Opinion
E067801
10-09-2018
MARTHA JIMENEZ, Plaintiff and Appellant, v. STATER BROS. MARKETS, Defendant and Respondent.
Raymond Ghermezian for Plaintiff and Appellant. Varner & Brandt, David J. Porras, Michelle M. Wolfe, and Angelica A. Samaniego for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1500486) OPINION APPEAL from the Superior Court of Riverside County. John W. Vineyard, Judge. Reversed. Raymond Ghermezian for Plaintiff and Appellant. Varner & Brandt, David J. Porras, Michelle M. Wolfe, and Angelica A. Samaniego for Defendant and Respondent.
Martha Jimenez was injured when she slipped on a patch of liquid on the floor of a supermarket owned and operated by Stater Bros. Markets (Stater). Stater filed a motion for summary judgment, supported by its expert's declaration to the effect that Stater conducted reasonable inspections by sweeping the floor once an hour. In opposition, Jimenez submitted her expert's declaration to the effect that Stater's inspections were not conducted in a reasonable manner, and also that the flooring material where she fell was unreasonably slippery when wet. The trial court sustained Stater's evidentiary objections to the bulk of the declaration of Jimenez's expert and granted the motion.
We will hold that the trial court erred by sustaining the objections to the declaration of Jimenez's expert (although it did not err by overruling Jimenez's objections to the declarations of Stater's witnesses). We will also hold that, whether the declaration of Jimenez's expert was admissible or not, the trial court erred by granting summary judgment.
I
FACTUAL BACKGROUND
On August 10, 2013, Jimenez was shopping in a Stater store in Riverside. While waiting at a checkstand, she realized she had forgotten to get milk. She left her cart at the checkstand and headed back toward the milk.
Jimenez introduced portions of a number of depositions, including her own. Although Stater did not file any objections to these depositions, in its response to Jimenez's separate statement, it asserted that they had not been authenticated by the declaration of her expert. That was true, but beside the point; they were authenticated by a declaration of her counsel.
After she had taken about 15 steps, she slipped and fell. She then realized that she had slipped on a wet, white substance that looked like cream. She was in the middle aisle (running side to side down the middle of the store) and just in front of aisle 10 (running front to back). She hurt her right knee, left foot, and left arm. She got up, got the milk, and went back to the checkstand.
Based on store monitoring videos, the fall occurred sometime between 8:17 p.m., when Jimenez left the checkstand, and 8:19 p.m., when she returned to the checkstand.
Stater's policy requires that floors be swept or mopped and inspected once an hour. When an employee finishes a sweep, he or she must log in and document the sweep in the store's electronic time clock system.
The most recent sweep had been conducted by Daniel Mesina, a courtesy clerk, between 7:50 and 7:51 p.m. He went up straight up and down the center of the aisles, while inspecting the area to the right and left. He did not sweep around the endcaps. He used a dust mop. A dust mop will not soak up liquid; if he saw a spill, he would clean it up with paper towels. During his sweep, the spill was not there.
After Jimenez fell, Mesina was told about the spill, and after that, he saw it. According to him, it was between aisles 10 and 11, at the endcap. The floor in the area was either white or beige. He could see the spill from six feet away.
Peter Zande, Stater's expert on slip and fall accidents, testified that Stater's policy of conducting hourly sweeps of the store was consistent with that of the local supermarket industry. Moreover, the sweep that Mesina conducted, some 25 to 30 minutes before Jimenez fell, was consistent with Stater's policy. In Zande's opinion, "Stater Bros. conducted reasonable inspections prior to the fall. Stater Bros. exercised ordinary care by making reasonable inspections and sweeps of the portions of the store open to customers. Therefore, Stater Bros. did not have constructive notice of any substance on the floor before the incident."
According to Brad P. Avrit, Jimenez's expert on slip and fall accidents, Stater's inspection and maintenance protocol was below the standard of care in the supermarket industry because: (1) A dust mop will not pick up liquids. (2) Stater employees mopped only the center of the aisles, and not the sides, corners, or endcaps.
Avrit also opined that the protocol was below the standard of care for two additional reasons: (1) Stater relied on a visual inspection of those floor areas that the mop did not actually contact; however, "when a foreign substance is not visually discernible, it will be missed." (2) Stater did not use "a Gleason-type system," which "develops unalterable data that is collected electronically and indicates . . . when a specific area within the store was last inspected" as well as whether the inspection was "actually perform[ed] . . . the way it should be . . . ." The trial court, however, sustained Stater's objections to these opinions.
