Judge Lynne M. Hobbs, Case Number: 22STCV09918, Date: 2024-03-21 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV09918, Date: 2024-03-21 Tentative Ruling

Case Number: 22STCV09918 Hearing Date: March 21, 2024 Dept: 30

RENEE ILENE TREJO vs WALGREEN CO., AN ILLINOIS CORPORATION SHIRLEY TSE, AN INDIVIDUAL, AND DOES 1 THROUGH 50, INCLUSIVE

TENTATIVE

Defendants Walgreen Co. and Tse’s motion for summary judgment is DENIED. Plaintiff is ordered to give notice.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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 facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (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, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

Evidentiary Objections

Defendants’ Objections to Plaintiff’s Evidence

(Note: The Court will number the objections by the order in which they appear.)

· The following objections are OVERRULED: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12

· The following objections are SUSTAINED: n/a

Discussion

Defendants Walgreens and Tse move for summary judgment as to Plaintiff’s cause of action for negligence/premises liability. Defendants contend that: (1) slight imperfections in the asphalt surface are trivial defects and did not create an unreasonable risk of harm; (2) Plaintiff has no evidence of prior actual or constructive notice; and (3) the alleged ADA slope violation is a “red herring” as it was not a substantial factor in causing Plaintiff’s fall.

Plaintiff, her husband and their son testified that as Plaintiff was being pushed by her husband in her wheelchair, they stopped to allow a car to pass by. (Defendant’s Undisputed Material Fact (“UF”) No. 3.) After the car passed, Plaintiff’s husband pushed the wheelchair, but the wheelchair did not move, and Plaintiff fell from the wheelchair to the asphalt. (Id., No. 4.) Plaintiff’s son and husband testified that the left wheel of the wheelchair got stuck on a bump or a crack on the asphalt. (Id., No. 6.)

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.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)¿¿If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe for their¿[customers’]¿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.)¿

I. Trivial Defect Doctrine

“‘The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circumstances . . . no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.’’” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104 (quoting Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27).) “The trivial defect doctrine is not an affirmative defense.” (Id.) “It is an aspect of duty that a plaintiff must plead and prove.” (Id.)

“In appropriate cases, the trial court may determine . . . whether a given walkway defect was trivial as a matter of law.” (Id.) “‘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.’” (Id. at 1104-05 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (Id. at 1105.) “In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect—in this case, on the depth or height of the walkway depression or elevation—although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.’” (Id. (quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734) (emphasis in original).) “The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.” (Id.) “These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents.” (Id.) “In sum, ‘[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.’” (Id. (quoting Caloroso, supra, 122 Cal.App.4th at 927) (alteration in original).)

Defendants argue that the height differential was a trivial defect. Defendants present evidence that the area where Plaintiff fell was examined, measured, and photographed by Carl Beels, M.S., Defendant’s human factors and safety consultant. (UF No. 7.) Beels found nothing on the surface of the parking lot could have caused the wheelchair to become stuck or was otherwise a hazard. (Id., No. 10.) Beels found minor imperfections in the asphalt surface. The largest of these measured to a height difference of approximately 9/32 of an inch. (Id., No. 13.)

Defendants also argue there were no aggravating circumstances to make the condition dangerous. There have been no prior trips, slips or falls in the parking lot area where Plaintiff alleges that she fell; nor have there been any prior complaints about the condition of the ground surface where Plaintiff allegedly fell. (Tse Decl., ¶¶ 9-10.) Even Plaintiff’s husband, an asphalt paver, did not notice any cracks or problems with the asphalt while he pushed Plaintiff’s wheelchair through the access aisle. (Rivera Depo., pg. 11:19- 25 through pg. 12:1-13; pg. 26:24-25, through pg. 27:1-14; pg. 29:15-17).

The Court finds that Defendants have met their burden on summary judgment to show that there are no triable issues of material fact as to whether a dangerous condition existed as the evidence presented shows the height differential was 9/32 of an inch, and there are no aggravating factors, and thus, the condition was a trivial defect. The burden now shifts to Plaintiff to show a triable issue of material fact.

In opposition, Plaintiff argues that the defect was not a trivial defect because there were aggravating conditions. Plaintiff’s expert opines that the area was in poor condition with numerous cracks and height differentials all in close proximity. Furthermore, the area had a cross slope as high as 6.3%. (Radeback Decl., ¶ 9.) When a wheel impacts a height differential that is also significantly sloped, the wheel has the potential to turn in a direction other than the direction of travel, which could cause the wheelchair to pitch forward. Defendant argues in her MSJ that the steep slope of the incident area had nothing to do with the incident, and as support, they referenced Mr. Rivera and Plaintiff's son’s discovery responses, which stated they did not believe that the slope contributed to the incident (MSJ, pg. 14). While Mr. Rivera and Plaintiff's son have experience working with asphalt pavement, they are not experts on accidents caused when traversing on pavement, so relying on their opinions of the incident is not reliable. (Id., ¶ 12.)

