Cole v. CVS Pharmacy, Inc. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERALDINE COLE, Case No. 1:19-cv-01384-JLT-EPG 12 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 v. 14 CVS PHARMACY, INC., (Doc. 11) 15 Defendant. 16 17 Geraldine Cole initiated this action asserting claims of common law negligence and 18 premises liability seeking recovery for her injuries that resulted from a slip and fall in one of 19 Defendant CVS Pharmacy, Inc.’s store locations. (Doc. 1 at 11.) On April 8, 2021, CVS filed a 20 motion for summary judgment, seeking dismissal of all claims. (Doc. 11.) For the reasons set 21 forth below, the Court GRANTS CVS’s motion for summary judgment. 22 I. BACKGROUND 23 On June 21, 2019, Cole filed a complaint in California Superior Court, County of Tulare 24 asserting two causes of action: (1) common law negligence and (2) premises liability. (Doc. 1 at 25 9-11.) CVS removed the case to federal court on October 2, 2019, pursuant to 28 U.S.C. 26 §§ 1332(a), 1441(a)-(b), and 1446. (Doc. 1 at 1-2.) The following summary of the incident, which 27 occurred in a CVS store and gives rise to Cole’s claims, is undisputed unless otherwise noted. 28 In the afternoon of March 16, 2018, Cole entered the CVS store to pick up a prescription 1 from the pharmacy. (Doc. 14-2 at 2, ¶ 1.) It had been raining heavily throughout the day. (Doc. 2 14-3 at 2, ¶ 1.) Cole dropped off her prescription at the pharmacy and waited in the store for it to 3 be filled. (Doc. 14-2 at 2, ¶ 2-3.) She and her daughter perused the store while they waited. (Doc. 4 14-3 at 3, ¶ 4.) After approximately sixteen minutes, the pharmacy alerted Cole that her 5 prescription was ready for pick up. (Doc. 14-2 at 2-3, ¶¶ 4-5.) Cole returned to the pharmacy area, 6 carrying her daughter on her hip. (Id. at 3, ¶ 5.) While heading towards the pharmacy counter, 7 Cole fell forward and struck her head on the counter. (Id.) Cole contends her memory was blurred 8 after her fall. (Doc. 14-3 at 6, ¶ 18.) 9 The parties staunchly dispute the cause of Cole’s fall. In particular, Cole alleges that she 10 felt herself slip on some sort of liquid and believes the floor was wet due to the rainy conditions. 11 (Doc. 14-3 at 5, ¶ 13; id. at 10, ¶ 37.) CVS alleges that there was no liquid on the floor, as 12 evidenced by Cole’s testimony that she did not recall seeing anything wet on the floor at any time 13 during her visit to the store. (Doc. 14-2 at 5-8, ¶¶ 12-18.) The parties’ dispute on this motion for 14 summary judgment centers around these arguments and whether sufficient evidence exists to give 15 rise to genuine dispute of material fact regarding CVS’s alleged breach of duty and the cause of 16 Cole’s fall. (See, e.g., Doc. 11-1 at 5; Doc. 13-1 at 9.) 17 II. MOTION FOR SUMMARY JUDGMENT 18 Summary judgment is appropriate when there is “no genuine dispute as to any material 19 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In addition, 20 Rule 56 allows a court to grant summary adjudication, or partial summary judgment, when there 21 is no genuine issue of material fact as to a particular claim or portion of that claim. Id.; see also 22 Lies v. Farrell Lines, Inc., 641 F.2d 765, 769 n.3 (9th Cir. 1981) (“Rule 56 authorizes a summary 23 adjudication that will often fall short of a final determination, even of a single claim…”) (internal 24 quotation marks, citation omitted). 25 The “purpose of summary judgment is to pierce the pleadings and to assess the proof in 26 order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith 27 Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). Summary judgment should be entered 28 “after adequate time for discovery and upon motion, against a party who fails to make a showing 1 sufficient to establish the existence of an element essential to that party’s case, and on which that 2 party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 3 The moving party bears the “initial responsibility” of demonstrating the absence of a genuine 4 issue of material fact. Id. at 323. An issue of fact is genuine only if there is sufficient evidence for 5 a reasonable fact finder to find for the non-moving party, and a fact is material if it “might affect 6 the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 7 248 (1986); see also Wool v. Tandem Computers, Inc., 818 F.2d 1422, 1436 (9th Cir. 1987). A 8 party demonstrates summary judgment is appropriate by “informing the district court of the basis 9 of its motion, and identifying those portions of ‘the pleadings, depositions, answers to 10 interrogatories, and admissions on file, together with affidavits, if any,’ which it believes 11 demonstrates the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323 (quoting 12 Fed. R. Civ. P. 56(c)). 