Aposaga v. Rite Aid Corp.
Aposaga v. Rite Aid Corp.
2023 WL 6533444 (Cal. Ct. App. 2023)
October 6, 2023
Stratton, Maria E., Justice
Summary
Rite Aid was asked to preserve video recordings for June 3, 2018, but chose to destroy them instead. The court found that the destruction of the video was likely done to prevent it from being used in litigation, and that the jury was permitted to infer that the video would not have shown the store manager walking through Aisle 1. The court affirmed the judgment and ordered Rite Aid to pay costs on appeal.
Note: This is an unpublished decision. Check your jurisdiction’s rules about citing unpublished decisions before citing this case to a court.
COLETA APOSAGA, Plaintiff and Respondent,
v.
RITE AID CORPORATION, Defendant and Appellant
v.
RITE AID CORPORATION, Defendant and Appellant
B321422
Court of Appeal, Second District, Division 8, California
Filed October 06, 2023
APPEAL from a judgment of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. Affirmed. (Los Angeles County Super. Ct. No. 19STCV03326)
Counsel
Baraban & Teske, Jeffrey H. Baraban and James S. Link for Defendant and Appellant.Nielsen, Peterson & Nielsen and Jonathan Nielsen for Plaintiff and Respondent.
Panel members:
Stratton, Maria E.,
Wiley Jr., John S.,
Viramontes, Victor
Stratton, Maria E., Justice
Opinion
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
*1 Rite Aid Corporation (Rite Aid) appeals from the judgment following a jury verdict in favor of 81-year old Coleta Aposaga, awarding her $329,037 in damages for the fractured leg and dislocated ankle she suffered in a fall at Rite Aid's Duarte store.[1] Rite Aid contends the judgment must be reversed because Aposaga's trial testimony, the sole evidence at trial, about the existence of a dangerous condition was contradicted by her deposition testimony; the trial court abused its discretion in instructing the jury with CACI 204 on willful destruction of evidence; and no substantial evidence was presented that Rite Aid had notice of the dangerous or unsafe condition. We affirm the judgment.
BACKGROUND
On June 3, 2018, then 77-year-old retired nurse Coleta Aposaga went to a Rite Aid store in Duarte to buy Benadryl. She testified at trial that after she picked up the Benadryl from a shelf, she stepped forward onto a slippery area of the floor, onto something that “look[ed] like oil,” and fell.[2] She called out for help, and a female employee, later determined to be shift supervisor Zejna Prinorac, came to her location.
Prinorac testified she found Aposaga in Aisle 4 A/B, a section of the aisle near the front of the store. Benadryl is located in Aisle 4 C/D, a section of the aisle near the back of the store. When asked if she had a conversation with Aposaga, Prinorac replied, “I just said, I'm calling 911 right now.”
Aposaga testified that, while waiting for paramedics, she “touched [her] ankle and that floor, I felt it is slippery.” When asked if she “notice[d] any lotion or cream on your body, on your skin, or anything like that, on your shoes,” she replied, “Yes. I touch my left ankle. The bone was protruding—it was poking, and it was slippery on my shoes.”[3]
When paramedics arrived, they carried her out of the store on a gurney and took her to a hospital, where she underwent surgery for the multiple fractures in her leg and ankle.
*2 According to Prinorac, Aposaga did not point out any lotion or oil on the floor before being taken away by paramedics. Prinorac did not see any oil or lotion on the floor where Aposaga fell. She took several photographs of the area, after Aposaga was taken to the hospital. The two photographs in the record on appeal show light and dark markings on the floor. Prinorac testified that the light marks were reflections from the lights and the dark marks were remnants from a remodeling.
Mitzi Matosevic, the floor manager for the store, was not working at the time of the accident. Prinorac called her and told her about it. Matosevic in turn called “Net Claims.” She did not prepare a written report because Rite Aid does not require written reports.
Matosevic acknowledged her signature on the receipt for a preservation letter sent by Aposaga's attorney; the receipt was dated June 16, 2018.[4] The letter began by stating: “Our client was injured at your store on or about June 3, 2018. The purpose of this letter is to advise your company not to destroy, conceal, or alter any information stored in electronic form or generated by your company's computer systems or electronic devices from the date of our client's injury.” It was Matosevic's practice to send such letters to “Net Claims” or “Legal” or “Corporate” or “Risk Management.”
