Case Number: MC024997??? Hearing Date: April 28, 2016??? Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT

BEATRIZ A. MADRIGAL, )
) Case Number MC024997
Plaintiff, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
FOREST CITY ANTELOPE VALLEY, ) April 28, 2016
INC., et al, ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

Defendants Federal Building Services, Inc. and Antelope Valley Mall, LLC?s motion for summary judgment came on for hearing on April 28, 2016. Plaintiff Beatriz A. Madrigal appeared through her counsel of record, ______________________. Defendants Federal Building Services, Inc. and Antelope Valley Mall, LLC appeared through their counsel of record, _______________________. The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, it is hereby ORDERED:

The motion for summary judgment is DENIED.

SO ORDERED this the _____ day of April, 2016.

______________________
RANDOLPH A. ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT

BEATRIZ A. MADRIGAL, )
) Case Number MC024997
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
FOREST CITY ANTELOPE VALLEY, ) April 28, 2016
INC., et al, ) Dept. A-11
) Judge Randolph A. Rogers
Defendants. )
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case is a slip-and-fall premises liability case. Plaintiff Beatriz A. Madrigal (?Plaintiff?) was a customer shopping at the Antelope Valley Mall (?Mall?), owned by Defendant Antelope Valley Mall, LLC (?AVM?). Defendant Federal Building Services, Inc. (?FBS?) contracted with AVM to provide, among other things, cleaning services on the Mall property. On December 30, 2013, while patronizing the Mall, Plaintiff slipped on a puddle in the food court, sustaining injuries as a result. Plaintiff filed suit against AVM and FBS (?Defendants?) on October 30, 2014, alleging causes of action for negligence and willful failure to warn. An Answer was filed on February 13, 2015, and discovery ensued.

2. On November 19, 2015, Defendants filed a motion for summary judgment, arguing that they were entitled to judgment as a matter of law because FBS did not own, possess, or control the property, and because there is no triable issue of fact concerning whether Defendants had notice, actual or constructive, of the alleged dangerous condition.

3. Plaintiff filed a request for continuance on March 22, 2016. Plaintiff first asserted that FBS? control argument is ?spurious? because a cleaning contractors is responsible for removing exactly the type of safety hazards Plaintiff encountered. Plaintiff then argued that the Court should continue the motion with respect to the notice issue in light of the delayed deposition of the Mall manager. Plaintiff submitted a supplemental declaration on March 25, 2016, which includes some additional facts that the Mall manager attested to during his March 22, 2016, deposition. Defendants filed an Opposition to the request for continuance and objections to the 3/25/16 Declaration.

4. The Court heard the motion on April 5, 2016, and continued it to April 28, 2016.

5. On March 30, 2016, Plaintiff submitted her substantive Opposition to Defendants? motion, arguing that there are triable issues of fact over whether Defendants had constructive notice of the dangerous condition, and whether FBS had control over the premises.

6. Standard for summary judgment or summary adjudication ? A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. Cal. Code Civ. Proc. ? 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Cal. Code Civ. Proc. ? 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

7. ?For purposes of motions for summary judgment and summary adjudication: [?] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.? CCP ? 437c(p)(1).

8. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party?s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841. In determining whether the facts give rise to a triable issue of material fact, ??[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . .?? Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99. ?In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true.? Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.

9. FBS? Ownership, Possession, or Control ? The Court has previously addressed FBS? arguments concerning ownership, possession, and control in the 4/5/16 Order. As the Court noted then FBS was ?hired to perform cleaning services for the mall.? 4/5/16 Order at ?8. FBS must have had the authority to remove contaminants and clean up spills and unwanted water accumulation because it was precisely the type of service FBS was contracted to provide.

10. As such, the control, ownership, and possession argument is unavailing for FBS.

11. Actual or Constructive Notice ?Defendants? argue that they lacked notice of the dangerous condition. Generally, for an owner to be liable for a dangerous condition on the property, he or she ?must have had either actual or constructive knowledge of the condition or have been able to discover it by the exercise of ordinary care.? Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447. ?The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.? Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1207. ?Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations.? Id. ?[A]s to business invitees, the owner should conduct frequent inspections.? Id. Furthermore, ?[e]ven though there was no default in inspection, if the injury to an invitee can be traced . . . to the failure to take reasonable precautions to protect invitees from dangers foreseeably attendant on the arrangement or use of the premises, a defendant may be liable.? Henderson v. Mcgill (1963) 222 Cal.App.2d 256, 259.

12. Defendants argue that they cannot be held liable as a matter of law because the area where Plaintiff slipped had been inspected 3 minutes prior to the fall. They cite the deposition of Sandra Leon, the employee responsible for conducting inspections and cleanings, as evidence. Motion, Exhibit D at 80:14-19. Plaintiff, however, argues that given the layout of the mall, the accident location was particularly prone to spills, and should have been inspected more frequently than the rest of the mall, and policies should have been put in place to ensure proper inspections were actually performed. Opposition at 8:8-14.

13. The undisputed facts in this case are that, at the time of the accident, Leon was in the woman?s restroom near the mall food-court carrying out her cleaning duties. Undisputed Material Fact 25, 26. The Court further accepts Leon?s general description of her routine when conducting inspections, given that Plaintiff?s objection, that Defendants have produced no documentation demonstrating what path Leon took during cleaning, does not raise a factual dispute as to Leon?s account of what route she actually takes, and took on the date of the accident, in carrying out her duties. See Plaintiff?s Opposition to Defendants? Separate Statement, Facts 17-22.

