Torres v. Super Center Concepts CA2/1

Filed 12/16/22 Torres v. Super Center Concepts CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

OLIVIA TORRES, B313172

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV19673)
v.

SUPER CENTER CONCEPTS,
INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Judge. Affirmed.
Law Offices of Edward Shkolnikov, Edward Shkolnikov and
Michael Sean Devereux for Plaintiff and Appellant.
Berman, Berman, Berman, Schneider & Lowary, Stephanie
Berman Schneider and Gina M. Genatempo for Defendant and
Respondent.
____________________
 Plaintiff Olivia Torres claims that defendant Super Center
Concepts, Inc., which does business as Superior Grocers
(Superior)1 negligently maintained its premises, causing her to
slip in a puddle of water and fall. The trial court entered
summary judgment against Torres on her claims. On appeal,
Torres contends two triable issues of material fact should have
precluded summary judgment. First, Torres asserts a factual
dispute about whether Superior’s refrigerated seafood and meat
display was the source of the water in which she slipped obviated
any need for Torres to demonstrate that Superior knew of the
dangerous condition created by the water puddle. Second, Torres
argues that even if there was no evidence Superior itself caused
the dangerous condition, a triable issue of fact existed as to
whether Superior knew, or in the exercise of reasonable care
should have known, of the dangerous condition and failed to
remedy it within a reasonable time.
We conclude that Torres failed to present admissible
evidence that Superior created the dangerous condition, or had
actual or constructive knowledge of the dangerous condition prior
to Torres’s slip and fall. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Summary
Superior owns and operates a grocery store in Cudahy,
California. On June 18, 2017, Torres, her husband, and her

1 In its answer, Superior alleged its legal name is Super
Center Concepts, Inc. doing business as Superior Grocers and
that it was erroneously sued as Super Center Concepts, Inc. For
ease of reference, we use the name under which Superior does
business.

2
daughter visited the Cudahy store. Torres was wearing sandals.
At approximately 9:47 a.m., the family made their way to the
meat and seafood counter. At 9:55 a.m., as Torres walked in
front of the counter to the ticket dispenser to get in the queue for
service, she slipped on water and fell. Torres’s husband heard
her crying out but did not see the fall. The parties do not dispute
that “[t]here was a large pool of water and [Torres’s] clothes were
soaked as a result of slipping in the water.”
According to Torres, while her husband helped her up or
soon thereafter, her husband told two male employees behind the
counter that there was water on the floor.2 It is undisputed that
one of the employees from the meat counter thereafter cleaned up
the water with paper towels. In their declarations, Torres and
her husband claim this employee was named Jose and that he
admitted to them that the water was coming from the meat and
seafood refrigerated display. Torres did not offer a declaration or
deposition testimony from this employee, and Superior has no
record of an employee named Jose working at the meat counter
on June 18, 2017. At the time she filed her opposition in
December 2020, Torres contended, without citing any evidence,
that whoever the employee was he “still works at the store.”
Torres acknowledged that she did not actually observe
water coming from the display case or see “a flow of water, like
an active leak.” Torres testified at her deposition that she did not
know if Superior knew the water was on the floor before she fell;
nor did she know how long the water had been on the floor before

2Torres claims neither employee took any action until her
husband told them a second time about the water while she and
her husband waited to order meat.