Finally, Avrit noted that (as shown by the declaration of his associate, Austin Duke) the flooring material at the store was vinyl composition tile. The slip resistance of vinyl composition tile, when wet, is 0.18 to 0.22. In Avrit's opinion, a floor surface with a slip resistance as low as 0.18 is "inherently dangerous." Thus, the flooring material was "improper for a supermarket environment . . . ." Once again, however, the trial court sustained Stater's objections to these opinions.
II
STATER'S OBJECTIONS TO THE DECLARATIONS OF JIMENEZ'S EXPERTS
Jimenez contends that the trial court erred by sustaining Stater's objections to the declarations of her two experts.
A. Declaration of Austin Duke.
First, Jimenez contends that the trial court erred by excluding the declaration of Austin Duke.
1. Additional factual and procedural background.
Duke was a forensic engineer and an associate of Avrit. In his declaration, he testified that, three years after the accident, he went to the store. He "observed" that the flooring was vinyl composition tile. He also took photos of the store, which were attached to his declaration.
Stater objected to Duke's entire declaration, on the ground that it was "unlawfully obtained." Stater represented that, when this action was filed, it notified Jimenez's counsel that it was denying her and her agents permission to enter the store except in the course of discovery; accordingly, Duke had committed "a civil trespass."
The trial court sustained the objection.
2. Discussion.
"Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) A few statutes require that evidence obtained by certain illegal means be excluded. (E.g., Civ. Code, § 1798.90, subd. (f) [improperly disclosed personal information of a book service user]; Pen. Code, § 632, subd. (d) [evidence obtained as a result of unlawfully eavesdropping on a confidential communication].) Stater does not point to any statute requiring the exclusion of evidence obtained by a trespass.
Jimenez relies on a case with strikingly similar facts. Pullin v. Superior Court (2000) 81 Cal.App.4th 1161 was a slip-and-fall case involving a supermarket. (Id. at p. 1162.) The plaintiff's expert asked the defendant's attorney for permission to inspect the supermarket; the attorney refused. The expert nevertheless entered the supermarket while it was open for business and conducted a single noninvasive, nondisruptive test. The trial court excluded evidence of the test as "'contrary to the spirit of our discovery laws.'" (Id. at p. 1163.)
The appellate court reversed; it held that the availability of discovery does not preclude such an independent investigation. (Pullin v. Superior Court, supra, 81 Cal.App.4th at pp. 1163-1165.) Admittedly, this is not precisely the argument that Stater is raising. However, the court also noted that the supermarket was open to the public, and that the expert's conduct did not constitute criminal trespass. (Id. at p. 1165.) It concluded, "We do not see any unlawful conduct." (Ibid.) Thus, Pullin at least suggests that a civil trespass — as opposed to a criminal trespass — does not support the exclusion of evidence. Stater does not argue that Duke committed a criminal trespass. He did not. (Pen. Code, §§ 602, 602.1; Riverside Muni. Code, § 9.04.300; In re Y.R. (2014) 226 Cal.App.4th 1114, 1118-1121.)
In fact, we are not quite sure just what Stater's argument on this point is. It simply incorporates its "arguments made below." This is improper. "It is inappropriate for an appellate brief to incorporate by reference arguments contained in a document filed in the trial court. [Citation.]" (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 854.)
For the sake of completeness, we note that obtaining evidence illegally can be the basis of other sanctions, including — when the misconduct is "egregious" and "pervasive" — terminating sanctions. (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 757-765, 767-768.) Duke's conduct did not rise to this level. In any event, in light of Evidence Code section 351, the evidence cannot be excluded.
Stater does argue that the evidence had to be excluded in any event because Duke did not explain how he was able to identify the flooring as vinyl composition tile merely by observing it, nor did he show that he was qualified to do so.
Duke was a certified tribometrist — i.e., an expert in the study of sliding friction. (See Oxford Engl. Dict. Online (2018) "Tribometer" <http://www.oed.com/view/Entry/205736>, as of October 5, 2018.) He had "conducted slip resistance testing on a number of floor surfaces and flooring types." He had worked on previous slip-and-fall cases, in which his duties included the inspection of incident sites. "Where an expert witness, such as a medical witness, bases his scientific opinion on his observation, such as an attending or treating physician observing his patient, he need not state the reasons for his opinion — the facts upon which they are based — to render his opinion competent and probative evidence. [Citations.]" (Lumbermen's Mut. Cas. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 492, 500, and cases cited.) We see no reason why Duke could not identify vinyl composition tile by sight, any less than a qualified surgeon could identify an appendix or a qualified entomologist could identify a blow fly. Certainly if Duke were to testify at trial, Stater could cross-examine him on this; however his failure to explain goes only to the weight and not to the admissibility of his testimony.
