Monica Pineda v. Target Corporation et al, No. 8:2008cv00315 - Document 29 (C.D. Cal. 2009)
Court Description: ORDER Denying Summary Judgment by Judge Andrew J. Guilford, re MOTION for Summary Judgment 12 . (See Order for details) (db)
Download PDF
<![CDATA[
Monica Pineda v. Target Corporation et al Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 MONICA PINEDA, ) ) Plaintiff, ) ) v. ) ) ) TARGET CORPORATION, et al. ) ) Defendants. _________________________________ ) CASE NO. SACV 08-0315 AG (RNBx) ORDER DENYING SUMMARY JUDGMENT 16 17 18 Plaintiff Monica Martinez Pineda (“Plaintiff”) brought this lawsuit against Defendant 19 Target Corporation (“Defendant”) for negligence. Defendant now files a Motion for Summary 20 Judgment, or for Partial Summary Judgment (“Motion”). After considering the arguments 21 submitted by both parties, the Motion is DENIED. 22 23 PRELIMINARY CONSIDERATIONS 24 25 1. PLAINTIFF’S SUR-REPLY 26 27 28 Plaintiff filed a Sur-Reply to the Motion (“Sur-Reply”). Defendant filed an Objection to the Sur-Reply (“Sur-Reply Objection”) under Local Rule 7-10, which provides that “[a]bsent Dockets.Justia.com 1 prior written order of the Court, the opposing party shall not file a reply to the reply.” Defendant 2 asks the Court to strike the Sur-Reply and accompanying documents from the record. Because 3 the Court finds the Sur-Reply and accompanying documents helpful in resolving objections 4 raised by Defendant in its Reply to Plaintiff’s Opposition to the Motion (“Reply”), the Sur-Reply 5 Objection is OVERRULED. The Court reminds the parties that compliance with Local Rules is 6 mandatory, and parties must seek leave of the Court before departing from those Rules. 7 8 2. DEFENDANT’S EVIDENTIARY OBJECTIONS 9 10 With its Reply, Defendant filed Evidentiary Objections to Plaintiff’s Exhibits Filed in 11 Opposition to Defendant’s Motion (“Defendant’s Evidentiary Objections”). The set of 12 objections to the Declaration of Fernando Brito, Jr. in Support of Plaintiff’s Opposition (“Brito 13 Declaration”) relate to the changes made to a deposition by Maria Del Pilar Pineda (“Mrs. 14 Pilar”) to her deposition transcript. (Defendant’s Evidentiary Objections 2:3-3:22.) Specifically, 15 Mrs. Pilar changed her deposition testimony on the amount of time between informing 16 Defendant’s employee of a spill and the time that Plaintiff fell. (Brito Decl. Exh. 2.) While the 17 Court appreciates Defendant’s concern that the change relates to a material issue of fact, Rule 18 30(e) permits a party to make changes which seek to clarify a recorded deposition, and Plaintiff 19 has followed the stipulated procedure for making the changes. (See Declaration of Paul Hanna 20 in Support of Defendant’s Reply (“Hanna Declaration”) ¶ 4 and Exh. A; Declaration of Liliana 21 Perez in Support of Plaintiff’s Sur-Reply (“Perez Declaration”) ¶¶ 4-6.) Defendant’s Counsel 22 retains the prospects of powerfully impeaching the witness at trial. See Lugtig v. Thomas, 89 23 F.R.D. 639, (N.D. Ill. 1981) (“The witness who changes his testimony on a material matter 24 between the giving of his deposition and his appearance at trial may be impeached by his former 25 answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he 26 changed his testimony.”) (citing Wright & Miller, Federal Practice & Procedure, § 2118). 27 Defendant’s Evidentiary Objections to the Brito Declaration are OVERRULED. 28 Next, Defendant makes a series of objections to deposition testimony of Witness Maria 2 1 Gonzales, Plaintiff, and Mrs. Pilar. (Defendant’s Evidentiary Objections 4:1-6:10.) “A party 2 waives any objection, whether to the form of questions or answers or to other errors that might 3 be obviated, removed, or cured if promptly presented, by failing to note the objection at the 4 taking of the deposition.” Wright & Miller, Federal Practice and Procedure § 2113 (2009); see 5 also Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir. 2005) (“[A]n objection to admission of 6 evidence on foundational grounds must give the basis for objection in a timely way to permit the 7 possibility of cure.”). Defendant should have raised these objections during the deposition, and 8 did not. The objections are OVERRULED. 9 Finally, Defendant objects to portions of the Declaration of Alex J. Balian in Support of 10 Plaintiff’s Opposition (“Balian Declaration”). (Defendant’s Evidentiary Objections 6:12-10:20.) 11 The objections are OVERRULED. 12 13 Although various objections have been overruled, the results of this Order would not change had the objections been sustained. 14 15 BACKGROUND 16 17 The following facts are taken from Defendant’s Statement of Uncontroverted Facts 18 (“UF,” Docket No. 12) and Plaintiff’s Statement of Genuine Issus of Material Fact (“MF,” 19 Docket No. 17). 