Case 2:20-cv-07604-ODW-E Document 50 Filed 03/10/22 Page 1 of 9 Page ID #:769

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8 United States District Court 9 Central District of California

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11 NORMA LEYBA, Case № 2:20-cv-07604-ODW (Ex)

12 Plaintiff,

ORDER GRANTING

13 v.

DEFENDANT’S MOTION FOR

14 WALMART, INC., SUMMARY JUDGMENT [26]

15 Defendant.

16 17 I. INTRODUCTION 18 Plaintiff Normal Leyba brings this slip-and-fall action against Defendant 19 Walmart, Inc. asserting claims for negligence and premises liability. (Compl., ECF 20 No. 9.) Walmart moves for summary judgment on all claims. (Mot. Summ. J. 21 (“Motion” or “Mot.”), ECF No. 26.) For the following reasons, the Court GRANTS 22 Defendant’s Motion.1 23 II. BACKGROUND 24 This action arises from injuries Leyba sustained on May 1, 2018 at a Walmart 25 store in Paramount, California, where she slipped and fell in an action alley2 in the toy 26

1 The Court carefully considered the papers filed in connection with the Motion and deemed the 27 matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7–15. 28 2 The term “action alley” has various meanings in the retail industry but generally refers to a corridor of a retail store prone to a high volume of foot traffic. Case 2:20-cv-07604-ODW-E Document 50 Filed 03/10/22 Page 2 of 9 Page ID #:770

1 department. (Opp’n Mot. (“Opp’n”) 2, ECF No. 39.) Four minutes prior to the 2 incident, Walmart Associate Zackary Richards walked through the action alley, 3 passing over or close to the place where Leyba later fell. (Notice of Lodging Ex. A 4 (“Video”) 3:53:05–3:53:12, ECF No. 31.) Richards did not stop or otherwise attend to 5 the floor as he walked past. (Id.; see Decl. Zackary Richards (“Richards Decl.”) ¶ 13, 6 ECF No. 30.) After this, in the four minutes preceding Leyba’s fall, eight individuals 7 also walked through the action alley, over or near the location where Leyba eventually 8 fell. (Video 3:53:12–3:57:32.) At 3:57:32 p.m., Leyba walked through the action 9 alley and slipped and fell onto the floor. (Def.’s Statement of Uncontroverted Facts 10 (“SUF”) 5, ECF No. 27; Pl.’s Statement of Genuine Disputes (“SGD”) 5, ECF 11 No. 40.) Leyba alleges and asserts she fell on a clear liquid substance, but she does 12 not know who caused the spill or how long the substance was present on the floor. 13 (Compl. ¶ 13; SGD 8.) 14 Leyba initiated this action for negligence and premises liability under California 15 law against Walmart in the Superior Court of the State of California, County of Los 16 Angeles, and Walmart subsequently removed the action to this Court. (See Compl.; 17 Notice of Removal (“NOR”), ECF No. 1.) Walmart now moves for summary 18 judgment, arguing primarily that Leyba cannot demonstrate a genuine dispute about 19 whether Walmart had constructive notice of the spill. (Mot. 6–7.) 20 III. LEGAL STANDARD 21 A court “shall grant summary judgment if the movant shows that there is no 22 genuine dispute as to any material fact and the movant is entitled to judgment as a 23 matter of law.” Fed. R. Civ. P. 56(a). Courts must view the facts and draw reasonable 24 inferences in the light most favorable to the nonmoving party, including when the 25 movant submits video evidence, “so long as [the nonmoving party’s] version of the 26 facts is not blatantly contradicted by the video evidence.” Vos v. City of Newport 27 Beach, 892 F.3d 1024, 1028 (9th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372, 378 28 (2007)). A disputed fact is “material” where the resolution of that fact might affect

