*1 Before the Court is Defendant Jo-Ann Stores, LLC's motion for summary judgment. (“Motion,” Dkt. No. 26.) After a hearing on August 27, 2018, the court GRANTS Defendant's Motion.

On July 19, 2017, Plaintiff Patricia Alvarez commenced an action against Jo-Ann Stores, LLC in Riverside County Superior Court. (“Complaint,” Dkt. No. 1.) Plaintiff alleged that, on November 22, 2016, she slipped and fell while shopping at a fabric store owned and operated by Defendant. Plaintiff alleged two causes of action in her complaint: (1) general negligence and (2) premises liability. (See Compl.) She sought general damages of $10,000,000 and medical expenses of $8,000. On July 19, 2017, Defendant filed a Notice of Removal to this court. (Dkt. No. 1.) Trial was set for October 30, 2018. (“Scheduling Order,” Dkt. No. 12.)

Defendant moved for summary Judgment on July 30, 2018. (Dkt. No. 26.) In support of its Motion, Defendant submitted:

Plaintiff opposed the Motion on October 13, 2018. (“Opposition,” Dkt. No. 29.) In support of her Opposition, Plaintiff submitted:

Defendant replied on August 20, 2018. (Dkt. No. 30.) In support of its reply, Defendant submitted:

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party has the initial burden of informing the district court of the basis for its motion and identifying the portions of the pleadings and record that it believes demonstrate the absence of an issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-moving party bears the burden of proof at trial, the moving party need not produce evidence negating or disproving every essential element of the non-moving party's case. Celotex, 477 U.S. at 325. Instead, the moving party need only prove there is an absence of evidence to support the nonmoving party's case. Id.; In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). The party seeking summary judgment must show that “under the governing law, there can be but one reasonable conclusion as to the verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

If the moving party has sustained its burden, the non-moving party must then show that there is a genuine issue of material fact that must be resolved at trial. Celotex, 477 U.S. at 324. A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. “This burden is not a light one. The non-moving party must show more than the mere existence of a scintilla of evidence.” In re Oracle Corp. Sec. Litig., 627 F.3d at 387 (citing Anderson, 477 U.S. at 252). The non-moving party must make this showing on all matters placed at issue by the motion as to which it has the burden of proof at trial. Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 252.

*2 When deciding a motion for summary judgment, the court construes the evidence in the light most favorable to the non-moving party. Barlow v. Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). Thus, summary judgment for the moving party is proper when a “rational trier of fact” would not be able to find for the non-moving party based on the record taken as a whole. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

A. Undisputed Facts

The following material facts are supported adequately by admissible evidence and are uncontroverted. They are “admitted to exist without controversy” for purposes of the Motion. See Fed. R. Civ. P. 56(e)(2); L.R. 56-3.

On November 22, 2016, at approximately 11:45 a.m., Plaintiff was shopping at the Jo-Ann store in the Canyon Springs Marketplace in Riverside California. (SUF ¶ 1.) As she walked through the store carrying a roll of fabric with a portion of tape stuck to it, Plaintiff felt something slippery under the right heel of her shoe, which caused her to slip and fall to the ground, injuring her right leg. (Id. ¶ 2; SAUF ¶ 2, 4.) Paramedics arrived shortly after to attend to her. (SAUF ¶ 8.)

Plaintiff did not perceive any substance on the store's linoleum floor either before or after her fall; nor did she notice any substance on her clothing or shoes after the incident. (SUF ¶ 4-7; SAUF ¶ 20.) At no point after the incident did Plaintiff tell anyone – either her husband, son, friends, the responding paramedics, or any doctors who treated her from the injuries resulting from her fall – that she had slipped on a substance that was on the floor. (Id. ¶ 12.)

An employee of Jo-Ann Stores, Felicia Osorio, responded to Plaintiff's fall. (Id. ¶ 9.) Ms. Osorio inspected the area in which Plaintiff had fallen for a potential spill or other cause of Plaintiff's fall. Ms. Osorio did notice a roll of fabric laying on the floor a few feet away from Plaintiff, but otherwise noticed nothing on the floor. (SAUF ¶ 19; SUF ¶ 10.) Ms. Osorio also inspected the soles of plaintiff's shoes and saw that they were clean. (SUF ¶ 11.)