Aposaga's attorney asked Matosevic if she or anyone at Rite Aid followed through “with preserving any evidence from electronic devices, including videos from the store on June 3rd, 2018.” Matosevic replied: “There wasn't any.” She clarified there were cameras inside the store, “but not where the client fell.” She did not preserve any of the video. She never looked at any video from June 3rd. No one looked at the video, including people from corporate.
Matosevic stated there are 10 or 11 aisles in the Rite Aid store. The aisles are intersected perpendicularly by a middle aisle. Although there are numerous camera domes in the store, most do not contain working video cameras. Aisle 4, where Aposaga fell, was not covered by a working camera, but the perpendicular middle aisle dividing the numbered aisles into A/B and C/D sections was. Video from this camera would have shown whether Aposaga crossed the middle aisle to get to 4 C/D where the Benadryl was located, and if so, whether she walked back across that middle aisle or was taken across it on the gurney, and thus would have helped resolve the disagreement over where she fell.
Aisle 1, which displayed cosmetics and some hair products, was covered by a working camera. It would have shown if a Rite Aid employee did a walk-through or inspected the cosmetics aisle. A camera covered the store entrance. This camera would have shown Aposaga entering the store and leaving on a gurney with the paramedics. A working camera also covered the stock room, where brooms were kept, and would have shown if anyone went into the stock room and grabbed a broom.
Matosevic testified Rite Aid did not keep sweep logs or records and did not have a policy of conducting a walk-through periodically to check the floors. She added: “We walk the store all the time. We do walk it—we do in the morning, check the whole store.” On cross-examination, Matosevic testified that each of the employees “is given a department. It's called a zone. Okay. Each one has their own department that they take care of.” Rite Aid's counsel then asked: “So the employees have their own little zone, and they're watching it continuously throughout their shift; is that correct?” Matosevic agreed.
*3 On June 3, 2018, three people were working in the store at the time of Aposaga's fall: Prinorac, a cashier, and a person at the ice cream counter. Prinorac testified her job was to ensure that the store was running well, to help customers if they needed help, to do small projects, and to make sure the store was clean.
Prinorac testified it was not true that she never did independent walk-throughs of the aisles. She explained she did check them “sometimes” but “not at the time when we're really busy with customer[s].” She was helping a customer when the ice cream counter employee told her about Aposaga's fall; however, she had done a walk-through of Aisles 1 to 5 about 15 to 20 minutes before Aposaga's fall. She did not sweep the aisles because they did not sweep “in the middle of the day.” Matosevic indicated sweeping occurred at night or in the morning.
The injuries caused by Aposaga's fall turned out to be serious. She needed special hardware in her leg to hold the pieces of bone together and she underwent ten days of inpatient rehabilitation. She could not put weight on her left foot for two months. After that she needed a walker or a cane. She could no longer drive, at least not for any distance. Her husband died in April 2019 and her daughter left her job to care for her. Aposaga testified she was depressed and in occasional pain at the time of trial. Aposaga acknowledged she was diabetic at the time of her fall, but (initially) denied she had neuropathy.
Further evidence of Aposaga's injuries was provided by Dr. Morris Baumgarten, Aposaga's surgeon. He explained that Aposaga broke two bones in her leg, the fibula and the tibia, which both fractured into multiple pieces. She also suffered a fractured dislocation of her ankle. He used a locking plate to hold the fragments together. He viewed her continued occasional pain as normal. On cross-examination, Dr. Baumgarten testified that Aposaga did have neuropathy. He described some general effects of neuropathy, which involve nerves sending insufficient information to the brain. It can cause balance problems and difficulty walking. The last time Dr. Baumgarten saw Aposaga, however, she had “good motion.”
Aposaga re-took the stand and testified that after hearing the doctor say she had neuropathy, she was no longer sure whether she had it or not. She denied having numbness in her feet or balance problems before the Rite Aid accident. She had never been treated for numbness in her feet. She did not feel dizzy the day of her fall. She had never fallen in a store before she fell at Rite Aid.
