Filed 1/15/14 Torres v. Target 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

SANDRA TORRES,                                                          B241941

                   Plaintiff and Appellant,                             (Los Angeles County
                                                                        Super. Ct. No. VC057053)
         v.

TARGET CORPORATION et al.,

                   Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Margaret M. Bernal, Judge. Affirmed.


         Law Offices of Barry Novack, Barry B. Novack and Samuel J. Winokur for
Plaintiff and Appellant.


         Manning & Kass, Ellrod, Ramirez, Trester, Eugene J. Egan, Steven J. Renick, and
Joshua B. Shayne for Defendants and Respondents.
       Plaintiff and appellant Sandra Torres (plaintiff) appeals the summary judgment
entered in favor of defendants and respondents Target Corporation (Target) and Noah
Gilchrist (Gilchrist) (collectively, defendants) in this negligence action for injuries
sustained when plaintiff slipped and fell inside a Target store. We affirm the judgment.
                                      BACKGROUND
Factual background
       Plaintiff slipped and fell in a Target store in Santa Fe Springs, California on
September 5, 2008. She entered the store when it opened at 8:00 a.m. and shopped.
Approximately 10 to 15 minutes after entering the store, plaintiff slipped and fell in the
center of the main aisle near the infants’ section and men’s clothing. Before she fell,
plaintiff felt some unknown item under her sandal that caused her to lose her balance.
Her left foot rotated down toward the ground and then turned around approximately 90
degrees. The object plaintiff stepped on caused a round indentation, approximately one-
eighth inch across the sole of her left sandal. Plaintiff did not know the size, shape, or
identity of the object she stepped on before falling, how that object came to be on the
floor, or how long it had been on the floor before she fell.
       Janitors from Global Building Services (Global) cleaned the Santa Fe Springs
Target store every day in September 2008 before the store opened at 8:00 a.m. At the
end of each Global shift, Target store facilities technician Gregory Bautista (Bautista)
inspected the areas of the store that the janitors had cleaned. When the Global janitors
finished cleaning the store at approximately 7:50 a.m. on September 5, 2008, Bautista
walked through the store with a Global employee to look for debris or liquid that needed
to be cleaned up. That joint inspection included walking through the aisle where
plaintiff’s accident later occurred. Earlier that same morning, from approximately 6:45 to
7:45 a.m., Bautista had walked down the store’s main aisles, including the aisle where
plaintiff later fell, to look for anything that could be a tripping or slipping hazard.
       Lorraine Madrid (Madrid) was stocking shelves at the Santa Fe Springs Target
store on the date of plaintiff’s accident. That morning, Madrid and four other employees
unpacked clothing and stocked shelves with infants’ merchandise and shoes. It was their


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responsibility to ensure that the floor was clean so that no one would fall, and they
cleaned up any trash or debris that was on the floor. Madrid did not witness the accident
but heard plaintiff calling for help and found her on the floor of the main aisle near
infants’ products and men’s clothing. Bautista arrived a few minutes later. Madrid told
Bautista that plaintiff had fallen. Bautista and Madrid looked on the floor for anything
that may have caused plaintiff to slip and fall but did not find anything. Bautista also
touched the floor with his hand to check for liquids but found nothing.
       Defendant Gilchrist was a Target executive team leader working at the Santa Fe
Springs Store on September 5, 2008. He did not witness plaintiff’s accident but prepared
an incident report in which he indicated a crumpled paper was present on the floor. At
the time of his deposition, Gilchrist did not recall plaintiff’s accident and he did not know
whether he associated the crumpled paper with the incident.
Procedural background
       Defendants moved for summary judgment on the grounds that there was no
evidence of any causal connection between plaintiff’s fall and any defective condition on
Target’s premises and no evidence that defendants had actual or constructive notice of
the unidentified condition that caused plaintiff to fall. In support of their motion,
defendants submitted a separate statement that was in turn supported by plaintiff’s
discovery responses and deposition testimony, and by the deposition testimony of
Madrid, Bautista, Gilchrist, and three Global employees.
       Plaintiff opposed the summary judgment motion, arguing that triable issues of fact
existed as to whether defendants created a dangerous condition, whether defendants had
constructive notice of a dangerous condition, and whether the dangerous condition caused
her injuries. In support of her opposition, plaintiff submitted her own separate statement
containing the following additional undisputed facts: The day of plaintiff’s accident was
an unloading day at the Santa Fe Springs Target store. There were more employees
stocking the shelves on unloading days than there were on other days. Target employees
loading the shelves would drop things on the floor, such as straps, packaging material,
trash and debris, and Global employees might have to pick up Styrofoam and ripped


