Judge Ralph C. Hofer, Case Number: 23BBCV01766, Date: 2025-06-06 Tentative Ruling

Plaintiff Kristel Crews alleges that in October of 2022 plaintiff was walking her dog in the front entrance area of an apartment building of defendants Essex Property Trust and Emerson Vally Village Apartments, plaintiff slipped and fell on wet tile where a cleaning lady had recently mopped the area, as a result of which plaintiff sustained injuries. The complaint alleges that there were no signs or cones to warn of the slippery ground, and that defendants negligently, carelessly or unlawfully caused a dangerous condition to exist.

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Here, there are no issues stated, or specific causes of action, defenses or claims stated in either the notice of motion or the separate statement. Plaintiff in opposition has objected on this ground and is unable to respond to any motion for summary adjudication without the proper notice.

It is held that when the notice of motion seeks only summary judgment, the presence of any triable issue requires denial of the motion; a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498. Where only certain claims or defenses are raised, the court has no power to adjudicate others. Maryland Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.

This conclusion results in a posture for this motion that the motion must be denied if as to any one of the two causes of action defendant has failed to establish entitlement to summary judgment or triable issues of fact are raised with respect to either of the causes of action pending in the complaint. The motion for summary adjudication for anything less than the entire complaint will not be considered by the court.

Under CCP § 437c(p)(2) a defendant “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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.”

Defendants Essex Management Corporation and Essex Portfolio, L.P. seek to establish that plaintiff’s causes of action fail because plaintiffs will be unable to establish an essential element of those causes of action, that defendants breached their duty of care, or had a duty of care, and also argue that the alleged dangerous condition was open and obvious or trivial. The last two arguments appear to be arguments that defendants either owed no duty of care or can establish a complete defense to the negligence and premises liability causes of action.

The Second District recognizes that “A defendant moving for summary judgment based on an affirmative defense must present evidence that supports each element of its affirmative defense, which would also be its burden at trial.” Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292-1293, italics in original, citation omitted.

A premises liability cause of action will lie where the following elements are established: Defendant owned, leased, occupied or controlled the property; defendant was negligent in the use or maintenance of the property, plaintiff was harmed, and defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI 1000.

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Accordingly, it is recognized that every landowner has a duty to maintain property in his possession or control in a reasonably safe condition. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, n.5).

It is held that the issues of due care (a negligent act), and proximate cause in a negligence case ordinarily present questions of fact for the jury. 6 Witkin, Summary of Cal. Law (11th Ed. 2023) Torts 996, 1333, citing Wahlgren v. Market Street Ry Co. (1901) 132 Cal. 656, 663; Fennessey v. Pacific Gas & Elec. Co. (1942) 20 Cal.2d 141, 144. Accordingly, defendants are entitled to a finding on summary judgment as a matter of law only if “the facts of the case permit only one reasonable conclusion.” Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354.

Defendants argue that under California case law, a property owner has no duty to warn when a condition is so obvious that a person reasonably could be expected to see it and the condition itself serves as a warning. Defendants argue that plaintiff cannot establish that defendants owed her a duty to warn of the purportedly dangerous condition that caused her accident and injuries because the condition, water on the walkway, which was being actively mopped, was so open and obvious.

Defendants argue that the evidence here shows that plaintiff admits having seen the housekeeper standing in the area with a mop and bucket before she fell and indicated that she had observed that the right pathway was wet, recognizing and observing that the outside area was wet. [Muench Decl., Ex. B, Crews Depo., pp. 29, 40]. Defendants argue that the housekeeper, Sandra Martinez, has established that she placed two “WET FLOOR” signs down on the floor near where plaintiff fell, to warn residents that the floor was wet, consisting of standard bright yellow signs “that have typically been seen in any establishment.” [UMF Nos. 4, 5, 6, and evidence cited, Martinez Decl., paras. 2-4]. The argument appears to be that since plaintiff saw Martinez mopping, recognized that some part of the floor was wet, and would have seen the signs, the condition was open and obvious, negating any duty as a matter of law.

