Pollock v. Panda Express CA2/2 ( 2024 )

Filed 1/19/24 Pollock v. Panda Express CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
JOAN ORTIZ POLLOCK, B325058
Plaintiff and Appellant,
(Los Angeles County
v. Super. Ct. No.
20STCV44450)
PANDA EXPRESS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Audra M. Mori, Judge. Affirmed.
Law Offices of Andrew Zeytuntsyan, Andrew Zeytuntsyan;
Gelb Law and Yisrael Gelb for Plaintiff and Appellant.
Murchison & Cumming, Christopher M. McDonald and
Matthew E. Voss for Defendant and Respondent.
__________________________________________
Joan Ortiz Pollock (Plaintiff) sued Panda Express, Inc.
(Defendant) for premises liability after she slipped and fell on the
floor of one of Defendant’s restaurants. The trial court granted
Defendant summary judgment. Plaintiff appealed. We conclude
the error in one of the trial court’s evidentiary rulings was
harmless, and there were no triable issues of fact as to
Defendant’s liability. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
At approximately 7:23 p.m. on March 6, 2019, Plaintiff
walked through the main entrance of the restaurant to purchase
some dinner to take home. It had been raining that day. Just
inside the main entrance, Plaintiff wiped her shoes on a rubber
“anti-slip” floor mat. Plaintiff then turned to her left and walked
toward the rest rooms located down a hallway near a side door
entrance to the restaurant. As she approached the women’s rest
room at approximately 7:24 p.m., Plaintiff slipped and fell on the
floor between the women’s and men’s rest rooms. Plaintiff
screamed.
Plaintiff does not know what caused her to slip and fall.
The hallway had adequate lighting that night. While on the floor
after her fall, Plaintiff did not see anything that she believed
made her fall. Plaintiff never advised Defendant’s employees of
any substance on the floor that she believed had caused her to
slip.
At approximately 7:22 p.m., two minutes prior to Plaintiff’s
fall, Oscar Hernandez, the restaurant’s assistant manager, made
his way to the men’s rest room. En route, Hernandez inspected
the hallway floor outside the men’s and women’s rest rooms.
Hernandez saw no liquids, debris, or foreign substances on the
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floor. If he had, Hernandez would have instructed another
employee to clean up such materials, or would have immediately
done so himself.
Two minutes after entering the men’s rest room,
Hernandez heard screams and exited to find Plaintiff on the
hallway floor he had just inspected. Hernandez saw no liquids,
debris, or foreign substance on the floor where Plaintiff fell.
No surveillance video footage was produced showing the
hallway outside the rest rooms where Plaintiff fell on the night of
March 6, 2019. Both parties produced still photographs from
surveillance videos and the surveillance videos depicting the area
immediately inside both the main entrance and the side door. 1
The still photographs were time and date stamped from 7:14 p.m.
to 8:43 p.m. that night.
II. Procedural Background
In November 2020, Plaintiff sued Defendant for premises
liability. Plaintiff alleged in her complaint that while in the
Defendant’s restaurant, she “slipped and fell on a slippery
substance” and was injured due to Defendant’s negligence.
Defendant moved for summary judgment, arguing there
were no triable issues of material fact that prior to Plaintiff’s slip
and fall, Defendant had no actual notice of any dangerous
condition on the hallway floor and had no reasonable time to
discover and correct any such hazard. The motion was supported
by a declaration from Hernandez, the surveillance videos and still
photographs, and excerpts from Plaintiff’s deposition.
1 The CD’s of the surveillance videos are not part of the
record on appeal and the Internet link to them has expired.
However, the still photographs are part of the record.
3
Along with her opposition, Plaintiff submitted a declaration
by a “safety and liability expert,” Eris J. Barillas (Barillas), who
opined that “Defendant’s failure to properly maintain the walking
surfaces in the dining room in combination with Defendant’s
practice of allowing trash to accumulate and overflow from the
trash receptacles onto the floor, thereby contaminating the floor
surface, was the cause of Plaintiff’s fall and resultant injuries.”
The declaration was accompanied by the still photographs from
the restaurant’s surveillance videos. Additional Plaintiff’s
exhibits were excerpts of Hernandez’s and Plaintiff’s depositions.