The Court finds that there are triable issues of material fact as to whether the condition was a trivial defect because the slope of the area contributed to the dangerousness of the height differential due to the potential of the wheelchair to pitch forward when it contacts a height differential in an area that is sloped. As such, Defendant is not entitled to summary judgment on this basis.

II. Notice

Defendants also argue Plaintiff has no evidence that Defendants had actual or constructive notice of a dangerous condition.

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant¿either: (1) created the dangerous condition, or (2)¿knew or should have known of the dangerous condition.”¿ (See¿Peralta v. Vons Companies, Inc.¿(2018) 24 Cal.App.5th 1030, 1036; see also¿Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1206.)¿¿“[A] defendant¿is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.”¿¿(Ortega,¿supra, 26 Cal.4th at¿1207.)¿¿“Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.” (See id. at 1207.) “The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (See id.) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers . . . .” (See id. at 1205.) “[A]s to business invitees, the owner should conduct frequent inspections.” (See id. at 1207.)

Defendants present the declaration of Defendant Tse, that states that there have been no prior trips, slips or falls in the parking lot area where Plaintiff alleges that she fell; nor have there been any prior complaints about the condition of the ground surface where Plaintiff allegedly fell. (Tse Decl., ¶¶ 9-10.) Tse also stated that she inspected the parking lot daily during her tenure as manager of the store, and she had never found the area to be a hazard. (Tse, ¶ 11.)

Defendants also present Defendant Walgreen Co.’s Special Interrogatories (SROG), Set One, which sought Plaintiff’s factual basis, evidence, and witnesses in support of the contention that Walgreen Co. employees should be charged with constructive notice of a dangerous condition. SROG Nos. 10-12 pertain to evidence regarding constructive notice. Plaintiff was not able to identify a document or witness in support of that contention. (Exh. J-K, SROG Nos. 10-12.)

The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

The Court finds that Defendants have met their burden to show there are no triable issues of material fact as to whether they had actual or constructive notice of the condition due to Tse’s declaration that there were no prior accidents, and that she inspected the premises daily. However, as to the alleged devoid discovery responses, Plaintiff has not admitted she has no evidence in her discovery responses. Rather, Plaintiff provided objections. Further, Plaintiff appears to have submitted documents in response to SROG No. 11, which have not been submitted to the Court. Further, Defendants have not shown that Plaintiff cannot reasonably obtain evidence of constructive notice. Nevertheless, the other evidence as to this issue is sufficient.

In opposition, Plaintiff has submitted a photo from October of 2018 of the area where she fell, which shows the slope and the cracks were present since that time. (Radeback Decl., ¶ 14; Radeback Decl., fig. 4.) As such, triable issues of material fact exist as to whether Defendants had constructive notice of the dangerous condition as it was present for two years prior to the incident.

III. Causation

A defendant “causes” harm when the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) A court may grant summary judgment because there is no triable issue of material fact regarding causation only when there is no other reasonable conclusion. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)

Defendants present evidence that Plaintiff’s husband and son, themselves experienced asphalt pavers by trade, both testified that the slope of the parking lot surface was not a contributing factor to the fall. (Rivera Depo., pg. 43:13-25 through pg. 44:4-9; Rivera Jr. Depo., pg. 40:22-25, through pg. 41:4-9). Defense expert, Carl Beels, also concluded that the slight slope variations in the area were slight and not a contributing factor to Plaintiff falling out of her wheelchair. (Beels Decl., ¶¶ 7-11.)

First, the Court notes that it is inappropriate to use the opinions of Plaintiff’s husband and her son as evidence to support Defendant’s argument that the slope did not contribute to the dangerous condition. Simply being an asphalt paver does not make one an expert on human factors and safety. Further, Defendants’ expert Beels only relies on the opinions of

Plaintiff’s husband and son to conclude that the slope was not a contributing factor, which is also impermissible. Beels does not opine that the slope was not a contributing factor elsewhere in his declaration and does not explain why it would not be a contributing factor. As a result, the Court finds Defendants have not presented evidence to show there are no triable issues of material fact as to causation.

Even if they had, Plaintiff’s expert has provided sufficient evidence to show there are triable issues of fact. Radeback opines that when a wheel of a wheelchair impacts a height differential that is also slightly sloped, the wheel turns in a direction other than the direction of travel, causing the wheelchair to pitch forward. (Radebach Decl., ¶ 12.) As a result, Defendant is not entitled to summary judgment.

Conclusion

Based on the foregoing, Defendants’ motion for summary judgment is DENIED.