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1 the outcome of the suit under the governing law, and the dispute is “genuine” where 2 “the evidence is such that a reasonable jury could return a verdict for the nonmoving 3 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 The burden of establishing the absence of a genuine issue of material fact lies 5 with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the 6 moving party satisfies this burden, the court should grant summary judgment unless 7 the nonmoving party demonstrates facts sufficient to establish a genuine dispute of 8 material fact. Id. at 322–23. In meeting its burden, the nonmoving party cannot 9 simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” 10 about a material issue of fact precludes summary judgment. See id.; Matsushita Elec. 11 Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Cal. Architectural 12 Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 13 “Conclusory” or “speculative” testimony is “insufficient to raise genuine issues 14 of fact and defeat summary judgment.” See Hous. Rts. Ctr. v. Sterling, 404 F. Supp. 15 2d 1179, 1183 (C.D. Cal. 2004). Instead, the non-moving party must show that there 16 are “genuine factual issues that . . . may reasonably be resolved in favor of either 17 party.” Franciscan Ceramics, 818 F.2d at 1468 (quoting Anderson, 477 U.S. at 250) 18 (emphasis omitted). Though the Court may not weigh conflicting evidence or make 19 credibility determinations, a plaintiff must ultimately provide more than a “scintilla” 20 of contradictory evidence to avoid summary judgment. Anderson, 477 U.S. at 251– 21 52; Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). 22 IV. DISCUSSION 23 Walmart moves for summary judgment on the grounds that Leyba cannot prove 24 Walmart had actual or constructive notice of the spill in the action alley. (Id. at 6–7) 25 Leyba concedes in the opposition that she has no evidence that Walmart had actual 26 notice of the spill. (See Opp’n 1, 6–8; SGD 9.) The remaining issue, therefore, is 27 constructive notice, and specifically (1) whether Walmart meets is burden of 28 demonstrating it had no constructive notice, and (2) whether Leyba submits evidence

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1 sufficient to raise a genuine dispute about this issue. 2 A. Premises Liability and Negligence 3 Under California law, to establish liability for negligence, a plaintiff must 4 prove: (1) that the defendant owed a legal duty to the plaintiff; (2) that the defendant 5 breached that duty; (3) causation; and (4) damages. Ortega v. Kmart Corp., 26 Cal. 6 4th 1200, 1205 (2001). “Premises liability is a form of negligence” in which a 7 property owner has “a duty to exercise ordinary care in the management of such 8 premises in order to avoid exposing persons to an unreasonable risk of harm.” Brooks 9 v. Eugene Burger Mgmt. Corp., 215 Cal. App. 3d 1611, 1619 (1989). 10 Generally, a property owner who knows or should know of a dangerous 11 condition that could expose visitors to an unreasonable risk of harm owes a duty of 12 ordinary care to make the condition safe or warn visitors. Bridgman v. Safeway 13 Stores, Inc., 53 Cal. 2d 443, 446 (1960). Retail store owners in particular exercise 14 ordinary care by “making reasonable inspections of the portions of the premises open 15 to customers, and the care required is commensurate with the risks involved.” Ortega, 16 26 Cal.4th at 1205. 17 “While under some circumstances, negligence may be inferred from the 18 existence of a dangerous condition, the burden rests upon the plaintiff to show the 19 existence of a dangerous condition, and that the defendant knew or should have 20 known of it.” Harpke v. Lankershim Ests., 103 Cal. App. 2d 143, 145 (1951). Under 21 this standard, a defendant owes a duty to an injured plaintiff when it had actual or 22 constructive notice of the dangerous condition. 23 The California Civil Code defines constructive notice by providing that 24 “[e]very person who has actual notice of circumstances sufficient to put a prudent 25 [person] upon inquiry as to a particular fact, has constructive notice of the fact itself in 26 all cases in which, by prosecuting such inquiry, [he or she] might have learned such 27 fact.” Cal. Civ. Code § 19. In slip-and-fall cases, the key observation is that the 28 longer a dangerous condition is present, the more likely a prudent store owner, in

