Galarza v. Super Center Concepts CA2/2

Filed 11/10/26 Galarza v. Super Center Concepts CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SECOND APPELLATE DISTRICT DIVISION TWO MARY-CARMEN GALARZA, B347746 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 21STCV31189) v. SUPER CENTER CONCEPTS, INC., Defendant and Respondent. APPEAL from a judgment of the Superior Court of Los Angeles County, Lee S. Arian, Judge. Reversed and remanded. Esquire One Research Services, David Finley; Sandoval Law and Abraham Sandoval for Plaintiff and Appellant. Stone Dean, Kristi W. Dean and Mainak D’Attaray for Defendant and Respondent.  Plaintiff and appellant Mary-Carmen Galarza (appellant) appeals from a judgment following defendant and respondent Super Center Concepts, Inc.’s (respondent) successful motion for summary judgment. Appellant also appeals from the denial of her motion for reconsideration. Appellant contends a triable issue of material facts exist as to whether respondent had actual or constructive notice of its dangerous floors that caused appellant’s injuries. We conclude appellant presented evidence demonstrating the existence of a triable issue exists as to whether respondent had constructive notice of the alleged dangerous condition. Thus, we reverse and remand. BACKGROUND I. The incident In the late afternoon of July 4, 2021, appellant was shopping in the produce section of respondent’s Superior Grocery store in Los Angeles. As appellant walked towards the area with the plastic bags, she slipped forward with her right foot on an oily substance. A store employee had swept the area a few minutes before the substance first appeared. The oily substance appeared a few minutes before the fall and was likely a leak from food in another customer’s shopping cart. II. The complaint On August 24, 2021, appellant filed a lawsuit against respondent. The complaint asserted causes of action for premises liability and negligence. Appellant alleged respondent negligently operated the store premises by permitting a dangerous condition to exist on the floor where respondent knew customers shopped. Further, it was alleged respondent failed to provide its customers any warning of such dangerous condition. Respondent 2 allegedly knew or should have known the premises presented a dangerous condition for customers such as appellant. The complaint alleged it was reasonably foreseeable customers would not see the oily substance then slip and fall and injure themselves. Respondent’s failure to maintain the store property in a reasonably safe condition allegedly caused appellant’s injuries. III. The first motion for summary judgment In February 2023, respondent filed a motion for summary judgment. Respondent contended it had no constructive notice of the dangerous condition because the oily substance was spilled by a customer and had been on the floor only for about a minute before the fall. Respondent argued it was required to exercise only ordinary care as to the safety of its premises, not the “utmost” care needed for a condition that was on the floor for a short period of time. Respondent asserted, even if the substance was on the floor for an unknown period of time, respondent made reasonable inspections and sweeps of the exact location where appellant slipped. Respondent maintained there was an inspection and sweep within five minutes of appellant’s fall, which is a reasonable inspection as a matter of law. In opposition, appellant contended respondent had a duty to provide a floor that was sufficiently slip-resistant to avoid injuries to its invited customers. Appellant presented a forensic expert, Eris Barillas, who concluded respondent’s failure to provide a sufficiently slip-resistant floor surface and inability to perform adequate inspections made the floor an unreasonable risk of harm that resulted in appellant’s injuries. Appellant also argued respondent was understaffed during a busy holiday and 3 thus failed to reasonably inspect and clean the area where the spill occurred. The court heard the motion for summary judgment on April 20, 2023. The court tentatively granted the motion, concluding no triable issue exists as to whether respondent had actual or constructive notice of the dangerous condition. The court found the oily substance had not been on the floor for a sufficient period of time for notice to respondent, who had swept that area only four minutes before the substance appeared. As to appellant’s theory that respondent failed to provide a floor with sufficient slip resistance, the trial court found such facts were not pled in the complaint. The court indicated appellant could not defeat a summary judgment motion by attempting to raise a triable issue based on an unpled factual assertion. At the hearing, appellant requested leave to amend her complaint to plead the theory that respondent failed to provide a floor with sufficient slip resistance. The trial court allowed the parties to brief this amendment issue and continued the hearing to June 2023. At the June 22, 