DISCUSSION
Rite Aid first contends the only evidence of a slippery substance on the floor was Aposaga's trial testimony that she saw oil, and that testimony does not constitute substantial evidence because it directly contradicts her prior deposition testimony and is inconsistent with other parts of her trial testimony. We do not agree with Rite Aid's summary of the facts or the law.
“Substantial evidence means evidence of ponderable legal significance that is reasonable, credible, and of solid value. [Citation.] Substantial evidence review is deferential to the factfinder.” (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899.) “Under the well-established standard of review applicable to a claim that a judgment or finding is not supported by the evidence in the record, ‘we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.] [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.... We must accept as true all evidence and all reasonable inferences from the evidence tending to establish the correctness of the trial court's findings and decision ....’ ” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 595–596.) “The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” (Roddenberry v. Roddenberry(1996) 44 Cal.App.4th 634, 652 (Roddenberry).) Under the substantial evidence test, reversal “ ‘ “is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support’ ” the jury's verdict.’ ” (People v. Penunuri (2018) 5 Cal.5th 126, 142.)
*4 Rite Aid has cited only two cases for the proposition that we may, in effect, weigh the evidence and disregard the testimony of a witness believed by the jury due to contradictions or inconsistencies between the witness's trial and deposition testimony: Roddenberry and Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150 (Mikialian). Roddenberry does not involve prior deposition testimony, but rather “a prior attorney declaration, representations to the court, admissions in pleadings, and a long history of conduct” which were then contradicted by trial testimony. (Roddenberry, supra, 44 Cal.App.4th at p. 654.) There is no such extensive history of statements, declarations and conduct in this case, only the brief prior deposition testimony of Aposaga. For that reason alone, we do not find the reasoning of Roddenberry helpful.
Even at a more abstract level, the reasoning of Roddenberry is not helpful. Although Roddenberry involves a trial, the discussion in that opinion about the effect of contradictions primarily focuses on cases involving summary judgment proceedings. (Roddenberry, supra, 44 Cal.App.4th at pp. 652–653.) The rule addressing contradictions between deposition testimony and declarations in summary judgment proceedings is well settled. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21–22.) We do not believe the D'Amico rule applies to trials which end with a jury verdict.
Rodenberry cites only one case involving a contradiction between deposition testimony and trial testimony, Mikialian, also cited by Rite Aid. Mikialian, however, involves a motion for a nonsuit; in deciding such a motion, the trial court may not weigh the evidence. (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)[5] Here, the evaluation of the evidence was left to the jury, which is empowered to weigh the evidence and assess credibility.
At least one case has expressly rejected the claim that contradicted trial testimony cannot be substantial evidence to support a jury verdict, stating: “It is not the case ... that the discrepancies between [a witness's] deposition testimony and his trial testimony render his testimony not substantial evidence on which we may rely to uphold the judgment. A declaration or testimony of a party may be deemed not substantial evidence sufficient to create a triable issue of fact in opposition to a motion for summary judgment or to oppose a motion for nonsuit if it contains an unexplained contradiction of an admission rendered by the party in discovery. (See Roddenberry, supra, 44 Cal.App.4th at pp. 652–653, discussing, inter alia, Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150 [144 Cal.Rptr. 794], which is the case the plaintiffs rely upon.) At trial, however, contradictions between a witness's testimony and his or her prior statements, under oath or otherwise, affect only the witness's credibility, and it is exclusively the function of the jury to determine which, if any, of a witness's assertions are credible.” (Lobo v. Tamco (2014) 230 Cal.App.4th 438, 446.)