B. Declaration of Brad P. Avrit.
Jimenez also contends that the trial court erred by excluding the declaration of her expert, Brad P. Avrit.
1. Additional factual and procedural background.
Avrit was an expert on pedestrian safety, including in supermarkets.
In his declaration, he testified that Mesina's sweep, even if it was consistent with Stater's policies and procedures, fell below the standard of care because:
1. The dust mop was not wide enough to sweep the entire aisle, yet Mesina went straight down the middle of the aisle and did not sweep the sides.
2. Mesina did not sweep the endcaps or the corners of the aisles.
3. Mesina visually inspected the areas that he did not actually sweep, but an employee may fail to notice a foreign substance when it blends in with the color of the floor.
4. Stater did not use "a Gleason-type system," which would have shown, "electronically" and "unalterabl[y]," exactly when each area in the store was swept as well as whether the sweep was done properly.
Avrit testified that the sweep was also inadequate because Mesina used a dust mop, which does not absorb liquids. He admitted, however, that if a dust mop comes into physical contact with a spill, "the employee utilizing the tool will be cued that something foreign is on the floor and that clean-up is necessary."
Avrit further testified that the sweep was inadequate because, on August 10, 2013, Mesina did not sweep the cookie and picnic supply area, even though he was supposed to sweep the whole store. As Jimenez did not fall in the cookie and picnic supply area, this was irrelevant.
Finally, Avrit also testified that Stater fell below the applicable standard of care with respect to (1) preserving evidence and (2) investigating the accident. These opinions did not tend to show that Stater negligently caused Jimenez's fall. Jimenez never pleaded any claim for failure to preserve evidence or for failure to investigate. Hence, these opinions were irrelevant.
Avrit also testified that "the subject flooring is improper for a supermarket environment due to its inherent slipperiness when wet." He relied on Duke's opinion that the flooring was vinyl composition tile. Vinyl composition tile, when wet, has a slip resistance "in the range of 0.18-0.22." "[A] floor with a slip resistance value as low as 0.18 . . . has more than a 60% chance of causing a slip incident." Thus, a floor surface with a slip resistance of 0.18 is "inherently dangerous."
Stater objected to some of Avrit's opinions regarding the sweep procedure based on relevance, speculation, lack of foundation, lack of personal knowledge, and improper expert opinion. It also objected to Avrit's opinion that the flooring was inherently dangerous as lacking foundation, speculative, and improper expert opinion. The trial court sustained these objections.
2. Discussion.
Avrit's opinions regarding the sweep procedure were admissible. He was duly qualified. Stater argues that he had no "special knowledge of the standard of care for inspection and sweeping in the grocery industry." He testified, however: "I have personally conducted investigations and analyzed more than 9,000 accident cases in the past 25 years, including thousands of incidents related to slip/trip and falls, customer safety, floor maintenance procedures and risk management. A great number of the accident cases I have analyzed concern slips in supermarkets, such as that which occurred in this matter." This was sufficient.
His opinion was plainly relevant. It was not speculative; he had reviewed all of the other evidence in the case, and he explained how this evidence supported his opinion. He was not required to have personal knowledge of the underlying facts, because they were shown by other evidence. (Evid. Code, § 801, subd. (b); People v. Sanchez (2016) 63 Cal.4th 665, 686.)
Stater challenges Avrit's statement that the spill "could well have been there" when Mesina swept as speculative and lacking foundation. He added, however, that this was because Mesina relied on a visual scan and the spill was roughly the same color as the floor. This was an adequate explanation.
Finally, Stater complains that Avrit did not explain what a Gleason-type system is. From his discussion of it, however, it is clear that it is an electronic means of recording exactly which area of a store is swept and how. In any event, even if Stater were correct, this would not be grounds to exclude Avrit's opinion in its entirety.
