before she 5 fell. Id. Nos. 48-49. 6 On July 9, 2019, Joshua Reed (“Mr. Reed”), a Store 7 employee, mopped around the front left corner of the 8 Produce Display three times in the afternoon. See 9 Def.’s Mot., Ex. A. Mr. Reed finished mopping around the front left corner of the Produce Display at 12:49:26 p.m. See id. A little after 1:00 p.m., Mr. Reed completed his sweep around the Store. See Def.’s Mot., Ex. B, ECF No. 18-7. Other than Plaintiff’s fall, Defendant received no reports or complaints regarding a slip or fall at the Store on July 9, 2019. Sobrino Decl. ¶ 16. B. Procedural Background Shortly after Plaintiff filed her Complaint, Defendant removed to this Court [1] and filed an Answer. Defendant filed the instant Motion [18] on December 15, 2022. Plaintiff has not filed an opposition to Defendant’s Motion. A. Legal Standard Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 3 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 4 of 11 Page ID #:332

1 “material” if it might affect the outcome of the suit,

2 and the dispute is “genuine” if the evidence is such

3 that a reasonable factfinder could return a verdict for 4 the nonmoving party. Anderson, 477 U.S at 248. 5 The moving party bears the initial burden of 6 proving the absence of a genuine dispute of material 7 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 8 (1986). Where the nonmoving party bears the burden of 9 proof at trial, the moving party need only show “an absence of evidence to support the nonmoving party’s case.” Id. at 325. If the moving party meets its burden, the burden then shifts to the nonmoving party to present “specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S at 250. The nonmoving party “must show more than the mere existence of a scintilla of evidence . . . or some ‘metaphysical doubt’ as to the material facts at issue.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The evidence, and all reasonable inferences based on underlying facts, must be construed in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007). In reviewing the record, the court’s function is not to weigh the evidence but only to determine if a genuine issue of material fact exists. Anderson, 477 U.S. at 255. “A district court’s ruling on a motion for summary judgment may only be based on admissible evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d at 385. “While the evidence presented at the 4 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 5 of 11 Page ID #:333

1 summary judgment stage does not yet need to be in a form

2 that would be admissible at trial, the proponent must

3 set out facts that it will be able to prove through 4 admissible evidence.” Norse v. City of Santa Cruz, 629 5 F.3d 966, 973 (9th Cir. 2010). 6 B. Discussion 7 Plaintiff does not oppose the present motion. In 8 the absence of an opposition, the Court nevertheless 9 decides a motion for summary judgment on its merits. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 (9th Cir. 1994) (holding that an unopposed motion for summary judgment may be granted only after the court determines there are no material issues of fact). Therefore, Defendant must still meet its burden of showing the absence of a genuine issue of material fact. 1. General Negligence and Premises Liability Claims Plaintiff’s first two claims are for general negligence and premises liability. See generally Compl., ECF No. 1. Premises liability is a type of negligence, and the same analysis applies to both. Mirtaheri v. Sprouts Farmers Mkt., Inc., No. 2:20-cv- 05351-SB-RAO, 2021 U.S. Dist. LEXIS 252179, at *9 (C.D. Cal. Dec. 29, 2021). Therefore, to establish liability on a premises liability or negligence theory, “a plaintiff must prove duty, breach, causation, and damages.” Conroy v. Regents of Univ. of Cal., 45 Cal. 4th 1244, 1250 (2009). 5 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 6 of 11 Page ID #:334

1 “It is well established in California that although

2 a store owner is not an insurer of the safety of its

3 patrons, the owner does owe them a duty to exercise 4 reasonable care in keeping the premises reasonably 5 safe.” Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1205 6 (2001). “A store owner exercises ordinary care by 7 making reasonable inspections of the portions of the 8 premises open to customers, and the care required is 9 commensurate with the risks involved.” Id. Here, Defendant required its employees to conduct hourly visual inspection sweeps of the Produce Department and surrounding floor, and the employees were required to clock-in upon completion of the sweeps. Def’s SUF Nos. 4-6. However, performing visual inspection sweeps is not enough to avoid liability. See Alacan v. Target Corp., No. CV 14-04564-AB (VBKx), 2015 U.S. Dist. LEXIS 178484, at *6 (C.D. Cal. June 26, 2015). The store owner must lack actual or constructive knowledge of the dangerous condition that caused the plaintiff’s fall. Id. It is Plaintiff’s burden to show that Defendant either had actual or constructive knowledge of the dangerous condition and is therefore liable. Id. at 6-7. a. Actual Knowledge of a Dangerous Condition “The ‘mere possibility’ that a defendant had notice of a dangerous condition is not enough to impose liability under California law.” Alacan, 2015 U.S. Dist. LEXIS 178484, at *8. In Mirtaheri v. Sprouts 6 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 7 of 11 Page ID #:335

1 Farmers Market, Inc., an employee walking over a spill

2 was not on its own sufficient to show that the employee

3 or the store had actual notice of the spill. 2021 U.S. 4 Dist. LEXIS 252179, at *11. Here, not only did 5 Defendant’s employees not walk over the cherry, but they 6 did not walk even near the cherry before Plaintiff’s 7 fall. See Def.’s Mot., Ex. A. On top of this, 8 Plaintiff presented no evidence of Defendant having 9 actual notice. Here, Plaintiff cannot show that Defendant had actual knowledge of the spilled cherry. Plaintiff does not know how the cherry came to be on the floor or for how long it was there before she fell. Def’s SUF Nos. 48-49. Furthermore, Plaintiff is unaware of anyone else slipping on the floor at the Store and Defendant received no other reports or complaints of people slipping that day. Id. Nos. 50-51. Therefore, Plaintiff cannot show that Defendant had actual knowledge of the dangerous condition. b. Constructive Knowledge of a Dangerous Condition Plaintiff also cannot show that Defendant had constructive knowledge of the dangerous condition. Although the question is usually one for the jury, “lack of constructive knowledge can be determined as a matter of law if it is undisputed that an inspection occurred within a short enough amount of time prior to the incident, such that the condition could not have existed 7 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 8 of 11 Page ID #:336

1 for any longer than that short interval.” Castrellon v.