During discovery, Plaintiff identified herself as the only witness to her fall. (Plaintiff's Statement of Disputes of Material Fact ¶ 18.) Plaintiff identified only herself and Ms. Osorio, the Jo-Ann Stores employee who assisted her after her fall, as potential witnesses and has indicated that she is unaware of any additional witnesses or documents supporting her contentions. (SUF ¶ 18.) As of the filing of her Opposition, Plaintiff has not supplemented her responses or identified additional witnesses. (SUF ¶ 19.)

B. Evidentiary Objections

“A trial court can only consider admissible evidence in ruling on a motion for summary judgment.” Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); see Fed. R. Civ. Proc. 56(e). At the summary judgment stage, district courts consider evidence with content that would be admissible at trial, even if the form of the evidence would not be admissible at trial. See Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001).

Defendant objects to many of Plaintiff's proposed undisputed facts on the grounds that the facts and evidence are irrelevant, speculative, misstate the evidence, lack foundation, are argumentative, misleading, or prejudicial, or are not supported by the evidence. (Defendant's Objections to Plaintiff's Evidence, Dkt. No. 30-2.) These objections are all “duplicative of the summary judgment standard itself,” at which the court considers whether any material facts remain in dispute. Burch v. Regents of Univ. of California, 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). They are thus “redundant” and unnecessary to consider here. Id.; see also Anderson, 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant or unnecessary will not be counted.”) Thus, the Court OVERRULES Defendant's objections on the grounds that the evidence lacks foundation, assumes facts in dispute, is misleading, vague, ambiguous, conclusory, speculative, conjecture, compound, irrelevant, or argumentative. These objections challenge the characterization of the evidence and are improper on a motion for summary judgment.

1. Declaration of Brad Avrit

*3 Plaintiff submitted the declaration of a retained “safety and liability expert,” Brad Avrit. (Dkt. No. 29-2.) Mr. Avrit is a licensed Civil Engineer in the State of California with extensive experience consulting in slip-and-fall cases. (“Declaration of Brad P. Avrit,” Dkt. 29-2, ¶¶ 2-3.) Mr. Avrit based his opinion in this case on a review of the pleadings, motions, and evidence as well as on photographs of the Jo-Ann Store accompanying reviews posted by unidentified individuals on Yelp.com. (Id. ¶ 5.) Mr. Avrit opines that Plaintiff “slipped on a foreign object...that should not have been there...,” an opinion based on Plaintiff's “own sense of feeling as she was traversing the floor of the store.” (Id. ¶ 7.) Mr. Avrit also claims that Defendant's policies and procedures for inspection and cleaning of the store are “inadequate and below the standard of care,” specifically identifying as flawed Defendant's policy of making “everyone responsible” for inspecting and cleaning the store and Defendant's apparent lack of a written verification program for store inspections. (Id. at ¶ 19.)

Defendant objects to the submission of Mr. Avrit's declaration and accompanying exhibits on the grounds that Plaintiff failed to timely serve Mr. Avrit's expert report at the time of her Initial Expert Disclosures. (Dkt. No. 30-2.) Federal Rule of Civil Procedure 26(a)(2) requires initial expert disclosures be accompanied by a written report generated by the witness containing, inter alia, a statement of opinions the witness will express and the basis and reasons for them. On May 22, 2018, the Court issued an Order setting the deadline for initial designation of expert witnesses for July 20, 2018 and the designation of rebuttal expert witnesses for August 3, 2018. (Dkt. No. 23.) On July 23, 2018, by mutual agreement of parties, Plaintiff served on Defendant initial expert disclosures identifying Mr. Avrit as an expert witness. (“Declaration of Jennifer T. Persky,” Dkt. No. 30-1, ¶¶ 5-6; id. Ex. 10.) This disclosure did not include a Rule 26(a)(2) expert report. (Id. ¶ 6.) Though Defendant's counsel brought this deficiency to the attention of Plaintiff's counsel via e-mail and requested an expert report, Plaintiff's counsel responded only that Mr. Avrit had not generated an expert report as of July 23, 2018. (Id. ¶ 8.)