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bags. Target employees stocking the shelves would create more debris after the Global
employees had finished. Target employees were supposed to clean up such debris by
bagging it and transporting it in carts to a trash compactor at the back of the store. Trash
would sometimes fall off a cart while it was being pushed to the compactor area. Madrid
took trash to the compactor area on the morning of plaintiff’s accident, using the same
aisle in which plaintiff fell. After plaintiff fell, she noticed a green crumpled wrapper on
the floor, approximately one foot in front of her and two feet to the right of her right foot.
She had not noticed this object before she fell. Plaintiff’s separate statement was
supported by, among other evidence, her own declaration, Madrid’s deposition testimony,
and the deposition testimony of Global employees.
       In ruling on the summary judgment motion, the trial court found that defendants
had met their initial burden of establishing that there was no defective condition of which
they ought to have had notice. The court further found that plaintiff failed to submit any
evidence demonstrating a triable issue as to whether defendants breached their respective
duties, and then granted the motion for summary judgment.
       This appeal followed.
                                       DISCUSSION
I. Standard of review
       Summary judgment is granted when a moving party establishes the right to entry
of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment bears the initial burden of proving that there is no merit to
a cause of action by showing that one or more elements of the cause of action cannot be
established or that there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)
Once the defendant has made such a showing, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of action or as to a
defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) If the plaintiff does not make such a showing, summary judgment in favor of the
defendant is appropriate. In order to obtain a summary judgment, “all that the defendant


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need do is to show that the plaintiff cannot establish at least one element of the cause of
action . . . . [T]he defendant need not himself conclusively negate any such
element . . . .” (Id. at p. 853.)
       We review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348;
Code Civ. Proc., § 437c, subd. (c).)
II. Negligence and premises liability
       The elements of a negligence cause of action are the existence of a legal duty of
care, breach of that duty, and proximate cause resulting in injury. (Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917-918.) The elements of a cause of action for premises
liability are the same as those for negligence: duty, breach, causation, and damages.
(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega); see Civ. Code, § 1714,
subd. (a).) In addition, a plaintiff suing for premises liability has the burden of proving
that the owner had actual or constructive knowledge of a dangerous condition in time to
correct it, or that the owner was “‘able by the exercise of ordinary care to discover the
condition.’” (Ortega, supra, at p. 1206, quoting Girvetz v. Boys’ Market, Inc. (1949) 91
Cal.App.2d 827, 829.) The reason for placing this burden of proof on the plaintiff “is
that if the burden of proving lack of notice were placed on the owner in a slip-and-fall
case, where the source of the dangerous condition or the length of time it existed cannot
be shown, failure to meet the burden would require a finding of liability, effectively
rendering the owner an insurer of the safety of those who enter the premises. [Citation.]”
(Ortega, at p. 1206.)
       When the plaintiff has no evidence of the length of time the dangerous condition
existed prior to the injury, “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, fn. omitted.) Although the owner’s
constructive knowledge of the dangerous condition may be inferred from a failure to


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inspect the premises within a reasonable time, speculation and conjecture are insufficient
to sustain the plaintiff’s burden. (Id. at pp. 1205-1206.) Whether a dangerous condition
existed long enough for a reasonably prudent person to have discovered it is ordinarily a
question of fact for the jury. (Id. at p 1207.) However, if the evidence does not support a
reasonable inference that the hazard existed long enough to be discovered in the exercise
of reasonable care, the issue of notice may be resolved as a matter of law. (Ibid.) An
owner is therefore entitled to judgment as a matter of law if the plaintiff fails to show that
the dangerous condition existed for at least a sufficient time to be discovered by ordinary
care and inspection. (Ibid.)
III. No actual or constructive notice of the dangerous condition
       Defendants met their statutory burden under Code of Civil Procedure section 437c
of showing that plaintiff cannot establish that they had actual or constructive notice of a
dangerous condition.1 Plaintiff concedes she does not know what caused her to slip and
fall. She lost her balance after stepping on an unidentified object that left a one-eighth
inch indentation on her shoe, but admits that she does not know how that object came to
be on the floor or how long it had been there before she fell.
       Defendants presented evidence that Target employees inspected the premises
within a reasonable time before plaintiff’s accident and found no hazards. Bautista
testified in deposition that he twice inspected the floor for debris and hazards before
plaintiff fell. The first inspection took place between 6:45 and 7:45 a.m. The second
inspection occurred at approximately 7:50 a.m. -- approximately 17 to 25 minutes before
plaintiff’s accident -- and was conducted by both Bautista and a Global employee. Both
inspections included a walk-through of the same aisle in which plaintiff fell.
       Plaintiff failed to raise any triable issue as to notice. The evidence she presented
does not support a reasonable inference that the alleged hazard existed long enough to be