Defendants argue that “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

Defendants rely primarily on Nicoletti v. Kest (2023) 97 Cal.App.5th 140, in which the court of appeal affirmed a trial court order granting a motion for summary judgment entered in favor of a landlord where a resident was injured while walking her neighbor’s dog, when plaintiff had observed that it was raining that day with thunderstorms, and before crossing the driveway to an underground parking lot observed that the driveway was wet, and rainwater formed a current that was running down the driveway. Plaintiff proceeded to cross the driveway, and the rainwater current knocked her down.

The court noted that in that case plaintiff conceded she was aware it was raining and the driveway was wet with rainwater, and the court observed that, “Not only does the water current make the surface slippery, but also a reasonable person would observe that running water could create a force that would cause someone to fall over.” Nicoletti, at 146. The court of appeal also noted that wetness on a “slanting incline such as a driveway,” does not provide a safe footing. Nicoletti, at 146. The court of appeal concluded that the condition was open and obvious to plaintiff and defendant had no duty to warn.

Plaintiff in opposition argues that the open and obvious doctrine is of narrow application, and cites to Martinez v. Chippewa Enterprises (2004) 121 Cal.App.4th 1179, in which the Second District has observed that while a finding that a condition was “open and obvious” may negate the existence of a duty to warn of a dangerous condition, it does not necessarily negate a duty to actually remedy the condition. In Martinez, the Second District reversed the trial court’s granting of summary judgment in favor of a landowner where it was alleged that a pedestrian had slipped on wet pavement. The Second District found that the trial court had correctly ruled that the dangerous condition encountered where plaintiff had fallen was “open and obvious,” as defendant’s photographs of the area had prima facie established the obviousness of the wet condition, and plaintiff had admitted to having seen the wetness before stepping on it and did not dispute its obviousness. The Second District found, however, that such a finding did not “warrant relieving defendant of all the legal burden of the situation.” Martinez, at 1186.

“However, that the hazard was open and obvious did not relieve defendant of all possible duty, or breach of duty, with respect to it. In the trial court and again here, defendant argued only that the obvious appearance of the wet pavement excused defendant from a duty to warn of it. That was most likely so. But the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it. The modern and controlling law on this subject is that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability … .” (Osborn v. Mission Ready Mix (1990) 224 Cal. App. 3d 104, 122 [273 Cal. Rptr. 457]; see id. at p. 121; Beauchamp v. Los Gatos Golf Course (1969) 273 Cal. App. 2d 20, 33 [77 Cal. Rptr. 914].)

The court's analysis therefore was incomplete and led to a premature conclusion of no duty and therefore no liability. The palpable appearance of the wetness may itself have provided a warning of the slippery condition, excusing defendant from having to do so. But it may yet have been predictable that despite that constructive warning, the wet pavement would still attract pedestrian use. For example, the pavement appears to have provided a principal if not sole access way from the street to defendant's building, which housed a government office serving the public. In these circumstances—which the evidence did not negate but supported—defendant may have been charged with a duty of relieving the dangerous condition. Whether such a duty existed depends upon a number of as yet unresolved factors, such as the foreseeability of harm, defendant's advance knowledge vel non of the dangerous condition, and the burden of discharging the duty. (See Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561].) The facts presented on the motion for summary judgment, some of them in direct conflict (e.g., the source of the water), did not permit resolution of this question of duty in defendant's favor.”

Here, there is not even a clear showing that plaintiff saw the water on the subject walkway, as was the case in Nicoletti, as plaintiff’s deposition testimony submitted explains that plaintiff recognized that the pathway to the right was wet, so she did not take that path, but observed that the left walkway was dry, so that was why she went that way, and points out in a photograph of that path that at its beginning the left pathway was dry. [UMF No. 11, and evidence cited; Muench Decl., p. 3: 3-11; Ex. B.; Crews Depo., pp. 29-30, 41-43, Photos 4 and 5]. Counsel’s declaration recognizes that this was plaintiff’s testimony. [Muench Decl., p. 3:3-11]. This showing appears to support a competing reasonable inference that the walkway was not visibly wet when plaintiff chose that path, and that plaintiff assumed any mopping, to the extent it had been done, had been done on the other pathway.

