Jacquez v. Costco Wholesale Corporation

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 RAFAELA JACQUEZ, Case No. 4:22-cv-03718-HSG 8 Plaintiff, ORDER DENYING MOTION FOR SUMMARY JUDGMENT 9 v. Re: Dkt. No. 27 10 COSTCO WHOLESALE CORPORATION, ROBERT FERGUSON, and DOES 1 to 100 11 Inclusive, 12 Defendant. — 13 — 14 Pending before the Court is Defendant Costco Wholesale Corporation’s motion for 15 summary judgment as to Plaintiff’s causes of action for premises liability and negligence. See 16 Dkt. No. 27. The Court finds this matter appropriate for disposition without oral argument and the 17 matter is deemed submitted. See Civil L.R. 7-1(b). Having carefully considered the parties’ 18 arguments, the Court DENIES the motion for summary judgment. 19 I. BACKGROUND 20 The following facts are based on the evidence viewed in the light most favorable to 21 Plaintiff as the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) 22 (on a motion for summary judgment, “[t]he evidence of the nonmovant is to be believed, and all 23 justifiable inferences are to be drawn in [her] favor”). 24 On the morning of December 21, 2020, Plaintiff entered the Costco store located in 25 Richmond, California. See Dkt. No. 52-1, Ex. B (“Jacquez Depo”) at 19:9–15. Plaintiff walked to 26 the paper products aisle where she noticed shrink-wrap lying on the floor. Id. at 28:10–25; 29:1– 27 15. She walked over the shrink-wrap to retrieve an item on the shelf. Id. at 39:10–15. As 1 became tangled in the shrink-wrap, and she fell. Id. at 37:14–15; 43:6–9. Shortly after the fall, 2 Plaintiff partially filled out an incident report with Defendant in which she noted that the accident 3 occurred at 10:20 a.m. Id. at 69:11–24. 4 In its motion for summary judgment, Defendant contends that Plaintiff has not proffered 5 evidence that Defendant had any actual or constructive notice of the shrink-wrap’s presence on the 6 floor. See Dkt. No. 27 (“Mot.”) at 1. Defendant further contends that the undisputed evidence 7 shows that Defendant had performed an inspection of the area where Plaintiff fell at approximately 8 9:45 a.m. and found no hazards. See id. Defendant also contends that the danger of the shrink9 wrap on the floor was so open and obvious that it should not be held liable for Plaintiff’s fall 10 regardless of whether it had notice. See Mot at 14. Plaintiff counters that triable issues of fact 11 exist as to whether Defendant had constructive notice of the allegedly dangerous condition, and 12 that the dangerous condition was not necessarily open and obvious. See Dkt. No. 52 (“Opp.”) at 13 14–16. As discussed below, the Court finds that Plaintiff has raised at least one genuine dispute of 14 material fact that precludes summary judgment. 15 II. LEGAL STANDARD 16 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 17 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 18 A fact is “material” if it “might affect the outcome of the suit under the governing law.” 19 Anderson, 477 U.S. at 248 . And a dispute is “genuine” if there is evidence in the record sufficient 20 for a reasonable trier of fact to decide in favor of the nonmoving party. Id. But in deciding if a 21 dispute is genuine, the court must view the inferences reasonably drawn from the materials in the 22 record in the light most favorable to the nonmoving party, Matsushita Elec. Indus. Co. v. Zenith 23 Radio Corp., 475 U.S. 574 , 587–88 (1986), and “may not weigh the evidence or make credibility 24 determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), overruled on other 25 grounds by Shakur v. Schriro, 514 F.3d 878 , 884–85 (9th Cir. 2008). 