13 If the moving party meets its initial burden, the burden then shifts to the opposing party to 14 present specific facts that show genuine issue of a material fact exists. Fed R. Civ. P. 56(e); 15 Matsushita, 475 U.S. at 586. An opposing party “must do more than simply show that there is 16 some metaphysical doubt as to the material facts.” Id. at 587. The party must tender evidence of 17 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 18 contention that a factual dispute exits. Id. at 586 n.11; Fed. R. Civ. P. 56(c). Further, the opposing 19 party is not required to establish a material issue of fact conclusively in its favor; it is sufficient 20 that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ 21 differing versions of the truth at trial.” T.W. Electrical Serv., Inc. v. Pacific Elec. Contractors 22 Assoc., 809 F.2d 626, 630 (9th Cir. 1987). However, “failure of proof concerning an essential 23 element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 24 477 U.S. at 323. 25 The Court must apply standards consistent with Rule 56 to determine whether the moving 26 party demonstrated no genuine issue of material fact exists and judgment is appropriate as a 27 matter of law. Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993). In resolving a motion 28 for summary judgment, the Court can only consider admissible evidence. Orr v. Bank of America, 1 NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (citing Fed. R. Civ. P. 56(e); Beyene v. Coleman Sec. 2 Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988)). Further, evidence must be viewed “in the light 3 most favorable to the nonmoving party” and “all justifiable inferences” must be drawn in favor of 4 the nonmoving party. Orr, 285 F.3d at 772; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th 5 Cir. 2000). 6 III. EVIDENTIARY OBJECTIONS 7 On a motion for summary judgment, the Court should consider only admissible evidence 8 but does not require documents to have a “proper foundation laid to authenticate them.” Lindell v. 9 Synthes, USA, 155 F. Supp. 3d 1068, 1071-72 (E.D. Cal. 2016) (internal citation omitted). In 10 addition, the Court “cannot rely on irrelevant facts, and thus relevance objections are redundant.” 11 Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Likewise, 12 “improper legal conclusions ... are not facts and likewise will not be considered on a motion for 13 summary judgment.” Id. CVS makes several relevancy objections to portions of Cole’s proffered 14 affidavit. (See, e.g., Doc. 14-3 at 7, ¶¶ 21-25.) The Court will not address each objection 15 individual but will consider only relevant evidence on this motion for summary judgment. 16 CVS also objects to portions of Cole’s affidavit on the basis that these statements conflict 17 with her prior sworn deposition testimony and constitute a “sham affidavit.” (Doc. 14-1 at 2-7.) 18 Under Federal Rule of Civil Procedure 56(h), if “an affidavit or declaration under [a motion for 19 summary judgment] is submitted in bad faith,” the court may subject the party to “appropriate 20 sanctions,” including striking the affidavit or portions thereof. According to this rule, the Ninth 21 Circuit generally prohibits a party, on summary judgment, from creating “an issue of fact by an 22 affidavit contradicting his prior deposition testimony.” Kennedy v. Allied Mut. Ins. Co., 952 F.2d 23 262, 266 (9th Cir. 1991); Foster v. Arcata Associates, 772 F.2d 1453, 1462 (9th Cir. 1985) (“If a 24 party who has been examined at length on deposition could raise an issue of fact simply by 25 submitting an affidavit contradicting his own prior testimony, this would greatly diminish the 26 utility of summary judgment as a procedure for screening out sham issues of fact.”). 