Filed 9/22/26 Melendez v. Stater Bros. Markets CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THERESA MELENDEZ, D086334
Plaintiff and Appellant, (Super. Ct. No. CIVSB2119468)
v.
STATER BROS. MARKETS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Stephanie Thornton-Harris, Judge. Affirmed.
Lew-Stevens, Steven B. Stevens; Jacoby & Meyers, and Shane V.
Hapuarachy for Plaintiff and Appellant.
Varner & Brandt, Angelica A. Samaniego, Treashal K. Parmar, and
Grant A. Reader for Defendant and Respondent.
I
INTRODUCTION
Theresa Melendez slipped and fell on a disinfectant wet wipe that had
been discarded on the floor of a Stater Brothers Markets (hereafter, Stater
Brothers) supermarket. She appeals a judgment entered in favor of Stater
1
Brothers after a jury found that the company was not liable to her on theories
of negligence and premises liability.
On appeal, Melendez claims the trial court abused its discretion by
excluding from evidence three photographs showing that Stater Brothers had
moved the location of its disinfectant wet wipe stand at some point during the
four-year period between her accident and trial. Relatedly, she argues the
court erred by precluding her trial counsel from arguing to the jury in closing
that Stater Brothers should have moved the location of its wet wipe stand.
We reject these arguments and affirm the judgment.
II
BACKGROUND
A. Factual Background
Stater Brothers operates a chain of supermarkets in California.
On August 29, 2020, Melendez entered a Stater Brothers supermarket
in Alta Loma to shop. Immediately after walking into the store, she stepped
on a disinfecting wet wipe that had been discarded on the store’s white or
cream-colored tile floor. Melendez slipped onto the floor, regained her
footing, and finished her shopping. After the accident, she purportedly
experienced neck, back, and leg pain requiring medical treatment.
Surveillance camera footage showed that another customer had taken a
wipe from a wet wipe station located just inside the store’s main entryway,
used the wipe to disinfect a shopping cart, and discarded the wipe onto the
floor of the store about seven minutes before Melendez slipped and fell.
B. Procedural Background
In July 2021, Melendez filed a complaint against Stater Brothers for
negligence and premises liability. She alleged Stater Brothers negligently
maintained its Alta Loma store by “failing to inspect and properly remove
2
disposal paper towels and spilled water which had been littered around the
floor near a temporary sanitation station.” She further alleged the company
should have known about “the unsafe area,” and “did nothing to fix the
problem or adequately warn pedestrians about it.”
1. Opening Statements
The case proceeded to trial in October 2024. On the first day of trial,
the parties presented opening statements to the jury.
Stater Brothers orally moved for nonsuit based on certain statements
that Melendez’s trial counsel made during his opening presentation. In his
opening statement, Melendez’s counsel argued to the jury that Stater
Brothers could have “eliminated this specific hazard” by “moving it” outside
the store, where customers could more easily see discarded disinfectant wipes
on the dark-colored concrete or asphalt. He added, “[a]t my grocery store, the
wipes are kept outside where the carts are.”
Stater Brothers’s counsel objected on grounds that the statements were
improper attorney arguments and Melendez was seemingly introducing a
new theory of liability into the case—namely, that the location of the
disinfectant wet wipe stand (rather than the presence of one or more wet
wipes on the floor) constituted a dangerous condition. In response to this
objection, Melendez’s counsel countered that Stater Brothers was on notice of
this liability theory because his client’s liability expert had testified in
deposition that the wet wipe stand was in a high-traffic area of the store.
Although Stater Brothers withdrew its oral motion for nonsuit, the trial
court nonetheless found the statements were improper and any claim based
on the location of the wet wipe stand would be a “completely” new theory of
liability. The court ordered Melendez’s counsel to cure his improper
3
arguments by presenting an amended opening statement to the jury, which
he did.
2. Evidence of a Subsequent Remedial Measure
After opening statements, the parties elicited testimony from fourteen
witnesses, including Melendez and Stater Brothers employees. Relevant
here, the parties procured testimony from Robert Black, who was the
manager of Stater Brothers’s Alta Loma store at the time of Melendez’s
accident. Black testified that he trained his employees to perform hourly
sweeps of the store for slip-and-fall hazards, and to pick up any hazards they
encountered during their shifts. When asked to review security camera
footage of his employees performing their sweeps on the night of Melendez’s
accident, Black testified that the employees were performing their sweeps
appropriately.