2023 hearing the court issued its final ruling on the summary judgment motion. The court affirmed its tentative ruling granting the motion based on respondent’s lack of actual or constructive notice due to the oily substance being on the floor for a short period of time. The court, however, granted judgment on the pleadings with leave to amend as to appellant’s theory that respondent was on notice the floor was insufficiently slip-resistant when wet. 4 IV. The first amended complaint On July 5, 2023, appellant filed her first amended complaint (FAC). The FAC added allegations that respondent was negligent by maintaining floors that did not meet the standards of the American National Standards Institute (ANSI) for safety under wet conditions. Appellant alleged ANSI required floors to meet a slip index standard of 0.50 for minimum slip resistance. The floors in respondent’s store on the day appellant fell allegedly had a smooth vinyl surface with a slip index as low as 0.22 when wet. Further, the FAC alleged respondent knew or should have known its floors were dangerous when wet and failed to meet ANSI standards. Respondent’s failure to implement safety measures, such as protective mats or carpets, and maintain floors meeting ANSI standards allegedly caused appellant’s injuries. V. The second motion for summary judgment On January 26, 2024, respondent moved for summary judgment as to the FAC. Respondent reiterated its contention it lacked notice of the dangerous condition because the liquid substance was spilled by a customer about a minute before the fall. Respondent also asserted the area where appellant fell was swept shortly before the incident. As to the allegation the floor was insufficiently slip resistant when wet, respondent asserted the floor’s slip resistance exceeded ANSI standard. Respondent maintained appellant failed to show respondent violated any statute, regulation, or ordinance. In opposition, appellant contended respondent failed to remedy its insufficiently slip-resistant floor despite notice of many prior slip-and-fall incidents involving wet substances and five lawsuits involving such falls at the store. Appellant 5 submitted evidence showing there were 188 slip-and-fall incidents at the store within seven years prior to her incident, with 130 to 150 of the incidents occurring within five years before appellant’s fall. Further, appellant again presented her forensic expert, Barillas, who determined respondent’s floor under wet (water) conditions had a slip index as low as 0.22, which was below the 0.50 standard for minimum slip resistance. Appellant argued respondent’s own employee admitted the floor was dangerous when wet. In addition, appellant reiterated respondent was understaffed during a busy holiday, resulting in a failure to reasonably inspect and clean the wet area. The trial court heard the summary judgment motion on April 18, 2025, and took the matter under submission. On May 12, 2025, the court issued its final ruling granting the motion. The trial court affirmed the prior tentative finding that the wet substance was on the floor for an insufficient period of time to impute knowledge on respondent. As to appellant’s theory the floor was insufficiently slip- resistant when wet, the court found no evidence supported the position that 188 slip-and-fall incidents over seven years, or 130 incidents over five years, is sufficiently excessive to put respondent on notice the floor was a problem. The court stated: “[Appellant] provided no information about what the expected number of falls is in a grocery store over a period of time. On first blush, 188 slip and fall incidents sounds like a lot. But, over 7 years, i.e., about 27 a year, or slightly more than 2 a month, it does not sound like all that much. It is slightly less over the 5- year 2017-21 period. In any event, without any evidence regarding the average number of falls that occur at a grocery store of the size of the Store here, or some similar evidence 6 establishing baselines to assess what is excessive, [appellant] has failed to demonstrate that [respondent] should have been on notice that the Store’s floor was dangerous.” Further, the court concluded respondent’s employee’s statements regarding the dangerous floor “proves nothing.” The court explained, “[respondent] would generally have no reason to believe that the floor itself was the cause of the problem. One might be able to so conclude if there were a number of slip and falls with no substance present. In that case, [respondent] should be put on notice that something was wrong with the floor. But without such evidence, and especially without evidence of what a ‘normal’ number of slip and falls at a store is, [appellant] failed to uphold [her] burden to show that [she] could prove constructive notice in this case.” VI. The motion for reconsideration On May 22, 2025, appellant filed a motion for reconsideration of the order granting summary judgment. Appellant asserted her motion was appropriate because respondent never briefed