Perez v. Hibachi Buffet ( 2022 )

Filed 8/30/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JORGE PEREZ, B304824
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC659957
v.
HIBACHI BUFFET,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly E. Kendig, Judge. Reversed and
remanded.
Kramer Trial Lawyers, Daniel K. Kramer, Teresa A.
Johnson; Esner, Chang & Boyer, Stuart B. Esner and Kevin K.
Nguyen for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Don Willenburg; Miller
Law Associates, Frank T. Sabaitis and Jeanette Chu for
Defendant and Respondent.
____________________
Wet tile at Hibachi Buffet caused Jorge Perez to slip and
hit the floor hard. The jury awarded damages, but the court
granted Buffet’s two posttrial motions. One was for judgment
notwithstanding the verdict. The other, in the alternative, was
for a new trial. Identical logic propelled both motions. Buffet
said no evidence showed its employees spilled liquid on its floor,
so blaming them was impermissibly speculative. Perez, however,
said the pattern of the spill, in context, supported a reasonable
inference it must have come from an employee, for how else
would a spattered 10-foot trail of liquid 10 inches wide end up in
the hallway to the kitchen?
We reverse both orders and reinstate the jury verdict.
Perez offered a reasonable explanation for how the tile got wet,
one consistent with the company’s admission about its use of the
hallway: a Buffet employee taking dirty dishes to the kitchen
spilled liquid on the way. By contrast, Buffet’s explanations
made no sense.
Spilling liquid on the floor is an everyday event. When the
facts are this simple and the contest is between a reasonable
explanation and no reasonable explanation, the reasonable
explanation wins.
I
Hibachi Buffet could seat 200 customers. Its employees
took dirty dishes from the dining area to the kitchen for washing.
Buffet’s three-level dish cart could carry tubs and buckets. The
record contains a picture of a dish cart, although here it is not in
the hallway where Perez fell. (See appendix A., post, p. 15.)
On the top level there could be a tray for drinking cups.
Cups would contain whatever liquid customers left in them when
Buffet employees cleared dirty dishes from tables.
2
On the day of the incident, Perez left his lunch table and
walked down a hallway to a restroom. The hallway was three to
four feet wide and led past the restrooms to the kitchen. Perez
noticed no moisture on the floor. He was in the restroom for 45 or
60 seconds adjusting his dentures. Then he left, stepped into the
hallway, slipped, and fell. The flooring was tile and liquid had
made it slippery.
Everyone agrees the hallway floor was wet when Perez left
the restroom. Perez assumed it was water: it was clear and had
no odor. Others saw and photographed the liquid and Buffet
admits the liquid was there, but the parties do not agree how it
got there.
Perez’s friend took a video of the liquid after Perez fell.
This two-minute video is in the record. A frame of that video
appears in appendix B, post, page 16.
The video clarifies what this one frame does not. At the top
is the fallen and injured Perez. Someone else’s foot is on the
white cloth, mopping up the liquid after Perez’s fall.
Perez contended the liquid in this picture must have come
from a Buffet worker bringing dirty dishes through the hallway
from the dining area to the kitchen at the end of the hallway.
Perez testified the liquid was in a trail eight to 10 feet long and
ranged to 10 inches wide.
Of significance, the liquid’s path extended past the
restrooms in the hallway in both directions; the path did not
emerge from or enter a restroom.
A discovery admission concerned this hallway. Perez put
into evidence Buffet’s admission that its employees used this
hallway to transport dishware from the dining area to the
kitchen.
3
We quote this admission. “ ‘Admit that during business
hours your employees transport dishware from the main dining
room of the subject premises to the kitchen using the subject
hallway.’ Again, ‘subject hallway’ is the hallway where the
incident occurred. ‘Subject incident’ is the slip and fall that
happened. The answer is—from the restaurant is ‘admit.’ ”
Two Buffet witnesses, however, gave a different
perspective. Both discounted the possibility the liquid came from
a dish cart in the hallway where Perez fell.
Lanfang Wang was a Buffet manager who became a Buffet
owner. She swore Buffet dishwashers did not use that hallway
when their dish carts were full of dirty dishes. Wang claimed it
was “impossible” for anyone to push a full cart through that
hallway because it was very narrow. She said a different route to
the kitchen was easier when the cart is full. Wang claimed she
had never seen one of her employees push a cart with dirty dishes
down the hallway where Perez fell. She also claimed she had
never seen liquid leak from a dish cart to the floor. Wang
declared such a leak was “impossible” because cups were always
completely or nearly empty when workers picked them up from
the dining tables.