Avrit's opinions regarding the slipperiness of the floor were likewise admissible. Although Avrit did not inspect or test the flooring himself, he was entitled to rely on Duke's declaration stating that the flooring was vinyl composition tile. As we held in part II.A.2, ante, Duke's declaration should have been admitted. Stater argues that Avrit left open the possibility that the floor in this case had slip resistance as high as 0.22 and did not testify that that would be inherently dangerous. A graph attached to his declaration, however, showed that a floor with a slip resistance of 0.22 still had roughly a 35-40 percent probability of causing a slip. This was sufficient evidence that Stater's floor was unreasonably (if not "inherently") dangerous.
III
JIMENEZ'S OBJECTIONS TO THE DECLARATIONS OF STATER'S WITNESSES
Jimenez contends that the trial court erred by overruling her objections to the declarations of four of Stater's witnesses.
A. Declaration of Daniel Mesina.
First, Jimenez contends that the trial court erred by overruling her objection to Daniel Mesina's declaration.
1. Additional factual and procedural background.
In his declaration, Mesina testified: "On August 10, 2013, [between 7:50 p.m. through 7:51 p.m.], I swept and inspected the Store floor, specifically in front of aisles 11 and 10 and at those times, it was dry and clean."
In his deposition, Mesina testified that this paragraph of his declaration was true. He added that the spill was between aisle 10 and aisle 11, at the endcap. He did not sweep over the endcap; however, if the spill had been there, he would have seen it. Thus, by the time Jimenez fell, it could have been there for half an hour. He was supposed to sweep the cookie and picnic supplies area, but he did not do so that day.
Jimenez objected to this portion of Mesina's declaration on the ground that it was contradicted by his deposition. The trial court overruled this objection.
2. Discussion.
We perceive no contradiction. Mesina testified that he swept both aisles. Although he did not sweep directly over the endcap, he knew this area was dry and clean because, if the spill had been there, he would have seen it. His statement that it could have been there for half an hour is an appropriate way of referring to the 28 minutes between 7:50 and 8:18 p.m.
B. Declaration of Stacy Hudock.
Next, Jimenez contends that the trial court erred by overruling her objections to Stacy Hudock's declaration.
1. Additional factual and procedural background.
Stacy Hudock was the highest-ranking store employee present when Jimenez fell. In her declaration, she testified:
"3. On August 10, 2013, Stater Bros. maintained an in-store closed circuit television monitoring system ('CCTV') which records store activity from multiple locations. I have reviewed the CCTV video recording of the Store taken on August 10, 2013, and it is true and accurate."
"7. Although Plaintiff's slip and fall was not captured on the CCTV recording, as part of my investigation into the accident and because I am aware of what Plaintiff was wearing on the date of her incident, I was able to track Plaintiff's general whereabouts in the store on August 10, 2013. Attached to my declaration as Exhibit '3' are a series of still photographs taken from the CCTV which depict Plaintiff walking in the store. . . . Specifically, Plaintiff can be seen walking out of the customer check-out line at checkstand #2 at 8:17:16 p.m. (See Exhibit '3-a') and walking towards aisle 10 at approximately 8:17:22 p.m. (See Exhibit '3-b'). Approximately 1 1/2 minutes later, Plaintiff can be seen walking away from aisle 10 at 8:18:49 p.m. (See Exhibit '3-c' and '3-d') and back in line at checkstand #2 at 8:19:15 p.m., where she is holding milk in her right hand. (See Exhibit '3-e')." (Bolding omitted.)
In her deposition, Hudock testified that there were no cameras covering the area where Jimenez fell. However, she had reviewed video from two other cameras. Moreover, she had reviewed the still photos that were exhibits to her declaration before signing it.
Counsel read her paragraph 7 of her declaration and then asked:
"Q. . . . Is that right?
"A. Yes.
"Q. When did you do this?
"A. I didn't do that. I didn't do the — I didn't track her whereabouts. I didn't do the cameras.
"Q. Okay. So who generated the statement for you?
"A. Not me. I don't know.
"Q. Okay. So this is not true?
"A. I didn't — I didn't — I didn't write that.
"Q. Okay. Is this statement not true?
"A. It's true. I didn't write it, though. I mean this part isn't — I didn't do that, no.
"Q. Okay. So what I just read is not true?
"A. Yeah. I did not track anybody's whereabouts."
Jimenez objected to these portions of Hudock's declaration on the ground that they were contradicted by her deposition. The trial court overruled these objections.
2. Discussion.
Once again, we see no contradiction. Hudock had, in fact, reviewed the available video as well as the still photos. Moreover, while the video did not show Jimenez's fall, the video and the still photos did show her movements before and after.