its “low average” theory and raised it for the first time at the summary judgment hearing. Appellant maintained she was given no opportunity to address the new theory with a sur-reply and additional rebuttal evidence. Appellant presented a supplemental declaration from her forensic expert, Barillas, who attested to her disagreement that 188 falls within a seven-year period was insufficient to put respondent on notice that the floor was unsafe for the public when wet. Barillas described the number of falls as “an astronomical number of incidents.” Barillas attested respondent should have known from the numerous incidents that customers were at a greater risk of harm if sufficiently slip-resistant 7 flooring or other safer solutions were not provided. Barillas indicated respondent should have determined the reasons for the fall incidents through a root-cause analysis, which is the industry standard. Barillas opined that even a single fall would be sufficient to put respondent on notice the floor was potentially unsafe when wet. Appellant argued reconsideration of the motion was proper based on Barillas’s supplemental declaration because it addressed respondent’s “low average” theory. Appellant posited the trial court may not substitute its own opinion for the expert’s opinion. In opposition, respondent contended the motion should be denied because appellant failed to submit new information. Respondent argued appellant provided no evidence of an average number or other baselines to assess what is an excessive number of falls for grocery stores the size of respondent’s store. Respondent posited appellant was trying to impose a strict liability standard given Barillas’s statement that only one prior fall was sufficient to establish notice. In response to appellant’s argument that respondent never briefed its “low average” theory, respondent maintained it did not have the burden to show the normal number of slip-and-fall incidents for its store. On July 26, 2025, the trial court denied the motion for reconsideration, finding the “low average” argument was not a new affirmative theory and was instead a critique of appellant’s failure to provide comparative data or objective benchmarks to support her attempt to raise a triable issue. The court concluded respondent was entitled to highlight deficiencies in appellant’s evidence during oral argument. The court nevertheless considered Barillas’s supplemental declaration. The court concluded there was no factual basis for 8 appellant’s assertion that even a single fall would be sufficient to establish notice. The court explained appellant must provide a baseline for comparison to show the incident rate was extraordinary among comparable grocery stores because a single incident, without context, provides no meaningful notice.1 Judgment was entered on June 9, 2025. Appellant timely appealed. CONTENTIONS ON APPEAL Appellant asserts three main arguments. First, appellant contends the trial court erred in granting summary judgment because a triable issue of material facts exists as to whether respondent had constructive notice of the dangerous condition. Appellant argues numerous prior slip-and-fall incidents, previous lawsuits, and respondent’s employee’s own knowledge of the danger should have alerted respondent, had it exercised ordinary care, that its floor was insufficiently slip resistant when wet. Second, appellant argues these same facts also show respondent had actual knowledge of the dangerous condition. Finally, appellant asserts the court erroneously denied her motion for reconsideration because she was subjected to unfair surprise at the summary judgment hearing. Appellant maintains she offered new facts addressing respondent’s new “low average” theory. 1 The trial court shortly thereafter entered a modified order on the motion for reconsideration. However, the court’s main findings on the motion remained unchanged. 9  DISCUSSION I. Standard of review and applicable law “The standard of review for an order granting a motion for summary judgment is de novo.” (Ryan v. Real Estate of Pacific, Inc. (2019) 32 Cal.App.5th 637, 642 (Ryan).) “We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 889.) “We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment.” (Ibid.) “The appellant, however, still ‘has the burden of showing error, even if he did not bear the burden in the trial court.’” (640 Octavia, LLC v. Pieper (2023) 93 Cal.App.5th 1181, 1189 (640 Octavia).) “A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action.” (Ryan, supra, 32 Cal.App.5th at p. 642.) “[I]f the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) “Summary judgment is generally appropriate ‘if all the papers submitted show that there is no triable issue as to any material fact’ and that it ‘is entitled to a judgment as a matter of law.’” (640 Octavia, supra, 93 Cal.App.5th at pp. 1188–1189.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. 