20 Plaintiff is suing Defendant for injuries suffered when she slipped and fell at Defendant’s 21 Santa Ana Store (“Store”). On the day of the incident, the Store opened at 8:00 a.m. (UF 2.) The 22 Store’s floors have a “shiny” look to them, and are “shinier in the morning” because they are 23 buffed each morning before 7:00 to give the floors a shiny look. (MF 23-25.) Sometime 24 between 20 and 40 minutes before the Store opened, an employee walked the “race track” aisles, 25 which are the main aisles in the Store, but was no closer than 15 to 20 feet from where Plaintiff 26 fell. (MF 21-22.) Around 8:10 a.m. or 8:15 a.m., Mrs. Pilar, Plaintiff, and Plaintiff’s five- 27 month-old daughter entered the Store. (UF 1.) While Plaintiff looked at cosmetics in one aisle, 28 Mrs. Pilar went to the detergent aisle to look for Ajax. (UF 8,9.) 3 1 In the detergent aisle, Mrs. Pilar saw a dinner-plate sized pool of clear, white, transparent 2 liquid. (UF 9.) Mrs. Pilar went to the children’s department and notified a Store employee 3 about the spill. (UF 11.) She then returned to the detergent area and continued looking for Ajax 4 in the aisle next to the one with the spill. (UF 12.) Plaintiff then yelled to Mrs. Pilar from the 5 aisle with the spill to tell Mrs. Pilar that Plaintiff found the Ajax. (UF 12.) Either 2 to 3 6 minutes, (UF 12), or 5 to 6 minutes, (MF 12), passed between the time Mrs. Pilar told the 7 employee about the spill and when she returned to the aisle next to the one with the spill and 8 heard Plaintiff yell. Mrs. Pilar went to the aisle with the spill and saw Plaintiff slip and fall. (UF 9 13.) When she fell, Plaintiff was looking forward and not at the floor. (UF 15.) 10 11 LEGAL STANDARD 12 13 Summary judgment is appropriate only where the record, read in the light most favorable 14 to the non-moving party, indicates that “there is no genuine issue as to any material fact and . . . 15 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also 16 Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Material facts are those necessary to the 17 proof or defense of a claim, as determined by reference to substantive law. Anderson v. Liberty 18 Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine “if the evidence is such that a 19 reasonable jury could return a verdict for the nonmoving party.” Id. In deciding a motion for 20 summary judgment, “[t]he evidence of the nonmovant is to be believed, and all justifiable 21 inferences are to be drawn in his favor.” Id. at 255. 22 The burden initially is on the moving party to demonstrate an absence of a genuine issue 23 of material fact. Celotex, 477 U.S. at 323. If, and only if, the moving party meets its burden, 24 then the non-moving party must produce enough evidence to rebut the moving party’s claim and 25 create a genuine issue of material fact. Id. at 322-23. If the non-moving party meets this burden, 26 then the motion will be denied. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 27 1103 (9th Cir. 2000). 28 4 1 2 3 ANALYSIS 4 Plaintiff alleges two claims against Defendant: (1) Premises Liability Based on 5 6 Negligence; and (2) General Negligence. 7 To establish liability on a negligence theory, a plaintiff must prove duty, breach, 8 causation, and damages. Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1205 (2001). In its Motion, 9 Defendant asserts that it did not owe a duty to warn Plaintiff because: (1) Defendant did not 10 have actual or constructive knowledge of the dangerous condition; and (2) the dangerous 11 condition was open and obvious. 12 13 1. ACTUAL OR CONSTRUCTIVE NOTICE 14 15 A store owner owes a duty to its patrons to use reasonable care in keeping the premises 16 reasonably safe. Ortega, 26 Cal. 4th at 1205. Store owners have a duty to warn “not only of 17 conditions known by him to be dangerous but also of conditions which might have been found 18 dangerous by the exercise of ordinary care.” Beauchamp v. Los Gatos Golf Course, 273 Cal. 19 App. 2d 20, 27 (1969). Where, as here, a “plaintiff relies on the failure to correct a dangerous 20 condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner 21 had notice of the defect in sufficient time to correct it.” Ortega, 26 Cal. 4th at 1203. A plaintiff 22 can meet its burden by showing that the store owner had either actual or constructive notice. Id. 23 Here, Defendant asserts that Plaintiff cannot show that Defendant had actual or 24 constructive notice of the dangerous condition in sufficient time to correct it. (Motion 4:4-6.) 25 The Court disagrees. 