Filed 4/11/16 Maravilla v. Los Angeles Dodgers 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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


FERNANDO MARAVILLA,                                                  B263602

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC507879)
         v.

LOS ANGELES DODGERS LLC,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Michael J. Raphael, Judge. Affirmed.


         Law Offices of Mifflin & Associates, Ken Mifflin for Plaintiff and Appellant.


         Jerome M. Jackson for Defendant and Respondent.


                  ___________________________________________________
       A patron suffered personal injuries when he slipped and fell at Dodger Stadium.
The unrefuted evidence shows that the Dodgers lacked actual or constructive knowledge
of a dangerous condition. We affirm the judgment in favor of the Dodgers.
                                          FACTS
       On September 3, 2008, Fernando Maravilla fell in an aisle during a game at
Dodger Stadium. He filed this action on May 3, 2013. The Dodgers moved for summary
judgment, noting inconsistencies in Maravilla’s story about what occurred, with respect
to where he was seated and where he was walking (or standing) when he fell.
       Maravilla testified that there was a clear peanut bag containing shells, an ice cream
cup and a bottle of water “in plain view” and “easy to see” on the stairs. He agreed that
“nothing was hiding it” and “anyone could have seen it.” Maravilla opined that the
foodstuff was there “a long time” because he arrived at the game during the seventh
inning. He agreed, however, that he did not actually know how long the food was laying
on the ground. He did not see himself step on a bag containing food items, and no one
told him that he did so; rather, he looked up after his fall and saw the items there.
       Lon Rosenberg, the Dodgers’ vice-president of operations in 2008, was
responsible for stadium maintenance. He declared that the stadium is swept and hosed
down after each game to remove all debris and foreign matter. Rosenberg and his staff
conduct a “walk through” to assure that all seating areas, aisles and walkways are clean,
safe and free from hazards. Ushers reinspect the areas under their supervision before the
gates open. Once the gates open, “four separate groups of employees were charged with
inspecting the premises constantly”: (1) ushers; (2) security officers; (3) off-duty law
enforcement officers; and (4) a team of maids and porters. These individuals walk down
the aisles during the game, looking for spills or substances that would create a hazardous
condition. If a hazard is observed, the maids or porters immediately remove and clean up
any spill. Rosenberg had “no recollection of any report of foodstuffs, foreign matter, or
liquids being spilled” in the area where Maravilla had seats on the evening of
September 3, 2008, and no reason to believe that there was a spill there.



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       Maravilla responded, “As I was standing near the row of seat[s] where my party
was to be seated, I allowed all of them to go ahead of me to be seated, because I wanted
to sit on the aisle. As I stepped back to allow them to enter the row of seats, I tripped and
fell. There was spilled melted ice cream on the floor, peanut shells, broken plastic bags
and soda spilled on the floor with an empty can next to the debris, which created a risk of
a slip and caused me to fall. The melted ice cream and the broken peanut shells gave me
an impression that it had been walked on since the gates opened at 5:00 p.m. It was not
until after I fell that I first saw the debris which caused me to slip and fall.”
       Maravilla objected that Lon Rosenberg’s declaration lacked foundation, and was
irrelevant, conclusionary and immaterial. Maravilla requested the production of “sweep
sheets” for the date of the accident, and the names of persons who swept the location, but
the Dodgers responded that no such documents exist.
                            THE TRIAL COURT’S RULING
       The trial court overruled Maravilla’s objections. It found that the declaration of
Lon Rosenberg shows the particular measures taken to inspect the stadium. There is no
dispute that (1) the Dodgers lacked actual knowledge of a dangerous condition; (2)
Maravilla did not know how long the condition existed before his accident; (3) Maravilla
has no evidence showing how the condition was created, speculating that the Dodgers
negligently failed to clean up a spill; (4) Maravilla cannot identify a specific witness with
knowledge of how long the condition existed; and (5) the Dodgers exercised reasonable
care in inspecting the stadium. The court concluded that “[t]here is no evidence that
Defendant had actual or constructive notice of the condition that allegedly caused
Plaintiff’s injury, or would have been able to discover the condition through the exercise
of ordinary care.” The court entered judgment for the Dodgers.




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                                      DISCUSSION1
       Summary judgment is proper if there is no triable issue as to any material fact and
the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c,
subd. (c).) A moving defendant must show the existence of a complete defense, or that
one or more elements of the plaintiffs’ cause of action cannot be proven; the burden then
shifts to the plaintiffs to show a triable issue of material fact. (Code Civ. Proc., § 437c,
subd. (p).) On appeal, we independently examine the record and review the trial court’s
ruling de novo. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Carnes v.
Superior Court (2005) 126 Cal.App.4th 688, 694.)
       A business owner owes “a duty to exercise reasonable care in keeping [its]
premises reasonably safe,” but “is not an insurer of the safety of its patrons.” (Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) This entails “making reasonable inspections
of the portions of the premises open to customers.” (Ibid.) The key is whether the owner
has “‘“either actual or constructive knowledge of [a] dangerous condition or ha[s] been
able by the exercise of ordinary care to discover the condition.”’” (Id. at p. 1206.) The
owner must have “notice of the defect in sufficient time to correct it.” (Ibid.)
       To establish liability, there must be “‘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. A mere possibility of such causation is not enough; and when
the matter remains one of pure speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’”


1       We invited supplemental briefing regarding the statute of limitations (Gov. Code,
§ 68081), pointing out that a plaintiff who slips and falls at a business must file a personal
injury action within two years. (Code Civ. Proc., § 335.1; Andonagui v. May Dept.
Stores Co. (2005) 128 Cal.App.4th 435.) Maravilla’s complaint was filed four years and
eight months after his claim accrued. Nevertheless, the Dodgers concede that it would be
“unfair” to assert the statute of limitations owing the trial court’s mistaken suppositions
about the Dodgers’ 2011 bankruptcy, which led to the court’s dismissal of Maravilla’s
first lawsuit. Because the Dodgers waive the defense, we do not discuss it.