3
she fell. She also acknowledged that “Jose” did not say the
refrigerated display case had leaked on any prior occasion or how
long it had been leaking that day.
Superior asserts that Torres has no evidence the meat
counter refrigerator was actively leaking that day. In support of
its motion, Superior produced evidence that it has a policy and
practice for the Cudahy store to submit work orders for
refrigeration issues through a cloud-based system; that a leaking
refrigerator would have been tracked through this electronic
system; that Superior would “immediately send out a service
provider to repair the refrigerator” upon a request for service;
and that its records for the period June 1, 2017 through June 30,
2017 do not reflect any leak, work order request, or work done
relating to the Cudahy store’s meat counter refrigerator.
Superior also adduced evidence that the Cudahy store’s
policy was and is to have an employee, called a porter, inspect
each aisle, the store perimeter, and the restrooms each hour to
ensure the floors are clean, dry, and free of hazards. The porter
is also to clean or otherwise remedy problems the porter may
encounter on his or her rounds. Each porter carries a card with a
bar code, which the porter scans when he or she begins and
completes sweeps of different store sections. Thus, the times for
the beginning and ending of the sweeps of each area are
electronically logged in a “Sweep Trax Activity Report” (Sweep
Report). The Sweep Report cannot be changed once the sweeps
are scanned and recorded. It is Superior’s policy that a scan upon
completing a sweep cannot be made unless and until the area is
clean and free of hazards. The store’s assistant director stated in
his declaration that he “personally regularly walked through the
store several times daily to ensure that the porters were

4
complying with this sweep procedure and [he] know[s] that the
managers of the departments were also aware of the importance
of the hourly sweep procedures and they also watched to see that
their departments were regularly cleaned.”
Superior had two porters on duty on June 18, 2017. It is
undisputed the Sweep Report for that day states that a porter
inspected the area of the store in which the meat counter is
situated at 7:03 a.m., 8:03 a.m., 8:41 a.m., 9:33 a.m., and 10:05
a.m. The sweep of the meat counter area preceding Torres’s fall
began at 9:33:08 a.m. and ended at 9:34:41 a.m. As part of its
practice, Superior took a statement from the porter that swept
the meat counter area on the morning of June 18, 2017. The
statement reflects that at 9:34 a.m. on June 18, 2017, the porter
“passed through the front end area and where the incident
happened, [and] he did not see any substance or hazard on the
floor.”
Torres baldly asserts, without any supporting detail or
evidence, that the sweep was not properly done. Torres testified
at her deposition that she did not know the last time the store
inspected or cleaned the area where she fell; she did not know
whether anyone complained to the store about a substance on the
floor before she fell; and she did not see any footprints or cart
tracks in the substance on the floor before she fell.
In support of her summary judgment opposition, Torres
offered a video taken by her husband after she fell. That video is
not included in the appellate record. According to Torres’s
husband, he “took a video of the man cleaning up and of my wife’s
knee.” Torres describes the video as showing “the water that had
collected at the meat counter.” Superior similarly characterizes

5
the video as a short, post-incident video that depicts water on the
floor.
In her declaration, Torres stated she took “photographs
approximately one year [after the incident] depicting the towels
that were packed into the meat and seafood refrigerator and the
store floor.” Those photographs are not in the appellate record.
Torres also asserted that as of December 30, 2020, she returned
to the Cudahy store and observed “towels stuffed at the base of
the meat counter.”
B. Procedural History
On June 5, 2019, Torres filed complaint against Superior
alleging causes of action for premises liability and general
negligence. She sought compensatory damages for hospital and
medical expenses, “general damage,” and “incidental” damages.
On October 29, 2020, Superior filed a motion for summary
judgment or, in the alternative, summary adjudication. It argued
Torres could not establish the required elements of either cause
of action because she could not demonstrate a triable issue of
material fact as to whether Superior created the alleged
dangerous condition or had notice of it.3

3 In its answer to Torres’s complaint, Superior asserted
several affirmative defenses, including that it had no actual or
constructive knowledge of the alleged dangerous condition for a
sufficient time prior to the alleged injury to have taken measures
to protect against the condition. In its motion, Superior argued it
was entitled to summary adjudication in its favor on its
affirmative defense that it had neither actual nor constructive
notice.