Plaintiff also filed evidentiary objections to Hernandez’s
declaration.
Defendant filed a reply and evidentiary objections to the
declaration of Plaintiff’s expert.
Following a hearing, the trial court granted Defendant
summary judgment. Citing Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200 (Ortega) and Girvetz v. Boys’ Market, Inc. (1949) 91
Cal.App.2d 827, the court explained Defendant could be liable for
premises liability only if the restaurant had “constructive notice”
of the “alleged dangerous condition.” The court ruled there were
no triable issues of material fact as to whether the restaurant
had constructive notice of any liquids, debris or foreign
substances on the floor because it was undisputed that
Hernandez had inspected the hallway area between the rest
rooms just two minutes before Plaintiff’s slip and fall. “A period
of two minutes is too short of a time to require Defendant to have
discovered the condition and remedied it, and thus to establish
constructive notice.”
Following the entry of judgment, Plaintiff filed this timely
appeal.
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DISCUSSION
I. Trial Court’s Evidentiary Rulings Were Partially
Incorrect, but Harmless
As a threshold matter, Plaintiff contends the trial court
erroneously excluded portions of the declaration of Plaintiff’s
expert, Barillas. Although the standard of review for evidentiary
rulings on summary judgment has yet to be settled by our
Supreme Court, we side with the majority rule and review such
rulings for an abuse of discretion. (LAOSD Asbestos Cases (2023)
87 Cal.App.5th 939, 946 & fn. 3.)
The trial court excluded two categories of information set
forth in Barillas’s declaration—namely, (1) Barillas’s recounting
of Plaintiff’s deposition testimony that Plaintiff saw an “oily
contaminant” or “substance” on the floor when she fell, on the
grounds that this recounting ran afoul of People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez) and (2) five other portions of Barillas’s
declaration, on unspecified grounds. Because Plaintiff did not
ask the trial court to clarify the grounds for excluding the second
category of statements, and because Plaintiff mistakenly argues
on appeal that they were excluded on Sanchez grounds, only the
trial court’s ruling on the first category is properly before us on
appeal.
The trial court erred in excluding the portions of Barillas’s
declaration that merely recounted Plaintiff’s deposition
testimony, but that error was harmless. Sanchez provides that
an expert may rely on inadmissible hearsay in forming an
opinion, but may not relay that hearsay unless it is otherwise
admissible in evidence. (Sanchez, supra, 63 Cal.4th at pp. 685–
686.) Although a party’s deposition testimony admitted for its
truth constitutes hearsay when offered by that party at trial, it is
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not hearsay when offered by that party on a motion for summary
judgment—where a party’s deposition functions as their in-court
testimony. (E.g., Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1119–1120.) Thus, Barillas’s recitation of
Plaintiff’s deposition testimony did not run afoul of Sanchez. As
explained below, however, this error was harmless because
neither Plaintiff’s deposition testimony nor Barillas’s expert
opinion relying upon that testimony creates a triable issue of fact
as to whether Defendant had constructive notice of the substance
Plaintiff saw on the ground.
II. Summary Judgment Law
Summary judgment is appropriate if there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) “ ‘ “ ‘ “We review the trial court’s decision
de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.” ’ [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” ’ ”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)
A defendant moving for summary judgment has the initial
burden of presenting evidence that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 853.) If the defendant satisfies this initial burden, the
burden shifts to the plaintiff to present evidence demonstrating
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there is a triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p)(2); Aguilar, at p. 850.)
III. Premises Liability Law
The elements of a premises liability claim are the same as
those of a negligence claim: “a legal duty of care, breach of that
duty, and proximate cause resulting in injury.” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1158.) “[L]andowners are
required ‘to maintain land in their possession and control in a
reasonably safe condition’ [citation], and to use due care to
eliminate dangerous conditions on their property.” (Taylor v.
Trimble (2017) 13 Cal.App.5th 934, 943–944; accord, Ortega,
supra, 26 Cal.4th at p. 1205 [“It is well established in California
that although a store owner 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”].) “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.” (Ortega, at p. 1205.)