The purpose of expert disclosures under 26(a)(2) is to “eliminate unfair surprise and conserve resources.” Robinson v. HD Supply, Inc., No. 2:12-CV-604 GEB AC, 2013 WL 3816009, at *3 (E.D. Cal. July 19, 2013); Elgas v. Colorado Belle Corp., 179 F.R.D. 296, 298 (D. Nev. 1998). Federal Rule of Civil Procedure 37(c)(1) provides teeth to this rule, specifying that should a party fail to provide information or identify a witness as required by Rule 26(a) or 26(e), then “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). Rule 37(c)(1) is a “ ‘self-executing,’ ‘automatic’ sanction designed to provide a strong inducement for disclosure.” Goodman v. Staples the Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (quoting Fed.R.Civ.P. 37(c)(1) advisory committee's note (1993)).

The only exception to the Rule 37(c)(1) exclusion sanction is if the failure to disclose was for good cause or harmless. Fed.R.Civ.P. 37(c)(1). The burden of proving harmlessness or good cause lies with the party seeking to avoid exclusion. Goodman, 644 F.3d at 827. Plaintiff has not established either harmlessness or good cause. The only reason Plaintiff's counsel gave for its failure to disclose a required 26(a)(2) report was that its retained expert had not produced the required report. (Persky Decl. ¶ 8.) Nor has Plaintiff demonstrated that this failure was harmless. The Court credits Defendant's assertion that Plaintiff's failure to disclose a required 26(a)(2) report was prejudicial. (Persky Decl. ¶ 9.) This assertion is supported by Plaintiff's shift to a new theory of liability in her opposition to Defendant's Motion for Summary Judgment. See Section IV(B), infra. The Court therefore declines to consider the expert declaration of Mr. Avrit in deciding Defendant's Motion for Summary Judgment.[1]

2. Negative inference from failure to disclose surveillance footage

*4 Plaintiff argues that Jo-Ann Stores failed to preserve video surveillance and should be sanctioned for spoliation of evidence. On December 2, 2016, Plaintiff's counsel sent a letter directly to the Jo-Ann Store where Plaintiff fell, requesting the preservation of surveillance footage and other evidence. (Opp'n at 9-10.) The letter was returned to Plaintiff's counsel with “refused by store manager” written on the envelope. (“Declaration of Matthew K. Joy, Esq.,” Dkt. 29-1, ¶ 5-6; id. Exs. 5, 6.) Plaintiff argues that the store was equipped with video surveillance which may have captured the fall or, failing that, circumstantial evidence of a dangerous condition at the site of the fall. Plaintiff now requests that an inference be drawn in her favor as to the contents of any destroyed video and suggests that such inference would be sufficient to independently overcome Defendant's motion for summary judgment.

Sanctions, including the drawing of an adverse inference, may be imposed where a party destroys or fails to preserve evidence that it knows to be material to future litigation. Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989 (N.D. Cal. 2012.) Such sanctions are not appropriate here. Courts in the Ninth Circuit have adopted Second Circuit's three-part test for the use of adverse inferences as sanctions for spoliation of evidence. Id. See also Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013). Under the Second Circuit's test, a party seeking an adverse inference based on the spoliation of evidence has the burden of establishing: (1) that the party having control of the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a “culpable state of mind;” and (3) that the evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002).

Plaintiff has not carried its burden of establishing that an adverse inference is appropriate. First, Plaintiff fails to show that relevant footage was ever in Defendant's possession. Though Defendant does not contest that parts of the store were under video surveillance at the time of the accident, Plaintiff offers no evidence suggesting that her fall was captured on camera or that such evidence would be adverse to Defendant. (See, generally, Deposition of Mary Sanchez, Dkt. 30-1, at 21-22.) “Mere speculation that ... deleted documents may exist that might be helpful to a party's case is ... an insufficient basis for a finding of spoliation.” Reinsdorf, 296 F.R.D. at 631 (C.D. Cal. 2013). See also, Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991) (“Where, as here, there is no extrinsic evidence whatever tending to show that the destroyed evidence would have been unfavorable to the spoliator, no adverse inference is appropriate.”) Accordingly, the Court does not infer that putative security-camera footage of the store at the time of Plaintiff's accident, had it been preserved, would have tended to prove Plaintiff's claims.