Melendez’s counsel then questioned Black about the placement of the
wet wipe stand. He asked Black whether a discarded wipe would be “more
visible” on the store’s asphalt exterior compared to the store’s lighter interior
floor, and Black said, “It would be more visible on the asphalt.” Counsel then
asked, “why not just put the wipe station outside,” and Black testified, “It
just doesn’t make sense.” When asked “[w]hy not,” Black replied, “That store
faces south. The sun is hitting the front of that store. Majority of the day
those wipes would come out completely dry in my opinion …. Other things
could happen with it being placed outside. It could be vandalized. It could
fall over. It could be a danger. It makes more sense with those things in
mind to keep it inside.” Counsel asked whether it was “feasible to keep the
wipes station outside” from a business perspective, and Black stated, “It
makes no sense to me to have it outside.” Counsel concluded this line of
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questioning by asking, “Has it ever been put outside,” and Black replied, “No,
I don’t recall, to my knowledge.”
At that point, Melendez’s counsel requested the court’s permission to
display three photographs that his co-counsel had taken a few days earlier,
which purportedly showed that Stater Brothers had moved the wet wipe
stand outside and in front of the Alta Loma store at some point after
Melendez’s accident. Melendez’s counsel sought to show the photographs to
the jury to impeach Black; alternatively, counsel argued the photographs
were admissible to prove it was feasible for Stater Brothers to move its wet
wipe stand outside.
Stater Brothers’s counsel opposed these requests, arguing the
photographs did not impeach Black because he was not the manager of the
Alta Loma store at the time the photographs were taken and he had merely
expressed his opinion about the downsides of moving the wet wipe stand
outside. Stater Brothers’s counsel also argued that evidence of a subsequent
remedial measure is generally inadmissible in a negligence case, no
foundation had been laid for the photographs, and it appeared to Stater
Brothers’s counsel that her client had only moved the wet wipe stand outside
because the store entryway was undergoing a remodel.
The trial court “sustain[ed] the objection,” prohibited Melendez from
using the photographs for impeachment, and excluded the photographs from
evidence. The court found the photographs did not impeach Black, as he no
longer worked at the store and had merely expressed an opinion that, “for
[him], it’s unsafe” to place the wet wipe stand outside. The court also
excluded the photographs from evidence. The court opined that the
photographs were inadmissible because they were evidence of a subsequent
5
remedial measure, the photographs were irrelevant, and there was a
“problem with [Evidence Code section] 352.”1
3. Limitation on Closing Arguments
Near the end of trial, Stater Brothers orally moved for a partial
directed verdict challenging Melendez’s new theory of liability “that the wipe
stand needed to be moved outside,” and the court requested written briefing
on the topic. In its brief, Stater Brothers argued a partial directed verdict
was warranted because the complaint did not allege the location of the wet
wipe stand was a dangerous condition, Melendez did not disclose in her
discovery responses that she believed the location of the wet wipe stand was
a dangerous condition, and there was no evidence from trial tending to show
that the location of the wet wipe stand itself was a dangerous condition.
The court construed the partial directed verdict motion as a motion in
limine, granted the motion as construed, and prohibited Melendez from
arguing to the jury that Stater Brothers should have moved the wet wipe
stand. The court cited several justifications for its ruling, including the
absence of evidence that the wet wipe stand should have been moved, the
improper attorney arguments made during Melendez’s opening statements,
the photographs Melendez had tried to display and/or admit into evidence,
and the fact that Melendez’s discovery responses did not disclose that she
intended to rely on the placement of the wet wipe stand as the basis for her
claims.
The court explained, “I think there should have been notice regarding
this. Whether you use an expert or layperson, I think an expert could have
talked about this. I don’t think it’s common sense regarding where those
stands go …. I think it’s in the purview of an expert but you [could] also have
1 Further undesignated statutory references are to the Evidence Code.
6
a lay witness testify about it ….” The court later added, “It was not
suggested previously that the stand was dangerous and needed to be moved
…. [T]here were opportunities where it should have been talked about, it
wasn’t talked about[,] and it still didn’t emerge in questioning the lay witness
[Black].”
4. Jury Verdict and Judgment
After closing statements and a few hours of deliberations, the jury
quickly returned a verdict that Stater Brothers was not liable on either cause
of action. On the special verdict form, the jury found that Stater Brothers
owned, leased, or occupied the property on which the accident occurred.
