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ae
oO 0 ON WB OH BR WO HH —
FILED
Robert K. Phillips ~ 135088 SUPERIOR COURT
Brian J. Hamilton - 311053
PHILLIPS, SPALLAS & ANGSTADT LLP "7019 JUL 19. PH Li: 20
505 Sansome Street, Sixth Floor uw
San Francisco, California 94111 ROSA, UNQUEIRO. CLERK
Telephone: (415) 278-9400
Facsimile: (415) 278-9411
Attorneys for Defendants,
WALMART INC.
SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN JOAQUIN — UNLIMITED JURISDICTION
GUADALUPE RAMIREZ and RICARDO CASE NO: STKCVUP1 20183942
RAMIREZ,
WALMART INC.’S RESPONSE TO
Plaintiffs, PLAINTIFFS OPPOSITION TO
DEFENDANT’S SEPARATE STATEMENT
vy. OF UNDISPUTED MATERIAL FACTS
WALMART, INC, (sued erroneously herein as | Date: July 24, 2019
“Walmart Corporation”) and DOES 1 to 50, | Time: 9:00 a.m.
Dept.: 10C
Defendants.
Complaint Filed: April 5, 2018
WALMART INC., Trial Date: Oct. 21, 2019
Judge: Mulvihill, Michael
Cross-Complainant,
vy
ROES 1 to 20,
Cross-Defendants.
Defendant Walmart Inc. (hereinafter “Walmart” or “Defendant") notes at the outset that
Plaintiff failed entirely to submit a Separate Statement of Additional Material Facts, despite
including several additional material facts in her Opposition to Defendant’s Motion for Summary
Judgment. As such, Defendant had no choice but to include with its Reply the below Response to
Plaintiff's Opposition to Defendant's Separate Statement of Undisputed Material Facts. Failing to
include the below responses and objections from Defendant to Plaintiff's Separate Statement of
1
CASE NO: STKCVUP120183942.
‘WALMART INC.’S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
BY FAXoO 7 On OA HN Ff W DY —
Undisputed Material facts would violate Defendant’s due process rights by prohibiting it from ~
responding to newly acquired evidence that was cited extensively in Plaintiff's Opposition papers.
Defendant therefore submits the following Response to Plaintiff's Opposition to Defendant's
Separate Statement of Undisputed Material Facts in Support of the within Motion for Summary
Judgment:
SEPARATE STATEMENT IN SUPPORT OF WALMART’S MOTION FOR SUMMARY
JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
OPPOSING PARTY'S RESPONSE AND
SUPPORTING EVIDENCE
MOVING PARTY’S RESPONSE TO
OPPOSITION AND SUPPORTING
EVIDENCE
1. Undisputed.
2. Undisputed.
3. Undisputed.
4, — Plaintiff disputes this statement in so
far as it is used as evidence there was
no spill on the ground that could
have caused Plaintiff to slip and fall.
Plaintiff testified there was clear liquid
on the ground. Erika Yost signed a
declaration stating the ground was
wet after the fall. Mr. Rallios admitted
he did not have independent
recollection of the event, it was
possible there was a drop or droplets
of water on the floor, that he did not
touch the floor after the incident and
did not ask Plaintiff if there was liquid
on the ground.
Declaration of Nathan Zerbib-Berda
[4 Ex. C p.50:21-51:2, [PS Ex. D, [P2
Ex. A p.29;6-12, p.22:7-23:2, 25:7-
9, 30:1-5, ).
Plaintiff attempts to defeat summary
judgment by submitting an overly broad,
vague, and ambiguous declaration from an
unresponsive witness who neither party has
deposed. This declaration provides no
probative information as to causation, i.e.,
that a liquid indeed caused Plaintiff’s fall.
This declaration is also insufficient to
overcome Plaintiff’s admission that the area
where she fell was “very clean” and was
lacking any spills or debris. When such an
admission is relevant to the determination,
on motion for summary judgment, of
whether a triable issue of fact exists between
the parties, it is entitled to and should
receive “a kind of deference not normally
accorded evidentiary allegations in
affidavits.” D‘Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 25.