Wang did agree Buffet employees used carts to move
dishes. She likewise agreed the hallway where Perez fell goes
from the dining area to the kitchen.
Buffet manager Charlie Qiang never saw dishwashers take
dish carts down the restroom hallway where Perez fell. Instead,
the carts went to the kitchen down a different hallway. Qiang
had never seen liquid spill or drain from the dish carts.
To record incidents like customer falls, Buffet had six or
seven security cameras inside the restaurant. Wang searched the
4
stored video and found the portion showing Perez. She claimed
at trial she had seen nothing relevant on this tape: she testified
she saw Perez only entering the hallway and that, after he
entered, the camera angle did not allow a view of his fall.
Wang did not try to preserve this tape and said it may have
been erased. Wang also testified she did not know whether there
was a way to preserve the video footage and professed ignorance
about whether the footage still existed and who would know if it
did.
In short, Buffet invested in cameras to record falls like
Perez’s but claimed the tape of his fall was either missing or had
been erased. Buffet never produced the video to Perez and the
jury never saw it.
In limine, the trial court refused to give an instruction
about spoliation of evidence, ruling that Perez had not
established Buffet willfully destroyed the video. Perez does not
challenge this ruling on appeal.
In closing argument, Perez’s counsel told the jury the liquid
trail came from a Buffet employee transporting liquids from the
dining area to the kitchen. “How else could the liquid have
gotten there? . . . There’s no other explanation for it.”
With reference to the missing videotape, Perez urged the
jury to apply this instruction, which the court gave: “You may
consider the ability of each party to provide evidence. If a party
provided weaker evidence when it could have provided stronger
evidence, you may distrust the weaker evidence.” (CACI No.
203.)
Buffet’s closing responded that there was no evidence about
a leaking dish cart, so to ascribe the liquid to a spill by a Buffet
employee would be improper speculation. To the jury, Buffet
5
offered other explanations of how the liquid got there. Buffet
suggested, “[I]t could have been from that little girl. It could
have been somebody who didn’t make it to the restroom. It could
have been a customer with a soda or—or a water. We don’t
know.”
Buffet did not explain about “that little girl.”
The jury awarded Perez $850,000 in damages.
After this verdict, Buffet moved for a new trial and, in the
alternative, for judgment notwithstanding the verdict.
The court granted both motions.
On the motion for a new trial, the court wrote no evidence
showed Buffet’s employees “created or deposited the liquid on the
floor that caused Plaintiff to slip. There was no evidence as to
what the liquid was, no evidence when or how the liquid was
deposited on the floor, no evidence which proved that liquid ever
dripped from the carts of dirty dishes, and no evidence that an
employee pushed a cart full of dirty dishes down the hallway
leading from the dining room to the restroom on the day of the
incident. There was also no evidence at trial that the carts
spilled liquid. [¶] Indeed, the evidence established that there
was a separate hallway to the kitchen for the carts of dishes. Ms.
Wang testified that it did not make sense that an employee would
go down the hallway to the restroom to get to the kitchen,
because it involves a narrow hallway and ‘that would take more
energy and force for the employee to push that cart. And it would
take longer for them to get to the kitchen.’ [Citation omitted.] [¶]
There was no evidence presented at trial that carts went down
that specific hallway on the day of the incident with cups and
dirty dishes. There was no testimony from any witness that
6
Defendant’s dishwasher pushed a cart down the hallway on the
day of the incident.”
The trial court noted valid inferences must be based on the
evidence presented at trial, and wrote that no evidence at trial
supported the inference that a Buffet employee spilled the liquid.
The court rejected inferences to be drawn from the spill pattern
itself. “Although Plaintiff asserts that the trail of liquid ‘exactly
mimics the path taken by a [Buffet] employee pushing a cart in or
out of the (restroom) hallway,’ there is no foundation in any
evidence presented at trial. There was absolutely no evidence
presented at trial regarding what a typical spill pattern of liquid
would have looked like if it had come from a cart. As a result,
any such inference that the jury could have drawn that the trail
of liquid ‘exactly mimics the path taken by a [Buffet] employee
pushing a cart in or out of the hallway,’ was not a reasonable
inference based on the evidence presented at trial. [¶] There was
no evidence at trial that carts ever dripped liquid. And there was
no evidence that carts dripped liquid on the day of the incident. . .
. [I]t is not common knowledge that carts drip liquid when they
traverse hallways and there was no evidence that carts ‘often
leave’ liquid spills. In fact, there was no evidence at trial that
carts ever dripped liquid.”