27 On the other hand, the Ninth Circuit recognizes that the “sham affidavit rule is in tension 28 with the principle that a court’s role in deciding a summary judgment motion is not to make 1 credibility determinations or weigh conflicting evidence.” Van Asdale v. Int’l Game Tech., 577 2 F.3d 989, 998 (9th Cir. 2009). To account for this tension, the Ninth Circuit imposes limitations 3 on the sham affidavit rule. Id. In particular, the district court must “make a factual determination 4 that the contradiction was actually a ‘sham,’” made to avoid summary judgment (Kennedy, 952 5 F.2d at 267), and the alleged inconsistency must be “clear and unambiguous to justify striking the 6 affidavit.” Van Asdale, 577 F.3d at 998-99. The sham affidavit rule does not apply to affidavits 7 which elaborate, explain, or clarify the prior testimony in deposition. Nelson v. City of Davis, 571 8 F.3d 924, 928 (9th Cir. 2009). Likewise, the rule excludes “minor inconsistencies that result from 9 an honest discrepancy, a mistake, or newly discovered evidence.” Messick v. Horizon Indus., Inc., 10 62 F.3d 1227, 1231 (9th Cir. 1995). However, “a district court may find a declaration to be a 11 sham when it contains facts that the affiant previously testified he could not remember.” Yeager v. 12 Bowlin, 693 F.3d 1076, 1080 (9th Cir. 2012). 13 CVS argues the portion of Cole’s affidavit that allege she slipped on a wet substance on 14 the floor constitute a sham affidavit because it contradicts her testimony during deposition. 15 During her deposition, Cole testified that she did not recall seeing anything wet on the floor 16 before she fell, immediately after she fell, nor when she returned to investigate the area. She 17 confirmed that she did not see a slippery substance on several occasions: 18 Q. Was it water that you slipped on? 19 A. It’s unknown to me what I slipped on. 20 (Doc. 11-3 at 11, ln. 18-19.) 21 Q. The place where you’re standing, as you were walking up to it, did you see any water or fluid on the floor as you were 22 walking up? 23 24 A. Not that I can recall. 25 (Id. at 14, ln. 16-19.) 26 Q. Okay. While you were standing there waiting on the two ladies to finish their business, did you notice any water or fluid on 27 the floor where you were standing? 28 1 A. Not that I can remember. 2 (Id. at 15, ln. 1-4.) 3 Q. As you were walking up to that area where you slipped, did you notice any water or fluid on the floor? 4 5 A. I did not. 6 Q. After you slipped, did you notice any water or fluid on the floor? 7 A. I did not. 8 (Id. at 17, ln. 11-16.) 9 Q. So when you went back and you were looking to see what the source of your slip had been, were you looking to see if there 10 was a specific item that you had slipped on? 11 12 A. I was looking to understand what it was that I even slipped on. 13 Q. Okay. And did you discover that what made you slip was the fact it was moist there? 14 15 A. No. 16 Q. You still couldn’t figure out why? 17 A. Could not. 18 (Id. at 22, ln. 8-18.) 19 Cole’s statements in her affidavit that “she felt herself slip on a wet substance” clearly and 20 directly contradict her sworn deposition testimony that she could not recall the cause of her fall, 21 despite multiple questions by counsel regarding the condition of the floor. (Doc. 13-3 at 2-3, ¶ 7); 22 see Yeager, 693 F.3d at 1080-81 (holding a clear contradiction exists where plaintiff could not 23 recall details of the relevant incident despite being shown multiple exhibits and asked multiple 24 questions but “but suddenly recall[ed] those same events with perfect clarity in his declaration”). 25 Moreover, Cole’s lack of recollection is not a minor inconsistency but rather bears on critical 26 issues to her case, i.e., the cause of her fall and CVS’s potential negligence by failing to mitigate 27 that risk. See Mack v. Cal. Dep't of Corr. & Rehab., 2018 WL 932235, at 6 (E.D. Cal. Feb. 16, 28 2018) (striking the affidavit in which plaintiff claimed to have discussed his race with his 1 employers at CCI but during his deposition he testified that he did not recall any discussions 2 about his race while at CCI but only while at the Vacaville facility). 