However, by a vote of 11–1, the jury found that Stater Brothers was not
negligent in the use or maintenance of the property. The court entered
judgment for Stater Brothers in accordance with the verdict, and Melendez
filed a timely notice of appeal.
III
DISCUSSION
A. The Trial Court Properly Exercised its Discretion by Excluding the
Proffered Photographs of a Subsequent Remedial Measure
Melendez contends the court abused its discretion by excluding the
photographs showing that Stater Brothers had moved the disinfecting wet
wipe stand to the outside of its Alta Loma store at some unknown point in
time after her accident and before trial. She claims the court erred by
excluding the photographs because she did not offer the photographs to prove
that Stater Brothers was negligent; instead, she offered the photographs to
prove it was feasible for Stater Brothers to move the stand outside.
“We review a trial court’s decision to admit or exclude evidence under
the abuse of discretion standard.” (Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 885.) “Under this standard, the trial court’s
7
ruling will not be disturbed, and reversal of the judgment is not required,
unless the trial court exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.”
(Bowser v. Ford Motor Co. (2022) 78 Cal.App.5th 587, 610.) Stated another
way, a court abuses its discretion if its ruling “is ‘so irrational or arbitrary
that no reasonable person could agree with it.’ ” (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773.)
Section 1151 governs the admission of evidence of a defendant’s
subsequent remedial measure in a negligence case. It states, “When, after
the occurrence of an event, remedial or precautionary measures are taken,
which, if taken previously, would have tended to make the event less likely to
occur, evidence of such subsequent measures is inadmissible to prove
negligence or culpable conduct in connection with the event.” (§ 1151.)
“According to its draftsmen, section 1151 was intended merely to codify
‘well-settled law.’ [Citation.] The rule excluding evidence of subsequent
repairs originally rested on the notion that such repairs were completely
irrelevant to the issue of defendant’s negligence at the time of the accident.”
(Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 118–119 (Ault).)
However, more recent judicial decisions “acknowledge that evidence of
subsequent repairs is relevant to the issue of negligence, for if the changes
occur closely in time they may well illustrate the feasibility of the
improvement at the time of the accident, one of the normal elements in the
negligence calculus.” (Id. at p. 119.) Even so, “courts and legislatures have
frequently retained the exclusionary rule in negligence cases as a matter of
‘public policy,’ reasoning that the exclusion of such evidence may be
necessary to avoid deterring individuals from making improvements or
repairs after an accident has occurred.” (Ibid.; see Hilliard v. A.H. Robins
8
Co. (1983) 148 Cal.App.3d 374, 401 [“This statutory exclusion of evidence rule
is based on a public policy consideration that the exclusion of such evidence
encourages persons to take subsequent precaution for the purpose of
promoting and encouraging safety, without fear of having such conduct used
to establish liability.”].)
“ ‘Section 1151 by its own terms excludes evidence of subsequent
remedial or precautionary measures only when such evidence is offered to
prove negligence or culpable conduct.’ ” (Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1169, original italics.) Therefore, “[w]hile public policy precludes the
court from considering [evidence of a subsequent remedial measure] after
[an] accident on the issue of liability, such evidence is relevant and admissible
… on the possibility or feasibility of eliminating the cause of the accident.”
(Baldwin Contracting Co. v. Winston Steel Works, Inc. (1965) 236 Cal.App.2d
565, 573; see Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 796 [“if the
subsequent events are offered to prove anything other than negligence or
culpable conduct, they are admissible if relevant”].)
However, such evidence should only be admitted for this purpose “if a
defendant declares that nothing could have been done to avoid the accident.”
(People v. Lockheed Shipbuilding & Const. Co. (1975) 50 Cal.App.3d Supp.
15, 36; see McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664,
673 [court properly excluded evidence that shopping center hired security
after robbery where “the conditions at the shopping center when the jewelry
store was robbed were undisputed,” and evidence “was unnecessary to show
there was no security service prior to the robbery”]; Ault, supra, 13 Cal.3d at
p. 127 (dis. opn. of Clark, J.) [disagreeing with majority’s holding that
section 1151 does not apply to strict liability claims and reasoning that, if
section 1151 applied, it would bar evidence of subsequent remedial measure
9
because “[f]easibility was not a contested issue”]; accord Gauthier v. AMF,
Inc. (9th Cir. 1986) 788 F.2d 634, 637–638 [applying federal analogue to
section 1151 and concluding court erred by admitting evidence of subsequent
remedial measure because defendant “did not dispute feasibility”].)
