Judge: Michael E. Whitaker, Case: 21STCV18334, Date: 2022-10-21 Tentative Ruling

Case Number: 21STCV18334    Hearing Date: October 21, 2022    Dept: 32

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 (which is highly encouraged).  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. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion for Summary Judgment
2. Memorandum of Points and Authorities in Support of Motion for Summary Judgment
3. Declaration of Jordan M. Meeks in Support of Motion for Summary Judgment
4. Declaration of Rob Chislett in Support of Motion for Summary Judgment
5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Memorandum of Points and Authorities in Opposition to Summary Judgment Motion
2. Evidence in Opposition to Motion for Summary Judgment (Declaration of Ashley Mann; Declaration of Jeffrey L. Molchan; Declaration of Scott Mann; Declaration of Mark J. Burns)
3. Plaintiff’s Response to Separate Statement of Undisputed Facts and Supporting Evidence and Statement of New or Additional Facts and Supporting Evidence

REPLY PAPERS:

1. Memorandum of Points and Authorities in Support of Reply

2. Objections to Declaration of Mark J. Burns

3. Declaration of Jordan M. Meeks in Support of Reply [1]

4. Reply to Plaintiff’s Response to Separate Statement of Undisputed Material Facts

BACKGROUND

Plaintiff Ashley Mann (Plaintiff) sued Defendants The Pelican, LLC, dba Elephante; Nick Mathers; and Lidschin Investors, LP (collectively, Defendants) based on an incident in which Plaintiff tripped and fell due to an alleged defect on the floor of the restaurant Elephante. 

Defendants move for summary judgment on Plaintiff’s complaint, Plaintiff opposes the motion and Defendants reply to the opposition.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[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.)

“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”].)

EVIDENCE

With respect to Defendants’ evidentiary objections to the Declaration of Mark J. Burns, the Court finds Defendants’ objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354.  Rules 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

Written objections to evidence must follow one of the following two formats:   [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats:  [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.)  Here, Defendants failed to number the objections and follow one of the permitted formats, and Defendants did not submit a proposed order following one of the prescribed formats.  Notwithstanding the procedural defects, the Court determines that Defendants have substantially complied with Rule 3.1354 and will exercise its discretion in ruling on Defendants’ evidentiary objections to the Declaration of Mark J. Burns as follows: 

1. Entire Declaration of Mark J. Burns – Overruled

2. Paragraph 10 - Overruled

3. Paragraph 11 – Sustained In Part (Lack of Foundation) re: “Ms. Mann’s perception of the incident sliding door track was inhibited by the pattern in the floor and her expectations were betrayed on the date of incident.”  Overruled as to the balance of Paragraph 11.   

4. Paragraph 12 – Sustained In Part (Lack of Foundation) re: “It is my opinion that Ms. Mann’s perceptions were further inhibited due to the inlay pattern present in the subject flooring.”  Overruled as to the balance of Paragraph 12.   

5. Paragraph 13 – Sustained  In Part (Lack of Foundation) re: “Ms. Mann had no reason to expect the height differential created by the incident sliding door track” and “As such, Ms. Mann had no reason to expect the incident sliding door track.  The incident sliding door track went unseen due to Plaintiff’s inhibited perception and lack of reason to expect a tripping hazard in this area.”  Overruled as to the balance of Paragraph 13.  

6. Paragraph 14 – Overruled

7. Paragraph 15 – Sustained In Part (Lack of Foundation) re: “The incident sliding door track went unseen due to the Plaintiff’s inhibited perception and lack of reason to expect a tripping hazard in this area.”  Overruled as to the balance of Paragraph 15.  

DISCUSSION

            Plaintiff’s complaint asserts a single cause of action against Defendants – negligence/premises liability.   Defendants move for summary judgment on the complaint on ground that the alleged defect is trivial as a matter of law. 

1. Elements: Negligence and Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)     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.)  But liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril.  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242.)

2. Trivial Defect Doctrine

“In summary, 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.”

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.” This doctrine “permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury [and] provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.” The trivial defect doctrine has been expanded to embrace actions against private landowners.

“[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 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.’ (Citation.)”