The court did recite and credit Perez’s testimony about his
fall and his having seen the “trail of liquid” after he fell.
Ruling it was impermissible speculation to conclude a
Buffet employee caused the spill, the court granted Buffet’s
motion for a new trial.
In a separate order the same day and in the alternative,
the court also granted Buffet’s motion for judgment
notwithstanding the verdict. This ruling stated the court could
7
not weigh the evidence but rather had to view the record in the
light most favorable to the party that had secured the verdict.
The court analyzed the evidence in language substantially
identical to its review in the motion for a new trial. It granted
the motion on the ground that a different ruling would involve
pure speculation.
In both analyses, the court omitted mention of Buffet’s
discovery admission that its employees use that hallway to
transport dishware from the dining area to the kitchen. The
court also omitted the fact the restaurant video was missing. The
court did not discuss the plausibility of Buffet’s trial explanations
for the liquid.
Perez appealed both orders.
II
We reverse both orders. Perez proved he slipped on a wet
floor and gave a commonplace explanation for how the floor got
wet: a Buffet employee spilled the liquid taking dishes to the
kitchen for washing. The probable explanation was
straightforward, logical, and supported by the evidence. The jury
accepted Perez’s reasonable explanation and rejected Buffet’s less
plausible alternatives. We reinstate the jury’s verdict.
The parties agree about the governing law. If Buffet’s
employees acted within the scope of their employment, Buffet is
liable for their negligent acts that create a dangerous condition
on the property that caused injury. The employer cannot assert
it had no knowledge of the dangerous condition. The law imputes
the employee’s negligence to the employer. (Hatfield v. Levy
Brothers (1941) 18 Cal.2d 798, 806.) No one contends Buffet
workers in this case acted outside of the scope of their
employment.
8
More pertinent legal background concerns inferences.
Given a trial record, what inferences are permissible? This is a
question of law. We review it independently. (Lopez v. City of
Los Angeles (2011) 196 Cal.App.4th 675, 684–685.) Logical
inferences are permissible but speculation is not. (Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1205–1206.)
A
We reverse the order for judgment notwithstanding the
verdict. Viewed in a light favorable to the jury’s decision, the
verdict was sound. It was error to suppose otherwise and to
grant judgment notwithstanding the verdict.
When considering such a motion, a trial court must view
the evidence in the light most favorable to the party that won the
verdict. This means disregarding conflicting evidence and
drawing inferences in favor of the verdict. The court can grant
the motion only if the evidence, in that light, offers no substantial
support for the verdict. On appeal, the standard of review is
whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion. (Webb v. Special
Electric Co., Inc. (2016) 63 Cal.4th 167, 192.)
In the light favorable to the verdict, the evidence supported
Perez’s view of the case. He slipped in a restaurant hallway on a
liquid trail that was 10 feet by 10 inches, in a wide spatter
pattern. In discovery, Buffet admitted its staff used this hallway
to take dishes from the dining area to the kitchen. The jury
heard this discovery admission, which is binding and cannot be
controverted. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30; see
Code Civ. Proc., § 2033.410.) Workers used carts to bus tables
and collected drinking cups containing liquid. The hallway’s
hard tile surface was slippery when wet. The liquid trail began
9
before the restrooms and continued past them. Perez’s counsel
argued to the jury that it was more likely than not that a
restaurant employee spilled the liquid, which made the tile
slippery and caused the fall.
Perez’s analysis made sense. It required an inference, but
the inference was logical. Everyone agreed a trail of liquid in fact
was on the hallway floor. It got there somehow. Perez’s
suggestion fit common experience: more likely than not, it came
from a restaurant employee who spilled liquid taking dirty dishes
from the dining area to the kitchen.
Many events in human affairs are complex or beyond
explanation. (See, e.g., Bockrath v. Aldrich Chemical Co., Inc.
(1999) 21 Cal.4th 71, 79 [“complicated and possibly esoteric
medical causation issues”].) Spilling liquid from dishes headed
for the kitchen is not one. This matter was within the jury’s
experience and competence.
Buffet’s contrary explanations made little sense. “It could
have been from that little girl. It could have been somebody who
didn’t make it to the restroom. It could have been a customer
with a soda or—or a water. We don’t know.”
The “little girl” explanation was baffling. Buffet did not
explain it.
