Norman v. Westfield Group CA2/4 ( 2013 )

Filed 10/31/13 Norman v. Westfield Group CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MICHELLE E. NORMAN, B245053
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC454568)
v.
WESTFIELD GROUP,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Steven
Kleifield, Judge. Affirmed.
Der-Parseghian Law Group and Mary Der-Parseghian for Plaintiff and Appellant.
Beatty & Myers, Sean D. Beatty, John W. Myers IV, and Maija Olivia for
Defendant and Respondent.
In this slip and fall case, the trial court granted defendant’s motion for summary
judgment and entered judgment for defendant. We reject plaintiff’s contentions on
appeal and affirm.
BACKGROUND
On November 10, 2009, plaintiff Michelle E. Norman slipped and fell while
descending a staircase leading to the food court area at Westfield Mall (mall) in Culver
City. The mall is owned and operated by defendant Culver City Mall, LP (erroneously
sued as Westfield Group dba Westfield Culver City Mall).
Defendant contracted with MBM, which specializes in mall “housekeeping”
services. MBM was responsible for providing janitorial, cleaning, housekeeping, trash
removal, and other services as needed to properly maintain the mall in a “‘neat, safe and
clean’” condition. Defendant also contracted with Professional Security Consultants
(PSC) to provide private security guards at the mall.
It is undisputed that immediately after plaintiff fell on the staircase, she told the
security guards and paramedics who responded to the scene that she “missed the bottom
step” and fell. Consistent with this explanation, the paramedic’s report stated that
plaintiff “was walking down steps when she missed last step causing fall.” Photographs
taken of the location where plaintiff fell did not depict any “debris, object or substance”
on the staircase.1
On February 7, 2011, plaintiff filed the instant personal injury complaint alleging
that she slipped and fell on “debris” on the staircase, which created a “dangerous and
defective” condition. At her deposition, plaintiff stated she “never saw” the object, but
felt something round and cylindrical beneath her shoe. Plaintiff also testified that
immediately after she fell, she repeatedly told everyone that she missed the last step and
1 Pursuant to PSC’s standard practices, a security guard placed a Motorola walkie-
talkie on the staircase to mark the location identified by plaintiff and photographed the
area marked by the walkie-talkie.
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fell: “Q Do you recall whether or not the younger security guard asked you how your
fall occurred? [¶] A Yes. [¶] Q And what did you tell him? [¶] A I told him it was
the bottom step. That’s all I ever told everybody after — after the first two people started
asking me questions, I did not feel like answering any more questions. Whenever anyone
asked me what happened, I said I missed the bottom step. I remember repeating that a
lot.”
Plaintiff’s accident was recorded on the mall’s “surveillance video,” which was
viewed by each party’s expert witness. According to the declaration of plaintiff’s expert
witness Kenneth Alvin Solomon, the video was not sufficiently clear to determine
whether there was any debris on the stairwell. However, the video depicted “a misstep,
in which Plaintiff Norman stepped too far forward on the last stair tread with her left foot,
causing it to slip off and downward.”
Defendant’s expert witness John Brault similarly stated in his declaration that “the
mechanics of plaintiff’s fall depicted in the surveillance video are consistent with her
overstepping the last step with her left foot as she looks to her left away from stairway
without using reasonable care. The mechanics of plaintiff’s fall are inconsistent with
plaintiff slipping on a cylindrical object, as she testified.”2
I. Defendant’s Motion for Summary Judgment
Defendant moved for summary judgment based on two alternative theories:
(1) there was no evidence that defendant was at fault in causing the accident, which the
evidence indicated was caused solely by plaintiff’s own negligence in missing the last
step; and (2) there was no evidence that defendant had actual or constructive notice of a
dangerous condition in time to correct it.
As to the second theory, defendant argued that even if the fall was caused by an
unknown object on the staircase, there was no evidence that defendant knew or should
have known about the object. (Citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200,
2 Based on his examination of the staircase, Brault concluded that it “meets industry
standards and is suitable for pedestrian walking, in dry conditions.”