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1 exercising reasonable care to keep the store safe for customers, would have become 2 aware of the condition and remedied it. Thus, in slip-and-fall cases, whether a store 3 owner has constructive notice hinges primarily on how long the dangerous condition 4 was present before the plaintiff injured herself on it. See Garcia v. Target Corp., 5 No. CV 15-05525-AB (FFMx), 2016 WL 7637662, at *3 (C.D. Cal. April 26, 2016). 6 B. The Parties’ Burdens on Summary Judgment 7 To prevail on summary judgment, Walmart must negate at least one of the 8 elements of Leyba’s claims for negligence and premises liability or otherwise show 9 that she cannot establish her claims. Here, Walmart contends Leyba cannot establish 10 the element of duty because she cannot show Walmart had constructive notice of the 11 dangerous condition. (Mot. 6–7.) The Court concludes that Walmart is entitled to 12 summary judgment because it presents evidence establishing that the dangerous 13 condition was present for no longer than four minutes and twenty seconds, and 14 Leyba’s evidence fails to meaningfully refute or contradict Walmart’s showing. 15 1. Walmart establishes the alleged dangerous condition was present for no 16 longer than four minutes and twenty seconds. 17 Walmart presents evidence sufficient to establish that, to the extent it was 18 present at all, the clear substance on which Leyba slipped was present on the floor for 19 no longer than four minutes. Walmart’s principal offerings are the video surveillance 20 footage and the declaration of Walmart Associate Richards. 21 Richards, having viewed the surveillance footage, identifies himself between 22 timestamps 3:53:05 and 3:53:12 walking through the action alley where Leyba slipped 23 and fell. (Id. ¶ 8.) As a Walmart employee, Richards was trained to identify, respond 24 to, and remove potential slip hazards such as liquid spills. (Richards Decl. ¶¶ 1–2.) 25 Yet, as he walked past the area where Leyba fell, Richards did not notice any 26 substances or spills on the floor. (Id. ¶ 13.) 27 After Richards, in the four minutes preceding the incident, an additional eight 28 customers walked through the action alley over or near the location where Leyba

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1 slipped and fell. (Id. ¶ 9.) This evidence strengthens Walmart’s demonstration that 2 there was no liquid slip hazard on the floor until a very short time before Leyba fell. 3 Walmart further points out that Leyba does not dispute that she “does not know who 4 created the spill or how long the substance was present on the floor.” (SGD 8.) 5 Taken together, this constitutes sufficient evidence for Walmart to meet its initial 6 burden of establishing that there was no spill on the floor at 3:53:12, exactly four 7 minutes and twenty seconds before Leyba fell. In other words, Walmart establishes 8 that the dangerous condition was present for no longer than four minutes and twenty 9 seconds. 10 “While California courts have not set forth a specific time period that 11 constitutes adequate care, the relevant cases all concern time periods of a half hour or 12 longer between inspection and accident.” Eidem v. Target Corp., No. EDCV 13 10-01000 VAP (DTBx), 2011 WL 3756144, at *9 (C.D. Cal. Aug. 24, 2011) 14 (collecting cases). Thus, by showing that the dangerous condition was present for no 15 longer than four minutes and twenty seconds, Walmart demonstrates that it had no 16 constructive notice of the spill and accordingly meets its initial burden of negating 17 both of Leyba’s claims. 18 2. Leyba does not establish a genuine dispute about the length of time the 19 dangerous condition existed. 20 At trial, Leyba will bear the burden of demonstrating constructive notice, and 21 accordingly, she presently bears the burden of demonstrating a genuine dispute 22 regarding the factual question of how long the spill was present before she fell. See 23 Celotex, 477 U.S. at 322. To demonstrate a genuine dispute, Leyba cannot simply rest 24 on the pleadings or argue that some metaphysical doubt about a material issue of fact 25 precludes summary judgment. See id. at 322–23. 26 Leyba fails to refute Walmart’s evidence or otherwise suggest the presence of a 27 dangerous condition for a sufficient length of time to raise a triable issue regarding 28 constructive notice. Leyba offers the same video evidence offered by Walmart, and

