1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 OLHA NIKOLAYCHUK, No. 2:21-cv-00899-JAM-AC 11 Plaintiff, 12 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 COSTCO WHOLESALE CORPORATION and DOES 1 to 20, inclusive, 14 Defendants. 15 16 Before the Court is Costco Wholesale Corp.’s (“Defendant”) 17 motion for summary judgment. See Mot., ECF No. 16. Olha 18 Nikolaychuk (“Plaintiff”) opposed. See Opp’n, ECF No. 21. 19 Defendant replied. See Reply, ECF No. 22. For the following 20 reasons, Defendant’s motion is GRANTED.1 21 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 22 Plaintiff alleges that, while at Defendant’s store, she 23 “slipped and fell on a slippery substance on the floor, causing 24 her to suffer serious personal injuries.” Complaint at 1, Notice 25 of Removal Ex. A, ECF No. 1. She brought two causes of action 26
27 1This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for August 1, 2023. 1 against Defendant: (1) premises liability and (2) negligence. 2 Id. at 4-5. Plaintiff originally filed suit in Sacramento County 3 Superior Court. Notice of Removal at 1. Defendant then timely 4 removed to federal court under diversity jurisdiction. Id. 5 Defendant now seeks summary judgment in its entirety, 6 arguing in part that there is insufficient evidence to support a 7 jury finding that Defendant breached its duty. See Mot. at 3-6. 8 Plaintiff counters that the evidence cited in her opposition 9 creates a genuine dispute as to breach. See Opp’n at 4-6. 10 II. OPINION 11 A. Legal Standard 12 Summary judgment is appropriate when the record, read in the 13 light most favorable to the non-moving party, indicates “that 14 there is no genuine dispute as to any material fact and the 15 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 16 P. 56(a). A genuine dispute of fact exists only if “there is 17 sufficient evidence favoring the nonmoving party for a jury to 18 return a verdict for that party.” Anderson v. Liberty Lobby, 19 Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to 20 make this showing, “the moving party is entitled to judgment as a 21 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 22 (1986). 23 It is not a court’s task “to scour the record in search of a 24 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 25 1279 (9th Cir. 1996) (internal citation omitted). Rather, a 26 court is entitled to rely on the nonmoving party to “identify 27 with reasonable particularity the evidence that precludes summary 28 judgment.” See id. (internal citation omitted). 1 B. Analysis 2 1. Applicable Law 3 “The elements of a cause of action for premises liability 4 are the same as those for negligence: duty, breach, causation, 5 and damages.” Castellon v. U.S. Bancorp, 220 Cal. App. 4th 994, 6 998 (2013). “California law requires landowners to maintain land 7 in their possession and control in a reasonably safe condition.” 8 Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 674 (1993). 9 “[P]remises liability alleges a defendant property owner allowed 10 a dangerous condition on its property.” Delgado v. Am. Multi- 11 Cinema, Inc., 72 Cal. App. 4th 1403, 1406 (1999). 12 It is a plaintiff’s burden to show that a defendant “failed 13 in the discharge of the duty to use reasonable care.” Zito v. 14 Weitz, 62 Cal. App. 2d 161, 164 (1944). “Negligence is never 15 presumed. The burden of proof [is] upon plaintiff to prove its 16 existence either directly or by facts and circumstances from 17 which negligence may be inferred. No inference of negligence 18 arises from the mere proof of a fall . . . .” Harpke v. 19 Lankershim Ests., 103 Cal. App. 2d 143, 145 (1951); see also 20 Brown v. Poway Unified Sch. Dist., 4 Cal. 4th 820, 826 (1993) 21 (holding that res ipsa loquitur does not generally apply to slip 22 and fall cases). 