Judge Anne Hwang, Case Number: 22STCV14564, Date: 2024-04-09 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

On May 2, 2022, Plaintiff Je’Don Hopkins (“Plaintiff”), filed this action against Defendants The Kroger Company Inc., dba Ralphs Grocery Company (“Defendant”) and Does 1 to 10, for negligence and premises liability.

The Complaint alleges the following. On October 25, 2021, Plaintiff was walking on a ramp leading to the entrance of a Ralphs Grocery Store, when she slipped and fell. “It had been raining and the ramp was slick and slippery.” (Complaint, 4.)

Defendant now moves for summary judgment arguing that (1) the condition of the ramp was open and obvious because it had been raining that day; (2) the condition was trivial; and (3) Plaintiff possesses no evidence that Defendant had notice of the dangerous condition. Plaintiff opposes and Defendant replies.

The Court declines to rule on Plaintiff’s objections as they have no effect on the ruling herein.

The Court overrules the objections by Defendant to the Declaration of Gary M. Gsell. The Court overrules the objections by Defendant to the Declaration of John C. Sotter.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and 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 triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.” (Aguilar, supra, 25 Cal.4th at 855.) Alternatively, “[t]he defendant may […] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id.)¿This must be supported with evidence “including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Id. at 854–55 [quoting Code Civ. Proc. § 437c(b)].)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

“It is well established in California that 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”).) Specifically, “[a] store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) “The care required is commensurate with the risks involved.” (Ibid.) “Thus, for example, 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.” (Ibid.)

“‘“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]’ [Citation.]” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 215.) This is known as “the no-duty exception for open and obvious dangerous conditions ….” (Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 993.) “[T]he rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger.” (Id. at p. 994.)

“[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184 (hereafter Martinez).)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122 (hereafter Osborn).)

Although “the existence of a duty of care is a matter of law,” “[t]he foreseeability of a particular plaintiff’s injury is a question of fact.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1330, fn. 9.)

“‘It is ordinarily a question of fact … whether [a] particular danger was obvious, [or] whether an invitee was contributorily negligent ….’ [Citations.]” (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260; see also Curland v. Los Angeles County Fair Ass’n (1953) 118 Cal.App.2d 691, 695–696 [“Whether [a] danger was obvious to plaintiff [is] a question of fact for the jury. [Citations.] Whether a person, under the circumstances, made a reasonable use of his faculties is also a question for the jury. The law presumes that a person possessing the normal faculties of sight must have seen that which was in the range of his sight”].)

Here, the following is undisputed. On the day of the incident, it had been raining on and off. When Plaintiff arrived at Ralphs, it was still raining.

- Plaintiff knew that the ramp and the surrounding sidewalk at the entrance of Ralphs were wet that morning. (UMF 3.)

- The Plaintiff testified that the rain caused her fall, which made the pavement on the ramp and surrounding sidewalk to be wet when she arrived at the store that morning. She attributed her fall to nothing else but the wet pavement on the ramp. (UMF 4.)

- The Plaintiff testified that besides the wet pavement, there was nothing unusual about the ramp and surrounding sidewalk that day. (UMF 5.)

- There was no trash or debris on the ramp and surrounding sidewalk at that time. (UMF 6.)

- There was nothing blocking the Plaintiff's way when she walking on the ramp and surrounding sidewalk that morning. (UMF 7.)

- There were no puddles of water on the ramp and surrounding sidewalk at that time. (UMF 8.)

- Plaintiff testified that after her fall, she looked around on the pavement and that she saw no streaks or smears on the ramp at that time. (UMF 9.)

- The video surveillance footage of Ralphs shows that it was sufficiently obvious that the ramp and surrounding sidewalks were wet. (UMF 13.)

- The video surveillance footage shows that Plaintiff did not have to use the ramp and surrounding sidewalk to enter the store because the main entrance was a few feet away. (UMF 14.)

Defendant first argues broadly that the presence of wet pavement due to rainwater is sufficiently open and obvious. However, Plaintiff argues and has presented evidence that the dangerous condition was not only that the ramp was wet, but also that it was a smooth surface with grease, oil, and grime. Defendant does not present evidence or argument that those conditions are open and obvious.[1] Accordingly, Defendant fails to meet its burden to show the absence of a triable issue of material fact.

“Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property. But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property. The so-called ‘trivial defect doctrine’ recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226 [cleaned up].)

“In limited circumstances a court may determine a walkway defect is trivial as a matter of law. Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment. But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.” (Id. at p. 226.)

Here, Plaintiff testified that rain caused her fall, and that there were no puddles or debris when she was walking up the ramp. (Ragland Decl., Exh. C, Pl. Depo., 16:1–23.) However, Plaintiff also sets forth her deposition testimony that the pavement was “slick” and that the cement “didn’t have any kind of like roughness to it to like catch your grip.” (Norman Decl., Exh. 2, Pl. Depo., 18:15–21.) Additionally, both parties present testimony from experts that used different tests to determine the slip resistance of the pavement. Defendant’s expert used an “English XL VIT” and determined the sidewalk had an average slip index of 0.53 when wet, which exceeds the value required for a non-slip floor (0.50). (Solomon Decl. ¶ 9.) However, Plaintiff’s expert, John C. Sotter, tested the sidewalk using a “Pendulum Dynamic Coefficient of Friction tester.” Sotter declares that the English XL VIT test used by Defendant’s expert is not accurate, and notes that out of the four tests conducted on the wet pavement, two yielded values below 0.50. (Sotter Decl. ¶ 26–27.)

The Court concludes that considering all evidence in the light most favorable to Plaintiff, there exists a triable issue of material fact as to whether the alleged defects were trivial.

Lastly, Defendant argues Plaintiff has no evidence that Defendant had notice of the defective condition. However, to meet its burden, Defendant must also show that Plaintiff cannot reasonably obtain needed evidence. Here, Defendant only sets forth Plaintiff’s deposition testimony which by itself, does not show that Plaintiff could not reasonably obtain evidence regarding Defendant’s notice of the slippery nature of its sidewalk. To the extent Defendant argues that Plaintiff’s deposition testimony contradicts her later declaration, the Court notes that Plaintiff testified during her deposition that the cement lacked any roughness to provide grip. (Pl. Depo. 18:15–21.) Therefore, Defendant has not met its burden regarding notice.

Therefore, Defendant Ralphs Grocery Company dba Ralphs’ motion for Summary Judgment is DENIED.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.

[1] Although Defendant argues that Plaintiff’s expert ignores Plaintiff’s testimony that she slipped from rain water only, there is no indication that Plaintiff would necessarily know that she slipped from a smooth or textured surface of the ramp, or from a greasy or oily ramp. (Def.’s Obj. #1.) The declaration of Gary Gsell indicates that he personally inspected the location and determined that the sidewalk had a smooth finish. (Gsell Decl. ¶ 10, 15.) That Plaintiff did not see anything on the floor that contributed to the slip does not establish that nothing else about the condition of the floor, other than it being wet, constituted an alleged dangerous condition. Moreover, Plaintiff testified that the concrete was “slick.” (Pl.’s Resp. to UMF 5.)

DEPARTMENT	32
HEARING DATE	April 9, 2024
CASE NUMBER	22STCV14564
MOTION	Motion for Summary Judgment
MOVING PARTY	Defendant Ralphs Grocery Company dba Ralphs
OPPOSING PARTY	Plaintiff Je’Don Hopkins