The only even arguable contradiction is as to whether Hudock "track[ed] Plaintiff's general whereabouts." Given her testimony that she reviewed both the video and the still photos, and given the fact that the photos do show Jimenez at a series of locations in the store, her statement in her declaration that she "track[ed]" Jimenez seems truthful.
It does appear that "track" is not precisely the word that Hudock would have used if she had drafted the declaration herself. She explained, "I didn't do the cameras" — evidently meaning that she did not zoom a camera in on Jimenez or pan it to follow Jimenez's movements. Nevertheless, the video did show Jimenez's movements, and Hudock could "track" them with her eyes.
C. Declaration of Pat Negrete.
Jimenez also contends that the trial court erred by overruling her objections to Pat Negrete's declaration.
1. Additional factual and procedural background.
Pat Negrete was the store manager. In his declaration, he testified:
"3. . . . I have reviewed the CCTV video recording of the Store taken on August 10, 2013, and it is true and accurate."
"5. Upon completion of a 60 minute store floor sweep, the employee conducting the store sweep is required to log and record the sweep. This sweep is then captured in a document entitled, Grocery Sweep Coverage Report. Attached to my declaration as Exhibit '2' is a true and correct copy of the Grocery Sweep Coverage Report for August 10, 2013.
"6. . . . My review of the CCTV video taken on August 10, 2013, demonstrates that the floor sweeps were conducted in accordance with Stater Bros' written maintenance procedures. Specifically, the video shows a sweep occurring on aisles 13 through 9 between 7:50 p.m. and 7:51 p.m.
"7. The completion of the Store sweep being conducted as described in paragraph 6, above, is accurately logged and recorded at 7:55 p.m. and is reflected on the Grocery Sweep Coverage Report attached as Exhibit '2' to my declaration." (Bolding omitted.)
In his deposition, Negrete testified that the store has 16 cameras. He was not at the store on August 10, 2013. The next day, however, he reviewed video from two or three of the cameras. He had been able to see Mesina sweeping; that was the basis of his opinion that the sweep was done according to policy. Looking at the view from other cameras would not have helped, "because none of that took place there."
Jimenez objected to these portions of Negrete's declaration on the ground that they were contradicted by his deposition. The trial court overruled these objections.
2. Discussion.
Yet again, we see no contradiction. Jimenez argues that Negrete was not at the store on August 10, 2013, and therefore he could not testify that the videos were true and accurate. In his declaration, however, he testified, "I often review the CCTV footage to ensure store policies are being adhered to . . . ." He could perceive that the videos depicted the store, as it usually looked, and Mesina sweeping, as he usually looked. Thus, he could truthfully testify that they were accurate.
D. Declaration of Peter Zande.
Jimenez contends that the trial court erred by overruling her objections to the declaration of Stater's expert, Peter Zande.
1. Additional factual and procedural background.
In his declaration, Zande testified:
"11. . . . Stater Bros. exercised ordinary care by making reasonable inspections and sweeps of the portions of the store open to customers. Therefore, Stater Bros. did not have constructive notice of any substance on the floor before the incident.
"13. The measures put into place by Stater Bros. included, among others, inspection tours (sweeps) each hour during periods of normal business operations. Safety training and instruction is part of all store operations and all employees are charged with watching out for liquid and other debris on the floor in the course of their duties. It is reported that the corporate safety manual is known and accessible to store managers and employees, and all employees, particularly managers, are trained in hazard recognition and the Stater Bros.' safety program.
"14. In light of the foregoing, it is my opinion that Stater Bros.' maintenance and sweep policies and procedures used by Mr. Mesina on the day of Plaintiffs incident conform to those in the grocery retail industry. It is further my opinion that Stater Bros.' employees complied with these policies and procedures on the date of this incident."
Jimenez objected to these portions of Zande's declaration. The trial court overruled these objections.
2. Discussion.
Zande had reviewed and relied on (among other things) the declarations of Mesina, Hudock, and Negrete. Jimenez argues that "the matters relied upon by Mr. Zande . . . were refuted by the deposition testimony of each of Respondent's employees." (Italics omitted.) As we have already held, however, the depositions did not contradict the declarations.
Jimenez also argues that "Mr. Zande failed to offer any reasoning or analysis underlying his opinion . . . ."
"If an expert provides an opinion in support of a motion for summary judgment, he or she must provide the facts upon which the expert's conclusions are based. '"'[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]' [Citation.]"' [Citation.]" (Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 662, italics omitted.)