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1203 (Ortega).) Defendant stated in relevant part: “Here, it is undisputed that defendant
had no actual or constructive notice of this ‘dangerous’ condition. Plaintiff admitted that
she never even saw the object she fell on. The photographs and surveillance video taken
of the incident do not show any object on the stairs. Plaintiff has no idea how long the
unknown object, if there was one, was on the staircase. It is well established that the
mere fact alone that plaintiff slipped does not automatically impute defendant with
negligence. Plaintiff cannot simply guess, assume, or surmise how long this allegedly
‘dangerous’ condition existed. [¶] Further, Culver City Mall took more than reasonable
steps to ensure that the mall was kept free of slip/trip hazards. The mall had MBM
employees assigned to the [dining] terrace area and were on constant duty before, during
and after mall hours to ensure that the dining area terrace remained clean [and] to detect
and remove any litter, debris, spills or other hazardous conditions. Moreover, on the day
of the incident MBM employee Juana Bautista was assigned to the [dining] terrace area
[and] inspected the subject staircase . . . within 20-30 minutes before plaintiff’s alleged
fall (at approximately 3:30 p.m.-3:40 p.m.), [and found] no debris, objects or substance
on the staircase.”
In support of the above contention, defendant submitted the declarations of Jose
Aguilar, MBM’s loss prevention manager, and Juana Bautista, the MBM employee who
was assigned to keep the staircase and surrounding vicinity clear of any spills or debris
on the date in question.
According to Aguilar’s declaration, the staircase “was continuously patrolled on
the date of incident and at a minimum every 20-30 minutes.” MBM employees would
“continually inspect the [mall’s] dining terrace area, including all walking surfaces in the
dining terrace area, throughout the day and would immediately remove any lit[t]er, debris
or spills.”
According to Bautista’s declaration, on the date of the accident she “constantly
inspected the [dining] terrace area including the entry staircase,” which she inspected at
“a minimum every 20-30 minutes.” About 20 to 30 minutes before plaintiff fell, Bautista
inspected the staircase and found “no debris, objects or substance on the staircase.”
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According to her deposition testimony, Bautista inspected the staircase every 15 to
20 minutes. When asked how she knew the inspections were conducted every 15 to 20
minutes, Bautista replied, “That’s how we were trained to work.”
Bautista also testified that MBM required its employees to record their cleanup
activities on a “Sweep Sheet.” However, Sweep Sheets were not used to record the times
of each and every inspection; Sweep Sheets were only used to record the times when
actual cleanup work was performed. The Sweep Sheet for the date of plaintiff’s accident
contained entries made by Bautista at 1:10, 1:30, 1:55, 2:09, 2:30, 2:49, 2:55, 3:10, 3:20,
3:35, 3:50, and 4:00 p.m. Only two of those entries (1:30 and 2:55 p.m.) reflected her
cleanup work on the staircase; the other entries reflected work she performed in other
areas.
II. Plaintiff’s Opposition
In opposition to the motion, plaintiff relied on her own testimony—that she
slipped and fell on a round object—to establish that her injury was caused by a dangerous
condition. Plaintiff argued the surveillance video was of poor quality and thus was not
dispositive “[a]s to whether there was in fact debris on the stairs.”
As to her original explanation—that she missed the step and fell—plaintiff
claimed she said that because she was in pain and did not feel like answering any more
questions. According to her declaration: “I was being peppered with questions, and
. . . due to the pain I was experiencing, I did not feel like answering any more questions,
so when a security guard asked me how I fell, I simply told him I missed the bottom
step.”
Plaintiff argued that because defendant’s evidence was not sufficient to establish
the frequency of MBM’s inspections, it may be inferred that defendant had constructive
notice of the debris on the staircase. Plaintiff stated in relevant part: “Defendant
maintains that the staircase where the incident occurred was ‘continuously patrolled on
the date of incident at a minimum of every 20-30 minutes.’ However, the MBM
employee who was assigned to patrol the dining terrace on the date of the incident (Juana
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Bautista) did not keep a record of the frequency of her ‘patrols’ of the staircase where the
incident occurred. She maintained a ‘sweep sheet,’ but the entries on the sweep sheet
refer to specific actions taken and don’t record the frequency of the patrols. The sweep
sheet for the dining terrace, or food court, area for November 10, 2009 makes only two
references to the staircase: one at 1:30 p.m., about an hour before Ms. NORMAN fell,
and one at 2:55 p.m., about 25 minutes after the incident.”