Plaintiff is also cherry picking her own
deposition testimony in an attempt to show
there was a spill on the ground, despite the
fact that she testified testified that: (1) she
has “no idea” what she slipped on; (2) she
and her clothes were dry when she stood up
2
CASE NO: STKCVUP120183942
WALMART INC.'S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS.
BY FAXwe ne a
oO oy ON BA HR WwW NB =
1]
from the ground; (3) she did not see any
spills or debris before her fall; (4) she did
not see any spills or debris after her fall; (5)
no one told her there was a spill or debris
on the floor; and (6) the floor was clean and
free of any spills or debris:
Declaration of Brian J. Hamilton filed in
Support of Motion for Summary Judgment, 1
6, Exhibit B, 50:21-55:2.
5. Plaintiff disputes this statement in so
far as it is used as evidence there was
no spill on the ground that could
have caused Plaintiff to slip and fall.
Plaintiff testified there was clear liquid
on the ground. Erika Yost signed a
declaration stating the ground was
wet after the fall. Mr. Rallios admitted
he did not have independent
recollection of the event, it was.
possible there was a drop or droplets
of water on the floor, that he did not
touch the floor after the incident and
did not ask Plaintiff if there was liquid
on the ground.
Declaration of Nathan Zerbib-Berda
4 Ex. C p.50:21-51:2, PS Ex. D, [P2
Ex. A p.29:6-12, p.22:7-23:2, 25:7-
9, 30:1-5, ).
Plaintiff attempts to defeat summary
judgment by submitting an overly broad,
vague, and ambiguous declaration from an
unresponsive witness who neither party has
deposed. This declaration provides no
probative information as to causation, i.e.,
that a liquid indeed caused Plaintiff's fall.
This declaration is also insufficient to
overcome Plaintiff's admission that the area
where she fell was “very clean” and was
lacking any spills or debris, When such an
admission is relevant to the determination,
on motion for summary judgment, of
whether a triable issue of fact exists between
the parties, it is entitled to and should
receive “a kind of deference not normally
accorded evidentiary allegations in
affidavits.” D'Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 25,
Plaintiff completely misrepresents Josh
Rallios’ deposition testimony. Mr. Rallios
testified that (1) he witnessed Plaintiff fall
because her fall “stuck in [his] memory;” (2)
there were no problems with the floor; (3)
after Plaintiff fell, he looked at the floor
which was “completely dry;” (4) he’s certain
that liquid did not cause Plaintiff's fall; and
(5) he is 99% confident that there was
nothing on the ground prior to Plaintiff's fall,
after Plaintiff's counsel repeatedly prompted
him with “Anything is possible, right?”
3
CASE NO: STKCVUP120183942,
WALMART INC.'S RESPONSE TO PLAINTIFFS OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
BY FAXov ON ODO O&O HB WwW BD
Declaration of Brian J. Hamilton filed in
support of Defendant’s Reply (hereinafter
“Hamilton Reply Decl.”), Ex A, 9:12 -17;
17:19-21; 21:22-23:6; 25:16-23; 30:1-
18; 22:15-21,
6. Plaintiff disputes this declaration in so
far as it is used as evidence there was
no spill on the ground that could
have caused Plaintiff to slip and fall.
Medical records are notoriously
unreliable and mistakes often made.
Plaintiff testified there was clear liquid
on the ground, Erika Yost signed a
declaration stating the ground was
wet after the fall. Dr. Haq states in
her declaration that she has no
independent recollection of speaking
with Plaintiff.
Declaration of Nathan Zerbib-Berda
4 Ex. C p.50:21-51:2, [5 Ex. D)
Plaintiff attempts to defeat summary
judgment by submitting an overly broad,
vague, and ambiguous declaration from an
unresponsive witness who neither party has
deposed. This declaration provides no
probative information as to causation, i.e.,
that a liquid indeed caused Plaintiff's fall.
This declaration is also insufficient to
overcome Plaintiff's admission that the area
where she fell was “very clean” and was
lacking any spills or debris. When such an
admission is relevant to the determination,
on motion for summary judgment, of
whether a triable issue of fact exists between
the parties, it is entitled 10 and should
receive “a kind of deference not normally
accorded evidentiary allegations in
affidavits.” D’Amico v. Board of Medical
Examiners (1974) 11 Cal.3d 1, 25.
