Judge Jill Feeney, Case 20STCV31809 2023-03-27 Tentative Ruling

This is an action for premises liability arising from a trip and fall incident which took place in July 2019. Plaintiff Susan Rosen filed her Complaint against PPG Industries, Inc. (“PPG”), the Casella Trust, Paul Casella Jr., and Connie M. Casella on August 20, 2020.

Defendants move for summary judgment or summary adjudication on the grounds that (1) Plaintiff cannot establish that a dangerous or defective condition on Defendants’ premises caused her to fall, (2) the alleged dangerous condition was a trivial defect and Defendants do not owe Plaintiff a duty of care, (3) Plaintiff cannot demonstrate that Defendants had notice of an allegedly dangerous condition on their premises, (4) the cause of action for willful failure to warn fails because Civil Code Section 846 does not apply, and (5) Defendants did not violate any statute for liability to attach under plaintiff’s negligence per se claim.

Plaintiff argues that the defect was not trivial. Plaintiff argues that whether Defendants had notice of the condition, whether they breached their duty to Plaintiff, and whether they failed to warn Plaintiff of the hazard are questions for the jury. Finally, Plaintiff argues that her negligence per se theory does not fail.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Defendants move for summary judgment or summary adjudication on the grounds that (1) Plaintiff cannot establish that a dangerous or defective condition on Defendants’ premises caused her to fall, (2) the alleged dangerous condition was a trivial defect and Defendants do not owe Plaintiff a duty of care, (3) Plaintiff cannot demonstrate that defendants had notice of an allegedly dangerous condition on their premises, (4) the cause of action for willful failure to warn fails because Civil Code Section 846 does not apply, and (5) Defendants did not violate any statute for liability to attach under plaintiff’s negligence per se claim.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

The condition on the property that is at issue must create “an unreasonable risk of harm.” (CACI No. 1003.) The trivial defect doctrine applies to both public and private landowners (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

When determining whether a condition is¿trivial¿as a matter of law, “[t]he legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a¿trivial¿defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.”¿(Stathoulis¿v. City of Montebello¿(2008) 164 Cal.App.4th 559, 567-568.)

The Court of Appeal has ruled that certain differentials in sidewalk elevation are de facto trivial.¿(See, e.g., Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74, 256 P.2d 977, and cases cited therein [elevations ranging from three-fourths inch to one and one-half inches found minor]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50 [adjoining sidewalk panels varying from 5/8 inch to 1-3/8 inches in height is trivial]; and Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361 [1½ inches difference in elevation is trivial]; see also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092 [height differential ranges from 9/16”, 1”, and 1.21875” held to be a trivial defect].

Here, Defendants’ evidence shows that at 10:00 a.m. on July 2, 2019, Plaintiff drove to the office of her family business located next door to Defendants’ premises, the PPG campus at 2820 W Empire Avenue in Burbank, California. (UMF No.1.) The weather was clear and there were no trees or other obstructions that would block an individual’s view of the sidewalk. (UMF Nos. 2, 4.) The sidewalk doubles as a driveway in front of the entrance to PPG’s parking lot. (UMF No. 5.) Plaintiff fell as she was walking across the sidewalk. (UMF No. 3.)

(Rosen Depo., 18:22-19:15.) Plaintiff was wearing form-fitting, one-inch wedge heels and sunglasses when she fell. (Id., 19:21-20:3.) Plaintiff was not holding anything other than her rolling bag. (Id., 20:8-12.) Plaintiff had walked across the sidewalk around 10 times in the year before she fell. (Id., 20:20-21:3.)