23 Moreover, a plaintiff must provide specific facts about what 24 caused their fall because “slipperiness is an elastic term. From 25 the fact that a floor is slippery it does not necessarily result 26 that it is dangerous to walk upon. It is the degree of 27 slipperiness that determines whether the condition is reasonably 28 safe. This is a question of fact.” Nicola v. Pac. Gas & Elec. 1 Co., 50 Cal. App. 2d 612, 615-16 (1942). For example, in Buehler 2 v. Alpha Beta Co., 224 Cal. App. 3d 729, 734 (1990), the court 3 held that “all appellant can argue is that she slipped and fell. 4 She lost her balance for some unknown reason. She did not see 5 anything on the floor which caused her to slip and fall and did 6 not know what caused her to slip.” Based on this evidence, the 7 Buehler court concluded that the trial court properly granted 8 summary judgment for defendant. See id. 9 Similarly, in Harpke, 103 Cal. App. 2d at 146, the court 10 held, “No inference of negligence arises merely from proof that 11 the floor was ‘slippery’ in the absence of proof of some foreign 12 substance upon the floor, or proof of a dangerous condition 13 created by, or known to, the owner. While a duty is imposed upon 14 the owner of a building to police and inspect a stairway it 15 invites others to use, the minimum duty of a plaintiff is to show 16 that the stairway was in fact unsafe and that she fell because of 17 that condition.” 18 2. Breach of Duty 19 Plaintiff has failed to provide evidence creating a genuine 20 issue of material fact as to whether Defendant breached its duty 21 to Plaintiff. As such, Defendant is entitled to summary judgment 22 as a matter of law. 23 The Court can rely on Plaintiff to “identify with reasonable 24 particularity the evidence that precludes summary judgment.” See 25 Keenan, 91 F.3d at 1279. In her opposition, Plaintiff points to 26 two pieces of evidence that she argues create a genuine dispute 27 as to breach. First, she cites the testimony of Defendant 28 employee Kathryn Condley, who was assigned to do a walkthrough of 1 Defendant’s store when Plaintiff fell. See Opp’n at 4; Garilli 2 Decl. Ex. 2 45:3-5, ECF No. 21-2. When shown a 17-minute video 3 of the incident, Condley testified that she did not see herself 4 walking through the area where Plaintiff fell. Id. 45:6-12. 5 This testimony is not probative of whether a dangerous condition 6 existed. Instead, it only shows that during the 17-minute window 7 before Plaintiff fell, Condley did not inspect the area. Thus, 8 this evidence does not create a genuine dispute as to breach. 9 Second, Plaintiff contends that her testimony shows she 10 slipped on a puddle of oil. See Opp’n at 5. But Plaintiff 11 testified that she did not see a spill before she fell. Jaime 12 Decl. Ex. A 38:7-23, ECF No. 16-3. Plaintiff further testified 13 that, when she saw oil on the ground after she fell, she did not 14 know from where it came. Id. This testimony is not “sufficient 15 evidence” for a jury to return a verdict for Plaintiff regarding 16 breach. See Anderson, 477 U.S. at 249. As noted above, “[i]t is 17 the degree of slipperiness that determines whether the condition 18 is reasonably safe.” To avoid summary judgment, Plaintiff needs 19 to provide facts that allow a jury to determine whether there was 20 a dangerous condition. See Nicola, 50 Cal. App. 2d at 616. 21 Plaintiff has not presented facts enabling a jury to find the 22 “degree of slipperiness” and thereby whether there was a 23 dangerous condition. See id.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 OLHA NIKOLAYCHUK, No. 2:21-cv-00899-JAM-AC 11 Plaintiff, 12 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 COSTCO WHOLESALE CORPORATION and DOES 1 to 20, inclusive, 14 Defendants. 15 16 Before the Court is Costco Wholesale Corp.’s (“Defendant”) 17 motion for summary judgment. See Mot., ECF No. 16. Olha 18 Nikolaychuk (“Plaintiff”) opposed. See Opp’n, ECF No. 21. 19 Defendant replied. See Reply, ECF No. 22. For the following 20 reasons, Defendant’s motion is GRANTED.1 21 I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND 22 Plaintiff alleges that, while at Defendant’s store, she 23 “slipped and fell on a slippery substance on the floor, causing 24 her to suffer serious personal injuries.” Complaint at 1, Notice 25 of Removal Ex. A, ECF No. 1. She brought two causes of action 26