Melendez argues the court abused its discretion by excluding the
photographs because Stater Brothers contested the feasibility of moving the
wet wipe stand outside the store. However, the record does not support
Melendez’s claim that Stater Brothers contested the issue of feasibility.
Importantly, she does not refer us to any trial court briefing in which the
company contested feasibility. Nor does she refer us to any oral arguments
delivered by Stater Brothers’s counsel suggesting that the company disputed
the feasibility of moving its wet wipe stand.
Instead, Melendez rests her feasibility argument solely on the
testimony of Black, the former Alta Loma store manager who briefly
expressed his view that, “in [his] opinion … [i]t ma[de] no sense to [him] to
have [the wet wipe stand] outside,” because he believed the disinfectant wet
wipes could dry out if they were left outside, and the wet wipe stand could
fall over or be vandalized. Based on this testimony alone, Melendez argues
that the company disputed the issue of feasibility at trial. She repeatedly
emphasizes that Stater Brothers previously designated Black as the
“personal most qualified” to discuss the company’s safety procedures at a
pretrial deposition, and she suggests that this deposition designation granted
him the authority to represent the company’s litigation position at trial.2
2 For instance, Melendez argues, “Stater Bros insists that Mr. Black’s
testimony was merely his personal opinion. It was not. Mr. Black delivered
his testimony with the authority conferred on him by Stater Bros’ [sic] as its
person most qualified to testify about safety policies and procedures.”
10
We are not persuaded. The term “person most qualified” is used in the
Civil Discovery Act to describe an individual who should be designated and
produced at deposition when the deponent is an entity and not a natural
person. (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939, 947–948.)
However, for purposes of trial, “[t]he Evidence Code recognizes only two types
of witnesses: lay witnesses and expert witnesses.” (Id. at p. 947.) “There is
no special category of ‘corporate representative’ witness,” nor is there “a
special category of ‘person previously designated as most knowledgeable’
witness.” (Ibid.) In the present case, Black, the former manager of the Alta
Loma store, testified as a lay witness at trial. And, as a lay witness, he
expressed his “opinion” that “[i]t ma[de] no sense to [him] to have [the stand]
outside.” This brief testimony from Black, a lay witness, was insufficient to
demonstrate that Stater Brothers contested the issue of feasibility at trial.
Because Melendez has not shown that Stater Brothers contested the
feasibility of moving its wet wipe stand outside its store, the trial court
properly exercised its discretion when it excluded the photographs of the
company’s alleged subsequent remedial measure.3
B. The Trial Court Did Not Abuse its Discretion by Limiting the Scope of
Melendez’s Closing Argument
Next, Melendez contends the court abused its discretion by precluding
her trial counsel from arguing to the jury during closing arguments that
3 Given our conclusion that the trial court properly excluded the
photographs under section 1151, it is unnecessary for us to decide whether
Melendez forfeited her challenge to the evidentiary ruling by failing to
address the trial court’s alternative findings that the evidence was irrelevant
(§ 210) and subject to exclusion because its probative value was substantially
outweighed by countervailing considerations (§ 352). (David v. Medtronic,
Inc. (2015) 237 Cal.App.4th 734, 740 [a party’s failure to challenge a “second,
independent ground” underpinning an order on review constitutes waiver].)
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Stater Brothers should have moved the location of its disinfectant wet wipe
stand. She asserts the court erred in curtailing her counsel’s closing
arguments because Stater Brothers had notice of her theory of liability and
there was evidence that Stater Brothers could have mitigated the risk of
injury by moving its wet wipe stand. We discern no abuse of discretion.
“A trial court ‘is given great latitude in controlling the duration and
limiting the scope of closing’ argument. [Citation.] It ‘may ensure that
argument does not stray unduly from the mark, or otherwise impede the fair
and orderly conduct of the trial.’ ” (People v. Edwards (2013) 57 Cal.4th 658,
743; see also Code Civ. Proc., § 128, subd. (a)(3) [“Every court shall have the
power to … [¶] (3) To provide for the orderly conduct of proceedings before it,
or its officers.”]; Wegner et al., Cal. Practice Guide: Civil Trials & Evidence
(The Rutter Group 2025) ¶ 13:31 [“Trial courts have great latitude in
controlling the duration and limiting the scope of closing argument.”].)