Buffet’s suggestion that it was “somebody who didn’t make
it to the restroom” did not fit the facts. The liquid trail went past
the restrooms and would not have come from someone rushing for
a restroom. No testimony suggested the liquid smelled or looked
like urine. At the lunch hour, it would be unusual for someone to
create a 10-foot stream of urine down a restaurant’s public
hallway, past the restrooms, and heading for the kitchen or the
10
dining area. Buffet’s briefing does not address the difficulties
with this theory.
Buffet’s suggestion that it was a “customer with a soda
or . . . a water” clashes with the spill pattern, which was linear,
lengthy, and continuous. The line of liquid went past the
restrooms and extended towards the kitchen. No evidence
showed customers handled drinks in this area.
A careless Buffet employee remains the best explanation
for the liquid on this hallway floor. This analysis is common
sense, which tort law incorporates. (See Dobbs v. City of Los
Angeles (2019) 41 Cal.App.5th 159, 162.)
When one explanation adds up and competing explanations
do not, it is reasonable to accept the sensible explanation in a
situation this simple. That is logic, not speculation.
Buffet’s appellate briefing leaves the origin of the liquid
unexplained. It omits the three explanations it gave the jury:
the little girl, the person rushing to the restroom, and the
customer with a soda. Buffet’s briefing implies the liquid in the
hallway is inexplicable. This stance, however, gives jurors too
little credit for rationality and life experience.
Buffet argues it was “impossible” for a dish cart to go down
the hallway where Perez fell because that hallway was too
narrow and because a different hallway was a more direct route.
The trial court accepted the essence of Buffet’s view. In
discovery, however, Buffet (assisted by its counsel) admitted its
employees used this hallway to transport dishware from the
dining room to the kitchen. The jury heard this admission.
Buffet’s appellate argument assumes the jury was required to
believe the efforts of Wang, Buffet’s manager, to qualify and
“clarify” this admission. The jury however was free to reject
11
Wang’s testimony as self-interested, inconsistent, and
unsupported by the missing video Wang viewed but did not
preserve. The testimony of Qiang suffered similar problems.
Buffet attempts to minimize its discovery admission, saying
it admitted only that employees transported “dishware” in this
hallway, not dirty dishware in a dish cart. But jurors could infer
the dishes that workers were bringing from the dining room to
the kitchen would be, in the main, the dirty ones. The dish cart
is a logical inference from the admission, and in any event is not
crucial to Perez’s explanation, for everyone knows it is possible to
carry dishes without a cart. People do this all the time.
In sum, when viewing the evidence in a light favorable to
the verdict, it was legal error to reject the verdict as
impermissible speculation. The jury was reasoning, not guessing.
B
We reverse the order granting Buffet a new trial.
A statute establishes and circumscribes the authority of
trial courts to grant new trials. (Oakland Raiders v. National
Football League (2007) 41 Cal.4th 624, 633.) Code of Civil
Procedure section 657 requires an order granting a new trial to
specify not only the ground for the order but also “the court’s
reason or reasons for granting the new trial upon each ground
stated.” Orders may not be affirmed on the ground of
insufficiency of the evidence unless that ground is specified in the
order. (§ 657.) “California courts have consistently required
strict compliance with section 657.” (Oakland, at p. 634.)
It is an abuse of discretion to grant a new trial on the
ground of insufficient evidence without mentioning a pertinent
discovery admission. Admissions are conclusive and not subject
to being contested through contradictory evidence. (Stover v.
12
Bruntz, supra, 12 Cal.App.5th at p. 30; see Code Civ. Proc.,
§ 2033.410.) A court disparaging the evidentiary basis for a
verdict must explain how its view squares with the conclusive
and contrary power of this discovery device.
That explanation was missing here.
Buffet cites Fredericks v. Kontos Industries, Inc. (1987) 189
Cal.App.3d 272, 274, 276–279 to support the notion that, in
certain cases, the trial court has discretion to determine the scope
and effect of an admission. But the trial court’s order did not
attempt this effort.
There was prejudice. Buffet’s admission put its employees
in the hallway where Perez slipped, transporting dishes from the
dining area to the kitchen. Buffet’s witness testified the dishes
included cups containing the liquid customers left in them. The
trial court credited Perez with observing a “trail of liquid” down
the hallway stretching eight to 10 feet. The video portrayed the
spill’s shape. Neither Buffet nor the trial court offered another
plausible explanation. The verdict enjoyed reasonable
evidentiary support.
13
DISPOSITION
We reverse the orders, reinstate the verdict, award costs to
appellant, and remand for further proceedings.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
14
APPENDIX A
15
APPENDIX B
16