(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-28, citations omitted & emphasis added.) 

In Huckey v. City of Temecula, the Court of Appeal, in affirming summary judgment for the city, stated in part:  “[a] condition is ‘not dangerous,’ if ‘the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property ... was used with due care ...’ in a reasonably foreseeable manner.”  (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104 (hereafter Huckey), citation omitted & emphasis added.)

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.  The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.

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. 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.”

The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. “First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. 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 ....”

(Huckey, supra, at p. 1105, citations omitted & emphasis added.)[2]

1. Preliminary Analysis – Type and Size of Defect

Defendants rely on the declaration of Rob Chislett, the managing partner of Elephante, who measured and took pictures of the partition track, to show that the highest point of the partition track in the walkway where Plaintiff fell is raised .38 of an inch above the surrounding floor.  (See Defendants’ Undisputed Material Fact (hereafter UMF) 2.)  Plaintiff does not dispute the height of the partition track.  (See Plaintiff’s Response to Undisputed Material Fact (hereafter RUMF) 2.)

In viewing the evidence most favorable to Plaintiff, the Court finds that the defect is trivial.

1. Secondary Analysis – Additional Factors

Although the Court in its preliminary analysis has determined the defect is trivial, the Court must determine if there are additional factors that indicate that the defect was “sufficiently dangerous to a reasonably careful person.” 

Defendant proffers the following UMFs which Plaintiff does not dispute: (a) the incident occurred in the early afternoon (UMF 1) and (b) the incident occurred in an area illuminated by natural daylight and ceiling lighting (UMF 4).  In summary, the incident occurred during daylight hours in a well-lit area of the restaurant. 

In addition, Defendant advances the following UMFs: (a) the partition track is bright silver in color surrounded by flooring that is matte concrete with black spots (UMF 3); (b) “the portion of the partition track Plaintiff tripped on was located in an open walkway” (UMF 5); and (c) there have been no other trip and fall incidents as result of the partition track at issue (UMF 8).

In opposition, Plaintiff advances her own declaration in which she states in pertinent part: 

• “The incident that is the subject of this action occurred at approximately 1:00 p.m.  I had never previously been to the restaurant.”

   

• “At the time of the fall, and immediately prior to it, the hostess was directly in front of me directing me to the table where our party was seated. The hostess and I were talking as we walked. At no time did the hostess, or anyone else, warn me about the presence of a track/ groove (hereinafter the "track") on the floor. There were also parallel lines on the floor near the track which tended to obscure the presence of the track. I tripped and fell, and injured myself on the track.  After the fall, I observed that there was a track running across the middle of the room. The track was not at a door. I was not expecting the track in the middle of the room. The track was elevated and had a lip on it. The restaurant was very busy and filled with people. The restaurant had a beautiful view which can be observed through sliding door/windows leading to an outside patio/balcony. Immediately after my foot contacted the groove and I was already falling, the hostess said something to the effect that I should be careful because other people had fallen on the track.”

   

• “During the fall and immediately prior thereto, the front of my foot came in contact with the track and I fell forward.”

   

  (Declaration of Ashley Mann, ¶¶ 3, 5-6.) 

   

              Further, Plaintiff advances the Declaration of Scott Mann (Mann) who was present at the time of incident in the restaurant.  Mann avers:  “I arrived before Plaintiff and was already seated when she fell. When the hostess was walking us to the table, prior to Plaintiffs arrival, she warned us about the metal groove in the floor as we approached it.”  (Declaration of Scott Mann, ¶¶ 3-4.) 

Plaintiff also advances the deposition testimony of Christine Alexis (Alexis).  Alexis testified in part that she observed a few months before the subject incident an employee catch his foot on the metal groove in the same general area in which Plaintiff fell.  Alexis also stated in reference to the metal groove:  “From what I can see, it is raised slightly enough that, yeah, you could potentially catch your foot on there.”  (See Plaintiff’s Evidence in Opposition to Motion for Summary Judgment, Exhibit 2.) 

