Rodriguez v. Bally Total Fitness

Filed 7/24/07 Rodriguez v. Bally Total Fitness CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Dallas Holmes, Judge. Affirmed.

Law Offices of Brad Husen and Brad J. Husen for Plaintiff and Appellant.

Manning & Marder, Kass, Ellrod, Ramirez, Anthony J. Ellrod and Kevin H. Louth for Defendant and Respondent.

Plaintiff and appellant Delia Rodriguez (Rodriguez) challenges the judgment in favor of defendant and respondent Bally Total Fitness Corporation (Bally) after the trial court granted Ballys motion for summary judgment. Rodriguez argues that the trial court erred when it ruled that Rodriguez failed to submit evidence of (1) a dangerous condition, or (2) that Bally had notice of any dangerous condition.

Facts and Procedure

On March 1, 2004, about 7:30 p.m., Rodriguez slipped and fell as she descended from the highest of the stepped seating levels in the steam room at Ballys Madison Avenue facility in Riverside. Rodriguez may have been in the steam room for as long as an hour and one witness stated it appeared she had fallen asleep. Rodriguez denies having fallen asleep. Rodriguez states that, after she was escorted out of the steam room, she returned and saw a quarter-size dab of clear gel on the surface of the steam room floor. She did not notice any tracks in the dab of gel, nor did she notice any gel on her clothing, foot, or body. Rodriguez had used the steam room for approximately 10 years prior to the accident and continued to use it after the accident. The day she fell was the only day that Rodriguez had seen any type of gel on the surface of the steam room. The steam room floor was cleaned approximately every four hours, and the rules posted outside the steam room prohibited shaving, oiling, etc.

Rodriguez filed a complaint against Bally on June 16, 2005, stating two causes of action, for premises liability and negligence. In the form complaint, Rodriguez describes the basis for each of the causes of action as follows:

On or about March 1, 2004, plaintiff slipped and fell at the Bally Total Fitness on Madison Avenue, in the City of Riverside. Plaintiff was intending to exit the steam room when she slipped on some oil or lotion on the floor of the steam room, and was leaving from the highest level. Defendant knew or should have known about the slippery floor, but failed to take steps to correct this dangerous condition and further failed to warn plaintiff of the dangerous condition of the floor. Further, there was no handrail in the location where plaintiff slipped and fell.

Bally answered the complaint on August 5, 2005. Among other affirmative defenses, Bally asserted that it did not have actual or constructive notice of the dangerous condition a sufficient time before the accident within which measures could have been taken to protect against the dangerous condition.

On February 23, 2006, Bally filed a motion for summary judgment or, alternatively, summary adjudication. Rodriguez filed her opposition on June 14, 2006. Bally filed its reply to Rodriguezs opposition on June 23, 2006. The trial court held the hearing on the motion on June 28, 2006. The court stated that Rodriguez did not allege in her complaint that the steam room floor was too slippery; but rather based Ballys liability on the presence of oil or lotion, and the absence of a handrail. Thus, the court reasoned, Rodriguez needed to submit evidence that she fell because she actually slipped on a dab of gel, oil, or lotion, and that it had been present on the floor a sufficient amount of time to give Bally actual or constructive notice of its presence. The court stated that Rodriguezs evidence of a prior slip and fall in the steam room, and that Bally had received approximately two complaints each month that the steam room floor was too slippery, did not establish that Bally had notice of that particular dab of gel on the day of Rodriguezs accident. The court then granted Ballys motion for summary judgment on the bases of causation and notice.

This appeal timely followed.

Discussion

1. Standard of Review

On appeal, we review de novo an order granting summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court must grant a summary judgment motion when the evidence shows that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. In making this determination, courts view the evidence, including all reasonable inferences supported by that evidence, in the light most favorable to the nonmoving party. (Code Civ. Proc., 437c, subd. (c); Aguilar, at p. 843.) A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiffs cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (o)(2); Aguilar, at pp. 849-851, 854-855.) The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. (Code Civ. Proc., 437c, subd. (p)(2); Aguilar, at pp. 849-851.)

2. Evidence of Dangerous Condition

Rodriguez argues that the trial court erred when it ruled that she failed to submit evidence of a dangerous condition, i.e., a slippery floor. Key to the trial courts ruling is its interpretation of exactly what dangerous condition Rodriguez pointed to in her complaint as causing her injury. A defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.] (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) In its tentative ruling, the trial court reasoned, However, plaintiffs Complaint doesnt allege in general that the steam room was too slippery. In fact, the basis for liability is limited to slipping on oil or lotion in the absence of a hand rail [sic] in the Complaint. . . . [] So the only evidence relative to slipping in the steam room because of lotion or oil is relevant . . . . Im limiting based on the Complaints language in general not alleging a slippery steam room.

We agree with the trial court that Rodriguez, in her complaint, does not allege that she slipped on the steam room floor because it was generally slippery, for example, because of the material from which it was made, the fact that it was wet, or the presence of a slippery buildup from improper cleaning over time. Rather, Rodriguez alleges that she was intending to exit the steam room when she slipped on some oil or lotion on the floor of the steam room and that there was no handrail in that location. Thus, Rodriguez was required to provide evidence that there was a slippery substance, such as oil or lotion, on the steam room floor and that the substance caused her to fall.

