NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GRIMES, J.

SUMMARY

Plaintiff Rima Galoustian fell while shopping at a Thrifty Payless, Inc., dba Rite Aid store (Rite Aid or defendant). She brought claims for premises liability and negligence. Reasoning plaintiff had no evidence of the dangerous condition causing her fall, and no evidence Rite Aid had actual or constructive knowledge of the alleged condition, defendant moved for summary judgment. The trial court granted the motion, finding plaintiff's evidence of the cause of her fall was speculative and plaintiff did not demonstrate defendant knew of a dangerous condition. On appeal, plaintiff contends defendant's motion did not establish that she will be unable to prove her case, there are triable issues of fact as to causation and defendant's knowledge of the condition, and the trial court erroneously sustained defendant's objections to her expert's declaration. We reverse the judgment, finding plaintiff's evidence of the cause of her fall was not speculative, and there are triable issues of fact regarding Rite Aid's constructive knowledge of the condition.

FACTS

On December 25, 2006, at approximately 8:00 p.m., Rima Galoustian was shopping for camping supplies at a Rite Aid store in Glendale, California. She was in the store for 30 to 40 minutes before selecting bottled water and soda, and making her way to the cash register. The store was well lit, and she did not notice any food, liquid, or debris on the floor as she was shopping. However, she fell at the end of the drink aisle near the cash registers.

Plaintiff slipped and fell to the floor when she "stepped on whatever there was—obviously something on the floor." When she inspected the floor, she noticed "a lot of dust . . . whatever substance [she] stepped on, smeared on the floor. [Her] shoe stepped on it and it smeared on the tile and left a dark mark on it." When asked what the substance was, she responded: "I cannot tell. All I can tell there was a black mark left on the floor." She did not know how long the substance was there before her fall. And, she did not know whether Rite Aid employees knew the substance was there. She described the substance as black, smeared on the floor, and wet. "It looked like liquid or grease." There was dust on the floor with the substance.

After her fall, cashier Marian Alkansandrya helped plaintiff with her purchase. In a declaration submitted in support of defendant's motion, Ms. Alkansandrya stated that plaintiff told her she slipped and fell in the soft drink aisle. Ms. Alkansandrya found no liquid, debris, or food when she later inspected the area of the fall. At her deposition, Ms. Alkansandrya testified plaintiff pointed in the direction of the ice cream area when Ms. Alkansandrya asked plaintiff where she fell, and plaintiff said there was either ice cream or water on the floor. Ms. Alkansandrya did not see plaintiff fall, and understood from the direction in which she pointed that plaintiff fell in the ice cream area. When Ms. Alkansandrya inspected the ice cream area, she did not notice any foreign substance on the floor.

Ms. Alkansandrya stated in her declaration that "Rite Aid employees, including myself, are trained to constantly patrol the aisles and walkways in the store to ensure that the floors are clean and free of any spills, trash or other debris."1 However, plaintiff provided deposition testimony of Rite Aid management employees, and of Ms. Alkansandrya, that paints a different picture.

Rite Aid does not have a cleaning or inspection schedule and does not keep a log of its cleaning or safety inspections. Rite Aid employees are not trained to inspect the floor for debris at any specific interval of time or frequency, but are expected to look for hazards when they are on the sales floor. The store is generally cleaned once daily, usually during the graveyard shift, which is between midnight and 5:00 or 6:00 a.m.

Ms. Alkansandrya testified that she did not receive any training or instruction on how to inspect the floors but that "[w]e always inspect the floors. And if we notice something fallen down on the floor or spilled over a table, we stop right there, we don't go away, and we call for somebody else to help and to get the wet cleanup quickly." As a cashier, she had no responsibility to go through the aisles of the store to inspect the floors. Employees "don't go searching through the aisles for [spills]. But if [they] notice something on the floor that could be dangerous for people, [they] check out and clean up right away." When asked whether "Rite Aid ever told you that you're supposed to look at the floors to make sure that there's nothing dangerous on the floors," Ms. Alkansandrya responded, "No. But if we see something, we clean up. There's no need for somebody to tell that." When asked if she inspected the floors on the day of plaintiff's fall, she responded: "Yes. We always inspect the floors." Ms. Alkansandrya's manager admitted "there were no employees specifically assigned to inspect and clean the store floors on December 25, 2006."