Defendants also provide the deposition of PPG’s PMK, Jose Luis Huerta. Huerta testifies that he is usually the first on Defendants’ premises and opens the gate to allow employees to enter the parking lot. (Huerta Depo., 11:4-19.) Huerta had not seen rocks or debris in the area where Plaintiff fell. (Id., 20:6-14.) Another employee, Francisco Lucero told Huerta on the day of Plaintiff’s fall that someone had fallen while jaywalking across the street after tripping on the sidewalk. (Id., 30:2-14.) Huerta is not aware that a woman who parked her car on the same side of the street had fallen. (Id., 30:16-19.) Huerta did not report the fall because he believed it took place outside of PPG’s premises. (Id., 35:7-9.) Another employee, Aly Zepeda, informed Huerta that she saw someone jaywalking in front of the PPG campus. (Id., 40:1-15.) Huerta is not aware of any other falls in the area. (Id., 42:7-12.) There are no cameras stationed in the area. (Id., 42:15-17.)

Francisco Lucero testifies that he saw a woman fall while he was in his car. (Lucero Depo., 17:7-9.) Lucero saw her cross the street and fall when she was trying to step onto the curb. (Id., 17:7-12.) The woman landed with half her body on the sidewalk and her legs in the street. (Id., 39:7-12.)

Defendants also provide expert testimony from Dr. Kenneth Solomon, who testifies that he examined photographs of the area and determined that the cracks in the cement are trivial defects that do not create a significant hazard. (Solomon Decl., ¶7A-B.) Based on shadows in the photographs, the cracks in the sidewalk are likely less than 0.5 inches. (Id., ¶7D.)

Defendants’ evidence is insufficient to show that the alleged dangerous condition was a trivial defect. Plaintiff alleges that she tripped over a concrete rock that was 2 inches in diameter. Defendants’ expert testifies that the cracks in the sidewalk are likely less than 0.5 inches and therefore do not pose a significant hazard. However, Solomon’s opinion only discusses the cracks in the sidewalk, not the concrete rock Plaintiff allegedly tripped over.

Although Huerta testifies that he had not seen debris in the area, it is unclear from the excerpted deposition testimony whether and how long before Plaintiff’s fall he had inspected the sidewalk. Rather, Huerta was asked whether he had seen debris “from time to time” in the area and Huerta responded that he had not seen rocks and debris. (Huerta Depo., 20:6-14.) Additionally, Huerta and Lucero both testify that they saw a woman fall after crossing the street and tripping on the sidewalk. It is unclear if the woman they saw was Plaintiff and their account of events conflicts with Plaintiff’s account of her fall. Plaintiff testified that she parked on the same side of the street in PPG’s old building and thus would not have been crossing the street on the date of her fall.

Defendants’ evidence does not address whether a concrete rock 2 inches in diameter would create an unreasonable risk of injury. The evidence is also insufficient to show that there is no genuine issue of material fact as to whether there was no debris on the sidewalk where Plaintiff fell. Defendants therefore fail to meet their burden of showing no triable issues of material fact exist as to whether there was a dangerous condition on their premises and whether the alleged condition was trivial.

A property owner “is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it.¿ (Ortega, 26 Cal.4th at 1203, 1206.)

PPG’s director of environment, health, and safety testifies that there are no records of repair requests or other issues with the sidewalk where Plaintiff fell. (Svec Decl., ¶5.) There are also no reports of any cracks, loose concrete, or other debris where Plaintiff fell. (Id., ¶7.) There are no reports of any prior or subsequent falls in the area. (Id., ¶¶8-9.)

Defendants’ evidence is sufficient to establish that they did not have actual notice of the alleged condition. However, the evidence is insufficient to show that they did not have constructive notice of the alleged condition. Although Huerta testified that he inspects the area when he opens the gate to the parking lot in the morning, there are no facts showing when Huerta arrives at PPG’s campus to open the parking lot. There are also no facts showing Huerta did inspect the area on the day of the fall. Defendants thus fail to meet their burden of showing there are no issues of material fact over whether they had notice of the alleged condition.