“(c) The motion for 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”

It is held that in ruling on a motion for summary judgment, pursuant to this subdivision, the court “must view such evidence and such inferences in the light most favorable to the opposing party.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, internal citations omitted.

It is also held that under this subdivision, the trial court may not weigh the evidence or inferences. Aguilar, at 856 (“Aguilar also claims that the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact. We agree here as well.”)

The evidence submitted with the moving papers also supports a competing reasonable inference with respect to the fact defendants repeatedly rely on that the walkway was being mopped at that location at the time of the slip and fall, as the deposition testimony of plaintiff indicates that plaintiff saw Sandra the housekeeper “standing there with a mop and bucket, and she was texting. She was on her phone.” [Muench Decl., Ex. B, Crews Depo., p. 29].

Defendants also rely heavily on their purported fact that there were warning signs placed at the location, supporting the obviousness of the condition, but the evidence submitted also includes a declaration from Sandra Martinez, the person mopping, who concedes that “The two (2) ‘WET FLOOR’ signs are not in view of the surveillance video due to the angle of the camera, but they were there.” [UMF No. 6, and evidence cited, Martinez Decl., para 4]. The concession in the declaration that there were no signs visible in the video supports a competing reasonable inference that the signs were not placed or visible at the time, itself raising triable issues of material fact. The opposition further points out that there are no facts set forth in the Martinez Declaration establishing any expertise on the part of that witness with respect to camera angles for purposes of evaluating the surveillance video.

It should also be noted that the surveillance video itself, as opposed to certain photos captured from it and presented in the deposition exhibits and the Martinez Declaration, has not been appropriately filed with the court. The Notice of Lodgment of Exhibits indicates the video is attached as Exhibit E. The tab for Exhibit E states, “Surveillance Video Mailed to the Court on a Flash Drive.” The video was evidently never filed with the court on eCourt to be included in the public record and made available to opposing parties. This method is improper. The court also has no record of the receipt of a mailed flash drive, which, without proper filing and service, could constitute an improper ex parte communication with the court. The surveillance video itself accordingly has not been considered by the court.

Overall, the initial showing fails to establish any concessions of any critical fact but includes facts raising competing inferences as to the existence of those facts. Moreover, the moving papers fail to negate the existence of a duty with respect to the condition of the walkway on theories other than failure to warn. Instead, defendants rely heavily on the existence of two warning signs fulfilling any duty to warn and addressing the existence of any alleged dangerous condition. As set forth above, there remain triable issues with respect to whether those signs were placed at the time.

Even if the burden had shifted, this is not a case where plaintiff has conceded that she observed and recognized before proceeding that the path she chose was wet at all, let alone covered in rain with water observably traveling on a downward slope, as was the case in Nicoletti. Plaintiff in opposition has submitted declarations from both herself and her son (the caption pages are incorrect). Plaintiff testifies:

“5. When we first walked outside, right outside the front entrance doors, I noticed the building housekeeper Sandra Martinez was standing very close to the front entrance doors and she was talking on her cell phone. I said hello to Sandra, but she did not respond to me at all.

Plaintiff also states, consistent with her deposition testimony, that she did not observe water on the left walkway, but only after she fell “noticed for the first time that the tile walkway was wet in the area” where she had fallen. [Crews Decl., para. 13, See Additional Facts No. 29].

Plaintiff also clarifies that the area of the tile walkway where she fell was approximately 25-30 feet from the front entrance doors and from where Sandra Martinez was standing and talking on her phone. [Crews Decl., paras. 15, 16, Additional Facts No. 26]. This showing supports an inference that it would not be open and obvious that the subject portion of the walkway had been recently mopped.