26 With respect to summary judgment procedure, the moving party always bears both the 27 ultimate burden of persuasion and the initial burden of producing those portions of the pleadings, 1 Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will not bear the burden of 2 proof on an issue at trial, it “must either produce evidence negating an essential element of the 3 nonmoving party’s claim or defense or show that the nonmoving party does not have enough 4 evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & 5 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1102 (9th Cir. 2000). Where the moving party will 6 bear the burden of proof on an issue at trial, it must also show that no reasonable trier of fact could 7 not find in its favor. Celotex, 477 U.S. at 325 . In either case, the movant “may not require the 8 nonmoving party to produce evidence supporting its claim or defense simply by saying that the 9 nonmoving party has no such evidence.” Nissan Fire, 210 F.3d at 1105. “If a moving party fails 10 to carry its initial burden of production, the nonmoving party has no obligation to produce 11 anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Id. 12 at 1102–03. 13 “If, however, a moving party carries its burden of production, the nonmoving party must 14 produce evidence to support its claim or defense.” Id. at 1103. In doing so, the nonmoving party 15 “must do more than simply show that there is some metaphysical doubt as to the material facts.” 16 Matsushita, 475 U.S. at 586 . A nonmoving party must also “identify with reasonable particularity 17 the evidence that precludes summary judgment,” because the duty of the courts is not to “scour the 18 record in search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 19 1996). If a nonmoving party fails to produce evidence that supports its claim or defense, courts 20 must enter summary judgment in favor of the movant. See Celotex, 477 U.S. at 323 . 21 III. DISCUSSION 22 To establish negligence under California law, a plaintiff must prove: (1) the defendant had 23 a legal duty to exercise reasonable care; (2) the defendant breached that duty; (3) the defendant’s 24 breach caused the plaintiff’s injury; and (4) the plaintiff suffered damages as a result. See Ortega 25 v. Kmart Corp., 26 Cal. 4th 1200, 1205 (Cal. 2001). The elements of premises liability on a 26 negligence theory are the same. Id. In an action for premises liability, a dangerous or hazardous 27 condition is one that the owner should realize “involve[es] an unreasonable risk to invitees on 1 a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to 2 exercise reasonable care in keeping the premises reasonably safe.” Id. 3 To establish causation for premises liability, “an owner must have actual or constructive 4 notice of the dangerous condition . . . .” Id. at 1203 . To meet that burden, the plaintiff may show 5 that the hazardous condition existed long enough for the owner to have discovered and corrected 6 it. See id. at 1207 (“The owner must inspect the premises or take other proper action to ascertain 7 their condition, and if, by the exercise of reasonable care, the owner would have discovered the 8 condition, he is liable for failing to correct it.”). Thus, if a plaintiff “can show that an inspection 9 was not made within a particular period of time prior to an accident, [she] may raise an inference 10 that the condition did exist long enough for the owner to have discovered it.” Cardoza v. Target 11 Corp., No. CV172232MWFRAOX, 2018 WL 3357489 , at *3 (C.D. Cal. June 22, 2018), aff’d, 765 12 F. App’x 360 (9th Cir. 2019) (citing Ortega, 26 Cal. 4th at 1212–13). The California Supreme 13 Court has cautioned that “[w]hether a dangerous condition has existed long enough for a 14 reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do 15 not impose exact time limitations” because “[e]ach accident must be viewed in light of its own 16 unique circumstances.” Id. at 1207. Nevertheless, some courts “apply a 30-minute threshold” of 17 time between an inspection and an accident when determining whether to submit questions of 18 notice to a jury. See, e.g., Cardoza, 2018 WL 3357489 at *3 (collecting cases); Ortega, 26 Cal. 19 4th at 1210 (noting that if an inspection is not made “within at least 15 to 30 minutes” before an 20 accident, that “may give rise to an inference that the [hazard] remained on the floor long enough to 21 enable [the owner], in the exercise of reasonable care, to discover and remove it”); Pineda v. 22 Target Corp., No. SACV 08-0315 AG RNBX, 2009 WL 3244995 , at *4 (C.D. Cal. Oct. 5, 2009). 23 (“A jury could make a reasonable finding that a minimum of 30 minutes and maximum of 55 24 minutes is an unreasonable period of time to go without an inspection.”). 