“ ‘On the issue of the fact of causation, as on other issues
essential to the cause of action for negligence, the plaintiff, in
general, has the burden of proof. The plaintiff must introduce
evidence which affords a reasonable basis for the conclusion that
it is more likely than not that the conduct of the defendant was a
cause in fact of the result. . . .’ [Citation.] In the context of a
business owner’s liability to a customer or invitee, speculation,
and conjecture with respect to how long a dangerous condition
has existed are insufficient to satisfy a plaintiff's burden.”
(Ortega, supra, 26 Cal.4th at pp. 1205–1206; accord, Peralta v.
The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)
“Because the owner is not the insurer of the visitor’s personal
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safety [citation], the owner’s actual or constructive knowledge of
the dangerous condition is a key to establishing its liability.”
(Ortega, at p. 1206; accord, Peralta, at p. 1035; Girvetz v. Boys’
Market, Inc., supra, 91 Cal.App.2d at p. 829 [a store owner is “not
an insurer of the safety of [its] patrons”].) Moreover, “where the
plaintiff relies on the failure to correct a dangerous condition to
prove the owner’s negligence, the plaintiff has the burden of
showing that the owner had notice of the defect in sufficient time
to correct it.” (Ortega, at p. 1206.)
Where, as here, there is “no evidence of the source of the
dangerous condition or the length of time it existed,” a store
owner’s “failure to inspect the premises within a reasonable
period of time” creates an “inference that the defective condition
existed long enough for a reasonable person exercising ordinary
care” to have constructive notice of that condition (which, in turn,
constitutes evidence that the owner breached its duty of care).
(Ortega, supra, 26 Cal.4th at p. 1203; Moore v. Wal-Mart Stores,
Inc. (2003) 111 Cal.App.4th 472, 477.) What is a “reasonable
period of time” depends on the “unique circumstances” of each
case. (Ortega, supra, 26 Cal.4th at p. 1207.)
IV. No Triable Issue of Fact as to Constructive Notice
A. Defendant’s Initial Burden
We independently agree with the trial court that Defendant
carried its initial burden of establishing the restaurant had no
constructive notice of any liquids, debris, or foreign substances on
the floor where Plaintiff fell, and thus did not breach its duty of
care to Plaintiff. No one knew the origin of any substance that
Plaintiff claimed had caused her to slip and fall. Nor did anyone
know how the purported substance was transported there.
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Although Barillas’s acknowledged these facts in her
declaration, she nonetheless suggested—in the admissible
portions of her declaration—that the incident was caused by
overflowing trash receptacles inside the main entrance and food
spilled on the floor that Plaintiff had traversed. As the trial court
determined, the theory that Plaintiff’s fall was caused by debris
on the floor is speculative. None of the accompanying
photographs on which Barillas relies show the trash cans were
overflowing or there was trash or food on the floor where Plaintiff
was seen walking. (Garibay v. Hemmat (2008) 161 Cal.App.4th
735, 743 [expert opinions based on assumptions of fact with no
evidentiary support are speculative and without evidentiary
value and do not raise triable issues of fact]; Sanchez v. Kern
Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th
146, 155 [same].) Barillas’s speculative opinion presents no
triable issue of fact.
More importantly, it is uncontroverted that Hernandez had
inspected the very area in this case just two minutes before
Plaintiff’s slip and fall, which satisfies Defendant’s initial burden:
Where a “store owner has taken care in the discharge of its duty[]
by inspecting its premises in a reasonable manner, then no
breach will be found even if a plaintiff does suffer injury.”
(Ortega, supra, 26 Cal.4th at p. 1211.) This means the trial court
properly found Plaintiff’s attack on Hernandez’s credibility has
no bearing on whether summary judgment is to be granted.
“[S]ummary judgment shall not be denied on grounds of
credibility.” (Code Civ. Proc., §437c, subd. (e); Binder v. Aetna
Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [“The trial court may
not weigh the evidence in the manner of a fact finder to
determine whose version is more likely true. [Citation.] Nor may
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the trial court grant summary judgment based on the court’s
evaluation of credibility”].) Plaintiff’s assertion to the contrary,
the court properly referenced and applied this rule of law.