The trial court precluded Melendez’s counsel from arguing to the jury
that Stater Brothers should have moved the location of its wet wipe stand
primarily because Melendez did not provide Stater Brothers with notice that
she believed the location of the wet wipe stand itself constituted a dangerous
condition. The record supports the court’s ruling on this point. In Melendez’s
complaint, she alleged Stater Brothers breached its duty of care by “failing to
inspect and properly remove disposal paper towels and spilled water which
had been littered around the floor near a temporary sanitation station.” The
complaint further alleged the condition “existed for sufficient time to have
been discovered by [Stater Brothers] in the exercise of due care, and would
have been discovered by a reasonably adequate inspection system maintained
and operated with due care.” However, the complaint did not allege that the
location of the wet wipe stand itself constituted a dangerous condition, nor
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did the complaint allege that Stater Brothers breached its duty of care by
placing the wet wipe stand in the entryway of its store, or by failing to move
the stand to another area of the store. Further, Melendez never sought leave
of court to amend her complaint to allege this new theory of liability.
Melendez also did not disclose her theory of liability concerning Stater
Brothers’s allegedly negligent placement of its wet wipe stand in discovery.
Pertinent here, Stater Brothers propounded a contention interrogatory on
Melendez asking her to identify the facts upon which she based her claims for
damages, and she replied, in relevant part, “Plaintiff saw sanitation sheets
on the ground near where she slipped. Plaintiff is informed and believes that
defendant knew or should have known [about] this dangerous condition prior
to the incident but failed to clean it in a timely manner and/or created this
dangerous condition.” As this response illustrates, Melendez’s litigation
stance up until trial was that Stater Brothers breached its duty of care by
failing to clean the area surrounding its wet wipe stand and/or by discarding
the wet wipe on which she slipped and fell. At no point prior to her opening
statement did she disclose her new theory that Stater Brothers breached its
duty of care by placing its wet wipe stand in the entryway of its store.
In analogous procedural contexts, courts have cautioned against
allowing parties to present new legal theories at trial, which has been
described as “trial by ambush.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771,
781.) As one court explained, “[s]urprise at trial is unfair because ambushes,
while effective in warfare, are disfavored in court.” (McDonald v. Zargaryan
(2025) 117 Cal.App.5th 344, 349.) It is also “inefficient because, if both sides
know exactly what evidence the trial will produce, they have a better chance
of agreeing in advance on the true value of the case. This promotes
settlement. Cards up the sleeve make settlement less likely.” (Ibid.; see
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Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377–1383 [court abused its
discretion by allowing party to amend complaint mid-trial to assert new
liability theory in breach of contract action]; Williams v. Volkswagenwerk
Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1254–1255 [“As the California
Supreme Court stated in explaining the purpose of the [California Discovery
Act of 1957]: ‘[T]he Legislature intended to take the “game” element out of
trial preparation while yet retaining the adversary nature of the trial itself.
One of the principal purposes of discovery was to do away “with the sporting
theory of litigation—namely, surprise at trial.” ’ ”].) Because Melendez failed
to disclose her theory of liability prior to trial, the court properly excluded
argument on that theory.
While imposing limits on Melendez’s closing argument, the trial court
also observed that there was no evidence from trial suggesting that Stater
Brothers should have moved its wet wipe stand to another location. We agree
with the court. Black testified at trial that Stater Brothers should eliminate
potential safety hazards and mitigate risks, items on the floor of the store are
dangerous, and discarded wipes are more visible on asphalt. However,
neither Black nor any other witness testified that the wet wipe stand should
be moved. On the contrary, Black testified that, in his view, it made no sense
to move the stand outside for several reasons, including the risks of the wipes
drying out, the stand being vandalized, and the stand being knocked over.
“ ‘ “[W]hile a counsel in summing up may indulge in all fair arguments in
favor of his client’s case, he may not assume facts not in evidence or invite
the jury to speculate as to unsupported inferences.” ’ ” (Sacramento Area
Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1338.)