25 Here, Plaintiff does not appear to allege that Defendant had actual notice of the shrink26 wrap at issue. See Opp. at 13–14. To carry her burden, Plaintiff must present evidence that 27 Defendant had constructive notice of the shrink-wrap’s presence. The critical question, therefore, 1 Defendant requires its employees to conduct regular inspections of the store to search for 2 hazardous conditions and document each inspection in a “Daily Floor-walk / Safety Inspection” 3 form. See Dkt. No. 31 (“Bell Decl.”) ¶¶ 4–5; Opp. at 2. Defendant’s inspection log from the day 4 of Plaintiff’s fall indicates that Defendant’s employee Albert Tatmon conducted a floorwalk 5 inspection of the store beginning at 9:35 a.m. and concluding at 9:59 a.m. See Dkt. No. 30 6 (“Tatmon Decl.”), Ex. A. Mr. Tatmon testified that he lacks any recollection of this specific 7 floorwalk, but stated that based on his usual habit of floorwalks, he believed that he inspected the 8 area of the accident around 9:45 a.m. — approximately 35 minutes before Plaintiff’s fall. Dkt. 9 No. 52-1, Ex. K (“Tatmon Depo.”) at 28:20–25, 29:1, 33:19–25, 34:1, 35:1–9); Tatmon Decl. ¶ 7. 10 Given Mr. Tatmon’s lack of recollection of the inspection in question, Plaintiff is entitled to cross 11 examine him and allow the jury to assess his credibility. Moreover, even accepting Mr. Tatmon’s 12 estimate, a reasonable trier of fact could conclude that Defendant left the area in question 13 uninspected long enough to establish an inference of constructive notice. See, e.g., Cardoza, 2018 14 WL 3357489 at *3. 15 Defendant also contends that the “open and obvious” defense would negate its potential 16 liability regardless of whether it had notice of the condition. See Mot 14. Generally, if a danger is 17 so obvious to a reasonable person that “the condition itself serves as a warning . . . [a] landowner 18 is under no further duty to warn of or remedy the condition.” Ward v. Equilon Enterprises, LLC, 19 No. C 09-04565 RS, 2012 WL 13055872 , at *4 (N.D. Cal. Jan. 13, 2012) (internal citations 20 omitted). In that scenario, “possessors of land are entitled to assume others will ‘perceive the 21 obvious’ and take action to avoid the dangerous condition.” Jacobs v. Coldwell Banker 22 Residential Brokerage Co., 14 Cal. App. 5th 438, 447 , 221 Cal. Rptr. 3d 701, 708 (2017) (internal 23 citation omitted). But the record does not indicate that the shrink-wrap in the aisle necessarily 24 presented an “open and obvious” danger as a matter of law in this instance. See Pineda, 2009 WL 25 3244995, at *4 (holding that a reasonable finder of fact could find that the danger posed by a 26 white, transparent liquid on the floor of a shopping aisle is not obvious). And although Plaintiff’s 27 individual perception of the condition is not dispositive, the Court notes that Plaintiff testified that 1 Moreover, she had no previous experience walking on shrink-wrap that would inform her 2 || recognition of the risk of slipping on this material. See id.; see Beauchamp v. Los Gatos Golf 3 Course, 273 Cal. App. 2d 20 , 34, 77 (Ct. App. 1969) (“We cannot say that with appellant’s 4 || previous unfamiliarity with the veranda, and the absence of prior experience in walking with 5 spikes upon it, there was an unequivocal acceptance of the risk; or that the danger of doing so was 6 so well-known and apparent ...”). Whether a reasonable person would similarly fail to perceive 7 and recognize the dangers posed by the shrink-wrap in the aisle is a question of fact for the jury. 8 || Accordingly, the court identifies at least two issues of material fact that preclude summary 9 || judgment.! 10 || IV.CONCLUSION 11 Accordingly, the Court DENIES the motion for summary judgment. 12 IT IS SO ORDERED. 13 Dated: October 13, 2023 Aauproerd 5 hdl) HAYWOOD S. GILLIAM, JR. IS United States District Judge — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — 27 ' The Court stresses that in applying the summary judgment standard, it is not making findings of 28 fact of any kind as to these or any other issues, and it expresses no view as to the likely persuasiveness of either party’s case at trial.