Judge: Kenneth J. Medel, Case: 37-2020-00024054-CU-PO-CTL, Date: 2024-01-19 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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TENTATIVE RULINGS - January 18, 2024

01/19/2024  09:30:00 AM  C-66 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kenneth J Medel

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00024054-CU-PO-CTL BARNES VS HILTON RESORTS CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/01/2023

Defendants' Objections to Evidence are OVERRULED. Defendants objections do no comply with CRC 3.1354 in that they cite to the summary of the evidence in the Separate Statement and not directly to the evidence itself.

Defendants' Motion for Summary Adjudication is DENIED. This is a trip-and-fall case that occurred at Hilton La Jolla Torrey Pines hotel located in La Jolla, California on August 10, 2018. Plaintiff alleges that she tripped over a metal plate protruding upward near the entrance to the hotel. Defendants move for summary adjudication as to the first cause of action for negligence, the second cause of action for premises liability, the issue of the dangerous condition contained within the third cause of action for negligent supervision, training, hiring.

Defendants argue that they had no duty because the metal plate at issue constituted a 'trivial defect'.

The total height differential from the concrete to top of this metal transition plate at the time of Ms.

Barnes' stumbling incident was six-eighth inches (6/8' or ¾'). [Fact No. 11]. The metal transition plate itself, at its highest point, is three-eighth (3/8') of an inch tall. [Fact No. 10]. Defendant relies on cases involving public liability to argue that this was a trivial defect as a matter of law. See, e.g., Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73.

Based on the 'trivial defect' doctrine, '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.' Although sometimes referred to as the trivial defect defense, the trivial defect doctrine is 'not an affirmative defense but rather an aspect of duty ... plaintiff must plead and prove.' Kasparian v. AvalonBay Communities, Inc., 156 Cal. App. 4th 11, 27 (2007). While the doctrine originally shield public entities, the doctrine has been expanded to embrace actions against private landowners. Id. The question, of course, is what is 'trivial.'? '[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criteria. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate. As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole. The court should also look at other factors such as whether the accident occurred at night in an unlighted area.

Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.' 'If the 'court determines ... sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule ... the defect is not dangerous as a matter of law.' Conversely, where 'the only evidence available on the issue of dangerousness does not lead to Calendar No.: Event ID:  TENTATIVE RULINGS

3052538  22 CASE NUMBER: CASE TITLE:  BARNES VS HILTON RESORTS CORPORATION [IMAGED]  37-2020-00024054-CU-PO-CTL the conclusion ... reasonable minds may differ, then it is proper for the court to find ... the defect was trivial as a matter of law.' Moreover, ' '[a]s to what constitutes a dangerous or defective condition no hard and fast rule can be laid down, but each case must depend upon its own facts.' Height of the protrusion is not dispositive. Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 268.

Along with considering the height or depth of the defect, a court looks at evidence of other factors to determine whether the defect is dangerous. Id. at 267; Kasparian v. Avalonbay Communities (2008) 156 Cal.App.4th 11, 27 ('[T]he court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.'). These factors include the nature and quality of the defect, whether the defect was naturally occurring or caused by artificial means, and whether others have been injured on the same defect. Id. at 27; Dolquist, 196 Cal.App.3d at 268; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732. The Dolquist court explained further: 'We are not persuaded by respondent's argument that since the protrusion of the rebar (steel reinforcement) that caused appellant's fall was a quarter of an inch above the concrete surface, it only constituted a 'trivial defect.' The application of a strict tape measure approach to determine whether a defect is trivial as a matter of law, disregards the fact that other factors and circumstances involved in a particular case could very well result in an entirely different conclusion from one arrived at by simply measuring the size of a defect.' Dolquist, 196 Cal.App.3d at 268. Plaintiff need not prove that she was using the property with due care. The standard is whether the property creates a substantial risk of harm to any foreseeable person using the property with due care. See, Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 132; Milligan v. Golden Gate Bridge Highway & Transp. Dist. (2004) 120 Cal.App.4th 1, 7.

Here, Defendants rely heavily on the tape measure approach. Defendants cite to Huckey v. City of Temecula 37 Cal.App.5th 1092, in which a one-inch deviation was considered trivial. Defendants, however, have conceded that the uplift was over an inch. MF 10. Looking at the pictures provided, particularly Exhibit 3 to Motion, the Court finds a triable issue as to whether this lift of the metal was a dangerous condition.

Even if the height of the protrusion in this case was slight, the Court must consider all aspects of this incident. Plaintiff provides evidence of the uneven and 'low-profile' nature of the dangerous condition, the heavy traffic of the entrance to a beautiful, seaside hotel, and the fact that plaintiff arrived holding hands with children. MF-1 12, 18, 19.

Defendants argue that another employee previously tripped over the subject condition. (Defendants' Exhibit E: the video surveillance) MF-1 27. However, it appears that this may have been part of the investigation into plaintiff's incident. Defendants' video surveillance also shows another guest having trouble pushing his suitcase over the uplifted metal plate. MF-1 26.

Defendants also argue that the condition was 'open and obvious.' '[T]he obvious nature of a danger is not, in and of itself, sufficient to establish that the owner of the premises on which the danger is located is not liable for injuries caused thereby, and that although obviousness of danger may negate any duty to warn, it does not necessarily negate the duty to remedy.' Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 119. '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.' Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393. Whether a dangerous condition was open and obvious is generally a matter for the jury. Chance v. Lawry's, Inc.

(1962) 58 Cal.2d 368, 374 (open and obviousness of tripping hazard from a planter box was matter for jury and summary judgment inappropriate); Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 35. Where facts are disputed, open and obviousness is simply an issue of comparative negligence for the jury, and summary judgment is inappropriate. Martinez v. Chippewa Enterprises, Inc.

(2004) 121 Cal.App.4th 1179, 1186; Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1233 ('Where a case is subject to comparative fault principles, it is inappropriate for summary judgment.'); Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 35 ('The jury may balance the practical necessity, if any, of the use of the cement walkway against plaintiff's knowledge or notice of the hazard of using it.') This is a factual question. Plaintiff was not required or expected to look down at the ground while walking, especially with the commotion inherent in the setting of the entrance to a beautiful and bustling hotel. MF-1 12, 20. Defendants are unable to explain why a 'low-profile' metal plate with an uplift should be considered open and obvious. MF-1 18. The subject metal plate was not conspicuous and readily Calendar No.: Event ID:  TENTATIVE RULINGS

3052538  22 CASE NUMBER: CASE TITLE:  BARNES VS HILTON RESORTS CORPORATION [IMAGED]  37-2020-00024054-CU-PO-CTL observable. MF-1 17, 18, 19.

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