Plaintiff argued that Bautista’s testimony—that she knew she inspected the
staircase at 15- to 20-minute intervals because “[t]hat’s how we were trained to work”—
was based solely on the existence of a schedule and therefore was not probative “of
when, or how frequently, the area in question was inspected.” Plaintiff contended the
mere existence of a policy or schedule “does not mean that it was enforced or adhered
to.”
III. Defendant’s Reply
In reply, defendant argued that plaintiff’s testimony that she slipped and fell on a
round object was insufficient to establish the existence of a dangerous condition, in light
of (1) plaintiff’s original explanation that she missed the last step, and (2) the lack of any
evidence to corroborate her claim that she slipped on an unseen object.
As to the failure to keep a written record of each and every inspection of the stairs,
defendant argued the lack of a written record was “of no consequence” because the
evidence, including Bautista’s testimony, was sufficient to support a finding that the
stairs were inspected every 15 to 30 minutes. Defendant further argued that the
frequency of inspections was “more than reasonable. Moreover, during her inspections at
least 30 minutes before the incident, Bautista did not see any debris or cylindrical object
on the stairs.”
IV. The Trial Court’s Ruling and Judgment
On September 7, 2012, the trial court granted the motion for summary judgment,
stating there were no triable issues “of material fact as to actual or constructive notice.”
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On October 17, 2012, the court signed and filed a formal order, which stated in relevant
part: “Defendant established through the declaration and testimony of Juana Bautista that
the subject stair case was inspected every 15-30 minutes. Plaintiff did not submit
evidence to contradict Ms. Bautista’s declaration and testimony. Furthermore, plaintiff
did not submit any evidence that defendant’s inspection of the stair case was
unreasonable or not within industry standards. Since defendant provided evidence that it
performed reasonable inspections of the staircase no inference [may be] drawn that
defendant Culver City Mall, LP was on constructive notice of any dangerous condition.”
On November 8, 2012, plaintiff filed a notice of appeal from the October 17, 2012
order granting the motion for summary judgment. On November 30, 2012, the court
entered judgment for defendant and awarded defendant costs of $6,940.3
DISCUSSION
Plaintiff argues that defendant was required to show, as a matter of law, that
defendant: (1) lacked actual or constructive knowledge of a dangerous condition;
(2) conducted timely inspections of the staircase; and (3) did not have a reasonable
opportunity to detect and correct the dangerous condition. Plaintiff contends that because
Bautista’s testimony concerning the frequency of inspection was inconsistent and based
solely on the existence of a schedule, defendant failed to meet its burden of proof. In
addition, plaintiff argues the summary judgment must be reversed under McKenney v.
Quality Foods, Inc. (1957) 156 Cal. App. 2d 349 (McKenney). For the following reasons,
we conclude the contentions lack merit.
3 The appeal was taken from the October 17, 2012 order granting summary
judgment, which is not an appealable order. (Code Civ. Proc., § 904.1; Modica v. Merin
(1991) 234 Cal. App. 3d 1072, 1073-1074.) However, where, as here, the notice of appeal
was prematurely filed before the entry of judgment, we are authorized to treat the notice
as one filed immediately after the entry of judgment. (Cal. Rules of Court, rule 8.104(d).)