Plaintiff’s challenge to Hernandez’s credibility raises no triable
issue of fact.
On de novo review, we also agree with the trial court’s
finding that Hernandez’s inspection of the area two minutes
before Plaintiff’s fall, combined with Plaintiff’s testimony of not
seeing anything on the floor before she fell negate an inference a
dangerous condition existed long enough for the restaurant to
reasonably discover it. (See Peralta, supra, 24 Cal.App.5th at p.
1037 [trial court properly granted summary judgment in favor of
store where clerk’s sweep was recorded fewer than eight minutes
before the plaintiff’s fall, clerk did not see anything in his sweep,
and the plaintiff admitted she did not see any substance on the
floor before or after her fall]; Girvetz v. Boys’ Market, Inc., supra,91 Cal.App.2d at p. 831 [customer’s fall on banana peel
remaining on the floor for one-and-a-half minutes was
insufficient time for constructive notice].) Plaintiff did not
establish a triable issue of fact as to constructive notice.
B. Plaintiff’s Consequent Burden
Plaintiff offers three arguments in response. First, the trial
court “should have applied the holding in Scott v. Alpha Beta Co.
(1980) 104 Cal.App.3d 305, 310–311 (Scott), a comparative
negligence case. In Scott, a store customer brought an action for
negligence alleging rainwater tracked onto a slippery interior
floor mat caused her to fall. (Id. at pp. 306–307.) There was
evidence the owner had sufficient notice of the dangerous
condition of the property. The owner knew it was raining, knew
invitees would be continuously entering the building while it was
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raining and would track water onto the floor, and knew the floor
was slippery when wet and the mat collected water. (Id. at pp.
307–308.) There was also evidence the customer had failed to
exercise due care for her safety. The customer had a “trick knee,”
which may have given out and caused her to fall, she wore house
slippers into the store and might be expected to know the slippers
would remain wet when she reached the end of the floor mat, and
she took no special precautions in stepping from the mat to the
floor. (Id. at p. 310.)
A jury found the store 60 percent negligent and the
customer 40 percent negligent. (Scott, supra, 104 Cal.App.3d at
p. 306.) Both parties appealed, and the judgment was affirmed.
(Id. at p. 311.) Scott is of no assistance to Plaintiff for many
reasons. Chief among them is, unlike this case, the origin and
nature of the dangerous condition—a steady stream of rainwater
on an already slippery floor and wet floor mat—was clearly
known to the store. Here, neither the source nor location of the
alleged substance was known to anyone before Plaintiff fell. This
distinction is made more obvious by Plaintiff’s changing claims as
to the nature of that substance—trash or rainwater. We cannot
infer the existence of evidence from the absence of evidence.
Plaintiff further argues the question of causation is
typically one for the jury (Kaney v. Custance (2022) 74
Cal.App.5th 201, 212), thus rendering it inappropriate to grant
summary judgment. This is true. However, it is ultimately
irrelevant where, as here, causation cannot be established by
nonspeculative evidence (see Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 774), and there is no triable issue of fact as
to the lack of constructive notice. Summary judgment is still
appropriate where the “facts . . . are undisputed” or where
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reasonable minds can come to but one conclusion. (Ortega,
supra, 26 Cal.4th at p. 1205.)
Finally, Plaintiff urges that the trial court erred in not
applying the doctrine of res ipsa loquitur. Because Plaintiff
failed to present, develop, and advance her legal argument
regarding res ipsa loquitur before the trial court, she has forfeited
that argument on appeal. (See Bently Reserve LP v. Papaliolios
(2013) 218 Cal.App.4th 418, 435–436 [failure to sufficiently raise
an issue before trial court forfeits the issue on appeal]; Roman v.
BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1056; Peart v.
Ferro (2004) 119 Cal.App.4th 60, 70 [appellate court will not
entertain potential theories that could create triable issues of fact
unless presented, developed, and argued to the trial court].)
Moreover, even if we were to consider Plaintiff’s argument, we
would conclude it lacks merit.
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DISPOSITION
The judgment is affirmed. Defendant, Panda Express,
Inc., shall recover its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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