Civil Code section 846 provides that a “landowner ‘owes no duty of care’ to persons using the land for recreation, either to maintain safe premises or to warn of hazards…” thereby “absolv[ing] California landowners from two separate and distinct duties: the duty to ‘keep the premises safe’ for recreational users, and the duty to warn such users of ‘hazardous conditions, uses of, structures, or activities’ on the premises.” (Klein v. United States of America (2010) 50 Cal.4th 68, 78.) However, section 846 does not limit the liability that otherwise exists for (1) “[w]ilfull or malicious failure to guard or warn against a dangerous condition, use, structure, or activity[;] (2) [i]njury suffered in any case where permission to enter for [a recreational] purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where the consideration has been received from others for the same purpose[; or] (3) [a]ny persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.” (Civ. Code, § 846, subd. (c)(1)-(3).)

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

Here, Plaintiff’s Complaint alleges that Defendants violated Burbank Municipal Code Section 9-1-2-100.1. Defendants argue that this section does not appear in the operative edition of the Burbank Municipal Code. Defendants also discovered that the code section was repealed in 2016 and replaced with Ordinance No. 16-3.888. Plaintiff argues that the section was repealed and immediately re-enacted and updated to reflect Burbank’s adoption of the 2021 California building code.

It appears section 9-1-2-100.1 (now 9-1-2-101.1) operated to adopt the California Building Standards Code. It does not appear to the Court that either side disputes this. If this is a matter of dispute, the parties should so inform the Court at the hearing. Of course, this is in and of itself insufficient notice of the particular code section at issue. A plaintiff cannot simply allege that a defendant has violated the entire building code.

However, Plaintiff alleges that in particular Defendants violated Section 302.2 of the 2015 International Property Maintenance Code which requires that sidewalks be kept in a proper state of repair and be maintained free of hazardous conditions.

The City has previously adopted by reference portions of prior editions of the California Building Standards Code and International Property Maintenance Code, with local amendments, additions, and deletions thereto. The City desires to reaffirm as provided in Title 9 of the Burbank Municipal Code that it has adopted by reference the most current versions of the California Building Standards Code and International Property Maintenance Code, and is not subject to the provisions of the 2019 California Building Standards Code where such provisions are modified specifically to address local conditions in the City of Burbank.

However, the Court could not find a provision indicating that Section 302.2 of the 2015 International Property Maintenance Code was adopted by reference as part of the City of Burbank’s Municipal Code at the time of the accident.

On February 24, 2023, the Court continued the hearing on this matter to allow the parties to file supplemental briefing on this issue. Plaintiff was required to file her supplemental briefing by March 2, 2023. Defendants were required to file their reply by March 9, 2023.

Plaintiff disobeyed the Court’s order and filed two additional declarations, an additional opposition, and an additional response to Defendants’ separate statement. The Court did not grant Plaintiff leave to file these additional papers. They are stricken and will not be considered. The Court also notes that Plaintiff filed her supplemental briefing late on March 3, 2023.

Plaintiff filed an addendum to her opposition to Defendants’ motion for summary judgment. The addendum contains excerpts from Ordinance No. 16-3, 888 and Ordinance No. 19-3,922, which state that the 2015 International Property Maintenance Code was incorporated by reference to the City of Burbank’s Municipal Code. (Plaintiff’s Addendum, Exh. A.) The 2018 version of the Code was adopted by reference again in 2020. (Id., Exh. B.) Defendants filed a response on March 9, 2023 stating they agree that the 2015 International Property Maintenance Code was applicable at the time of the subject incident.

Section 302.2 of the 2015 International Property Maintenance Code requires that sidewalks be kept in a proper state of repair and be maintained free of hazardous conditions. It is reasonable to infer that the section was intended to prevent injuries caused by hazardous conditions on sidewalks and that Plaintiff’s injuries from falling are within the scope of injuries that the section was designed to prevent. As discussed above, Defendants’ evidence is insufficient to show that there are no issues of material fact remaining over whether there was debris on the sidewalk where Plaintiff fell. Thus, there are triable issues of material fact over whether Defendants violated Section 302.2 of the 2015 International Property Maintenance Code and whether Plaintiff’s injuries were caused by Defendants’ violation of the section.