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I. Standard of Review
According to section 437c, subdivision (p)(2) of the Code of Civil Procedure, “A
defendant or cross-defendant has met his or her burden of showing that a cause of action
has no merit if that party has shown that one or more elements of the cause of action,
even if not separately pleaded, cannot be established, or that there is a complete defense
to that cause of action. Once the defendant or cross-defendant has met that burden, the
burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or
more material facts exists as to that cause of action or a defense thereto. The plaintiff or
cross-complainant may not rely upon the mere allegations or denials of its pleadings to
show that a triable issue of material fact exists but, instead, shall set forth the specific
facts showing that a triable issue of material fact exists as to that cause of action or a
defense thereto.”
We independently review an order granting summary judgment, viewing the
evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced
Group 400 (2001) 25 Cal. 4th 763, 768; Lackner v. North (2006) 135 Cal. App. 4th 1188,
1196.) In performing our independent review of the evidence, “we apply the same
three-step analysis as the trial court. First, we identify the issues framed by the
pleadings. Next, we determine whether the moving party has established facts
justifying judgment in its favor. Finally, if the moving party has carried its initial
burden, we decide whether the opposing party has demonstrated the existence of a
triable, material fact issue.” (Chavez v. Carpenter (2001) 91 Cal. App. 4th 1433, 1438.)
In determining whether there are triable issues of material fact, we consider all
the evidence set forth by the parties, except that to which objections have been made
and properly sustained. (Code Civ. Proc., § 437c, subd. (c); Guz v. Bechtel National,
Inc. (2000) 24 Cal. 4th 317, 334.) We accept as true the facts supported by plaintiff’s
evidence and the reasonable inferences therefrom (Sada v. Robert F. Kennedy Medical
Center (1997) 56 Cal. App. 4th 138, 148), resolving evidentiary doubts or ambiguities in
plaintiff’s favor (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768).
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II. A Store Owner’s Liability for a Dangerous Condition of Unknown Origin
The complaint alleged that plaintiff slipped and fell on “debris” on the staircase,
which constituted a dangerous condition. The complaint stated in relevant part that
“[d]efendants knew or through their exercise of reasonable care should have known, that
such conditions constituted a dangerous condition and unreasonable risk [of] harm” to
plaintiff.
The evidence showed, however, that plaintiff never saw any debris, but felt a
round object beneath her shoe. Plaintiff failed to mention the round object to the security
guards who responded to the incident and the object was never found. There was no
evidence of how or when the object first appeared on the staircase.
In general, where there is no evidence that the store owner created the dangerous
condition or how long 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 discover and remedy it.
[Citation.]” (Ortega, supra, 26 Cal.4th at p. 1203.) Although the owner of a store “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. [Citation.]” (Id. at p. 1205.)
“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. [Citation.] If the owner operates a self-service grocery store, where customers
are invited to inspect, remove, and replace goods on shelves, ‘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 by disarranging the merchandise’ and
creating potentially hazardous conditions. [Citation.] ‘However, the 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.’ [Citation.]” (Ibid.)
Where the source of the dangerous substance is unknown, proof of constructive
notice may be a required element of the plaintiff’s case. “Where the dangerous condition
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is brought about by . . . third persons . . . or by other causes which are not due to the
negligence of the owner, or his employees, then to impose liability the owner must have
either actual or constructive knowledge of the dangerous condition or have been able by
the exercise of ordinary care to discover the condition, which if known to him, he should
realize as involving an unreasonable risk to invitees on his premises. His negligence in
such cases is founded upon his failure to exercise ordinary care in remedying the defect
after he has discovered it or as a man of ordinary prudence should have discovered it.”
(Hatfield v. Levy Brothers (1941) 18 Cal. 2d 798, 806; see Ortega, supra, 26 Cal.4th at
p. 1206 [quoting from Hatfield].)
A. Defendant’s Evidence Showed That Bautista Inspected the Staircase Every
15 to 30 Minutes
Defendant presented evidence that on the date of the accident, Bautista inspected
the staircase at 15- to 30-minute intervals and, during her inspection of the staircase about
30 minutes before the accident, found no dangerous condition. This was consistent with
the store policy which called for inspection at 20- to 30-minute intervals. Appellant has
not contested the reasonableness of that policy, nor presented any evidence it should not
apply in this case. The trial court deemed the evidence sufficient to shift the burden to
plaintiff, who was therefore required to show that defendant either had constructive
notice of the dangerous condition or was negligent in failing to discover it earlier.