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(Ortega v. Kmart Corp., supra, 26 Cal.4th at pp. 1205-1206.) “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.” (Id. at p. 1206.) A plaintiff may use circumstantial evidence—shown
by the defendant’s failure to conduct inspections of the premises—to create an inference
that a dangerous condition existed long enough for it to be discovered. (Id. at pp. 1210-
1211.) If a property 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.” (Id. at p. 1211.)
       In the Ortega case, the plaintiff slipped and fell in a puddle of milk on the floor
adjacent to a refrigerator. He sued for his injuries. Kmart’s store manager testified
employees usually walked up the aisle every 15 to 30 minutes; however, he admitted that
the milk could have been on the floor for as long as two hours, and he had no idea
whether the aisle was inspected at any time on the day that Ortega fell. The jury verdict
in favor of Ortega was affirmed because he demonstrated that the site was not inspected
within a reasonable time. (Ortega v. Kmart Corp., supra, 26 Cal.4th at pp. 1204-1205.)
       There is no evidence that the Dodgers had actual knowledge of the fallen foodstuff
in the aisle where Maravilla fell. This leaves the question of constructive knowledge.
The vice-president in charge of stadium operations, Lon Rosenberg, declared that the
stadium is swept and hosed down before a game, and Rosenberg and his staff walk
through the stadium to inspect for hazardous conditions. During the game, numerous
employees inspect the premises “constantly,” to report and immediately clean up spills
and substances that might create a hazard.
       The trial court properly overruled Maravilla’s objections to the Rosenberg
declaration. As the maintenance supervisor, Rosenberg had personal knowledge of the
measures deployed to clean stadium aisles before, during and after a game, and knew
how many people were assigned to surveying the stadium for hazards on a constant basis,
as well as their responsibilities to immediately clean up any spills. “Personal knowledge
means a present recollection of an impression derived from the exercise of the witness’s

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own senses.” (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 731; Evid.
Code, § 702.) It has long been the rule in this state that a witness who has “immediate
supervision and control of [ ] particular work” is competent and qualified to testify about
it. (Fernholtz Machinery Co. v. Wilson (1931) 118 Cal.App. 573, 580; Luitweiler etc.Co.
v. Ukiah Water etc. Co. (1911) 16 Cal.App. 198, 209.)
       Evidence of habit or custom is admissible to show lack of negligence on a
particular occasion. (Evid. Code, § 1105; Snibbe v. Superior Court (2014) 224
Cal.App.4th 184, 190-191.) Rosenberg could testify about the Dodgers’ custom with
respect to stadium cleaning and inspections. If Maravilla wanted to delve into the scope
of Rosenberg’s knowledge of maintenance operations, he could have requested a
continuance to take Rosenberg’s deposition. (Code Civ. Proc., § 437c, subd. (h).) The
Dodgers met their burden of showing a lack of actual or constructive knowledge of the
spilled food because the stadium is inspected “constantly” for spills and hazards.
       Once a defendant shows that a cause of action has no merit because the elements
cannot be established, the burden shifts to plaintiff to show the existence of a triable issue
of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 476-477.) Maravilla acknowledges his “burden of producing evidence
that the dangerous condition existed for at least a sufficient time to support a finding that
the defendant had constructive notice of the hazardous condition,” citing Perez v. Ow
(1962) 200 Cal.App.2d 559, 561.
       As the trial court noted, Maravilla did not proffer any evidence rebutting the
Dodgers’ undisputed facts. There was no attempt to show that Dodgers employees did
not constantly monitor or patrol the stadium during games, cleaning up spills. The
uncontradicted testimony of a witness to a particular fact—in this case, Dodgers’
executive Lon Rosenberg—must be accepted as proof of the fact, as it is not inherently
improbable. (Evid. Code, § 411; Joseph v. Drew (1950) 36 Cal.2d 575, 579; DeMiglio v.
Mashore (1992) 4 Cal.App.4th 1260, 1270.)
       Maravilla admittedly had no idea how long the food was lying on the ground. His
speculation that the food could have been there “a long time”—because the game was in

                                              6
the seventh inning—is pure conjecture, as was his “impression” that the items had been
walked on. Plaintiff stepped on the items, but there is no evidence that anyone else did
so. The items could have been deposited moments before Maravilla arrived. He could
not identify any eyewitness with knowledge that the food lay there long enough that the
Dodgers’ staff could reasonably have discovered it and removed it. Maravilla has not
shown a triable issue of material fact because there is no evidence that the Dodgers had
actual or constructive knowledge of a dangerous condition on their property.
       Finally, Maravilla’s opposition to summary judgment was procedurally deficient.
He was required to “unequivocally state whether [each] fact is ‘disputed’ or ‘undisputed’
[and] on the right side of the page directly opposite the fact in dispute, the nature of the
dispute and describe the evidence that supports the position that the fact is controverted.
That evidence must be supported by citation to exhibit, title, page, and line numbers in
the evidence submitted.” (Cal. Rules of Court, rule 3.1350(f).) Maravilla failed to
observe any of these requirements. Instead, he impermissibly raised objections in his
separate statement, in violation of rule 3.1354(b) of the Rules of Court. Procedural
noncompliance was a sufficient ground for overruling all of Maravilla’s objections and
granting the Dodgers’ motion. (Code Civ. Proc., § 437c, subd. (b)(3); Hodjat v. State
Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7-9.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.



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