*5 We agree with the court in Lobo. It is well settled under California law that it is for the jury to decide the credibility of witnesses at trial. “Questions as to the credibility of witnesses and the weight to be given their testimony are for the trier of the facts.... ‘... Although impeaching evidence in the nature of contradictions or otherwise has been received, it is still the right as well as the duty of the jury to determine to what extent they believe or disbelieve the testimony. [Citations.] They may likewise give credence to a witness who has falsely testified in part (Robinson v. Robinson, 159 Cal. 203 [113 P. 155]), or whose testimony contains contradictions or inconsistencies.’ ” (Hansen v. Bear Film Co. (1946) 28 Cal.2d 154, 184.) This is true even when the witness himself expressly testifies that his prior testimony was false. (People v. Bodkin (1961) 196 Cal.App.2d 412, 415.) “It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony.” (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878, overruled on another ground by Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 135.)
“ ‘To warrant the rejection by a reviewing court of statements given by a witness who has been believed by the trial court or the jury, there must exist either a physical impossibility that they are true, or it must be such as to shock the moral sense of the court; it must be inherently improbable and such inherent improbability must plainly appear.’ [Citations.] It also is true that uncertainties or discrepancies in witnesses’ testimony raise only evidentiary issues that are for the jury to resolve.” (People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)
Aposaga's testimony does not “shock” our moral sense. The jury could reasonably have reconciled the deposition testimony and trial testimony. Aposaga's testimony that she saw oil on the floor could be understood as indicating that she saw the oil before she fell; the deposition testimony cited by Rite Aid, that “you could not see anything on the floor” was made after she fell, while on the floor, and could be understood as saying the slippery substance was no longer visible from that vantage point.[6] Her subsequent trial testimony, also cited by Rite Aid, that she did not remember whether she saw anything on the floor, was made after a lengthy reading of her deposition testimony, and could have been a temporary memory lapse, or confusion. As the trial court remarked, when defense counsel switched from reading the deposition questions and answers to asking direct questions of Aposaga “it gets confusing.”
Similarly, when Aposaga was asked at trial if she “notice[d] any lotion or cream on your body, on your skin, or anything like that, on your shoes?” She replied, “Yes ... it was slippery on my shoes.” At her deposition, Aposaga was asked: “Was there any lotion or oil on any part of your clothing?” Aposaga replied: “No.” It is common to refer to clothing and shoes as distinct categories of belongings, and the jury could have decided that Aposaga was making such a distinction.[7]
*6 Even if the jury did not find the deposition testimony and trial testimony reconcilable, the jury was free to reject Aposaga's deposition testimony. The jury heard at least one extended excerpt from Aposaga's deposition testimony which showed she was having difficulty understanding the questions. The jury could reasonably have decided to disregard all of that prior testimony in favor of Aposaga's live trial testimony. Or, the jury could reasonably have rejected Aposaga's trial testimony about what she saw on the floor but accepted her trial testimony about what she felt on her shoe and the floor.
Aposaga's testimony that she saw oil on the floor and slipped on it is substantial evidence of a dangerous condition. Her testimony that she felt a slippery substance like a cream or lotion on her shoe, combined with her testimony that the floor felt slippery is sufficient to support a reasonable inference that there was a slippery substance like a cream or a lotion on the floor, and so is substantial evidence of a dangerous condition.
It is this evidence that Aposaga saw a substance on the floor which distinguishes this case from the three cases cited by Rite Aid: Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030 (Peralta); Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729 (Buehler); and Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143 (Harpke). In Peralta, the plaintiff “unequivocally stated that she did not see anything on the floor prior to or after her fall.” (Peralta, at p. 1035.) She stated: “she felt as though her foot slid ‘on some sort of oil or grease’ ” and “she ‘felt the floor was slippery’ but did not know if there was anything on the floor.” (Id. at p. 1032.) In Buehler, the plaintiff “did not notice any liquid or solid debris on the floor” prior to her fall. (Buehler, at p. 732.) “After [she] fell, she did not see anything on the floor which caused her to fall. When asked, ‘To this day, do you know what caused you to fall in that aisle as you were walking toward the checkstand?’ [plaintiff] replied, ‘No, sir, no, sir, I do not. I do not.’ ” (Id. at pp. 732–733.) In Harpke, the plaintiff testified that “ ‘the stairs are worn ... and they were slippery.’ On cross-examination she stated that she noticed no difference in the condition of the stairway from that on any previous day. She further testified: ... ‘Q. And you did not see anything on the stairs that caused you to fall? A. No. Q. And you don't know what caused you to slip? ... A. No, I don't.’ ” (Harpke, at p. 145.)