Plaintiff also submitted the expert declaration of Mark Burns, a forensic engineer, who opined that Rite Aid's floors had too little slip resistance for a commercial application and were therefore "inherently unsafe," and that plaintiff's fall was likely caused by the presence of a foreign substance on the floor. The trial court sustained objections to most of the 13 paragraphs of the declaration, except for those summarizing Mr. Burns's experience, education, and investigation of this matter, and his opinion that the floor would become slippery when wet.

The trial court's tentative ruling was to deny the motion, on the basis that plaintiff "stepped on something" that was "`kind of greasy,' [and] `looked like grease,'" and that defendant "conceded that no regular sweeps or safety inspections are conducted" and only presented evidence that employees are trained to patrol the aisles, but had not established the area of the fall had been patrolled any time before the fall. However, after taking the matter under submission, the trial court relied on Vaughn v. Montgomery Ward & Co. (1950) 95 Cal.App.2d 553 (Vaughn) to conclude plaintiff's evidence concerning her fall was "too speculative to survive summary judgment."

DISCUSSION

1. Standard of Review

Summary judgment is appropriate when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. (Id., § 437c, subd. (p)(2).) The defendant can satisfy this burden by presenting evidence that negates an element of the cause of action or shows that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to support an element of the cause of action. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) If the defendant meets this burden, the burden shifts to the plaintiff to set forth "specific facts" showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) We review the trial court's ruling de novo, liberally construe the evidence in favor of the party opposing the motion, and resolve all doubts concerning the evidence in favor of the opposing party. (Miller, at p. 460.) We will affirm a summary judgment if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court's stated reasons. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22; see also Code Civ. Proc., § 437c, subd. (m)(2).) We review the trial court's ruling on evidentiary objections under the abuse of discretion standard of review. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)

2. The Merits

a. Evidence of a dangerous condition

A store owner is not the insurer of its patrons' personal safety, but does owe patrons a duty to exercise reasonable care in keeping the premises reasonably safe. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) To establish the owner's liability on a negligence theory, the plaintiff must prove duty, breach, causation and damages. (Ibid.) "A plaintiff meets the causation element by showing that (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff's harm, and (2) there is no rule of law relieving the defendant of liability. [Citation.] These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed." (Ibid.) To meet its burden of proof, a "`plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.' [Citation.]" (Id. at pp. 1205-1206.)

Here, the trial court ruled as a matter of law that plaintiff's evidence of the cause of her fall was too speculative to survive summary judgment. We find plaintiff offered sufficient evidence of causation to defeat summary judgment. Plaintiff testified to "slipping" after stepping on a substance, and that her shoe left a black, greasy, wet smear at the location of her fall. Although plaintiff stated repeatedly she did not know "what" she slipped on, she did testify to its characteristics (wet, dark, greasy) and its proximity to the location of her fall. A reasonable trier of fact could infer that it is more likely than not plaintiff slipped and fell on the greasy substance, rather than for some reason unrelated to the condition of the property. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 857.)

This case is unlike those relied upon by defendant, where the evidence of causation was "pure speculation." In Vaughn, supra, 95 Cal.App.2d 553, the court reversed a judgment in favor of the plaintiff in a slip and fall case. Plaintiff's complaint advanced a theory that excess oil and slippery conditions of defendant's floor caused her fall, but plaintiff never testified the floor was slippery, or that she observed any substance on the floor, or about the condition of the floor at all. The only evidence that the floor was oily was the testimony of plaintiff's coworker that he saw "damp and oily" soiled spots on plaintiff's clothing after the fall, and testimony that the floor had been treated with an oil-based solvent 16 days before the accident. (Id. at pp. 554-555.) The court concluded this evidence was too speculative, because there was no evidence of the condition of the floor at the time of plaintiff's fall, and negligence could not be inferred simply because plaintiff fell. (Id. at p. 557.)