7. Plaintiff disputes the claim that Mr.
Rallios inspected the area or
confirmed there was no spill on the
ground. There is video of Mr. Rallios
walking by the area 17 minutes prior
with a shopping cart. He never looks
or turns his head towards the area
Plaintiff fell. Mr. Rallios states he was
10-15 feet from the area when he
conducted his inspection. Mr. Rallios
stated in his deposition he did not
inspect “that exact spot, no” where
Plaintiff fell. Mr. Rallios admitted it
was possible there was water on the
floor, and that his declaration was
not based on an independent
recollection.
Declaration of Nathan Zerbib-Berda
P2 Ex. Ap. 13:24-14:3, 14:16-21,
22:7-23:1, 29:6-11, 30:1-5)
Plaintiff again cherry picks Josh Rallios’
deposition testimony in an attempt to defeat
Defendant’s motion, Plaintiff also
intentionally tries to confuse the Court by
misrepresenting when he inspected the area
of Plaintiffs fall, versus when he was looking
somewhere else. Mr. Rallios testified that: (1)
at 10:20:02 a.m., he identifies himself on
video inspecting the area of Plaintiff’s fall;
(2) he was close enough to the area of
Plaintiff's fall that he is “100%” confident
that would have seen a spill; and (3)
contrary to Plaintiff's interpretation, Mr.
Rallios testified that by the time he was “next
to” the area of Plaintiff's fall at 10:20:04
a.m., he was no longer looking at the
specific area of the floor because when he
conducts his inspections, he looks at what's
out in front of him, not what's direcily
beneath him.
4
CASE NO: STKCVUP120183942.
WALMART INC.'S RESPONSE TO PLAINTIFF‘S OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS,
BY FAXov ON OA OT HB WN —
VW
“] Hamilton Reply Decl., Ex. A, 11:5-19; 13:2-
19; 21:2-16; 27:6-28:9.
DATED: July 19, 2019 PHILLIPS SPALLAS & ANGSTADT LLP
bert K/Phillips
rian J. Hamilton
Attorneys for Defendant
WALMART INC.
5
CASE NO: STKCVUP120183942
WALMART INC.’S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
BY FAX
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ae oO 0 ON WB OH BR WO HH — FILED Robert K. Phillips ~ 135088 SUPERIOR COURT Brian J. Hamilton - 311053 PHILLIPS, SPALLAS & ANGSTADT LLP "7019 JUL 19. PH Li: 20 505 Sansome Street, Sixth Floor uw San Francisco, California 94111 ROSA, UNQUEIRO. CLERK Telephone: (415) 278-9400 Facsimile: (415) 278-9411 Attorneys for Defendants, WALMART INC. SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN JOAQUIN — UNLIMITED JURISDICTION GUADALUPE RAMIREZ and RICARDO CASE NO: STKCVUP1 20183942 RAMIREZ, WALMART INC.’S RESPONSE TO Plaintiffs, PLAINTIFFS OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT vy. OF UNDISPUTED MATERIAL FACTS WALMART, INC, (sued erroneously herein as | Date: July 24, 2019 “Walmart Corporation”) and DOES 1 to 50, | Time: 9:00 a.m. Dept.: 10C Defendants. Complaint Filed: April 5, 2018 WALMART INC., Trial Date: Oct. 21, 2019 Judge: Mulvihill, Michael Cross-Complainant, vy ROES 1 to 20, Cross-Defendants. Defendant Walmart Inc. (hereinafter “Walmart” or “Defendant") notes at the outset that Plaintiff failed entirely to submit a Separate Statement of Additional Material Facts, despite including several additional material facts in her Opposition to Defendant’s Motion for Summary Judgment. As such, Defendant had no choice but to include with its Reply the below Response to Plaintiff's Opposition to Defendant's Separate Statement of Undisputed Material Facts. Failing to include the below responses and objections from Defendant to Plaintiff's Separate Statement of 1 CASE NO: STKCVUP120183942. ‘WALMART INC.’S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS BY FAXoO 7 On OA HN Ff W DY — Undisputed Material facts would violate Defendant’s due process rights by prohibiting it from ~ responding to newly acquired evidence that was cited extensively in Plaintiff's Opposition papers. Defendant therefore submits the following Response to Plaintiff's Opposition to Defendant's Separate Statement of Undisputed Material Facts in Support of the within Motion for Summary Judgment: SEPARATE STATEMENT IN SUPPORT OF WALMART’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OPPOSING PARTY'S RESPONSE AND SUPPORTING EVIDENCE MOVING PARTY’S RESPONSE TO OPPOSITION AND SUPPORTING EVIDENCE 1. Undisputed. 