Given the paucity of evidence that Stater Brothers should have moved
its wet wipe stand to another location, as well as Melendez’s failure to
14
provide Stater Brothers with notice about her theory or liability before trial,
the court properly exercised its discretion in disallowing closing argument on
whether the location of the wet wipe stand was a dangerous condition and
whether the company should have moved its wet wipe stand elsewhere.4
Even if the court had erred by limiting the scope of Melendez’s closing
arguments, we would nonetheless affirm the judgment because she has not
established that the claimed error was prejudicial. “ ‘In civil cases, a
miscarriage of justice should be declared only when ... it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ [Citation.] Prejudice from error is never
4 In her opening appellate brief, Melendez presents two related
arguments that find no support in the appellate record.
First, Melendez argues the trial court erroneously “ruled that an expert
witness must testify that the wipe stand should have been moved.” The court
did not make such a ruling. As discussed above, the court ruled that
Melendez could not present closing arguments on her new theory of liability
because it lacked evidentiary support and she did not disclose the theory to
Stater Brothers before trial. While making this ruling, the court opined that
expert testimony likely would have been required to prove the point, but
“[w]hether [Melendez] use[d] an expert or layperson,” she could not discuss
the issue in closing because she gave no notice to Stater Brothers about her
theory and “it wasn’t talked about” by any witness.
Second, Melendez contends the court erred by concluding that Stater
Brothers’s contention interrogatory required her to disclose all witnesses,
documents, and evidence on which she intended to rely at trial. Once more,
the record does not support Melendez’s claim. The court did not rule that the
company’s interrogatory required her to identify all evidence on which she
intended to rely at trial. Instead, it ruled that her counsel could not present
her new theory of liability in closing and emphasized, in particular, that she
had not articulated her theory of liability in response to Stater Brothers’s
interrogatory. As discussed, that interrogatory asked Melendez to articulate
all facts (not all evidence) supporting her claim for damages.
15
presumed but must be affirmatively demonstrated by the appellant.” (Paige
v. Safeway, Inc. (2022) 74 Cal.App.5th 1108, 1127.)
Assuming error, we conclude it is not reasonably probable that the jury
would have returned a more favorable verdict for Melendez but-for the court’s
ruling. During closing arguments, Melendez’s counsel continually referred to
the risks posed by the location of the wet wipe stand and suggested the stand
should be moved, notwithstanding the trial court’s ruling. Indeed, at the
outset of his closing argument, Melendez’s counsel asserted, “This wipe
station that’s at the front of the store, at the entrance …. [T]his station,
where it was situated, [was] in an unsafe condition.” Shortly after, he added,
“[T]hat wipe station, where it was located created an unreasonable risk of
harm.” Counsel later argued, “So we talked about eliminat[ing], repairing
the condition. … But they chose to keep it there. And so since they chose to
leave it there and not repair the condition, they needed to mitigate it.”
During rebuttal, Melendez’s counsel again portrayed the location of the
wipe stand as the dangerous condition underpinning her causes of action,
arguing, “[W]here you have a known safety hazard, you have to take
reasonable steps to get rid of it. What did they do? They knew that this wipe
station was here. They had known about it for years. … They knew this was
a high-traffic area. They knew that this was a problem.” Thereafter, he
asserted, “[T]here was a lot they could have done. There [were] a lot of
options we discussed. This location was unsafe. But if they chose to leave it
there, there’s other options that they could have considered. What did they
consider? Nothing.”
Notwithstanding these repeated references to the location of the wet
wipe stand, as well as the suggestions that Stater Brothers should have
moved the stand elsewhere, the jury deliberated for just a few hours before
16
returning a swift and decisive finding (by a vote of 11–1) that Stater Brothers
was not negligent. On this record, Melendez has not established a reasonable
probability that the jury would have returned a verdict more favorable to her
if the court had not limited the scope of her closing arguments.5
IV
DISPOSITION
The judgment is affirmed. Respondent is awarded its appellate costs.
McCONNELL, P. J.
WE CONCUR:
BUCHANAN, J.
RUBIN, J.
5 In her reply brief, Melendez contends her counsel’s arguments did not
transgress the trial court’s in limine ruling because they were “based on jury
instructions to which Stater Bros stipulated.” We are not persuaded.
Although Stater Brothers stipulated to the pattern jury instructions setting
forth the elements for Melendez’s claims, it did not agree to allow Melendez’s
counsel to argue to the jury that the location of the wet wipe stand
constituted a dangerous condition that could have been eliminated or
mitigated if Stater Brothers had moved the stand.
17