In Buehler v. Alpha Beta Co.(1990) 224 Cal.App.3d 729 (Buehler), the court affirmed summary judgment where plaintiff's theory was that defendant's floor was improperly waxed, but plaintiff presented no evidence in opposition to defendant's summary judgment motion showing the floor was slippery or otherwise caused her fall. Plaintiff admitted in her deposition that she had no idea what caused her fall, and testimony by an uninterested witness confirmed the floor was not slippery. The court concluded that summary judgment was proper because "all appellant can argue is that she slipped and fell. She lost her balance for some unknown reason. She did not see anything on the floor which caused her to slip and fall and did not know what caused her to slip. In such a situation, `[n]egligence is never presumed.' [Citation.]" (Id. at p. 734.)

In contrast, plaintiff here saw a wet, greasy substance and dust on the floor where she fell, and testified that she "felt that there was something . . . smeared on the floor" that "caused [her] to fall." Plaintiff's inability to identify the substance does not make her evidence speculative as in Vaughn and Buehler.

b. Evidence of actual or constructive knowledge of the condition

For a store owner to be liable for injuries to a business invitee caused by a dangerous condition on its premises, the owner must have actual or constructive notice of the dangerous condition. (Ortega, supra, 26 Cal.4th at p. 1203.) "[W]here the plaintiff relies on the failure to correct a dangerous condition 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." (Id. at p. 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. Knowledge may be shown by circumstantial evidence `which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.' [Citation.] 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 . . . . [Citation.] 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." (Id. at pp. 1206-1207.) However, "speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiff's burden."

Plaintiff offered no evidence that Rite Aid employees were aware of the greasy substance on the floor. Nevertheless, actual knowledge is not required, and proof of constructive knowledge is sufficient and may be established by showing that the area of the fall had not been inspected within a reasonable period of time, and by circumstantial evidence of the duration of the condition. (Ortega, supra, 26 Cal.4th at pp. 1209-1210.) Here, plaintiff testified that "I remember there was dust around it[,]"and "It was there long enough to collect dust."

Defendant's cleaning and inspection practices, coupled with the accumulation of dust and dirt on the greasy substance, support an inference that the area had not recently been cleaned or inspected, and that the dangerous condition persisted for some time before plaintiff fell. Rite Aid has no policy requiring regular inspections, and employees simply scan for unsafe conditions when walking the sales floor. No cleaning or inspection records are maintained. The evidence showed it was likely the floor had last been cleaned more than 14 hours before plaintiff's fall, since she fell at 8:00 p.m., and the last time the floors were cleaned was on the previous graveyard shift, between midnight and 5:00 or 6:00 a.m. (See, e.g., Mackoff v. Biltmore Garages, Inc. (1963) 222 Cal.App.2d 846, 849 [accumulation of dust on oil suggested it was there for some time, and the lack of a "system of periodic inspection set up for touring the floors to find oil spots" supported inference of constructive knowledge].)

This in turn supports an inference that Rite Aid could have discovered and remedied the condition had it exercised reasonable diligence. (See Ortega, supra, 26 Cal.4th at p. 1210 [an inference that defendant failed to inspect premises supports an inference that the dangerous condition existed for a sufficient period of time to impose constructive knowledge].) Accordingly, the trial court erred in granting summary judgment.

Plaintiff has failed to adequately demonstrate the trial court's error in sustaining defendant's objections to the Burns declaration. (See Roe v. McDonald's Corp. (2005) 129 Cal.App.4th 1107, 1114.) Because we find triable issues of fact, independent of the expert declaration offered by plaintiff, we need not consider further the correctness of the trial court's rulings on defendant's objections to that declaration.

DISPOSITION

The judgment is reversed and remanded for further proceedings. Appellant is to recover her costs on appeal.

RUBIN, Acting P. J. and FLIER, J., concurs.