The declaration of the son, Evan Crews Rodriguez, who is now seventeen years old, also indicates that when they exited the building Sandra Martinez was not mopping, but talking on her cellphone, and that he does not think Martinez was even holding a mop at the time. [Rodriguez Decl., paras. 1, 5, 6]. He also testifies that Martinez never said anything about a wet floor or having just mopped and he did not see any signs or yellow cones. [Rodriguez Decl., paras. 7-11]. He indicates that after his mother fell and while checking on her, he also “noticed for the first time that the tile walkway was wet in the area where” she fell and that “some of her clothing was wet.” [Rodriguez Decl., para. 13]. He also confirms the relative positions of the fall, the lobby and the location of Martinez. [Rodriguez Decl., paras. 15, 16].

Defendants make a vague argument that the facts of this case support a finding that plaintiff was contributorily negligent here, as it appears that plaintiff was distracted by her dog and the school where she was headed, and was also holding her keys and the leash of her dog, and wearing a pair of flip flops which were very worn with little traction. As argued in the opposition, the authority relied upon, Blodgett v. B. H. Dyas Co. (1935) 4 Cal.2d 511, predates the adoption of comparative negligence in California, and it is also now recognized that the issue of whether a condition was open and obvious and thereby suggested the absence of a duty to warn, the analysis is no longer a strictly legal one of determining duty, but involves the largely factual foreseeability analysis. In Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, mentioned in the opposition papers, and quoted by the court of appeal in Krongos, relied upon by defendants, the court of appeal distinguished previous case law which had not conducted a foreseeability analysis, and concluded:

"Under Rowland v. Christian, supra, we are impelled to conclude that the obvious nature of the risk, danger or defect under (1) supra, can no longer be said per se to abridge the invitation given by the possessor of land, or to derogate his duty of care, so as to make his liability solely a matter of law to be determined on a nonsuit. By that decision, this matter of law for the court is transmuted to a question of fact for the jury; namely, whether a possessor of land even in respect to the obvious risk has acted reasonably in respect to the probability of injury to an invitee; and whether or not the invitee used the property reasonably in full knowledge of any obvious risk entering into a subsequent injurious incident. [Citations.]”

“The unspoken but operative principle [in previous case law] is foreseeability: it is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger. The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger (see Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 308, fn. 5 [191 Cal.Rptr. 704]), may lead to the legal conclusion that the defendant "owes a duty of care 'to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.'" ( Id. at pp. 307-308, quoting Rodriquez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 399 [115 Cal.Rptr. 765, 525 P.2d 669].)”

Plaintiff argues that here, her conduct suggests that she appreciated the danger of walking on wet pavement, which she chose to avoid, taking the dry path, with no warning signs, and by the time encountering the water 25 to 30 feet from where Martinez was standing, had chosen the dry path and of practical necessity and pursuant to a condition which was essentially a trap for the unwary, had stayed on that path. Plaintiff argues that any foreseeability analysis or determination of comparative fault must be conducted based on factual and credibility findings. The motion on this theory also is denied.

Defendants also argue that the dangerous condition here is trivial, minor and insignificant and does not constitute a dangerous condition as a matter of law. This argument appears to take a somewhat inconsistent position, as defendants have previously argued that the defect was so open and obvious that a reasonable person encountering it would have recognized the risk and not assumed the risk of proceeding in the face of it.

Defendants for their argument rely mostly on case law involving public entities, not private landowners. Indeed, the legal analysis of the existence of a trivial defect now ordinarily arises in cases involving public entities, based on Government Code § 830.2, pertaining to claims against such entities for dangerous condition of public property, which is cited by defendants and provides, in pertinent part:

“A condition is not a dangerous condition...if the trial...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 manner in which it was reasonably foreseeable that it would be used.”

This case is not a situation where Government Code section strictly 830.2 applies, as there is no public entity involved. While the analysis has been applied in cases involving private parties, the analysis requires a consideration of various circumstances, including at the outset the nature of the alleged defect. Defendants cite to Calorosa v. Hathaway (2004) 122 Cal.App.4th 922, in which the court of appeals affirmed the trial court’s finding that a sidewalk crack with an elevation difference of up to .04 or seven-sixteenths of an inch was trivial as a matter of law.

“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. Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.”