3 Cole lacks a reasonable explanation for her current recollection of facts, which she could 4 not recall previously. Cole argues that her conversation with a woman representing CVS explains 5 these inconsistencies because Cole told the woman that she slipped on a wet substance 6 approximately three months after the incident. (Doc. 13-1 at 3-4.) Cole contends her memory was 7 more precise three months after the incident than during her deposition, which took place more 8 than two years after the incident. (Id.).1 Cole does not explain, however, why during her 9 deposition testimony she did not recall the statements she says she made to the CVS 10 representative or why she now remembers the content of the conversation, after even more time 11 had passed since the original incident. Also, even if the Court were to accept that she now recalls 12 what she said to the CVS representative, this does not explain why recalling this conversation 13 means she recalls the details of her fall and, more particularly, that the floor was wet. 14 Moreover, her claims about the call with the CVS representative do not adequately 15 explain the contradictions in her deposition testimony.2 Even though she has asserted that this 16 conversation was recorded, Cole did not provide a copy of this recorded statement and does not 17 explain why. (Doc. 14-1 at 6-7.) Without evidence that predates her deposition, Cole can only 18 rely on her later-filed affidavit to prove her statements to the CVS representative occurred. (Doc. 19 13-3 at 4, ¶ 14.) Thus, this portion of her affidavit suffers from the same inconsistencies and 20 likewise contradicts her sworn deposition testimony. To the extent, Cole also attempts to explain 21 the disparity between her deposition testimony and her declaration by claiming she suffered 22 memory loss due to the head trauma caused by her fall, this explanation likewise fails. (See Doc. 23 13-1 at 3.) Such memory loss at the time of the incident does not justify her later and convenient 24 recollection of the incident in opposition to summary judgment. The Court finds Cole’s 25 26 1 Cole makes a variety of arguments about how the Court should evaluate her affidavit under certain standards of the California rules of procedure. (Doc. 13-1 at 4-6.) The Court must apply the Federal Rules of Civil Procedure, not 27 California rules, and thus, need not address Cole’s remaining arguments. 2 Likewise, it is odd that the plaintiff did not correct her deposition testimony when she had the 28 1 contradiction in her affidavit to be motivated by her desire to avoid summary judgement, and 2 therefore, the sham affidavit rule applies. Accordingly, portions of Cole’s affidavit which imply 3 she perceived a wet substance on the floor near the CVS pharmacy are STRICKEN. 4 IV. DISCUSSION 5 A. Standards for Negligence and Premises Liability 6 Cole asserts two claims for negligence and premises liability, both arising from CVS’s 7 alleged failure to maintain a safe premises for its customers. “The elements of a negligence claim 8 and premises liability claim are the same.” Lemberg v. JP Morgan Chase Bank, N.A., 2018 WL 9 1046886, at *2 (N.D. Cal. Feb. 26, 2018). Under California law, both claims require the plaintiff 10 to show: “(1) defendant’s obligation to conform to a certain standard of conduct for the protection 11 of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the 12 duty); (3) a reasonably close connection between the defendant’s conduct and resulting injuries 13 (proximate cause); and (4) actual loss (damages).” Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 14 2009). The Court will, therefore, evaluate both claims under the same analysis. 