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1 asserts, with the support of an expert declaration, that the video demonstrates that 2 Richards did not conduct an inspection at 3:53:05 p.m. because his head is not looking 3 down at the floor.3 (SGD 2–4, 6, 10, 17; Decl. Gary White ¶¶ 17–18.) Leyba argues 4 this means that whether an inspection occurred is a genuine, triable issue, and that, 5 correspondingly, whether there was indeed a spill on the floor at the time Richards 6 walked by is also a genuine, triable issue. (Opp’n 2.) In making this argument, 7 however, Leyba draws too fine a distinction between inspecting an area and walking 8 past it. It may be that a jury could ultimately find that Richards was not actively and 9 intentionally scanning the floor for spills. But Walmart’s showing that no spill existed 10 at the time Richards walked past is not based solely on an assertion that Richards was 11 actively scanning. Instead, it is based on evidence showing that (1) a trained 12 employee walked past the area and neither fell nor noticed anything amiss and (2) 13 eight additional people walked past the area without incident in the four minutes 14 between Richards’s inspection and Leyba’s fall. A finding that Richards was not 15 actively scanning would do nothing to controvert either aspect of Walmart’s showing 16 and would therefore not provide any reasonable basis for concluding that a liquid 17 substance was on the floor at the time Richards walked through the action alley. For 18 this reason, the dispute about whether Richards was actively scanning is not material. 19 Leyba does not dispute that Richards was trained to inspect for dangerous 20 conditions such as spills, (SUF 10), and she also does not dispute that eight people 21 walked through the same action alley in the four minutes before she fell, (SUF 6). 22 Thus, Walmart’s demonstration that the dangerous condition was present for no longer 23 than four minutes and twenty seconds is uncontroverted by any evidence Leyba 24 submits. Leyba’s speculation about whether Richards actually inspected the floor 25 does not constitute affirmative evidence suggesting that a dangerous condition was 26

3 White does not appear to be the proper expert to opine on this issue in the first place. White is a 27 retail industry and store consultant. (White Decl. ¶ 1.) It is unclear what expertise supports his 28 analysis of Richards’s “posture and head movement.” (Id. ¶ 18.) There is no indication, for example, that White has expertise in anatomy or kinesiology.

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1 present for any longer than four minutes and twenty seconds. Garcia, 2016 WL 2 7637662, at *3 (granting Target’s motion for summary judgment after finding that, 3 even if reasonable minds could differ as to whether the Target employee actually 4 inspected the area where the plaintiff fell, plaintiff had no affirmative evidence to 5 show an inspection did not occur); cf. Thornhill, 594 F.2d at 738 (“Conclusory or 6 speculative testimony . . . is insufficient to raise genuine issues of fact and defeat 7 summary judgment.”). 8 District courts applying California law generally agree that a retail store owner 9 does not have constructive notice until a slip-and-fall hazard is present for at least 10 thirty minutes. See Eidem, 2011 WL 3756144, at *9 (collecting cases and granting 11 Target’s motion for summary judgment where the employee inspected the area fifteen 12 minutes before the accident). Here, four minutes and twenty seconds is almost a full 13 order of magnitude less than thirty minutes, and Leyba thus fails to carry her burden to 14 establish that the dangerous condition was present for a sufficient time to create a 15 triable issue as to constructive notice. See Alacan v. Target Corp., No. CV 14-04564- 16 AB (VBKx), 2015 WL 10945603, at *3 (C.D. Cal. June 26, 2015) (granting Target’s 17 motion for summary judgment where the employee inspected the area seven minutes 18 before the accident). This means that Leyba fails to demonstrate a genuine dispute of 19 fact regarding constructive notice, and Walmart is accordingly entitled to judgment as 20 a matter of law. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///

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1 Vv. CONCLUSION 2 For these reasons, the Court GRANTS Walmart’s Motion for Summary 3 || Judgment. (ECF No. 26.) The Court will issue a judgment of dismissal consistent 4] with this Order. 6 IT IS SO ORDERED. 8 March 10, 2022 om 9 Soe

11 OTIS D. HT, b UNITED STATES DISTRICT JUDGE

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