26 First, Plaintiff has offered enough factual evidence to disprove Defendant’s assertions that 27 no material fact exists regarding actual notice. Defendant cites Girvetz v. The Boy’s Market, 28 Inc., 91 Cal. App. 2d 827, 828 (1949), for the premise that notice to a defendant store owner of a 5 1 dangerous condition a minute and a half before the accident occurred is, as a matter of law, 2 insufficient to support an inference that the defendant store owner failed to exercise due care. 3 (Motion 10:1-11:18.) But the Girvetz court found that the only evidence was that the foreign 4 object had been on the ground for a minute and a half. Id. at 831. In this case, Plaintiff has provided the Court with evidence that Mrs. Pilar saw the spill, 5 6 notified Defendant’s employee of the spill, then walked back to an adjacent aisle to the aisle 7 with the spill. When Mrs. Pilar heard Plaintiff yell that she had found the Ajax, Mrs. Pilar left 8 the adjacent aisle and turned into the aisle with the spill, where she saw Plaintiff skid on the spill 9 and fall. The parties dispute the amount of time that passed between the time Mrs. Pilar notified 10 the employee of the spill and the time that Plaintiff fell. Defendant claims that 2 to 3 minutes 11 passed, while Plaintiff now claims that 5 to 6 minutes passed. Because the Plaintiff is the non- 12 moving party here, the Court must believe the evidence of the Plaintiff. Anderson, 477 U.S. at 13 248. But even if the Defendant is believed, a jury could make a reasonable inference that Mrs. 14 Pilar reached the spill, after stopping in another aisle, before the Store employee reached the 15 spill, and that Defendant therefore had sufficient time after the notice to get to the spill before 16 Plaintiff’s fall. Further, Defendant has not met its burden of identifying an absence of a genuine issue of 17 18 material fact regarding the issue of constructive notice. Celotex, 477 U.S. at 323. A plaintiff 19 may demonstrate constructive notice by showing “that the site had not been inspected within a 20 reasonable period of time so that a person exercising due care would have discovered and 21 corrected the hazard.” Ortega, 26 Cal. 4th at 1212. “It remains a question of fact for the jury 22 whether, under all the circumstances, the defective condition existed long enough so that it 23 would have been discovered and remedied by an owner in the exercise of reasonable care.” Id. at 24 1213. 25 Here, the evidence submitted shows that Plaintiff and Mrs. Pilar came into the Store ten 26 to fifteen minutes after opening. Sometime between twenty and forty minutes before opening, a 27 Store employee walked the main aisles of the Store, but did not walk down the aisle with the 28 spill. A jury could make a reasonable finding that a minimum of 30 minutes and maximum of 6 1 55 minutes is an unreasonable period of time to go without an inspection. Further, a jury could 2 conclude that the Store employee’s inspection was not reasonable because he did not go down 3 individual aisles. Thus, genuine issues of material fact exist on the issues of actual and 4 constructive notice, so summary judgment cannot be granted on these issues. 5 6 2. OPEN AND OBVIOUS DANGEROUS CONDITION 7 8 Defendant’s other argument in its Motion is that it had no duty to warn Plaintiff of the 9 dangerous condition because the dangerous condition was open and obvious. (Motion 11:19- 10 12:13.) A store owner is “not liable for injury to the invitee which results from a condition that 11 is obvious or should have been observed by the invitee in the exercise of reasonable care.” 12 Holcombe v. Burns, 183 Cal. App. 2d 811, 814-15 (1960). “[T]he trier of the fact must 13 determine any conflict as to whether or not the danger was obvious to the invitee.” Beauchamp 14 v. Los Gatos Golf Course, 273 Cal. App. 2d 20, 36 (1969). 15 Defendant supports its position with two undisputed facts: (1) that Plaintiff’s mother 16 observed a clear, white, transparent liquid on the floor that was round and about the size of a 17 dinner plate, and located closer to the rear of the aisle; and (2) that when Plaintiff entered the 18 aisle, she was looking forward and not at the floor. (Motion 12:8-11.) A reasonable finder of 19 fact could decide, based on these facts, that the danger was not obvious. Further, Plaintiff has 20 submitted evidence that the Store’s floors are buffed each morning and are purposefully made to 21 have a shiny look, especially in the morning. The Court cannot find as a matter of law that there 22 is an absence of a genuine issue of material fact as to whether the condition was open and 23 obvious, and summary judgment cannot be granted. Celotex, 477 U.S. at 323. 24 25 26 27 28 7 1 2 DISPOSITION 3 4 Defendant’s Motion for Summary Judgement is DENIED. 5 6 IT IS SO ORDERED. 7 DATED: October 5, 2009 8 9 10 _______________________________ Andrew J. Guilford United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