27 1This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled 28 for August 1, 2023. 1 against Defendant: (1) premises liability and (2) negligence. 2 Id. at 4-5. Plaintiff originally filed suit in Sacramento County 3 Superior Court. Notice of Removal at 1. Defendant then timely 4 removed to federal court under diversity jurisdiction. Id. 5 Defendant now seeks summary judgment in its entirety, 6 arguing in part that there is insufficient evidence to support a 7 jury finding that Defendant breached its duty. See Mot. at 3-6. 8 Plaintiff counters that the evidence cited in her opposition 9 creates a genuine dispute as to breach. See Opp’n at 4-6. 10 II. OPINION 11 A. Legal Standard 12 Summary judgment is appropriate when the record, read in the 13 light most favorable to the non-moving party, indicates “that 14 there is no genuine dispute as to any material fact and the 15 movant is entitled to judgment as a matter of law.” Fed. R. Civ. 16 P. 56(a). A genuine dispute of fact exists only if “there is 17 sufficient evidence favoring the nonmoving party for a jury to 18 return a verdict for that party.” Anderson v. Liberty Lobby, 19 Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to 20 make this showing, “the moving party is entitled to judgment as a 21 matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 22 (1986). 23 It is not a court’s task “to scour the record in search of a 24 genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 25 1279 (9th Cir. 1996) (internal citation omitted). Rather, a 26 court is entitled to rely on the nonmoving party to “identify 27 with reasonable particularity the evidence that precludes summary 28 judgment.” See id. (internal citation omitted). 1 B. Analysis 2 1. Applicable Law 3 “The elements of a cause of action for premises liability 4 are the same as those for negligence: duty, breach, causation, 5 and damages.” Castellon v. U.S. Bancorp, 220 Cal. App. 4th 994, 6 998 (2013). “California law requires landowners to maintain land 7 in their possession and control in a reasonably safe condition.” 8 Ann M. v. Pac. Plaza Shopping Ctr., 6 Cal. 4th 666, 674 (1993). 9 “[P]remises liability alleges a defendant property owner allowed 10 a dangerous condition on its property.” Delgado v. Am. Multi- 11 Cinema, Inc., 72 Cal. App. 4th 1403, 1406 (1999). 12 It is a plaintiff’s burden to show that a defendant “failed 13 in the discharge of the duty to use reasonable care.” Zito v. 14 Weitz, 62 Cal. App. 2d 161, 164 (1944). “Negligence is never 15 presumed. The burden of proof [is] upon plaintiff to prove its 16 existence either directly or by facts and circumstances from 17 which negligence may be inferred. No inference of negligence 18 arises from the mere proof of a fall . . . .” Harpke v. 19 Lankershim Ests., 103 Cal. App. 2d 143, 145 (1951); see also 20 Brown v. Poway Unified Sch. Dist., 4 Cal. 4th 820, 826 (1993) 21 (holding that res ipsa loquitur does not generally apply to slip 22 and fall cases). 23 Moreover, a plaintiff must provide specific facts about what 24 caused their fall because “slipperiness is an elastic term. From 25 the fact that a floor is slippery it does not necessarily result 26 that it is dangerous to walk upon. It is the degree of 27 slipperiness that determines whether the condition is reasonably 28 safe. This is a question of fact.” Nicola v. Pac. Gas & Elec. 1 Co., 50 Cal. App. 2d 612, 615-16 (1942). For example, in Buehler 2 v. Alpha Beta Co., 224 Cal. App. 3d 729, 734 (1990), the court 3 held that “all appellant can argue is that she slipped and fell. 4 She lost her balance for some unknown reason. She did not see 5 anything on the floor which caused her to slip and fall and did 6 not know what caused her to slip.” Based on this evidence, the 7 Buehler court concluded that the trial court properly granted 8 summary judgment for defendant. See id. 9 Similarly, in Harpke, 103 Cal. App. 2d at 146, the court 10 held, “No inference of negligence arises merely from proof that 11 the floor was ‘slippery’ in the absence of proof of some foreign 12 substance upon the floor, or proof of a dangerous condition 13 created by, or known to, the owner. While a duty is imposed upon 14 the owner of a building to police and inspect a stairway it 15 invites others to use, the minimum duty of a plaintiff is to show 16 that the stairway was in fact unsafe and that she fell because of 17 that condition.” 