Judge: Daniel M. Crowley, Case: 20STCV36067, Date: 2023-01-25 Tentative Ruling

Case Number: 20STCV36067    Hearing Date: January 25, 2023    Dept: 28

Defendant Walgreen Company’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On September 21, 2020, Plaintiff Theresa Shelley (“Plaintiff”) filed this action against Defendant Walgreen Company (“Defendant”) for negligence and premises liability.

On December 3, 2020, Defendant filed an answer.

On November 12, 2021, Defendant filed a Motion for Summary Judgment to be heard on May 3, 2022. The Court continued the hearing on the motion to January 25, 2023. On January 11, 2023, Plaintiff filed an opposition. On January 20, 2023, Defendant filed a reply.

Trial is currently scheduled for April 10, 2023.

PARTY’S REQUESTS

Defendant requests the Court grant summary judgment on the basis that there are not triable issues of material facts.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Defendant’s Objections:

Sustained: 1, 2,

Overruled: 3, 4

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“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, 1159.)

Whether a commercial landlord had possession and control over commercial property to subject the landlord to liability is a question of law for the court to decide. (Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “A landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604.) “[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) This bright line rule holds a landlord liable to third parties in a premises liability action only if: (1) the landlord has actual knowledge of the hazard; and (2) the right and ability to remedy it. (Id.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a sidewalk fault. For example, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured). 

A customer injured by a dangerous condition on a premises owners' property can only recover damages against the owner of a premises if the owner was somehow negligent. (Louie v. Hagstrom's Food Stores, Inc. (1947) 81 Cal.App.2d 601.) A premises owner's negligence may be proven by showing that the owner did not “exercise reasonable care to keep the premises reasonably safe for patrons” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035), either because (1) the owner itself created a dangerous condition on the premises (Henderson v. Progressive Optical System (1943) 57 Cal.App.2d 180, 184), or (2) someone else created a dangerous condition, and the owner acted unreasonably by not remedying that condition or warning its customers about it (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829) “Absent any evidence that there was a … dangerous condition created by or known to [defendant], [plaintiffs] cannot sustain their burden of proof” so as to defeat a defendant’s motion for summary judgment. (Peralta v. The Vons Companies, Inc., (2018) 24 Cal.App.5th 1030, 1036.) A store owner must have actual or constructive notice of the condition to be negligent; it cannot have merely existed. (Id.)

DISCUSSION

Plaintiff alleges that she tripped and fell at Defendant’s store, specifically at the position in which the carpet meets the linoleum tile flooring. (UF 2-4.) The carpet remained flat and even on the floor and was not in disrepair. (UF 5-7.) Plaintiff specifically alleges that the molding between the carpet and the tile constituted a dangerous condition. (UF 8.)

Defendant argues that the subject rubber molding between the carpet and the linoleum does not present a dangerous condition. It creates a 1/8-3/16 inch elevation differential, which is compliant with the ADA standard of a maximum difference of ¼ inch. (UF 12.) It has a slope of approximately 18.75%. (UF 14.) The molding itself was not in disrepair at the time of the incident. (UF 10.) A landlord only has a duty to warn invitees about dangerous conditions to which they are, or should be on, notice—here, there is no indication that the molding or area presented a dangerous condition. The area was in good shape and complied with applicable ADA standards. Defendant has met its burden, which now shifts to Plaintiff.

Plaintiff argues that the height difference from the tile to the top of the connector totals 9/16 inches, large enough to cause a potential trip. (PUF 17). The carpet sits on top of the linoleum flooring, creating a height difference between the two surfaces. (PUF 23.) Additionally, the color of the molding and the carpet were close enough, along with the height differential being small enough, that it would have been difficult to perceive, creating a dangerous, obfuscated condition. (Burns Decl. ¶ 10.)

As pointed out in Defendant’s reply, the height differential of 9/16 of an inch is between the tile flooring and the top of the molding—which are highly contrasting colors. The color of the carpet and the molding, which have very minor differences, is irrelevant to Plaintiff’s argument.

Otherwise, the crux of Plaintiff’s argument is based on the fact that the difference from the linoleum to the top of the molding is 1/16^th of an inch above the ADA standard. The Court agrees with Defendant that this is a trivial defect. There is no other indication of aggravating conditions, like those discussed in Dolquist, that would provide a reason for this to be elevated to the status of dangerous condition. There were no sharp edges or other alleged issues. Plaintiff does not argue that the ground was slippery, wet or obscured by debris. There are also no allegations of previous injuries that would have put Defendant on notice.

Plaintiff has failed to meet her burden. The Court grants summary judgment.

CONCLUSION

Defendant Walgreen Company’s Motion for Summary Judgment is GRANTED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.