10 (2001) 25 Cal.4th 826, 850 (Aguilar).) “Thus, a party ‘cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.’” (Ryan, supra, at p. 643.) Appellant also appeals from the order denying her motion for reconsideration of the order granting summary judgment. “An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.” (Code Civ. Proc., § 1008, subd. (g).) II. Appellant presented evidence establishing the existence of a triable issue as to whether respondent had constructive notice of the dangerous condition A. The prior slip-and-fall incidents and lawsuits are sufficient to show constructive notice of the dangerous condition Appellant contends she provided evidence establishing a triable issue of material facts exists as to whether respondent had constructive notice its floor was insufficiently slip-resistant when wet. Appellant asserts respondent should have known of this danger had it exercised ordinary care given its store had many prior slip-and-fall incidents and lawsuits and its employee knew of the danger. “‘The elements of a cause of action for premises liability are the same as those for negligence.’ [Citations.] Accordingly, the plaintiff must prove, ‘“a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.”’” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 (Jones).) “It is well established in California that 11 although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).) “Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier “must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises....”’” (Id. at p. 1206.) “Typically, to charge an individual with constructive notice, he must have, ‘actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice.’” (Jones, supra, 39 Cal.App.5th at p. 1209.) “‘Knowledge may be shown by circumstantial evidence “which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.”’” (Gonzalez v. Interstate Cleaning Corp. (2024) 106 Cal.App.5th 1026, 1035.) We conclude appellant presented sufficient evidence showing a triable issue exists as to whether respondent had constructive knowledge of the dangerous condition, i.e., the store’s floor was insufficiently slip-resistant when wet. Appellant’s expert, Barillas, attested she inspected and conducted slip analysis and testing of the store’s floor using the English XL Variable Incidence Tribometer (English XL). Barillas conducted 12 all tests in accordance with American Society of Testing and Materials F2508, a nationally recognized standard for the validation and calibration of walkway tribometers. Barillas’s inspection readings showed the floor had a slip index as low as 0.22 under wet (water) conditions. Barillas indicated this index reading was substantially below the 0.50 standard for a floor tested with English XL, which increases the likelihood of a slip- and-fall incident occurring. Further, the evidence shows respondent’s store had 188 falls within the seven-year period prior to the incident in this case. Within these slip-and-fall incidents, 130 to 150 of the incidents involving wet substances occurred within five years before appellant’s fall. The rate of falls at the store was therefore slightly more than two incidents per month. In the same five-year period, there were four lawsuits against respondent arising from slip-and-fall incidents at the same store appellant fell.2 Barillas opined the store’s rate of falls was an “astronomical number of incidents,” which should have prompted respondent to do a root- cause analysis to learn its floor was insufficiently slip-resistant when wet. Barillas attested the industry standard is to perform a root-cause analysis. Barillas concluded respondent could have determined the store’s floor surface was unsafe when wet had respondent conducted a root-cause analysis. Barillas stated respondent had a reasonable alternative of installing carpet tiles, 2 Appellant maintains there were at least five lawsuits against respondent within the five-year period arising from slip- and-fall incidents at the store appellant fell. But the record only shows four lawsuits in the five-year period. The fifth lawsuit listed in the record occurred in August 2021, which was after appellant’s fall in July 2021. 13 the cost of which would have been relatively minimal. Barillas explained that carpet tiles will typically maintain sufficient slip- resistant characteristics even when subjected to wet conditions. The foregoing facts show respondent had constructive notice of the dangerous condition because there were numerous prior slip-and-fall incidents with wet substances and lawsuits involving the same store to put respondent on notice to inquire as to the danger.3 Had respondent exercised ordinary care, i.e., performed a root-cause analysis of the store’s floor, the floor’s slippery nature could have been discovered and remedied by a low-cost measure. Appellant’s evidence shows ordinary care under the circumstances included conducting a root-cause analysis since that procedure was an industry standard. In viewing the evidence in the light most favorable to the opposing party, appellant met her burden of showing respondent had constructive notice of the