Here, however, Zande explained: "Stater Bros. had a written inspection and maintenance program that conformed to that of the local supermarket industry in California. All employees are trained as to what to do to prevent falls in the store . . . . One key element of the program is to conduct periodic sweeps of the whole store . . . . Inspection tours (sweeps) of the grocery section of the store . . . are conducted hourly by an employee. At the conclusion of the sweep, the time is logged by the employee who did the sweep . . . ." "[T]he hourly sweep of this Store was conducted in accordance with the Stater Bros. safety program . . . approximately 25-30 minutes before Plaintiff, Ms. Jimenez allegedly fell . . . ." The fact that hourly sweeps were adequate was something that Zande could state as a matter of his expert opinion. Thus, this reasoning adequately supported his opinion that Stater exercised ordinary care.
IV
THE MERITS OF THE MOTION FOR SUMMARY JUDGMENT
Jimenez contends that there are triable issues of fact as to whether Stater exercised due care.
A "[d]efendant[] [is] entitled to summary judgment only if 'all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' [Citation.] To determine whether triable issues of fact do exist, we independently review the record that was before the trial court when it ruled on defendant['s] motion. [Citations.] In so doing, we view the evidence in the light most favorable to plaintiff[] as the losing part[y], resolving evidentiary doubts and ambiguities in [its] favor. [Citation.]" (Martinez v. Combs (2010) 49 Cal.4th 35, 68.)
"It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. [Citations.]" (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)
"'[T]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier "must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises . . . ."' [Citation.]" (Ortega v. Kmart Corp., supra, 26 Cal.4th 1200, 1206.) "The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. . . . 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. [Citation.]" (Id. at pp. 1206-1207.)
In sum, then, "[a] store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers . . . . [Citation.]" (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205.)
Here, Stater showed that the frequency of its inspections was reasonable, because it conformed with the standard in the industry. (Danning v. Bank of America (1984) 151 Cal.App.3d 961, 980 ["The standard of care required in a particular circumstance may be based on . . . the custom and practice in the relevant community."], disapproved on other grounds in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1137-1138.) Jimenez argues that a jury could have concluded, contrary to Zande's testimony, that Stater should have conducted inspections more frequently. Zande's testimony, however, was uncontradicted. "As long as it does not do so arbitrarily, . . . a jury may entirely reject the testimony of one party's expert witness even when the other party does not call any opposing expert and the expert testimony is not contradicted. [Citations.] However, on summary judgment, if the moving party's expert testimony is properly admitted and not controverted by an opposing expert, the court cannot deny the motion because a jury could arguably reject the expert's view. [Citation.]" (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1322, fn. 19.)
On the other hand, Stater did not show that the manner of its inspections was reasonable. Zande merely testified, in conclusory form, "that Stater Bros. conducted reasonable inspections prior to the fall." Except with regard to the frequency of the inspections, however, he did not explain how he arrived at this conclusion. Thus, arguably Stater did not even carry its initial burden to show that it was entitled to judgment. In any event, Jimenez's evidence raised a triable issue of material fact on this point. It showed that Mesina did not actually mop the entire floor; rather, he relied on a visual inspection of the areas that the mop did not touch. In particular, he did not sweep the endcaps. However, Mesina also testified that the spill was at an endcap. Avrit testified that a visual inspection was inadequate, because an employee could miss a spill that blended into the color of the floor. The trial court excluded this testimony, but as we held in part II.B.2, ante, this was error. In any event, even without expert testimony, a juror could come to the same conclusion from his or her experience.
Medina testified that he could see the spill from six feet away, but that was after someone had already told him it was there.
Finally, as we also held in part II.B.2, ante, the trial court erred by excluding Avrit's testimony that the flooring material was unreasonably slippery. This was a distinct theory of negligence from whether Stater conducted reasonable inspections. Moreover, this theory was within the scope of Jimenez's complaint, which simply alleged that Stater "negligently, carelessly and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned certain walkway surfaces . . . " There is no evidence that this theory conflicted with any of Jimenez's discovery responses. Accordingly, it, too, required denial of the motion. (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-717 [in slip-and-fall case, trial court erred by granting summary judgment where defendant negated failure to inspect theory but did not negate theory that floor was unreasonably slippery].)
V
DISPOSITION
The judgment is reversed. Jimenez is awarded costs on appeal against Stater.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: CODRINGTON
J. SLOUGH
J.