15 Under the premises liability, a property owner has “a duty to exercise ordinary care in the 16 management of such premises in order to avoid exposing persons to an unreasonable risk of 17 harm.” Brooks v. Eugene Burger Mgmt. Corp., 215 Cal. App. 3d 1611, 1619 (1989). Generally, a 18 property owner who knows or should know of a dangerous condition that could expose visitors to 19 an unreasonable risk of harm owes a duty of ordinary care to make the condition safe or warn 20 visitors. Bridgman v. Safeway Stores, Inc., 53 Cal. 2d 443, 446 (1960). Store owners exercise 21 ordinary care by “making reasonable inspections of the portions of the premises open to 22 customers, and the care required is commensurate with the risks involved.” Ortega v. Kmart 23 Corp., 26 Cal. 4th 1200, 1205 (2001). This duty does not, however, require the store owner to 24 ensure the safety of its patrons. Id. at 1206. 25 “While under some circumstances, negligence may be inferred from the existence of a 26 dangerous condition, the burden rests upon the plaintiff to show the existence of a dangerous 27 condition, and that the defendant knew or should have known of it.” Harpke v. Lankershim Ests., 28 103 Cal. App. 2d 143, 145 (1951). In California slip and fall cases, “plaintiffs must prove the 1 store owner had actual or constructive notice of a dangerous condition prior to the plaintiff’s 2 injury to establish causation.” Bean v. Costco Wholesale Corp., 2021 WL 4263324, at *4 (E.D. 3 Cal. Sept. 20, 2021) (citations omitted); see also Ortega, 26 Cal. 4th at 1205-06. Constructive 4 notice may be inferred when the condition “has existed long enough for a reasonably prudent 5 person to have discovered it.” Ortega, 26 Cal. 4th at 1207. The plaintiff has the burden to prove 6 the condition existed for long enough to charge the store owner with constructive knowledge. Id. 7 B. Cole Has Not Sufficiently Evidenced the Presence of a Hazardous Condition 8 Cole has not met her burden to show that a hazardous condition existed such that CVS 9 breached a duty of care. CVS contends that it undertook reasonable steps to keep its store safe by 10 having a carpeted area at the entrance, which mitigated the risk of customers making the floors 11 wet on rainy days. (Doc. 11-1 at 9). The ten-foot carpeted area complies with industry standards. 12 (Doc. 14-2 at 4, ¶¶ 7-9.) In addition, CVS requires employees to complete a “Daily Compliance 13 Checklist” which includes inspecting the store for potentially hazardous conditions on the floors. 14 (Id. at 4, ¶ 6.) CVS employees completed the Daily Compliance Checklist on the day that Cole 15 fell. (Doc. 11-3 at 24-26.) 16 Cole does not contest that CVS employed these safety measures in its store. Rather, Cole 17 contends that completion of the Daily Compliance Checklist mandated only two inspections per 18 day, which was unreasonable given the heavy rain. (Doc. 13-9 at 9.) Cole argues that if CVS had 19 inspected the floors on a reasonable schedule, “they would have discovered that the floors were 20 wet and posed a dangerous condition to its patrons.” (Id.) However, even if the inspection was 21 unreasonably infrequent, Cole must first establish the existence of a dangerous condition before 22 the effectiveness of the inspection plan has any pertinence. 23 Cole has not presented admissible evidence to support her claim that the floor was wet, 24 such that it would trigger a duty for CVS to clean up or otherwise mitigate the risk of a slippery 25 floor. In her deposition, Cole repeatedly testified that she did not see liquid on the floor, even 26 when she returned to closely inspect the floor to try to understand why she fell. (See, e.g., Doc. 27 11-3 at 11, ln. 18-19, id. at 22, ln. 8-18.) Cole has not presented any other proof, such as 28 testimony from CVS employees or other customers who were present during the accident, to 1 support her claim. Cole’s only evidence suggesting she slipped on something wet comes from her 2 affidavit, which the Court will not consider for the reasons discussed above. 