1      Plaintiff presented no argument in her opening brief as to why the judgment
entered in favor of Gilchrist should be reversed and therefore waived any argument on
appeal as to Gilchrist. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836,
852.)

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discovered in the exercise of reasonable care. Plaintiff’s evidence showed that Madrid
and other Target employees continued to stock the shelves after plaintiff entered the
store, that such stocking activities generated debris that employees transported in carts to
a trash compactor in the rear of the store, that trash occasionally fell off the carts during
transport, and that Madrid transported trash that morning through the aisle in which
plaintiff later fell. There is no evidence, however, that Madrid or any other Target
employee transported trash through that aisle during the 17- to 25-minute interval
between Bautista’s second inspection and plaintiff’s accident. Plaintiff’s evidence
showed that Madrid finished stocking the infants’ section “by 8 o’clock.” Madrid
testified that that there was no debris or trash on the floor by that time because “[w]e
already had cleaned up” and “everything was gone.”
       Even assuming Madrid transported trash through the aisle between Bautista’s
7:50 a.m. inspection and 8:00 a.m. when Madrid and her co-workers had finished
cleaning up, plaintiff’s own evidence eliminates any triable issue as to whether any
hazard existed during that 10-minute interval that should have been discovered and
remedied. Madrid testified in deposition that after transporting trash to the compactor,
she walked through the aisle in which plaintiff’s accident subsequently occurred in order
“[t]o clean up, put things away, make sure everything was picked up” and to “[m]ake
sure that everything was off the floor, there was no cardboard, no plastic bags, put all the
carts away, get the carts out of the aisles.” The evidence showed that Madrid did so
because she and other Target stockers were responsible for ensuring that the floors were
free of hazards.
       Plaintiff cites several cases to support her argument that a jury should decide
whether the allegedly dangerous condition existed long enough to be discovered by
defendants and whether Target’s inspections should have been more frequent. All of
those cases are distinguishable. Sapp v. W. T. Grant Co. (1959) 172 Cal.App.2d 89
involved injuries sustained by a plaintiff who slipped on a spool of thread after the clerk
responsible for that area left it unsupervised during a 20-minute coffee break. The clerk
had failed to comply with the store’s established procedure requiring her to notify an


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employee in a neighboring department before leaving on a break so “‘that the floor was
covered.’” (Id. at pp. 92-93.) In the instant case, there is no evidence of noncompliance
by any Target employee with store procedures for floor inspections or cleanup. Rather,
the evidence shows that within a 17- to 25-minute period before plaintiff’s accident
occurred, Target employees conducted three separate inspections of the area in which
plaintiff subsequently fell.
       Louie v. Hagstrom’s Food Stores, Inc. (1947) 81 Cal.App.2d 601 (Louie) and
Dillon v. Wallace (1957) 148 Cal.App.2d 447 (Dillon), on which plaintiff also relies,
involved injuries sustained during a slip and fall in a grocery store, a business
establishment markedly different than a department store such as Target. As the court in
Louie observed: “A person operating a grocery and vegetable store in the exercise of
ordinary care must exercise a more vigilant outlook than the operator of some other types
of business where the danger of things falling to the floor is not so obvious.” (Louie,
supra, at p. 608.) Plaintiff’s accident did not occur in a produce or grocery department,
and there is no evidence that Target failed to inspect the area within a reasonable period
of time. Louie and Dillon are therefore factually distinguishable.
       Plaintiff raised no triable issue as to whether defendants had actual or constructive
notice of any dangerous condition. Summary judgment was properly granted in
defendants’ favor.
                                      DISPOSITION
       The judgment is affirmed. Defendants are awarded their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                  __________________________, J.
                                                  CHAVEZ
We concur:

______________________, Acting P. J.               __________________________, J.
ASHMANN-GERST                                      FERNS*
________________________________________________________________________
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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