dangerous condition.4 3 Respondent attempts to show several of appellant’s cited cases do not apply here by factually distinguishing them. Respondent argues no published case addresses the facts and issues in this case. Because respondent does not show that the general legal principles established in current caselaw on negligence, premises liability, and constructive notice are not instructive in this case, the arguments fail. 4 Appellant also argues respondent should have been aware its floor was insufficiently slip-resistant when wet because its employee, Isabel Rivera, knew of the danger. However, the record is not sufficiently clear to support this. Rivera’s testimony discussed the store’s procedure when something was spilled on the ground, but she did not comment on the floor’s particularly slippery nature when wet. 14  Respondent contends no evidence was provided of an average or baseline showing its store’s rate of slip-and-fall incidents was beyond the norm for a grocery store of its size. Respondent argues it is not weighing evidence to identify the deficiencies of proof in appellant’s opposition. However, Barillas concluded the rate of slip-and-fall incidents at the store was an “astronomical number of incidents.” Barillas based this opinion on her experience with more than 8,000 cases, including hundreds of slip-and-fall incidents in both large and small retail establishments. Barillas attested she has extensive technical and practical experience in conducting safety investigations and analysis of premises and products. From her training and extensive experience, Barillas indicated her familiarity with the standard of care in the retail industry for maintaining floor surfaces, including sweeps and inspections. Accordingly, Barillas’s statements at the very least show her opinion regarding the store’s rate of slip-and-fall incidents is relevant to deciding if respondent should have known and corrected the danger.5 5 Respondent maintains prior slip-and-fall incidents can only be used to support constructive notice if a baseline for comparison is shown because each incident is highly fact-specific. We note respondent cites no authority to support this assertion, and it is thus waived. (See County of Sacramento v. Singh (2021) 65 Cal.App.5th 858, 861 [“‘We may disregard legal arguments that are not supported by citations to legal authority [citation] or are conclusory [citation].’”].) Regardless, respondent’s argument lacks merit. “Before evidence of previous injuries may be admitted on the issue of whether or not the condition as it existed was in fact a dangerous one, it must first be shown that the conditions under which the 15  Indeed, a party opposing summary judgment need to make only a prima facie showing that a genuine issue of material fact exists. (See Aguilar, supra, 25 Cal.4th at p. 845 [“If [moving party] carries his burden of production, … the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact.”].) A prima facie showing is simply one “sufficient to support the position of the party in question. [Citation.] No more is called for.” (Id. at p. 851.) Barillas’s statements are sufficient to make a prima facie showing because they support appellant’s position. Even the trial court acknowledged such support exists when it stated, “On first blush, 188 slip and fall incidents sounds like a lot.” The court was ultimately unpersuaded because Barillas’s opinion lacked data regarding averages or baselines. But requiring stronger proof simply illustrates a weighing of the evidence not allowed on summary judgment. (See Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 375 [“Summary judgment may not be granted on the basis of alleged previous accidents occurred were the same or substantially similar to the one in question.” (Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.) “The strictness of this requirement of similarity of conditions is ‘much relaxed,’ however, when the purpose of the offered evidence is to show notice, ‘since all that is required here is that the previous injury should be such as to attract the defendant’s attention to the dangerous situation which resulted in the litigated accident.’” (Ibid., italics added.) Here, Barillas indicated a substantial portion of the store’s prior slip-and-fall incidents involved wet conditions. Given the much-relaxed standard for showing similarity of conditions to establish notice, Barillas’s statements sufficiently demonstrate the prior slip-and-fall incidents are the same or substantially similar to appellant’s incident. 16 inferences reasonably deduced from the evidence if contradicted by other inferences or evidence, because in considering a motion for such relief ‘[a] judge has no power to weigh evidence or inferences.’”].) Further, respondent ignores that on summary judgment “‘we liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts about the evidence in that party’s favor.’” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 213.) “‘[W]e must draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment.’” (Ibid.) While Barillas provided no detailed averages or baselines, she concluded the store’s rate of falls was an “astronomical number of incidents” based on her experience working on numerous slip-and-fall cases in small and large retail establishments. Given such facts, it can reasonably be inferred from Barillas’s assessment that the store’s rate of slip- and-fall incidents was a substantial number for the store. The lack of certain details or figures may highlight weaknesses in Barillas’s opinion, but it does not establish the opinion is incompetent evidence not relevant to the finding. Indeed, Barillas’s underlying opinion was not stricken and the strengths thereof was evaluated with respect to appellant’s position. Respondent’s argument does not refute the fact appellant produced evidence supporting her position. In addition, respondent posits appellant puts forth a theory of notice that improperly eliminates the knowledge requirement for her claim and imposes a strict liability standard for any fall after the first. Citing Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472 (Moore), respondent contends its “mode of 17 operation” does not eliminate appellant’s burden of proving respondent had knowledge of the dangerous condition. We disagree appellant’s argument relies on a strict liability theory with no notice requirement. Appellant argues respondent had notice its floor was unreasonably dangerous when wet because its store had numerous prior slip-and-fall incidents involving wet conditions that should have prompted respondent to exercise ordinary care by performing an industry standard root-cause analysis to learn of the danger. In Moore, supra, 111 Cal.App.4th at page 479, the trial court erroneously eliminated the actual or constructive knowledge requirement from the jury instructions. There is nothing in the record here showing appellant is attempting to demonstrate respondent is liable without notice. Respondent’s argument mischaracterizes the issues and lacks support.6 B. Respondent’s actual notice of the dangerous condition need not be addressed here As we have concluded a triable issue exists as to whether respondent had constructive notice of the dangerous condition, we need not discuss here if a triable issue exists as to actual 6 While it was previously raised that a single slip-and-fall incident was sufficient to provide notice the store’s floor was insufficiently slip-resistant, such facts are not present in this case. The evidence shows there were hundreds of slip-and-fall incidents involving wet substances prior to appellant’s fall. Thus, it is inappropriate to address here whether even a single incident would have imputed notice of the dangerous condition. (See Renita S. v. Superior Court (1994) 29 Cal.App.4th 553, 559 [“The scope of the juvenile court’s authority … is not an issue before us for determination. [W]e therefore decline to discuss an issue which is unnecessary to our disposition.”].) 18 notice. As mentioned earlier, appellant needs to show there is evidence of either constructive or actual notice. (See Ortega, supra, 26 Cal.4th at p. 1206.) Since appellant demonstrates she submitted evidence as to the former, appellant shows a triable issue exists as to her causes of action. Entry of summary judgment was therefore improper. III. Appellant properly moved for reconsideration of the order granting summary judgment Appellant argues her motion for reconsideration was appropriate because she was unfairly surprised at the summary judgment hearing since respondent never previously briefed its “low average” theory. Appellant asserts she provided new facts addressing respondent’s new theory. We conclude appellant properly moved for reconsideration because respondent never previously raised its “low average” theory and appellant thus had no opportunity to address it due to unfair surprise. (See Worth v. Asiatic Transpacific, Inc. (1979) 93 Cal.App.3d 849, 855 [“‘Where a party makes a motion for reconsideration of an order granting the opposing party’s motion, the court will evaluate this motion as if it were made under Code of Civil Procedure section 473 … . [Citation.] The procedure in section 473 requires that the party show that the order was “taken against him through his mistake, inadvertence, surprise or excusable neglect.”’”].) Since the “low average” theory was not initially raised, appellant had no chance in the summary judgment proceedings to present Barillas’s supplemental statements to address the theory. Accordingly, there should have been reconsideration of the summary judgment order because Barillas’s supplemental declaration established a triable issue 19 exists as to whether respondent had constructive notice of the dangerous condition. DISPOSITION The June 9, 2025 judgment is reversed. On remand, the trial court is ordered to vacate the judgment and enter a new order denying respondent’s motion for summary judgment. Appellant is awarded her costs on appeal. CHAVEZ, J. We concur: LUI, P. J. RICHARDSON, J. 20