3 Cole’s evidence does not create a genuine dispute of material fact as to whether a 4 hazardous condition existed in the CVS store. Compare Peralta v. Vons Cos., 24 Cal. App. 5th 5 1030, 1035-36 (2018) (affirming summary judgment where plaintiff testified she did not see 6 anything on the floor and relied on inadmissible hearsay evidence to suggest people often fall in 7 this area); with Bean, 561 F. Supp. 3d at 921-22 (denying summary judgment where a material 8 dispute of fact existed regarding the conditions of the premises because plaintiff testified that 9 there was a puddle near where she fell and another witness submitted an affidavit confirming he 10 observed water on the ground). Because Cole bears the burden to show more than a mere 11 possibility of the existence of a hazardous condition, she has not established that CVS failed to 12 take reasonable steps to clean up or warn customers against a slippery substance that did not exist. 13 Thus, Cole has not shown CVS breached a duty of care by falling to inspect or make safe the 14 pharmacy floor. See Vaughn v. Montgomery Ward & Co., 95 Cal. App. 2d 553, 558 (1950) 15 (“[T]he minimum duty of a plaintiff is to show that the aisles were in fact unsafe and that she fell 16 because of that condition.”). 17 C. The Lack of a Hazardous Condition Negates Causation 18 Cole’s failure to show more than a mere possibility of the presence of a slippery substance 19 also negates the causation element. Peralta, 24 Cal. App. 5th at 1036 (“The mere possibility that 20 there was a slippery substance on the floor does not establish causation.”). A plaintiff establishes 21 causation in fact by producing evidence that the defendant’s acts or omissions were a substantial 22 factor in bringing about the plaintiff's injury. Vasquez v. Residential Invs., Inc., 118 Cal. App. 4th 23 269, 288 (2004) (quoting Jackson v. Ryder Truck Rental, Inc., 16 Cal. App. 4th 1830, 1847 24 (1993)). “Speculation or conjecture” of a dangerous condition does not satisfy this burden. 25 Ortega, 26 Cal. 4th at 1205-06. Though causation is often a question of fact for the jury, where 26 the evidence on summary judgment suggests only a “mere possibility of such causation, . . . it 27 becomes the duty of the court to direct a verdict for the defendant.” Id. (citation omitted). 28 For the reasons described above, Cole’s evidence presents only a speculative possibility 1 | that she fell because the floor was slippery. Without evidence that a hazardous condition existed, 2 | Cole essentially asks the Court to impose a res ipsa loquitur theory of liability to her case—that 3 || is, because she fell in a CVS store, CVS’s negligence is presumed. California courts have 4 | expressly rejected application of presumed liability in the context of slip-and-fall cases. Brown v. 5 | Poway Unified Sch. Dist., 4 Cal. 4th 820, 826 (1993) (alterations in original) (citation omitted) 6 | ([A]n ordinary slip and fall ... will not in [itself] justify the conclusion that negligence is the 7 | most likely explanation; and to such events res ipsa loquitur does not apply”). 8 In addition, Cole cannot meet her burden that CVS had constructive notice of a hazardous 9 | substance was on the floor. Because the evidence does not show the presence of a slippery 10 | substance on the floor, Cole also has no evidence of how long the substance existed without 11 | inspection by a CVS employee. Thus, regardless of the frequency of CVS’s inspections of its 12 | premises, CVS had no constructive notice of a slippery floor. See Peralta, 24 Cal. App. 5th at 218 13 | (finding “even if [defendant] did not conduct an inspection of the bakery area in the 10 to 15 14 | minutes before [plaintiffs] fall,” defendant could not have discovered a condition plaintiff failed 15 | to show existed). CVS’s lack of constructive notice further negates the causation element. 16 Accordingly, because no material dispute of fact exists regarding the presence of a 17 | hazardous condition on the floor of the CVS floor, Cole failed to show that CVS breached a duty 18 | of care and that its alleged breach caused her to fall. The Court, therefore, finds no reasonable 19 | jury could find in favor of Cole, and summary judgment is appropriate. 20 V. ORDER 21 For the reasons stated above, the Court ORDERS: 22 1. CVS’s motion for summary judgment (Doc. 11) is GRANTED. 23 2. The Clerk of Court is directed to enter judgment in favor of CVS. 24 3. The Clerk of Court is directed to close this case. 25 26 IT IS SO ORDERED. o7 | Dated: _July 14, 2022 Charis [Tourn TED STATES DISTRICT JUDGE 28 11