2 Costco Wholesale Corp., No. CV 20-3295-DMG (ASx), 2021

3 U.S. Dist. LEXIS 114456, at *5 (C.D. Cal. June 17, 4 2021). 5 “As a general proposition, if there is undisputed 6 evidence that an active inspection of the relevant area 7 occurred less than [thirty] minutes before the accident, 8 summary judgment in favor of the store owner is 9 appropriate; if not, the question should be resolved by a jury.” Satamian v. Costco Wholesale Corp., No. 2:20- cv-05776-VAP-ASx, 2021 U.S. Dist. LEXIS 201196, at *12 (C.D. Cal. June 25, 2021); Cardoza v. Target Corp., No. CV 17-2232-MWF (RAOx), 2018 U.S. Dist. LEXIS 117106, at *8 (C.D. Cal. June 22, 2018) (“As a general proposition, California courts apply a [thirty]-minute threshold for submitting questions of actual notice to a jury[.]”); Alacan, 2015 U.S. Dist. LEXIS 178484, at *10 (“This is consistent with the rulings of California courts, where nothing less than thirty minutes between the last inspection and a plaintiff’s fall has been held to raise a genuine dispute of material fact or sufficient to uphold a plaintiff’s verdict.”). Here, Mr. Reed mopped around the front left corner of the Produce Display at 12:49:26 p.m. See Def.’s Mot., Ex. A. About thirty-three seconds after Mr. Reed’s sweep, a cherry lay on the floor where Mr. Reed performed his sweep. See id. Mr. Reed did not cause the cherry to be on the floor, as the Store video 8 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 9 of 11 Page ID #:337

1 surveillance appears to show a Store customer dropping

2 the cherry after Mr. Reed’s sweep was completed. See

3 id. At 1:14:28 p.m., Plaintiff slipped and fell on that 4 cherry at the front left corner of the Produce Display. 5 See id. This is at most about a twenty-five-minute gap 6 between a store inspection and a dangerous condition 7 being left on the floor. 8 A more thorough inspection and cleaning by Mr. Reed 9 would not have helped to detect or remedy a spilled cherry that had not fallen to the floor yet. Under California law, because the evidence is undisputed that Mr. Reed inspected the area less than thirty minutes before Plaintiff’s accident, Plaintiff cannot show that Defendant had constructive knowledge of a dangerous condition in the Store. See Satamian, 2021 U.S. Dist. LEXIS 201196, at *12; Castrellon, 2021 U.S. Dist. LEXIS 114456, at *8; Alacan, 2015 U.S. Dist. LEXIS 178484, at *10. Therefore, because Plaintiff has produced no evidence that Defendant had actual or constructive knowledge of a dangerous condition in sufficient time to correct it, Defendant is entitled to summary judgment on Plaintiff’s claims for premises liability and negligence. 2. Negligent Infliction of Emotional Distress Claim In California, “[n]egligent infliction of emotional distress is a form of the tort of negligence, to which 9 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 10 of 11 Page ID #:338

1 the elements of duty, breach of duty, causation and

2 damages apply.” Huggins v. Longs Drug Stores Cal.,

3 Inc., 6 Cal. 4th 124, 129 (1993). To recover under 4 negligent infliction of emotional distress, a plaintiff 5 must prove that the defendant’s conduct meets the four 6 elements of negligence. Roberts v. Orange Glo, 7 No. 2:14-000421 WBS DAD, 2014 U.S. Dist. LEXIS 156771, 8 at *8 (E.D. Cal. Nov. 4, 2014); see also Dunkins v. Cty. 9 of San Bernardino, No. CV 12-01432 MMM (SPx), 2013 U.S. 10 Dist. LEXIS 208639, at *44 (C.D. Cal. Nov. 6, 2013) 11 (holding that a plaintiff’s negligent infliction of 12 emotional distress claim is simply a negligence claim). 13 Here, given that Defendant lacked actual or 14 constructive notice of the dangerous condition that 15 caused Plaintiff’s injuries, Plaintiff is unable to 16 prove the causation element of negligence. See Bean v. 17 Costco Wholesale Corp., 561 F. Supp. 3d 915, 920 18 (E.D. Cal. 2021) (“California slip and fall plaintiffs 19 must prove the store owner had actual or constructive 20 notice of a dangerous condition prior to the plaintiff’s 21 injury to establish causation.”) Therefore, given that 22 Plaintiff cannot prove one of the necessary elements, 23 Defendant is entitled to summary judgment on Plaintiff’s 24 claim for negligent infliction of emotional distress. 25 Thus, the Court GRANTS Defendant’s Motion for 26 Summary Judgment. 27 /// 28 /// 10 Case 2:22-cv-00848-RSWL-PD Document 28 Filed 03/13/23 Page 11 of 11 Page ID #:339

2 Based on the foregoing, the Court GRANTS

3 Defendant’s Motion for Summary Judgment. The Court 4 enters judgment in favor of Defendant and against 5 Plaintiff on Plaintiff’s general negligence, premises 6 liability, and negligent infliction of emotional 7 distress claims. 8 10 11 DATED: March 13, 2023 /s/Ronald S.W. Lew HONORABLE RONALD S.W. LEW 12 Senior U.S. District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11