Over Rite Aid's objection, the trial court instructed the jury with CACI 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”[8] Rite Aid contends the preservation letter should not have been admitted, and that without the admission of the preservation letter, there was no evidence to support CACI 204. Specifically, Rite Aid contends that the preservation letter was not legally sufficient to impose a duty on it to preserve the video, and that absent such a duty, CACI 204 was not warranted. We find the letter sufficient to impose a duty to preserve.
*7 Rite Aid contends a defendant only has a duty to preserve relevant evidence, and the “broad” letter did not ask for anything relevant. Rite Aid complains that the letter did not explain why video for the entire day for the entire store was relevant, apparently so that Rite Aid could decide if it agreed with the relevancy argument or not.[9] Rite Aid relies on New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403 (New Albertsons) and Williamson v. Superior Court (1978) 21 Cal.3d 829 (Williamson) to support its relevancy requirement, but this reliance is misplaced.
New Albertsons involves the imposition of sanctions without a violation of a court order. (New Albertsons, supra, 168 Cal.App.4th 1403.) Those sanctions included an instruction to the jury that Albertsons had destroyed recordings; this was “an [improper] issue sanction establishing those purported facts as true.” (Id. at p. 1427.) Based on this improper issue sanction, the jury was permitted to infer that the recordings were unfavorable to Albertsons. (Ibid.) The Court of Appeal expressly stated: “Our conclusion that the sanctions are unauthorized does not preclude an instruction that if the jury finds that Albertsons intentionally destroyed evidence, it may infer that the evidence would have been unfavorable to Albertsons. (See CACI No. 204.)” (New Albertsons, at p. 1434, italics added.)
There is nothing in New Albertsons which even hints that CACI 204 may not be given if a preservation letter is too broad. To the contrary, the court described the destroyed recordings as not “particularly probative” but found that CACI 204 was not precluded in a retrial. Put differently, under the reasoning of New Albertson's, even the destruction of not particularly probative evidence can support CACI 204.
Even if we were to assume for the sake of argument that a preservation letter only requires the recipient to preserve relevant evidence, relevancy is a very broad concept. “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)[10]
*8 It should go without saying that direct evidence of a plaintiff falling or of the spot where she fell, is not the only relevant evidence in a personal injury action. A store owner has a duty to exercise ordinary care and does so “by making reasonable inspections of the portions of the premises open to customers.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).)[11] Thus, at a minimum, a pattern of regular maintenance of the interior of a business open to the public plays an important role in defending against claims for personal injury by customers. (Id. at p. 1211 [“failure to inspect the premises within a reasonable time prior to the accident [gives] rise to an inference that the defective condition lasted long enough to have been discovered and remedied. [But,] if a store owner has taken care in the discharge of its duty, by inspecting its premises in a reasonable manner, then no breach will be found even if a plaintiff does suffer injury”].) In addition, while a customer's ability to walk may not be an issue in every personal injury case, it is certainly a common issue across a variety of businesses. (See, e.g., Peralta, supra, 24 Cal.App.5th at p. 1033 [plaintiff's ability to walk in three inch heels was an issue in slip and fall in grocery store].)[12] Rite Aid knew or should have known that any video showing inspections or maintenance of the store aisles or showing that Aposaga had difficulty walking would be relevant.
There is no question that such video existed. As Matosevic acknowledged at trial, video cameras covered the entrance to the store, and would have shown Aposaga walking into the store.[13] Depending on whether the video showed Aposaga walking with difficulty or normally, it would have supported or undercut Rite Aid's suggestion that Aposaga had difficulty walking due to neuropathy. Further, Prinorac claimed to have inspected Aisles 1 through 5 about 15 to 20 minutes before Aposaga fell. Video cameras covered Aisle 1, where Prinorac claimed to have done a walk-through. That video would have either supported or undercut Prinorac's inspection claim. Video cameras also showed the storeroom, and Matosevic acknowledged that the cameras would have shown if anyone took a broom out at any time that day. Given that Prinorac also testified that employees did not routinely sweep in the middle of the day, the removal of a broom after Aposaga's fall would have called into question Prinorac's claim that there was nothing on the floor. The absence of anyone taking a broom out of the stock room would have supported her claim. None of this is speculation. The video would have shown what did or did not happen. It was relevant.