In support of her position that the floor constituted a dangerous condition, Rodriguez provided the court with (1) her own deposition testimony; (2) the deposition testimony of Ballys manager; and (3) Ballys list of claims showing a prior slip and fall in the steam room. The specific evidence submitted in support of her claim that the steam room floor constitutes a dangerous condition is set forth below.

Rodriguez testified at deposition that the floor was made of marble. She also testified that she slipped on some kind of clear ointment or oil or a clear gel, about the size of a quarter. Rodriguez did not notice the gel when she slipped or immediately thereafter. Rather, Rodriguez testified that some women who were in the steam room at the time of her slip and fall observed the substance and pointed it out to her before calling for the housekeeper to clean it up. Rodriguez testified that she did not observe any skid marks through the substance and did not recall noticing any of the substance on her feet or clothes.

Ballys manager, who was present the day Rodriguez was injured, testified at deposition that, prior to Rodriguezs slip and fall, he was aware that members would complain of the slippery floor in the steam room, on average, two times per month. He further testified that after the floor was cleaned, after Rodriguezs slip and fall, Bally members told him that the floor was still too slippery. Even though we didnt find the floor to be slippery, the members were saying it was slippery still, still after cleaning afterwards. The manager also testified that, at some unknown time, some things were added to the floor to make it less slippery. The manager did not know if this happened before or after Rodriguezs slip and fall. Finally, he testified that there were no railings in the steam room.

Rodriguez also produced a list of claims obtained through discovery, which showed that another Bally member had slipped and fallen in the steam room about eight months before Rodriguez did. No other evidence on the previous claim was introduced.

Even viewed in the light most favorable to Rodriguez, the evidence does not establish a triable issue of fact as to whether she slipped and fell on the dab of gel or other substance. First, Rodriguez does not recall seeing the substance on the floor before she fell. Second, she did not testify at her deposition that she felt any substance on her feet before, during, or after her fall. Third, she testified that she did not see any skid marks through the substance or any indication that it had been stepped on. Her description of the substance as a dab of gel, approximately the size of a quarter, is most easily construed to mean that the substance was undisturbed. Fourth, Rodriguez testified that she did not feel any substance on her feet or clothing after she fell. Finally, the evidence that a member had previously slipped and fallen in the steam room, and that members complained approximately twice each month that the steam room floor is slippery, is not relevant to whether Rodriguez slipped on a dab of gel or other slippery substance on March 1, 2004. Thus, although Rodriguez alleges in her complaint that she slipped on some oil or lotion, her own testimony reflects that she is uncertain whether she slipped on anything in particular. Using our independent judgment, then, we conclude that the trial court was correct when it concluded that the evidence presented no triable issue of fact as to whether Rodriguezs fall and subsequent injuries were caused by a dab of oil, lotion, or gel on the steam room floor.

3. Evidence of Notice

Rodriguez also challenges the trial courts ruling that she failed to submit evidence that Bally had notice of a dangerous condition of the steam room floor. [A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1207.)

Again, the trial court correctly ruled that the narrow wording of Rodriguezs complaint meant that she needed to present evidence that the particular dab of gel, oil, or lotion, upon which Rodriguez claims she slipped, was present a sufficient amount of time before her accident, and that Bally should have known it was there. Here, Rodriguez concedes in her opening brief that she does not specifically know how long the oil, gel or lotion (foreign substance) was there. Rather, Rodriguez attempts to shift the burden to Bally to prove when the steam room floor was last cleaned or inspected. This is improper, however, because Rodriguez has the burden to show that the substance was on the floor long enough to give Bally constructive notice of the dangerous condition of the steam room floor. The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it. (Ortega v. Kmart Corp., supra,26 Cal.4th at 1203, citing Louie v. Hagstroms Food Stores (1947) 81 Cal.App.2d 601, 606.) Here, Rodriguez can point to no evidence whatsoever that it had been an unreasonably long time since Bally had cleaned or inspected the steam room floor. This is because Rodriguez presented no evidence as to when the last cleaning or inspection occurred. Thus, unlike the plaintiff in Ortega v. Kmart Corp.,^[1] Rodriguez has not established a material issue of fact as to whether Bally had actual or constructive notice of the dangerous condition.

Disposition

The trial courts judgment is affirmed. Defendant and respondent Bally Total Fitness Corporation to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Hollenhorst

J.

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^[1] In Ortega v. Kmart Corp., supra, 26 Cal.4th 1200, the plaintiff slipped and fell on a puddle of milk in a store. Our Supreme Court ruled that, although the plaintiff presented no evidence as to how long the milk had been on the floor, the plaintiff had established a question of fact as to constructive notice because he presented evidence in the form of the managers testimony, that the floor had not been inspected for 15 to 30 minutes, and possibly as long as two hours before the slip and fall.