14. Based on the map identified as Exhibit 2 to Leon?s Deposition, Motion, Exhibit 5, the mall in which Plaintiff slipped has one principal east-west hallway (?Main hallway?), and three north-south hallways (?east hallway,? ?food court hallway,? and ?west hallway?). The Main hallway intersects both the east and west hallways at about the mid-point, while it intersects the food court hallway at about its southern third. The accident occurred in front of the store ?Motherhood,? approximately halfway in the food court hallway.

15. Based on Leon?s deposition testimony, she would begin her inspection by cleaning the female restroom. This is approximately 40 feet north of Motherhood in the food court hallway. Opposition, Exhibit 3, Diagram 101-4. She would then leave the restroom and turn left, travelling south in the food-court hallway while inspecting the mall grounds. She would turn left when she reached the intersection of the food-court hallway and the Main hallway, heading east until she reached the Macy?s at the eastern end of the mall. She would then turn around and travel westward in the Main hallway until she reached the east hallway, turning left to proceed south through the hallway until she reached the JC Penny at the south-eastern side of the mall. She would then turn around, and travel back the way she came until she reached the Main hallway where she would turn left again, travelling westward down the Main hallway until she reached the intersection with the food-court hallway. She would turn left and walk the southern portion of the food court hallway, reaching its end before turning around and continuing her inspection until she reached the intersection, where she would make another left. She would travel in a westward direction until she reached the western hallway, wherein she would turn left, inspect the southern half of the hallway, turn around, travel back to the intersection, and turn left again. She would then follow the Main hallway until she reached the Sears at the western end of the mall, turn around, and travel eastward down the Main hallway until she reached the western hallway. Leon would then turn left, inspect the northern half of the western hallway, turn around, return to the intersection, and make another left. She would travel in an eastward direction until reaching the intersection with the food court hallway, wherein she would turn left again, and travel the northern two-thirds of the food court hallway until she reached the Dillon?s at the northern end of the hallway. She would then turn around and travel back down the hallway until she reached the restrooms, wherein she would enter, inspect, and clean. Motion, Exhibit D at 39:10-44:25. The inspection of the mall took between 10 and 15 minutes; the restroom cleaning took approximately 5 minutes. Id. at 45:1-10. A visual representation of the route travelled is marked as Exhibit 2 to Leon?s Deposition. Opposition, Exhibit 5.

16. The evidence reflects that the food court hallway was approximately 40 feet wide. Opposition, Exhibit 3, Diagram 101-4. The middle of the hallway is occupied by moveable kiosks and additional seating. Id. The location where Plaintiff slipped and fell is close to the food court, as well as Mrs. Fields Cookie and Cinnabon. Plaintiff?s Additional Facts, Fact #3. Further, after an employee inspects and cleans the toilet, they typically sign the maintenance log. Opposition, Exhibit 6 at 33:7-10. The accident occurred at 12:55pm. Id. Exhibit 7-14. The restroom logs reflect that Leon last recorded inspecting the restroom at 12:30pm. Id. Exhibit 6-3. She last reported inspecting the spill area at 12:45pm. Id. Exhibit 7-14. The evidence also reflects that the mall had leaking problems from skylights such as those in the food court hallway. Opposition, Exhibit 21 at 34:17-23.

17. Plaintiff also contends that the restroom logs are unreliable because Leon has a habit of signing the log hourly. Plaintiff?s Additional Facts, Fact #11. Plaintiff?s evidence, however, is conflicted at best. Plaintiff relies on the restroom maintenance logs for the weeks of 12/19/13 and 1/5/14, in which, Leon signed the log hourly for two of the four days she worked. Plaintiff appears to contend that these two days, approximately a week before the accident, establish that Leon signed the logs hourly, and she therefore must have been lying when she signed the logs on 12/30/13 representing she had conducted inspections at 12pm and 12:30pm. Plaintiff?s Additional Facts, Fact #17. The Court disagrees with Plaintiff?s inference. The mere fact that, on two of the four days surveyed, Leon completed the logs at hourly intervals is not adequate to establish that she customarily completed the logs at hourly intervals, particularly where the remaining two days surveyed reflect that she would occasionally conduct more than one inspection per hour. In the absence of any corroborating evidence, Plaintiff?s inference from the restroom logs is unreasonable.

18. Based on the forgoing, there is conflicting evidence over when Leon last inspected the area. Based on the spill log, Leon last inspected the area at 12:45pm, which is approximately 10 minutes before the accident. This contradicts her assertion that she last inspected the area three minutes prior to the accident. In addition, based on Leon?s description of her inspection pattern and the restroom log, the most favorable inference in Plaintiff?s favor is that she last inspected the area between 12:40 and 12:45pm. Thus, there is evidence that would support a conclusion that the last inspection of the area occurred approximately 10 to 15 minutes before the accident.

19. Case authority has held that gaps between inspections of as little as 12 minutes create a triable issue of fact justifying the denial of summary judgment. See Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124. See also Ortega, supra (inspection gap of between 15 to 30 minutes sufficient to infer constructive notice). In light of the fact that Defendants knew that there had been leaks in the roof, as well as the proximity of the accident location to the food court, other food-stuffs sellers, and additional seating for customers to consume their food, a reasonable trier of fact could conclude that 10 to 15 minute intervals in inspecting the area was unreasonable under the circumstances.

20. Accordingly, Defendants? motion for summary judgment is DENIED.

SO ORDERED AND ADJUDGED this the ______ day of April, 2016.

___________________________________
RANDOLPH A. ROGERS, JUDGE