18 2. Breach of Duty 19 Plaintiff has failed to provide evidence creating a genuine 20 issue of material fact as to whether Defendant breached its duty 21 to Plaintiff. As such, Defendant is entitled to summary judgment 22 as a matter of law. 23 The Court can rely on Plaintiff to “identify with reasonable 24 particularity the evidence that precludes summary judgment.” See 25 Keenan, 91 F.3d at 1279. In her opposition, Plaintiff points to 26 two pieces of evidence that she argues create a genuine dispute 27 as to breach. First, she cites the testimony of Defendant 28 employee Kathryn Condley, who was assigned to do a walkthrough of 1 Defendant’s store when Plaintiff fell. See Opp’n at 4; Garilli 2 Decl. Ex. 2 45:3-5, ECF No. 21-2. When shown a 17-minute video 3 of the incident, Condley testified that she did not see herself 4 walking through the area where Plaintiff fell. Id. 45:6-12. 5 This testimony is not probative of whether a dangerous condition 6 existed. Instead, it only shows that during the 17-minute window 7 before Plaintiff fell, Condley did not inspect the area. Thus, 8 this evidence does not create a genuine dispute as to breach. 9 Second, Plaintiff contends that her testimony shows she 10 slipped on a puddle of oil. See Opp’n at 5. But Plaintiff 11 testified that she did not see a spill before she fell. Jaime 12 Decl. Ex. A 38:7-23, ECF No. 16-3. Plaintiff further testified 13 that, when she saw oil on the ground after she fell, she did not 14 know from where it came. Id. This testimony is not “sufficient 15 evidence” for a jury to return a verdict for Plaintiff regarding 16 breach. See Anderson, 477 U.S. at 249. As noted above, “[i]t is 17 the degree of slipperiness that determines whether the condition 18 is reasonably safe.” To avoid summary judgment, Plaintiff needs 19 to provide facts that allow a jury to determine whether there was 20 a dangerous condition. See Nicola, 50 Cal. App. 2d at 616. 21 Plaintiff has not presented facts enabling a jury to find the 22 “degree of slipperiness” and thereby whether there was a 23 dangerous condition. See id. 24 Though the Court may rely entirely on Plaintiff’s opposition 25 to identify evidence creating a genuine dispute, its review of 26 other evidence also supports the conclusion that Defendant is 27 entitled to summary judgment. Plaintiff asked Defendant employee 28 Alex Borisov to clean a spill after she fell. Jaime Decl. Ex. C eee IEE IE IIE IE OE EE IOI IES OE
1 15:1-15. However, upon seeing video of the fall, Borisov 2 testified that he recalled cleaning a different area than where 3 Plaintiff fell. Id. 23:1-25. Plaintiff presents no witness 4 testimony or other evidence regarding the spill. Instead, she 5 relies entirely on the two pieces of evidence that, as explained 6 above, are insufficient to establish that a dangerous condition 7 existed. Accordingly, Plaintiff has failed to meet her burden of 8 showing that the floor “was in fact unsafe and that she fell 9 | because of” a dangerous condition. See Harpke, 103 Cal. App. 2d 10 at 146. As such, summary judgment is appropriate because 11 Plaintiff’s evidence only shows that she slipped and fell. See 12 Buehler, 224 Cal. App. 3d at 734. 13 “[S]lince a complete failure of proof concerning an essential 14 element of the nonmoving party’s case necessarily renders all other 15 facts immaterial,” the Court does not consider the parties’ 16 remaining arguments. See Celotex, 477 U.S. at 317. 17 TII. ORDER 18 For the reasons set forth above, Defendant’s motion for 19 summary judgment is GRANTED in its entirety. 20 The Clerk of the Court is directed to enter judgment in 21 favor of Defendant Costco Wholesale Corporation and close this 22 action. 23 IT IS SO ORDERED. 24 Dated: March 3, 2025 25 cp, JOHN A. MENDEZ 27 SENIOR UNITED*STATES DISTRICT JUDGE 28