Rite Aid next contends that a demand letter “is governed by the fundamental principle that a ‘defendant is not under a duty to produce testimony adverse to himself.’ Williamson, supra, 21 Cal.3d at p. 835, fn. 2. The defendant must retain and ‘produce evidence that would naturally have been produced.’ ” (Italics omitted.)
Rite Aid misconstrues the holding in Williamson. Here is the complete quote from Williamson: “ ‘The purpose of a trial is to arrive at the true facts. A trial is not a game where one counsel safely may sit back and refuse to produce evidence where in the nature of things his client is the only source from which that evidence may be secured. A defendant is not under a duty to produce testimony adverse to himself, but if he fails to produce evidence that would naturally have been produced he must take the risk that the trier of fact will infer, and properly so, that the evidence, had it been produced, would have been adverse.’ (Italics added.)” (Williamson, supra, 21 Cal.3d at p. 835, fn. 2.) So, if a party does not voluntarily produce evidence which is solely in its possession, it may be inferred that the evidence was not favorable to the defendant. As applied to this case, Rite Aid was in the sole possession of the video, and Rite Aid's failure to preserve and produce it may be used to support an inference that the video was unfavorable. To use Rite Aid's terms, if the video had shown Prinorac walking through Aisle 1 about 15 to 20 minutes before Aposaga's fall or shown Aposaga to be unsteady on her feet, Rite Aid would “naturally have produced” the video. Thus, by Rite Aid's own reasoning, it had a duty to preserve the video.
*9 Far from being an outlier, Williamson is consistent with the California Evidence Code. Under the Evidence Code, a defendant is under a duty to produce all relevant evidence that is the subject of a discovery demand, unless the evidence is protected by the attorney-client privilege or some similar privilege or if the evidence would subject him to criminal prosecution. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 305 (Fuller); Code Civ. Proc., § 2017.010.)[14] There is no exception for “adverse” evidence. Further, a defendant may not simply ignore a discovery demand because the defendant believes the demand is overly broad and so seeks irrelevant evidence; the defendant must, at a minimum, object to the discovery request.
After being asked by Aposaga's attorney to preserve video recordings for June 3, 2018, Rite Aid chose to destroy the videos. Although Rite Aid complains of the broad scope of the request, Rite Aid did not preserve even a limited amount of the video, as for example keeping the video covering an hour or two before and after Aposaga's fall (rather than for the whole day). As we discuss in some detail above, the relevance of videos of other parts of the store was readily apparent from the bare fact of Aposaga's slip and fall. These facts are more than sufficient to support an inference that Rite Aid destroyed the video to prevent it being used in litigation. We find it particularly telling that Rite Aid did not preserve even the one piece of video which indisputably would have shown Aposaga in the store: the video of her walking into the store. Without this video Rite Aid could, and did, remind the jury that Aposaga had neuropathy, which “causes pain, balance problems, numbness in the feet,” thereby suggesting that the neuropathy was the reason she fell.
Rite Aid contends Aposaga failed to present substantial evidence that it had actual or constructive notice of a slippery substance on the floor in Aisle 4. We do not agree.
The owner of a premises has a duty to “inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable case, the owner would have discovered the condition, he is liable for failing to correct it.” (Ortega, supra, 26 Cal.4th at p. 1207.) “[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.” (Ibid.)
“[A] plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and ... ‘evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.’ ” (Ortega, supra, 26 Cal.4th at p. 1210.)
In Ortega, although the “plaintiff did not present evidence of the length of time the milk was on the floor, the general manager, in fact, testified that the milk could have been on the floor for as long as two hours, and at best the floor was not inspected for 15 to 30 minutes.” (Ortega, supra, 26 Cal.4th at p. 1210.)