Plaintiff has also failed to demonstrate that Defendant's failure to disclose videos of the accident during discovery was the product of the requisite mental state. Though the Ninth Circuit has not precisely defined when the duty to preserve evidence is triggered, it is clear that the obligation arises when the party has actual notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002); Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991.) Plaintiff has not shown that Defendant was or should have been on notice of possible litigation arising from Plaintiff's fall, as Plaintiff's letter was returned after being refused by the store manager. Nor was it reasonably foreseeable that a lawsuit would result from Ms. Alvarez's fall at the time Plaintiff's letter was refused since, at the time of the accident, a store employee had investigated the area and found no evidence of any spill or substance that may have cause Plaintiff's fall. (SAUF ¶ 19; SUF ¶ 10.) In absence of any such evidence, the Court cannot find that the destruction of relevant video evidence, if such evidence ever existed, was done in bad faith. Akiona, 938 F.2d at 161 (9th Cir. 1991). Accordingly, the Court denies Plaintiff's request for an adverse inference.

*5 Plaintiff's claims are based on negligence and premises liability. Plaintiff argues that Defendant violated its duty of care to its customers by failing to make reasonable inspections of portions of their premises which were open to the public. In her complaint, Plaintiff alleges that she slipped and fell on a “spilled and slippery substance” after defendant failed to address a “spilled substance that was leaking” leading to “puddle(s) of liquid being created over a period of time.” (See Compl.) Defendant now moves for summary judgment, arguing there is no admissible evidence showing the existence of a spilled substance that caused Plaintiff's fall and therefore no reasonable jury could find that Defendant breached a duty owed to Plaintiff.

A. Establishing negligence under California premises liability law

To prevail on her negligence and premises liability claims, Plaintiff must establish: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) that the breach was the proximate or legal cause of the resulting injury; and (d) damages. Ortega v. Kmart Corp., 26 Cal. 4th 1200 (2001); Ladd v. Cty. of San Mateo, 12 Cal. 4th 913, 917 (1996).[2]

Store owners owe a duty to their patrons to exercise reasonable care in keeping reasonably safe the portions of their store open to customers. Ortega, 26 Cal. 4th at 1205. A store owner exercises ordinary care in part by making “reasonable inspections of the portions of the premises open to customers.” Id. at 1205. If the owner operates a self-service store “where customers are invited to inspect, remove, and replace goods on shelves,” then “ ‘the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise'...” Id. at 1205 (quoting Bridgman v. Safeway Stores, 53 Cal. 2d 443, 448 (1960)).

Store owners are not the “insurer[s] of the visitor's personal safety,” so the mere occurrence of an accident on their premises is not sufficient establish negligence. Brooks v. Eugene Burger Mgmt. Corp., 215 Cal. App. 3d 1611, 1620 (2008). To establish a breach of duty in a premises liability case, a plaintiff must also demonstrate that the store owner had “actual or constructive knowledge” of the dangerous condition which caused the plaintiff's injury, or that the store owner could have discovered that condition through the ordinary care. Ortega, 26 Cal. 4th at 1206. “[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 1206. The underlying question is whether the storeowner “has acted as a reasonable [person] in view of the probability of injury to others.” Alcaraz v. Vece, 14 Cal. 4th 1149, 1156 (1997).

A plaintiff meets the causation element by showing that the defendant's breach of its duty was a substantial factor in bringing about plaintiff's harm. Ortega, 26 Cal. 4th at 1205. If the plaintiff demonstrates that harm was caused by a dangerous condition of which the owner had actual or constructive knowledge, liability may be imposed. Howard v. Omni Hotels Mgmt. Corp., 203 Cal. App. 4th 403, 431 (2012).

B. Plaintiff has not presented any evidence of a spilled substance on floor of Jo-Ann store

An elemental requirement of a premises liability claim is the existence of a dangerous condition on the premises. After nearly ten months of discovery, Plaintiff has failed to submit any evidence that a dangerous condition existed in the Jo-Ann Store at the time of her fall and so fails to demonstrate that there exists a genuine issue of material fact as to this question. Celotex, 477 U.S. at 324. Absent evidence of the existence of a dangerous condition in the store at the time of the accident, plaintiff cannot establish that Defendant breached its duty of care or that such breach caused Plaintiff's accident.

