Judge: Nathan Vu, Case: 30-2021-01179082, Date: 2022-10-24 Tentative Ruling

Please Note: The hearing on this matter has been changed to 8:30 A.M.

Motion for Summary Judgment or Summary Adjudication

Defendant Walt Disney Parks and Resorts U.S., Inc.’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.

Defendant Walt Disney Parks and Resorts U.S., Inc. moves for summary judgment, or in the alternative, summary adjudication, as to the first and second causes of action of the Complaint filed by Plaintiff Claudia Wilson.

Plaintiff’s request for judicial notice is GRANTED, but only to establish the amount of precipitation on that day, and not whether the precipitation camouflaged any defect.

Defendant’s request for judicial notice is GRANTED.

Plaintiff’s evidentiary objections are SUSTAINED as to objection number 5. Plaintiff’s other evidentiary objections are OVERRULED.

Defendant’s evidentiary objections are SUSTAINED as to objection numbers 11, number 13 but only as to the statement “The defective conditions and failures I observed are the proximate cause of the Claudia Wilson fall and injury”, and number 17. Defendant’s other evidentiary objections are OVERRULED.

Standard for Summary Judgment and Summary Adjudication

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Civil Proc. Code, § 437c, subd. (c).)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. (Civil Proc. Code, § 437c, subd. (f)(1).)

A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Civil Proc. Code § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)

Once the moving party meets its burden, the burden shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances…, ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083-1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.)

Nonetheless, in ruling on a motion for summary judgment or summary adjudication, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp.v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.)

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

1st Cause of Action (Negligence) and 2nd Cause of Action (Premises Liability)

The elements of a cause of action for negligence and for premises liability are essentially the same: (i) the defendant owed a duty to the plaintiff; (ii) the defendant breached that duty; (iii) the breach was the proximate cause of harm to the plaintiff; and (iv) the plaintiff suffered damages. (Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998; Huggins v. Longs Drug Stores Cal., Inc. (1993) 6 Cal.4th 124, 151.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corporation (1989) 215 Cal.App.3d 1611, 1619.)

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 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; see Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

Defendant attacks both the negligence and premises liability causes of action by raising the same three issues as to each: (1) trivial defect, (2) open and obvious condition, and (3) lack of causation.

Trivial Defect – Standard

A property owner is not liable for damages caused by a trivial or minor defect at the property. (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 926.) This principle is sometimes referred to as the “trivial defect defense,” even though it is not an affirmative defense but rather an aspect of duty that a plaintiff must plead and prove. (Id. at 927.) The basic idea is that persons who maintain walkways — whether public or private — are not required to maintain them in absolutely perfect condition. (Ibid.)

“Minor defects such as [a] crack in [the plaintiff's] walkway inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable.” (Id. at 929.) “Thus, [a defendant] is not liable for this accident irrespective of the question whether he had notice of the condition.” (Ibid.) “The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388.)

While the issue of trivial or minor defect is generally a question of fact, it can sometimes be a question of law. (Caloroso v. Hathaway, supra, 122 Cal. App. 4th at pp. 388-89.) The issue becomes a question of law, properly resolved by way of summary judgment, where reasonable minds can reach only one conclusion: that there was no substantial risk of injury caused by the condition. (Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, 567.)

However, if reasonable minds might differ as to whether the condition was dangerous, or whether photographs correctly depict the alleged defect and the surrounding circumstances, summary judgment should not be granted. (See Kasparian v. AvalonBay Communities (2007) 156 Cal. App. 4th 11, 26; Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, 569.)

Trivial defect cases generally involve a surface anomaly of less than one inch. (See, e.g., Barrett v. City of Claremont (1953) 41 Cal. 2d 70, 72 [asphalt offset 1/2 inch was trivial defect]; Cadam v. Somerset Gardens Townhouse HOA, supra, 200 Cal. App .4th at p. 389 [walkway separation less than one inch was trivial defect]; Caloroso v. Hathaway, supra, 122 Cal. App. 4th at p. 927 [sidewalk crack less than 1/2 inch deep was trivial defect]; Ursino v. Big Boy Restaurants (1987) 192 Cal. App. 3d 394, 396 [raised edge 3/4 inch high was trivial defect]). “It is to be noted that when the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.)

However, although the size of the surface depression or elevation may be the most relevant factor, the court should consider other factors:

[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 criterion. 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.

(Id. at p. 734.)

For example, aside from the size of the defect, the court should consider whether other conditions of the walkway surrounding the defect obstructed a pedestrian’s view of it or concealed it, or whether the accident occurred at night in an unlighted area. (Caloroso v. Hathaway, supra, 122 Cal. App. 4th at p. 927.) Courts may also consider the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, general visibility and weather conditions, and whether there is evidence anyone else has been injured by the same defect. (See Stathoulis v. City of Montebello, supra, 164 Cal. App. 4th at pp. 566-568; Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal. App. 4th at p. 27.)

In Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, the parties stipulated to the following facts:

(1) the time of the accident was approximately 9:30 a.m.; (2) the weather was fair and dry; (3) there were no leaves, debris or other objects which blocked or concealed the defect in the sidewalk; (4) plaintiff had frequented the restaurant on an average of once a week over a period of 15 years; (5) plaintiff had at various times used defendant’s south walkway to reach the parking lot; (6) the north walkway was built in 1969; (7) the raised edge had been present between one to five years; (8) neither party knew of any similar accident occurring on the north sidewalk; (9) the edge of the cement section in question was raised no higher than three-fourths of an inch; (10) plaintiff's walking pattern was affected by her age; and (11) the 32 photographs presented to the trial court accurately depicted the sidewalk in question on the day of the accident.

(Id. at p. 396.) Under these facts, the Court of Appeal held that there were no aggravating circumstances in the stipulated facts such that “reasonable minds could not differ as to the triviality of the defect.” (Id. at 397.)

In Cadam v. Somerset Gardens Townhouse HOA, supra, 200 Cal. App .4th 383, the parties agreed that the separation was three-fourths to seven-eighths inch in depth, that the accident occurred at noon on a sunny day and photographs from the scene do not reflect a jagged separation, shadows, or debris obscuring the separation. (Id. at p. 388.) “There were no protrusions from the separation and other persons had not fallen there.” (Ibid.) “The crack in the sidewalk does not appear to be on a slant . . . .” (Ibid.) “The walkway was newly constructed and the view of the separation was not obstructed.” (Ibid.) In reviewing this evidence, the Court of Appeal held that “the walkway defect here was trivial as a matter of law.” (Ibid.)

The general rule that can be gleaned from these cases is that a trial court should not rigidly apply a strict “tape measure test,” but must consider all of the circumstances. However, where there is less than a one-inch differential in a walkway with no other aggravating circumstances, a defect may be considered trivial as a matter of law.

Trivial Defect – Moving Party’s Burden

Defendant offers the following evidence to meet its initial burden on summary judgment or summary adjudication:

• Defendant’s expert testifies that he inspected the subject area where Plaintiff fell 01/20/2022. (Def.’s Sep. Bound Documentary Evid., Tab 2, Ikram Decl., ¶ 6.)

• Defendant’s expert provided photographs he took on 01/20/2022. (Id., Tab 2, Ikram Decl., ¶¶ 6-7 & Exhs. F & G.)

• Defendant’s expert testifies that he measured the vertical height differential between the adjacent walking surfaces, which were completed with a digital level and steel ruler, and that it was less than 1/4 inch. (Id., Tab 2, Ikram Decl., ¶ 7.)

• The court’s review of those photographs shows that they are consistent with Defendant’s expert’s statements. (Id., Tab 2, Exh. G.)

These facts – that the differential in elevation or depression was less than one inch – is sufficient for Defendant to meet its initial burden that the defect was trivial and Defendant owed Plaintiff no duty as to that defect.

Trivial Defect – Nonmoving Party’s Burden

The burden, therefore, shifts to Plaintiff to offer sufficient evidence to create a triable issue of fact. Plaintiff presents the following evidence:

• Plaintiff’s expert testifies that the differential was 5/16 inch and that “near the center along the resulting gap is a chipped or spalled out depression of about 6 inches in length along the joint and about 1 ½ inches wide. (Pltf.’s Sep. Bound Documentary Evid., Tab 3, Preston Decl., ¶ 12.)

• Plaintiff’s expert testifies that the walkway is between slabs in the middle of the main parade route, which is often crowded with people. (Pltf.’s Sep. Bound Documentary Evid., Tab 3, Preston Decl., ¶ 16.)

• Plaintiff’s expert testifies that while the defect is not particularly deep and that, if it is “filled with water,” it “would be nearly invisible.” (Ibid.)

• Plaintiff’s expert testifies that the differential is in apparent violation of various industry codes and standards. (Pltf.’s Sep. Bound Documentary Evid., Tab 3, Preston Decl., ¶¶ 19-21.)

• Plaintiff testifies that the floor was wet at the time of the incident. (Pltf.’s Sep. Bound Documentary Evid., Tab 2, Wilson Decl., Exh. C at p. 35:1-3; see also Def.’s Sep. Bound Documentary Evid., Tab 2, Exh. B at C4 [picture at end of Plaintiff’s deposition transcript].)

• Plaintiff testifies that the incident occurred in the early evening, when the sun was not out and it was cloudy and rainy. (Pltf.’s Sep. Bound Documentary Evid., Tab 2, Wilson Decl., Exh. C at p. 48:10-14.)

• The court’s review of the photographs reveals that the walkway appears to be slanted (i.e., not even flat pavement). (Def.’s Sep. Bound Documentary Evid., Tab 2, Exh. G).

Defendant argues in its reply that Plaintiff’s expert contradicted himself in his deposition, that precipitation alone is not sufficient to absolutely establish that the condition was concealed, and that there is no direct testimony that the defect was camouflaged. However, these arguments go to the credibility and weight of Plaintiff’s evidence, and not whether or not it creates a triable issue of fact.