6
 In her opposition, filed December 31, 2020, Torres argued
that pursuant to Code of Civil Procedure 4 section 437c,
subdivision (h), she “should be allowed the opportunity to
complete discovery.” Torres’s counsel submitted a declaration
averring that due to the press of his criminal practice as well as
staffing issues, he did not realize until after the Thanksgiving
holiday that additional depositions were necessary to oppose
Superior’s motion. Then, “with the advent of the [h]oliday season
it was realized that there was no way timely discovery could be
completed to oppose the [motion for summary judgment].”
Torres’s counsel identified several persons to depose, including
“the porter, the man seen cleaning the water, the manager, a
[person most knowledgeable] as well as the declarant[s] in
support of the [motion for summary judgment].” Torres
requested a 45-day continuance of the hearing on the motion.
On January 8, 2021, Superior filed its reply brief. It
argued, inter alia, that Torres had not met the requirements of
section 437c, subdivision (h) because “she has not specified the
‘essential facts’ needed to oppose the [m]otion that she thinks she
can obtain through discovery.” Further, Torres made no effort to
schedule the depositions she claimed were necessary between the
date Superior filed its motion (October 29, 2020) and the date
Torres filed her opposition (December 31, 2020).
On January 15, 2021, the trial court heard argument on the
summary judgment motion. Superior’s counsel addressed the
trial court’s tentative on the issue of whether the trial court could
find, as a matter of law, that the 22 minutes between the porter

4Subsequent unspecified references are to the Code of Civil
Procedure.

7
sweep and Torres’s fall was an insufficient amount of time for
Superior to have discovered the dangerous condition.5 Citing
Eidem v. Target Corp. (C.D.Cal. Aug. 24, 2011, No. EDCV 10-
01000 VAP) 2011 U.S. Dist. LEXIS 95544, Superior argued that
although California courts do not set forth a specific time period,
cases that have found constructive notice involve time periods of
30 minutes or longer between the inspection and the accident.
The trial court inquired about the impact of the employee’s
statement that the refrigerator was leaking. Superior responded
that the employee’s statement concerned what Superior knew
after the incident and that the statement was hearsay. The trial
court also asked whether it should consider if Torres could obtain
admissible evidence on this point by the time of trial. Superior
responded that Torres had sufficient time to conduct discovery
necessary to oppose the motion. Superior further argued that if
Torres felt that she needed more time, she could make such a
request under “the code,” and erroneously claimed “there’s an
avenue for that that they’re not seeking.”
The trial court then asked Torres’s counsel to address
Superior’s arguments that the employee’s statement was hearsay
and that Torres had not demonstrated she would be able to offer
any admissible evidence that the refrigerator was leaking.
Torres’s counsel responded that he submitted on the tentative
and that it was for the trier of fact to decide if there was
sufficient notice of the dangerous condition.
The trial court again asked Superior whether it should
disregard completely the statement from the employee

5 The reporter’s transcript reflects that the court issued a
tentative ruling, which is not included in the appellate record.

8
concerning the refrigerator leak. Superior’s counsel again argued
the statement was hearsay. Torres’s counsel asked to respond.
He argued that there was no evidence that the porter actually
cleaned the area in front of the refrigerator unit and that Torres
had carried her burden to show there was a dangerous condition
in the form of water on the floor. Further, counsel argued “we
need to do the deposition of [the person most knowledgeable]
[inaudible] was there. Without that it would be premature to—
on defense’s part to state that the aisle was clean.” The trial
court took the matter under submission.
On January 26, 2021, the trial court issued a minute order
granting the motion for summary judgment without any
explanation of its reasoning for doing so. After the trial court
entered judgment in favor of Superior, Torres timely filed a notice
of appeal.
DISCUSSION
A. Statutory Framework and Standard of Review
A “motion for summary judgment shall be granted 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. . . .” (§ 437c, subd. (c).) A defendant seeking
summary judgment has met the “burden of showing that a cause
of action has no merit if the party has shown that one or more
elements of the cause of action . . . cannot be established . . . .”
(Id., subd. (p)(2); see also King v. United Parcel Service, Inc.
(2007) 152 Cal.App.4th 426, 432 [party moving for summary
judgment “bears the initial burden of demonstrating that at least
one of the elements of plaintiff’s . . . claim is without merit”].)
Once the defendant has met that burden, the burden shifts
to the plaintiff “to show that a triable issue of one or more