*10 Here, as in Ortega, Aposaga did not present any evidence of the amount of time the slippery substance was on the floor, but the testimony of Rite Aid employees was that the store was inspected and swept in the morning and/or at night, and Prinorac testified she did a walk-through of the store about 15 to 20 minutes before Aposaga's fall.
“ ‘The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances. A person operating a grocery and vegetable store in the exercise of ordinary care must exercise a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious.’ ” (Ortega, supra, 26 Cal.4th at p. 1210.)
In Ortega, the Court found the evidence of an inspection 15 to 30 minutes before the fall at best and two hours was sufficient to show a “failure to inspect the premises within a reasonable period of time prior to the accident.” (Ortega, supra, 26 Cal.4th at p. 1211.) Thus, the 15 to 20 minutes described by Prinorac could be sufficient to show a failure to inspect the premises within a reasonable period of time prior to Aposaga's fall, and then to infer that the slippery substance was on the floor long enough to have been discovered in the exercise of ordinary care. Put differently, it could be sufficient to charge Rite Aid with constructive notice of the substance's existence. (Id. at p. 1206.)
The jury was, however, free to reject Prinorac's testimony about her inspection, both because it was not consistent with Matosevic's testimony that the store used a zone system rather than walk-throughs and because Rite Aid destroyed the only evidence which might have corroborated Prinorac's testimony about a walk-through. The jury was permitted to infer that the video would not have shown Prinorac walking through Aisle 1. This would leave evidence only of an early morning inspection/sweeping, hours before Aposaga arrived at the store. That is more than sufficient evidence to support a finding that Rite Aid failed to inspect the premises within a reasonable time before Aposaga's fall, and to infer Rite Aid would have discovered the slippery substance in the exercise of ordinary care and to charge it with constructive notice.
Rite Aid does not argue that its inspections were timely, but instead focuses on the “nonexistent” or “unseen” nature of the slippery substance on the floor, or its nonexistence. This is primarily a restatement of its argument that Aposaga's testimony is not substantial evidence that there was a slippery substance on the floor. As we have explained, her testimony is substantial evidence. Further, the jury was not required to believe Prinorac's testimony that she saw nothing on the floor, or even that her photographs depicted the area where Aposaga fell.[15]
As for Rite Aid's argument that it could have not discovered a slippery substance that was “unseen,” that suggests Rite Aid should have swept rather than inspected. If a business sells clear liquids which are difficult to see if spilled, has markings on its floor which can obscure the presence of a colored liquid (such as the permanent dark marks on Rite Aid's floors) or has highly reflective floors which might make it difficult to notice a spilled liquid, the business's customers will have the same or more difficulty seeing the liquid as the business's employees have, increasing the danger posed by the spill. “[T]he care required [of a business] is commensurate with the risks involved.” (Ortega, supra, 26 Cal.4th at p. 1205.) For some businesses, “ ‘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 ... a customer may create a dangerous condition by disarranging the merchandise’ and creating potentially hazardous conditions.” (Ibid.)
DISPOSITION
*11 The judgment is affirmed. Rite Aid to pay costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
WILEY, J.
VIRAMONTES, J.
Footnotes
We note Rite Aid states that it is Thrifty Payless, Inc. doing business as Rite Aid Corporation, erroneously sued as Rite Aid Corporation.
On cross-examination, counsel for Rite Aid asked: “Did you point out any oil on the floor to the lady that came?” When Aposaga replied that she did not remember, counsel chose to read her lengthy deposition testimony on this topic, on which her final answer was “I told her it's slippery, very slippery. That's all I said.” Rite Aid then asked: “Now, my question now, did you see anything on the floor that caused you to fall when you were right there? Did you see anything?” Aposaga replied: “I don't remember.” Counsel then read another portion of Aposaga's deposition testimony, in which she agreed that she did not point out any substance on the floor to the lady and volunteered that this was “[b]ecause you could not see anything on the floor.”
Counsel for Rite Aid then read a portion of her deposition testimony where she was asked: “Was there any lotion or oil on any part of your clothing?” Aposaga replied: “No.”