2. Undisputed. 3. Undisputed. 4, — Plaintiff disputes this statement in so far as it is used as evidence there was no spill on the ground that could have caused Plaintiff to slip and fall. Plaintiff testified there was clear liquid on the ground. Erika Yost signed a declaration stating the ground was wet after the fall. Mr. Rallios admitted he did not have independent recollection of the event, it was possible there was a drop or droplets of water on the floor, that he did not touch the floor after the incident and did not ask Plaintiff if there was liquid on the ground. Declaration of Nathan Zerbib-Berda [4 Ex. C p.50:21-51:2, [PS Ex. D, [P2 Ex. A p.29;6-12, p.22:7-23:2, 25:7- 9, 30:1-5, ). Plaintiff attempts to defeat summary judgment by submitting an overly broad, vague, and ambiguous declaration from an unresponsive witness who neither party has deposed. This declaration provides no probative information as to causation, i.e., that a liquid indeed caused Plaintiff’s fall. This declaration is also insufficient to overcome Plaintiff’s admission that the area where she fell was “very clean” and was lacking any spills or debris. When such an admission is relevant to the determination, on motion for summary judgment, of whether a triable issue of fact exists between the parties, it is entitled to and should receive “a kind of deference not normally accorded evidentiary allegations in affidavits.” D‘Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25. Plaintiff is also cherry picking her own deposition testimony in an attempt to show there was a spill on the ground, despite the fact that she testified testified that: (1) she has “no idea” what she slipped on; (2) she and her clothes were dry when she stood up 2 CASE NO: STKCVUP120183942 WALMART INC.'S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS. BY FAXwe ne a oO oy ON BA HR WwW NB = 1] from the ground; (3) she did not see any spills or debris before her fall; (4) she did not see any spills or debris after her fall; (5) no one told her there was a spill or debris on the floor; and (6) the floor was clean and free of any spills or debris: Declaration of Brian J. Hamilton filed in Support of Motion for Summary Judgment, 1 6, Exhibit B, 50:21-55:2. 5. Plaintiff disputes this statement in so far as it is used as evidence there was no spill on the ground that could have caused Plaintiff to slip and fall. Plaintiff testified there was clear liquid on the ground. Erika Yost signed a declaration stating the ground was wet after the fall. Mr. Rallios admitted he did not have independent recollection of the event, it was. possible there was a drop or droplets of water on the floor, that he did not touch the floor after the incident and did not ask Plaintiff if there was liquid on the ground. Declaration of Nathan Zerbib-Berda 4 Ex. C p.50:21-51:2, PS Ex. D, [P2 Ex. A p.29:6-12, p.22:7-23:2, 25:7- 9, 30:1-5, ). Plaintiff attempts to defeat summary judgment by submitting an overly broad, vague, and ambiguous declaration from an unresponsive witness who neither party has deposed. This declaration provides no probative information as to causation, i.e., that a liquid indeed caused Plaintiff's fall. This declaration is also insufficient to overcome Plaintiff's admission that the area where she fell was “very clean” and was lacking any spills or debris, When such an admission is relevant to the determination, on motion for summary judgment, of whether a triable issue of fact exists between the parties, it is entitled to and should receive “a kind of deference not normally accorded evidentiary allegations in affidavits.” D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25, Plaintiff completely misrepresents Josh Rallios’ deposition testimony. Mr. Rallios testified that (1) he witnessed Plaintiff fall because her fall “stuck in [his] memory;” (2) there were no problems with the floor; (3) after Plaintiff fell, he looked at the floor which was “completely dry;” (4) he’s certain that liquid did not cause Plaintiff's fall; and (5) he is 99% confident that there was nothing on the ground prior to Plaintiff's fall, after Plaintiff's counsel repeatedly prompted him with “Anything is possible, right?” 