9
material facts exists as to the cause of action.” (§ 437c, subd.
(p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1518.) “[A]n issue of fact can only be created
by a conflict of evidence. It is not created by speculation or
conjecture. [Citation.]” (Horn v. Cushman & Wakefield Western,
Inc. (1999) 72 Cal.App.4th 798, 807.)
We review summary judgment rulings de novo. In doing
so, we liberally construe the plaintiff’s evidentiary submission
while strictly scrutinizing the defendant’s own showing, and
resolve any evidentiary doubts or ambiguities in the plaintiff’s
favor. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th
1078, 1083, citing Weber v. John Crane, Inc. (2006) 143
Cal.App.4th 1433, 1438.)
B. Torres Did Not Demonstrate Any Disputed Issues of
Material Fact
“[A]lthough 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.”
(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).)
“Premises liability is a form of negligence . . . .” (Brooks v.
Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611,
1619.) “The elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of that
duty, and proximate cause resulting in injury.” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1158.) To establish
causation, the plaintiff must show that the store owner either
directly caused the dangerous condition or had actual or
constructive knowledge of the dangerous condition. (Ortega,
supra, at pp. 1205-1206; Hatfield v. Levy Bros. (1941) 18 Cal.2d
798, 806.)

10
 1. Torres Did Not Identify Any Admissible Evidence that
Superior Created the Dangerous Condition
Torres first argues “[t]here are triable issues of fact as to
whether [Superior] created the condition which caused [Torres] to
fall. Because there are triable issues of fact that [Superior’s]
employee ‘created the dangerous condition’ there would be no
need to show notice either actual or constructive.”
Torres, however, does not support this argument with any
facts demonstrating Superior or its employees caused there to be
water on the floor. Instead, she argues Superior “created” a
dangerous condition when it failed to clean the water. This
argument conflates the law governing when a premises owner
directly causes the dangerous condition with the law governing a
premises owner having actual or constructive knowledge of a
dangerous condition caused by others.
As our Supreme Court described in Hatfield v. Levy Bros.,
supra, 18 Cal.2d 798, “[w]here the dangerous or defective
condition . . . has been created by reason of the negligence of the
owner of the property or his employee acting within the scope of
the employment, the owner of the property cannot be permitted
to assert that he had no notice or knowledge of the defective or
dangerous condition . . . . Under such circumstances knowledge
thereof is imputed to him. [Citation.]” (Id. at p. 806; see also
Sanders v. MacFarlane’s Candies (1953) 119 Cal.App.2d 497, 501
[“When an unsafe condition . . . has been created by the owner of
the property himself or by an employee . . . , the invitee need not
prove the owner’s notice or knowledge of the dangerous
condition”].)
In contrast, “[w]here the dangerous condition is brought
about by natural wear and tear, or third persons, or acts of

11
God . . . , then to impose liability the owner 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.” (Hatfield v.
Levy Bros., supra, 18 Cal.2d at p. 806.) “[W]here the plaintiff
relies on the failure to correct a dangerous condition [not created
by the owner or its employee] to prove the owner’s negligence, the
plaintiff has the burden of showing that the owner had notice of
the defect in sufficient time to correct it.” (Ortega, supra, 26
Cal.4th at p. 1206.)
Thus, to impose liability on Superior without showing
actual or constructive notice, it is not sufficient to assert that
Superior created the dangerous condition because it (or its
employee) failed to clean up the water. Rather, Torres must
adduce evidence that Superior or its employee was the source of
the water and not a third party, such as another customer.
Torres has not done so.
Torres claims the water came from the meat display
refrigerator, but she acknowledged that neither she nor her
husband personally observed the refrigerator leaking. The only
evidence she offers in support of her claim the display case was
the source of the water—the hearsay statement of the purported
employee “Jose”—is inadmissible.6 Torres did not offer a