*6 Plaintiff has failed to produce any evidence upon which a reasonable jury could find that a spilled substance of any kind was on the floor at the time that she slipped and fell. In her deposition testimony, Plaintiff testified that she did not see, smell, or feel any substance on the floor either before or after her fall. (SUF ¶ 4-7.) In the aftermath of the fall, Defendant's employee actively searched for a spill which may have caused Plaintiff's fall, but did not detect any substance on or around Plaintiff's person that could have been responsible for the accident. (Id. ¶ 10; SAUF ¶ 19.) The sole item she found on the floor was a roll of fabric lying several feet away, which Ms. Alvarez herself had been carrying when she fell. (SUF ¶2, SAUF ¶ 19)

Plaintiff has failed to specify the nature of the substance or object on which she presumably slipped. In her Complaint, Plaintiff alleged that her slip was caused by “puddle(s) of liquid” formed by a substance that was “leaking.” (See Compl.) The record demonstrates no evidence that any liquid was present on the ground at the time of Plaintiff's accident. Now, in her Opposition, Plaintiff abandons this claim and instead advances multiple new theories, including that she slipped on “a piece of tape negligently left on fabric” that she herself had taken off a shelf (Opp. at 8)[3] and that she slipped on fabric left on the floor of the store (Opp. at 10).

The Court is not inclined to permit Plaintiff to change her theory of liability at this late stage of the case, after discovery has concluded and Defendant has filed a Motion for Summary Judgment.[4] But even if it were, Plaintiff points to no evidence for these new theories beyond her own statements that she felt something slippery under her heel at the time of her fall (SUF ¶ 2), coupled with speculation that she slipped on a foreign object of some kind. This is insufficient to overcome a Motion for Summary Judgment. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment”); Nelson v. Pima Community College, 83 F.3d 1075 1081-1082 (9th Cir. 1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment”); see also Ortega, 26 Cal. 4th at 1205–06 (“[W]hen 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”.) In the absence of any evidence of a foreign object leading to Plaintiff's accident, the Court cannot find that a genuine issue of triable fact exists on this question.

Because Plaintiff has failed to produce sufficient credible evidence that a foreign substance on the floor of the Jo-Ann Store caused her fall, the Court need not reach her other factual claims. “[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323, (1986); see also Werner v. Am. Int'l Grp., Inc., 201 F.3d 446 (9th Cir. 1999.) The Court therefore does not address whether the remains a factual dispute as whether Defendant's procedures for inspecting and cleaning its store were deficient.

*7 Based on the foregoing, the Court GRANTS Defendant's Motion for Summary Judgment.

IT IS SO ORDERED.

However, even if its contents were not excluded under Fed. R. Civ. P. 26(a)(2), Mr. Avrit's expert report would not affect the Court's analysis. The portions of Mr. Avrit's report relevant to Defendant's Motion are inadmissible under Fed. R. Evid. 702. Rule 702 provides that expert opinion evidence is admissible if “(1) the witness is sufficiently qualified as an expert by knowledge, skill, experience, training, or education; (2) the scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (3) the testimony is based on sufficient facts or data; (4) the testimony is the product of reliable principles and methods; and (5) the expert has reliably applied the relevant principles and methods to the facts of the case.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014); Fed. R. Evid. 702. Expert opinion testimony is reliable if “the principles and methodology used by an expert are grounded in the methods of science,” Clausen v. M/V New Carissa, 339 F.3d 1049, 1056 (9th Cir. 2003), and “the knowledge underlying it has a reliable basis in the knowledge and experience of the relevant discipline,” City of Pomona, 750 F.3d at 1044. Mr. Avrit's conclusions that Plaintiff “slipped on a foreign object or substance on the floor of the store that should not have been there,” (Avrit Decl. ¶ 7), and that Plaintiff “did not see or smell the object or substance she fell on after the incident due to being in excruciating pain,” (id. at ¶10), are statements of fact, not opinions based in Mr. Avrit's putative knowledge and expertise in pedestrian locomotion and safety. (See id. ¶ 2-3). These sections of his expert report are therefore inadmissible.

A federal court exercising diversity jurisdiction applies the substantive law of the state in which it sits. Muldoon v. Tropitone Furniture Co., 1 F.3d 964, 966 (9th Cir. 1993).

At no point in the briefing does Plaintiff articulate how such a theory could give rise to liability on the part of defendant.

A plaintiff cannot raise a new theory for the first time in opposition to summary judgment. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292–93 (9th Cir. 2000) (plaintiff could not proceed with new theory not pled in complaint at summary judgement stage); Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006) (“[T]he necessary factual averments are required with respect to each material element of the underlying legal theory.... Simply put, summary judgment is not a procedural second chance to flesh out inadequate pleadings.”) (citing Fleming v. Lind–Waldock & Co., 922 F.2d 20, 24 (1st Cir.1990)) (internal quotations omitted.)