On appeal, plaintiff contends that the trial court erred in crediting defendant’s
evidence, which she claims failed to show the inspections were conducted at 15- to 30-
minute intervals on the date of the accident. In plaintiff’s view, the evidence merely
showed the existence of an inspection policy but nothing more. The evidence, according
to plaintiff, “is inadequate, because it establishes only what the policy was concerning
inspections, and not whether it was carried out on the date of the incident. Just because a
policy or schedule is established does not mean that the policy was enforced or adhered
to. Without further support, Ms. Bautista’s testimony is not probative on the issue of
when, or how frequently, the area in question was inspected, particularly in light of
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inconsistencies in her testimony. The mere existence of an inspection policy is
insufficient to establish a lack of constructive notice as a matter of law.”
We are not persuaded by plaintiff’s arguments, which do not accurately reflect the
substance of Bautista’s testimony. When Bautista was asked to explain how she knew
she inspected the staircase at 15- to 20-minute intervals, she replied, “That’s how we
were trained to work.” Her response, in our view, was simply another way of stating that
it was her custom and habit to inspect the staircase at the intervals specified by her
employer. (See Evid. Code, § 1105 [“Any otherwise admissible evidence of habit or
custom is admissible to prove conduct on a specified occasion in conformity with the
habit or custom.”].) Because we conclude her testimony that she inspected the staircase
every 15 to 30 minutes was based on personal knowledge, there was no lack of
foundation and the trial court did not err in relying on it.
Accordingly, the record supports the trial court’s determination that defendant’s
evidence, including Bautista’s declaration and testimony, was sufficient to shift the
burden of proof to plaintiff, who was obligated to show “that a triable issue of one or
more material facts exists as to that cause of action or a defense thereto.” (Code Civ.
Proc., § 437c, subd. (p)(2).) Because plaintiff failed to meet that burden, the motion was
properly granted.
B. The McKenney Case Is Distinguishable
Plaintiff contends the judgment should be reversed under McKenney, supra, 156
Cal. App. 2d 349, a slip and fall case in which summary judgment for the plaintiff was
affirmed. We disagree.
In McKenney, a customer (plaintiff) was shopping in defendant’s grocery store
when she slipped and fell on a piece of lettuce that was on the floor near checkstand
number 5. “About five minutes before the accident, the attendant at checkstand number 5
removed lettuce or cabbage leaves from merchandise she was ringing up on the cash
register.” (Id. at p. 354.) Defendant knew that upon request, its checkstand operators
would routinely remove any lettuce or cabbage leaves from the customer’s produce that
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“didn’t look good or edible.” (Ibid.) Because defendant “knew that greens handled by its
employees at the checkstand would fall from the counter to the floor,” defendant
“provided garbage receptacles under the checkstand.” (Ibid.) After noting that “[t]he
quantum of care which the law exacts is a question relative to the facts of each case,” the
appellate court affirmed summary judgment for plaintiff, because “it can fairly be
inferred that defendant was responsible for the vegetable matter on the floor and that
plaintiff’s fall was caused by slipping on such matter.” (Id. at p. 355.)
McKenney is clearly distinguishable. The facts in that case readily supported an
inference that the dangerous substance—a leaf—had fallen to the ground after being
removed from a customer’s produce by the clerk at checkstand number 5, which was a
routine practice that defendant facilitated by placing “garbage receptacles under the
checkstand.” (156 Cal.App.2d at p. 354.) In this case, on the other hand, there was no
evidence as to how or when the unknown object first appeared on the staircase. The
unknown object in this case, unlike the lettuce leaf in McKenney, was not tied to any of
defendant’s routine operations or activities. Because there was no evidence in this case
that the alleged hazardous condition was created by the activities of defendant or its
employees or contractors, McKenney’s analysis does not apply here.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
SUZUKAWA, J.
We concur:
EPSTEIN, P. J. MANELLA, J.
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