6 Torres does not contend that the video taken after the
incident depicts a leak coming from the meat display.
Additionally, although Torres states she took photographs of
towels in the meat display and on the store floor approximately
one year after the incident, she presents no evidence that these

12
declaration or any deposition testimony of the employee; nor was
she able to accurately identify him notwithstanding the fact that,
according to Torres, he still worked at the store at the time she
filed her opposition.
In the trial court, Torres did not address Superior’s
repeated hearsay objection to the purported statement by “Jose,”
even when asked by the trial court to do so. Torres’ opening
appellate brief similarly does not address the trial court’s implied
ruling not to accept evidence of the purported employee’s
statement by granting summary judgment. Rather, Torres
waited until her reply brief on appeal to argue the statement is
admissible under the hearsay exception in Evidence Code section
1224. Torres has thus forfeited this argument. (See Christoff v.
Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [“an
appellant’s failure to discuss an issue in its opening brief forfeits
the issue on appeal”]; REO Broadcasting Consultants v. Martin
(1999) 69 Cal.App.4th 489, 500 [refusing to entertain an
argument raised for the first time in a reply brief].)
Even if the argument was not forfeited, we find it
unpersuasive. Evidence Code section 1224 states that “[w]hen
the liability[,] obligation, or duty of a party to a civil action is
based in whole or in part upon the liability, obligation, or duty of
the declarant, . . . evidence of a statement made by the declarant
is as admissible against the party as it would be if offered against
the declarant in an action involving that liability, obligation,
duty, or breach of duty.” This section is inapplicable because
Torres’s claims against Superior are not based on any liability,

towels were placed there due to a pervasive leak from the meat
display existing as of the date of her accident although she “still
frequent[s] the store.”

13
obligation, or duty of “Jose,” or even any act or omission by him,
but rather his purported admission about the source of the water.
(See Labis v. Stopper (1970) 11 Cal.App.3d 1003, 1005 [statement
admissible under Evid. Code, § 1224 when it “related a specific
and detailed act by the employee” upon which liability was
based].) While such out of court statements by employees can be
admissible against their employers, Torres would first need to
show that “Jose” was authorized to speak on the subject matter of
the statement. (See Evid. Code, § 1222, subd. (a).) She adduced
no such evidence.
As for Torres’s statements that she observed towels at the
meat counter on two instances—a year after the incident and two
and a half years after the incident—these after the fact
observations are too infrequent and remote in time to
demonstrate a triable issue of fact as to whether the refrigerator
unit was the source of the puddle on June 18, 2017.
Accordingly, Torres has not carried her burden to
demonstrate a triable issue as to whether Superior created the
dangerous condition.7

7 In the trial court, Torres suggested she could have
obtained additional evidence relevant to opposing the motion if
the trial court continued the matter pursuant to section 437c,
subdivision (h). However, she does not argue on appeal that the
trial court erred in denying this request. “Although our review of
a summary judgment is de novo, it is limited to issues which have
been adequately raised and supported in plaintiff[’s] brief.”
(Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6; see Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [“ ‘This court is
not required to discuss or consider points which are not argued or
which are not supported by citation to authorities or the
record’ ”].)

14
 2. Torres Did Not Demonstrate a Disputed Issue as to
Whether Superior Had Actual or Constructive
Knowledge of the Dangerous Condition
Torres argues there are disputed issues as to whether
Superior had actual or constructive knowledge of the water on
the ground before the accident. As to actual notice, she argues
that the meat counter employee’s statement that the water came
from the refrigerator unit establishes Superior’s actual
knowledge of the leak. As noted above, this hearsay statement
was inadmissible. Even if it was considered, the statement does
not demonstrate that “Jose” knew of the leak before Torres fell.
She acknowledged in her deposition that “Jose” did not say the
refrigerator had leaked on any prior occasion or how long it had
been leaking that day. She also testified she did not know if
Superior knew the water was on the floor before she fell. Thus,
Torres did not demonstrate a triable issue as to Superior’s actual
knowledge of the dangerous condition prior to the accident.
Turning to constructive knowledge, it is well established
that a “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.” (Ortega, supra, 26 Cal.4th at p. 1206.) “[P]laintiffs
may demonstrate the storekeeper had constructive notice of the
dangerous condition if they can show that the site had not been
inspected within a reasonable period of time so that a person
exercising due care would have discovered and corrected the
hazard. [Citation.] In other words, if the plaintiffs can show an
inspection was not made within a particular period of time prior
to an accident, they may raise an inference the condition did exist
long enough for the owner to have discovered it.” (Id. at pp. 1212-