Plaintiff has offered evidence of factors other than the elevation or depression differential – that it was evening, the sun was not out, the weather was cloudy and rainy, that water could have concealed the defect, and uneven pavement). While it is a close decision, the court cannot find as a matter of law that the defect was trivial or minor.

While Defendant may be correct that a jury would weigh these facts and likely find that the defect was not dangerous, that is not sufficient to show to grant summary judgment. There is a triable, material issue of fact here that must be decided by the jury.

Open and Obvious

“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) “‘[I]f the 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 unless harm was foreseeable despite the obvious nature of the danger.’” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

“[A] possessor of land has no duty toward persons who come upon the land to change the method of his operations which are carried on so openly as to be obvious to all observers.” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 28.) The owner of the land is entitled to assume others will take action to avoid any obvious dangers. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.)

However, a determination that a condition is open and obvious does not automatically absolve a defendant of liability given that the owner of a premises may still have a duty to remedy a dangerous condition. (See Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal. App. 4th 1179, 1184.) The duty to remedy a condition comes into play if the dangerous condition is foreseeable. Foreseeability is a necessary factor when determining whether the defendant was required to remedy an open and obvious condition. (See Osborn v. Mission Ready Mix (1990) 224 Cal. App. 3d 104, 121.)

Here, it is Defendant’s expert’s testimony that the elevation or depression differential of the defect in the walkway was less than 1/4 inch. Such a small defect would not appear to be “open and obvious” and there is no other evidence to establish that it was. Thus, Defendant has not met its initial burden on summary judgment or summary adjudication as to this issue.

Even if Defendant had met its burden, however, Plaintiff has offered sufficient evidence to create a triable issue of fact. As explained above, Plaintiff and Plaintiff’s expert testify that there were conditions that could have concealed the defect — namely, that the accident occurred in the evening when the sun was not out, and that the conditions were “wet” and that water might have concealed the defect. Triable issues of fact, therefore, exist on whether or not the defect was “open and obvious.”

Lack of Causation

Defendant argues that Plaintiff cannot establish causation because Plaintiff testified in deposition that she was not sure what caused her fall. Defendant cites to Buehler v. Alpha Beta Company (1990) 224 Cal.App.3d 729, arguing that conjecture, speculation, and the “mere possibility” of causation is not enough.

In Buehler v. Alpha Beta Company, the trial court granted summary judgment based on the following facts:

[Plaintiff’s] deposition testimony indicated the absence of a slippery or otherwise defective condition. There was no foreign debris of any type on the floor prior to appellant's fall. Appellant had no idea as to what caused her to fall. Appellant candidly admitted that just prior to the fall she had not slipped or had any difficulty keeping her footing. An unbiased witness who saw appellant fall and was only five feet from her when she fell specifically stated that she did not find the floor slippery.

(Buehler v. Alpha Beta Company, supra, 224 Cal.App.3d at p. 734.)

The Court of Appeal affirmed, holding that “[c]onjecture that the floor might have been too slippery at the location where appellant happened to fall is mere speculation which is legally insufficient to defeat a summary judgment.” (Ibid.) Based on these facts, “all appellant can argue is that she slipped and fell” and that “[s]he lost her balance for some unknown reason.” (Ibid.) The court noted that, plaintiff “did not see anything on the floor which caused her to slip and fall and did not know what caused her to slip.” (Ibid.) In such a situation, “[n]egligence is never presumed.” (Ibid.)

Defendant points to the portion of Plaintiff’s deposition testimony in which Plaintiff testified that she did not have personal information on exactly what she tripped on because she was looking forward. (Def.’s Sep. Bound Documentary Evid., Tab 1, Exh. B at 38:7-15; 40:21-24, & 48:7-9.)

Plaintiff’s testimony is sufficient for Defendant to meet its initial burden. (Cf. Buehler v. Alpha Beta Company, supra, 224 Cal.App.3d at p. 733 [“[W]e find that respondent met its burden of proof on summary judgment through appellant's own deposition testimony . . . that the floor was not slippery.”]).

The burden then shifts to Plaintiff to offer sufficient evidence to create a triable issue of fact. Plaintiff points to the following evidence:

• While Plaintiff did not see what she tripped over, it is undisputed that Plaintiff stubbed her toe when she fell. (Pltf.’s Separate Statement in Opp’n to Def.’s Separate Statement of Undisputed Material Facts, No. 6.)

• After Plaintiff’s fall, Plaintiff’s grandson found Plaintiff laying on the ground within a foot of the defect in the walkway. (Pltf.’s Separate Statement in Opp’n to Def.’s Separate Statement of Undisputed Material Facts, No. 7.)

• Plaintiff’s expert testified that a differential of elevation or depression greater than 1/4 inch has been recognized to be enough to catch a foot or shoe and cause a fall. (Pltf.’s Sep. Bound Documentary Evid., Tab 3, Preston Decl., ¶¶ 18-19).

The court finds that, after reviewing the evidence in a light most favorable to Plaintiff, sufficient evidence exists to create a triable issue of fact regarding causation. While the question is again a close one, summary judgment or summary adjudication is not appropriate.

Plaintiff shall give notice of this ruling.