            In addition, Plaintiff proffers the Declaration of Mark J. Burns (Burns) who is a Senior Forensic Expert, licensed general building contractor, certified building inspector and certified accessibility inspector/plans examiner.  (Declaration of Mark J. Burns, ¶¶ 2-4.)  Burns  reviewed the following in order to craft his declaration and form his opinions:  (i) Transcripts of the depositions of Ashley Mann and Christine Alexis; (ii) Defendants’ motion for summary judgment; (iii) various codes and industry standards; and (iv) results of an inspection of the subject restaurant.  (Declaration of Mark J. Burns, ¶¶ 7-8.) 

Based upon his review of the referenced materials and his education, training and experience, Burns opines (subject to the Court’s rulings on the evidentiary objections set forth above) in pertinent part as follows:

• At Aperture's inspection, the height of the incident sliding door at the subject restaurant measured as high as 5/16 inch or (0.31 inch). According to R. Best study on Probability of Trips (true and correct copy attached hereto as Exhibit "6" as though fully set forth hereat), a 0.31-inch height differential has about a 14% chance of causing a trip and fall if unseen. If unseen, the incident sliding door is a tripping hazard.

   

• From a human factors standpoint, there are two major variables in the detection of walkway defects. Research performed in the study "Why Do We Bump Into Things" by Dov Zohar (a true and correct copy of which is attached hereto as Exhibit '7' as though fully set forth hereat) identifies perception and expectation as the main two factors that lead to bumping into objects while walking.  

   

• Photographs depicting said condition are collectively attached hereto and incorporated herein by reference as Exhibit "8" as though fully set forth hereat. The videos from Apertures inspection also show the inlay pattern parallel to the sliding door where the incident occurred at the subject restaurant (hereinafter referred to as the "incident sliding door"). Upon approach, the incident sliding door track appears the same level as the inlay pattern. Further height differentials are commonly painted a contrast and safety color, such as yellow, as to alert pedestrians. Without a high contrast color, the incident sliding door track would appear the same as the rest of the level flooring.

   

• [A]s there are no other sliding door tracks in the inside seating area of the subject restaurant. In addition, no warnings were given to Ms. Mann regarding the subject sliding door track. Further, Ms. Mann had never been to the subject restaurant before. Even employees who are familiar with the restaurant have tripped over the incident sliding door track prior to Plaintiffs incident. (See Alexis Deposition, p. 30, I. 13-p. 33, I. 5).

   

• The cost to eliminate the tripping hazard is minimal when compared to the cost of human injury. Verbal warnings and high contrast yellow safety paint could have prevented or greatly mitigated the Plaintiffs incident. As discussed, employees are readily aware of the potential to trip on the incident sliding door track. Verbal warnings about the potential to trip on the incident sliding door track should have been given to patrons on the date of incident. High contrast yellow paint is available for about $10 (product information is attached hereto and incorporated herein by reference as Exhibit "9" as though fully set forth hereat. Yellow paint would help differentiate the incident sliding 3 door track from the adjacent metal inlays in the flooring.

   

• In conclusion, my opinion is that the incident sliding door track is a tripping hazard if unseen. Verbal warnings and high contrast yellow safety paint are of minimal cost and could have prevented or greatly mitigated the Plaintiffs incident.

(Declaration of Mark J. Burns, ¶¶ 10-15.) 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Defendants and Plaintiff, and viewing said evidence in a light most favorable to Plaintiff, the Court finds that there are triable issues of material fact regarding Defendants UMFs Nos. 3 and 8  and Plaintiff’s RUMF Nos. 11, 16, 18, 27, 28, 29, 30 and 31. 

Accordingly, the Court is unable to determine as a matter of law that the alleged defect is trivial.  Apart from the size and type of the alleged defect, the Court concludes that other factors exist in which a fact finder may determine that the alleged defect is sufficiently dangerous to even a reasonably careful person.  In particular, those factors include Plaintiff being unfamiliar with the subject restaurant; Plaintiff’s view of the alleged defect being obscured; an employee of Defendants catching his foot in the same general area as the alleged defect; an employee of Defendants observing others trip on the alleged defect; and an employee of Defendants warning other patrons but not Plaintiff about the alleged defect. 

            Therefore, the Court denies Defendants’ motion for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.