15
1213.) Whether a store’s inspections are reasonable must be
determined in light of the circumstances in each case, and there
is no “exact time the condition must exist.” (Louie v. Hagstrom’s
Food Stores, Inc. (1947) 81 Cal.App.2d 601, 608.)
Although the issue of whether the dangerous condition
existed long enough for the owner to discover it is ordinarily a
question of fact for the jury (Ortega, supra, 26 Cal.4th at p. 1213),
it can be decided as a matter of law when the evidence “is
insufficient to support an inference that the defendant proprietor
failed to exercise the care required.” (Girvetz v. Boys’ Market, Inc.
(1949) 91 Cal.App.2d 827, 831.) For example, in Girvetz v. Boys’
Market, Inc., the appellate court held that one and one-half
minutes was too short as a matter of law to provide constructive
notice to the store owner of the dangerous condition. (Id. at
p. 832.) At the other end of the spectrum, the appellate court in
Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281
concluded the plaintiff raised a triable issue of material fact as to
whether a gym negligently inspected and maintained its exercise
equipment when no staff member inspected or cleaned the
equipment for at least 85 minutes prior to the accident. (Id. at
p. 1284; see also Ortega, supra, at p. 1210 [affirming the jury’s
verdict for the plaintiff where milk might have been on the floor
for 15 to 20 minutes or as much as two hours].)
In Louie v. Hagstrom’s Food Stores, Inc., supra, 81
Cal.App.2d 601, the appellate court affirmed the trial court’s
denial of the defendant’s motion for judgment notwithstanding a
jury verdict where the plaintiff slipped and fell in syrup 15 to 25
minutes after the site had been examined. The evidence in that
matter supported an inference that the nearby cashier would
have heard the “appreciable noise” caused by the breaking of the

16
glass syrup bottle, and the thickness of the syrup and size of the
puddle on a cold day suggested the puddle took a “substantial
period of time” to form. (Id. at p. 608.)8
Here, the evidence “is insufficient to support an inference
that the defendant proprietor failed to exercise the care
required.” (Girvetz v. Boys’ Market, Inc., supra, 91 Cal.App.2d at
p. 831.) In reaching this conclusion, we are mindful that
proximate cause entails considerations of public policy and
fairness (PPG Industries, Inc. v. Transamerica Ins. Co. (1999) 20
Cal.4th 310, 316, citing Mosley v. Arden Farms Co. (1945) 26

8 As it did in the trial court, Superior cites to federal
district court decisions for the proposition that in California,
“nothing less than thirty minutes between the last inspection and
a plaintiff’s fall has been held to raise a genuine dispute of
material fact or sufficient to uphold a plaintiff’s verdict.” (Alacan
v. Target Corporation (C.D.Cal. June 26, 2015, No. CV 14-04564-
AB) 2015 U.S. Dist. LEXIS 178484 at p. *10 [citing Ortega, supra,
26 Cal.4th at p. 1204 and Zipusch v. LA Workout, Inc., supra, 155
Cal.App.4th at p. 1285]; see Eidem v. Target Corp., supra, 2011
U.S. Dist. LEXIS 95544 at pp. *25-*26 [same]; see also Cardoza v.
Target Corp. (C.D.Cal. June 22, 2018, No. CV 17-2232-MWF)
2018 U.S. Dist. LEXIS 117106 at p. *8 [“As a general proposition,
California courts apply a 30-minute threshold for submitting
questions of actual notice to a jury—i.e., if there is undisputed
evidence that an active inspection of the relevant area occurred
less than 30 minutes before the accident, summary judgment in
favor of the store owner is appropriate; if not, the question should
be resolved by a jury”].) Our review of published California
opinions underscores that there is no specific time period cut off,
and that the reasonableness of a store’s inspection(s) must be
determined in light of the circumstances of each case. (See, e.g.,
Louie v. Hagstrom’s Food Stores, Inc., supra, 81 Cal.App.2d at
pp. 608-609.)