3 CASE NO: STKCVUP120183942, WALMART INC.'S RESPONSE TO PLAINTIFFS OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS BY FAXov ON ODO O&O HB WwW BD Declaration of Brian J. Hamilton filed in support of Defendant’s Reply (hereinafter “Hamilton Reply Decl.”), Ex A, 9:12 -17; 17:19-21; 21:22-23:6; 25:16-23; 30:1- 18; 22:15-21, 6. Plaintiff disputes this declaration in so far as it is used as evidence there was no spill on the ground that could have caused Plaintiff to slip and fall. Medical records are notoriously unreliable and mistakes often made. Plaintiff testified there was clear liquid on the ground, Erika Yost signed a declaration stating the ground was wet after the fall. Dr. Haq states in her declaration that she has no independent recollection of speaking with Plaintiff. Declaration of Nathan Zerbib-Berda 4 Ex. C p.50:21-51:2, [5 Ex. D) Plaintiff attempts to defeat summary judgment by submitting an overly broad, vague, and ambiguous declaration from an unresponsive witness who neither party has deposed. This declaration provides no probative information as to causation, i.e., that a liquid indeed caused Plaintiff's fall. This declaration is also insufficient to overcome Plaintiff's admission that the area where she fell was “very clean” and was lacking any spills or debris. When such an admission is relevant to the determination, on motion for summary judgment, of whether a triable issue of fact exists between the parties, it is entitled 10 and should receive “a kind of deference not normally accorded evidentiary allegations in affidavits.” D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 25. 7. Plaintiff disputes the claim that Mr. Rallios inspected the area or confirmed there was no spill on the ground. There is video of Mr. Rallios walking by the area 17 minutes prior with a shopping cart. He never looks or turns his head towards the area Plaintiff fell. Mr. Rallios states he was 10-15 feet from the area when he conducted his inspection. Mr. Rallios stated in his deposition he did not inspect “that exact spot, no” where Plaintiff fell. Mr. Rallios admitted it was possible there was water on the floor, and that his declaration was not based on an independent recollection. Declaration of Nathan Zerbib-Berda P2 Ex. Ap. 13:24-14:3, 14:16-21, 22:7-23:1, 29:6-11, 30:1-5) Plaintiff again cherry picks Josh Rallios’ deposition testimony in an attempt to defeat Defendant’s motion, Plaintiff also intentionally tries to confuse the Court by misrepresenting when he inspected the area of Plaintiffs fall, versus when he was looking somewhere else. Mr. Rallios testified that: (1) at 10:20:02 a.m., he identifies himself on video inspecting the area of Plaintiff’s fall; (2) he was close enough to the area of Plaintiff's fall that he is “100%” confident that would have seen a spill; and (3) contrary to Plaintiff's interpretation, Mr. Rallios testified that by the time he was “next to” the area of Plaintiff's fall at 10:20:04 a.m., he was no longer looking at the specific area of the floor because when he conducts his inspections, he looks at what's out in front of him, not what's direcily beneath him. 4 CASE NO: STKCVUP120183942. WALMART INC.'S RESPONSE TO PLAINTIFF‘S OPPOSITION TO DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS, BY FAXov ON OA OT HB WN — VW “] Hamilton Reply Decl., Ex. A, 11:5-19; 13:2- 19; 21:2-16; 27:6-28:9. DATED: July 19, 2019 PHILLIPS SPALLAS & ANGSTADT LLP bert K/Phillips rian J. Hamilton Attorneys for Defendant WALMART INC. 5 CASE NO: STKCVUP120183942 WALMART INC.’S RESPONSE TO PLAINTIFF'S OPPOSITION TO DEFENDANT‘S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS BY FAX