Although Matosevic acknowledged the receipt showed her signature, when asked if she received the letter, she initially replied, “Probably.” Only after being pressed by Aposaga's attorney did Matosevic agree she had in fact received the letter. Similarly, at her deposition, Matosevic first flatly denied receiving the letter, then said she “could have” received the letter and, if she had, she would have sent it straight to risk management.
The Court in Mikialian appears to hold that statements in deposition testimony could and should be treated as “informal judicial admissions” which should not be disregarded. (Mikialian, supra, 79 Cal.App.3d at p. 162.) We agree with more recent authority finding that “[depositions] do not constitute incontrovertible judicial admissions as do, for example, concessions in a pleading [citations], or answers to requests for admissions, which are specially designed to pare down disputed issues in a lawsuit.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) “There is a vast difference between written discovery admissions, which are ‘ “a studied response, made under sanctions against easy denials,” that occur “under the direction and supervision of counsel, who has full professional realization of their significance” ’ [citation] and glib, easily misunderstood answers given by a lay opponent in a deposition.” (Ibid.)
This was a volunteered statement by Aposaga, apparently to explain why she did not point out any slippery substance to Prinorac. If defense counsel followed up with deposition questions to clarify that Aposaga did not see anything before she fell, that testimony was not introduced at trial.
Thus, even if we applied the D'Amico rule, we would find no reason to disregard her trial testimony. That rule is properly applied “only where [the party's declaration] and the party's deposition testimony or discovery responses are ‘contradictory and mutually exclusive’ (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 862–863 [84 Cal.Rptr.2d 157]) or where the declaration contradicts ‘unequivocal admissions’ in discovery. (Mikialian v. City of Los Angeles (1978) 79 Cal.App.3d 150, 162 [144 Cal.Rptr. 794].)” (Minish v. Hanuman Fellowship (2013) 214 Cal.App.4th 437, 460.)
“[T]he trial court must instruct the jury on every theory of the case supported by substantial evidence [citation] and may not weigh the credibility of witnesses.” (Barry v. Raskov (1991) 232 Cal.App.3d 447, 458.) In this context, substantial evidence is “evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence that a reasonable jury could find persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8.)
Rite Aid also contends that the preservation letter was not sufficient to put it on notice that Aposaga wanted all videos for all parts of the store for the entire day. To the extent that Rite Aid is contending that the reference to “information stored in electronic form or generated by your company's computer systems or electronic devices” cannot be understood to include video recordings, Rite Aid did not object on this ground in the trial and has forfeited the claim.
A preservation letter is normally sent very soon after a prospective plaintiff is injured and very often before a lawsuit is filed. At that point, a prospective plaintiff will have little to no knowledge of which facts will be disputed by the prospective defendant, and so little to no ability to narrow the scope of a preservation letter. At the same time, it is unlikely that the only relevant evidence in a personal injury lawsuit will be direct evidence showing the plaintiff sustaining the injury. Again, the prospective plaintiff will have little to no knowledge of what other evidence might exist that would support her case, and so no ability to specify that evidence. Thus, there is no reason to require a preservation letter to be extremely narrowly tailored.
“[T]he care required is commensurate with the risks involved. [Citation.] If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, ‘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’ and creating potentially hazardous conditions.” (Ortega, supra, 26 Cal.4th at p. 1205.)
Although not determinative of our analysis, we note Rite Aid is a drugstore in the business of selling products to people who are ill or injured. More than most businesses, a drugstore should expect a portion of its customers to have mobility issues.
At the time Rite Aid received the preservation letter, it is extremely unlikely Rite Aid knew where in the store Aposaga walked before she fell and so video evidence of the whole store was potentially relevant. Given that Matosevic testified that no one at Rite Aid reviewed the video, they would have had no basis to believe that it only showed Aposaga walking directly to Aisle 4.
“[A] party is not entitled to decide for himself or herself whether the privilege against self-incrimination may be invoked” and “a civil defendant does not have the absolute right to invoke the privilege against self-incrimination.” (Fuller, supra, 87 Cal.App.4th at p. 305.)
Rite Aid destroyed the video, some of which would have shown whether Aposaga walked across the middle aisle to 4 C/D and, if so, whether she walked back across the middle aisle or was moved across it on a gurney by the paramedics.