17
Cal.2d 213, 221 (conc. opn. of Traynor, J.)) and further that a
proprietor is not the insurer of the safety of its patrons (Ortega,
supra, 26 Cal.4th at p. 1205).
Superior satisfied its initial summary judgment burden of
presenting evidence demonstrating reasonable efforts to keep the
store reasonably safe for its patrons. It adduced evidence of
established procedures for refrigerated unit repair; that no
request for repair had been made prior to the incident; that,
consistent with inspection procedures, a porter inspected the area
in which the meat display was located approximately 21 to 22
minutes prior to the incident; that the inspection was recorded in
the Sweep Report, which was electronically generated and could
not be modified thereafter; and that the porter did not observe
any water on the floor at that time. There also were no tracks or
footprints visible near the puddle, indicating no one else had
stepped in the water yet.
Torres does not offer any admissible evidence to dispute
these facts. Although she cites the proposition that
“[c]onstructive notice can be demonstrated by showing the site of
the dangerous condition had not been inspected within a
reasonable time,” Torres does not argue an inspection 21 to 22
minutes prior to the incident was unreasonable. Instead, she
argues “[a] jury can infer that the condition was long standing,
pervasive and dangerous. A jury can infer that something was
amiss with their inspection system and that the sweep that
allegedly occurred 22 minutes before the fall never happened,
was fudged or was done improperly.” She also asks: “Did the
porter not actually inspect that area? Did the porter not see it?
Did the porter enter a faulty time on the sweep sheet? How could
water of that magnitude have gathered in just 22 minutes?”

18
Questioning the credibility of Superior’s evidence (i.e., whether
the sweep actually happened as described) is not sufficient to
raise a triable issue of fact. (§ 437c, subd. (e) [“summary
judgment shall not be denied on grounds of credibility or for want
of cross-examination of witnesses furnishing affidavits or
declarations in support of the summary judgment”]; Ayon v.
Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487,
496.) Without any evidence to support these rhetorical questions,
they are speculation that fail to create a triable factual issue.
(See Horn v. Cushman & Wakefield Western, Inc., supra, 72
Cal.App.4th at p. 807.)
Torres also does not offer any evidence that a more
frequent inspection or additional procedures were warranted
under the circumstances. Unlike Louie v. Hagstrom’s Food
Stores, Inc., supra, 81 Cal.App.2d 601, where the evidence of an
inspection 15 to 25 minutes was insufficient to support a
judgment in the defendant’s favor, there is no evidence here that
Superior or its employees ignored factors that would have given
notice to them of the dangerous condition, such as an
“appreciable noise” caused by the breaking of the syrup bottle.
The “magnitude” of the puddle also does not give rise to an
inference that Superior should have discovered the puddle.
Although the evidence establishes that the puddle was “large”
and that the water “soaked” Torres’s clothes, common experience
tells us the viscosity of water is low and may spread easily and
quickly. Furthermore, it can be difficult to see. Indeed, as Torres
testified, she did not see any cart tracks or footprints in the
water. Accordingly, Torres did not present any evidence to create
a triable issue of material fact that Superior’s procedures for
maintaining a reasonably safe premises were insufficient.

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 DISPOSITION
The trial court’s judgment is affirmed. Superior is awarded
its costs on appeal.
NOT TO BE PUBLISHED

WEINGART, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

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