In Calorosa, the other circumstances included the claim that the crack was irregularly shaped, and that a dappling effect of bright sunlight through nearby trees made the crack difficult to see. The court of appeal affirmed that these largely immaterial factors, together with the fact that the crack differential measured less than one inch, justified the resolution of the issue of dangerous condition as a matter of law, as the evidence did not “support the conclusion that reasonable minds could differ regarding whether the risk of injury was trivial.”

Defendants here argue that a wet mopped floor, which was not puddles, and was apparent to any reasonable person is a trivial and minor defect on the property. Defendant argues that the mopped floor that had two large warning signs and a person actively mopping alongside a large yellow bucket carrying a large mop is a trivial, minor, insignificant defect in the property such that defendants should not be held liable for it.

This situation is not a case where defendants have described the physical characteristics of the alleged slippery tile walkway, to permit an analysis of its dangerousness. As argued in the opposition, defendants here have acknowledged in their moving papers that a wet floor can be a dangerous condition, and that the posting of signs here was to warn of a danger. [See UMF Nos. 4-6, and evidence cited, Martinez Decl., paras. 2-4]. Defendants have also relied on case law in which it is observed that reasonable persons are aware that wet surfaces can be slippery and do not provide safe footing. Nicoletti, at 146.

In any case, as set forth above, there are competing reasonable inferences concerning the foundational facts upon which the argument relies, including whether the floor was being actively mopped, and whether the signage relied upon for defendants’ argument actually had been placed at all, or in the appropriate area to prevent the harm. [See Additional Facts Nos. 19, 21-24, and evidence cited, Crews Decl., paras. 5, 6, 8, 10, 11; Rodriguez Decl., paras. 1, 5, 6-11]. The defect relied upon, a wet area of a sidewalk, which was wet due to the activity of defendants, and wet enough to cause plaintiff’s clothing to become wet, and left in that unsafe condition without warnings, does not appear to be the type of defect which would be considered trivial as a matter of law. Triable issues of fact remain. The motion on this ground also is denied.

The notice of motion and separate statement do not set forth any issues to be summarily adjudicated, in violation of CRC Rule 3.1350(b) (“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”).

Defendants have failed to meet their initial burden supporting any of their arguments, which are based on defendants’ argument that the evidence here shows that plaintiff admits having seen the housekeeper standing in the area with a mop and bucket before she fell, and indicated that she had observed that the right pathway was wet, recognizing and observing that the outside area was wet, and that the housekeeper, Sandra Martinez, has established that she placed two “WET FLOOR” signs down on the floor near where plaintiff fell, to warn residents that the floor was wet and to exercise caution. However, the evidence submitted with the moving papers does not so establish, and the evidence includes evidence which would support competing reasonable inferences plaintiff did not see a wet area along the path she chose, which was dry at the top, that the housekeeper was not mopping in the area when plaintiff saw her, and that the signs were not placed as represented. [UMF No. 11, and evidence cited; Muench Decl., p. 3: 3-11; Ex. B.; Crews Depo., pp. 29-30, 41-43, Photos 4 and 5]. Sandra Martinez, concedes in her declaration that, in fact, the “The two (2) ‘WET FLOOR’ signs are not in view of the surveillance video due to the angle of the camera…” [UMF No. 6, and evidence cited, Martinez Decl., para 4].

The moving evidence gives rise to competing reasonable inferences concerning the circumstances surrounding the incident and the nature of any knowledge and defect, so that defendants have failed to establish that the defect was open and obvious, or trivial, or that defendants satisfied their duties to plaintiff. Under CCP § 437c(c) (‘summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”)

The Court has not considered or viewed the surveillance video referenced, other than the photographs submitted, because that video has not been properly filed with the Court, but the Court does not expect the outcome of the motion would change, given defendants’ admission that the video does not show any warning signs or cones, or evidently dispute plaintiff’s account concerning her choice between the right and left pathways.

In addition, even if the initial burden had been met, plaintiff in opposition has raised triable issues of material fact with respect to the circumstances and facts as represented by defendants, as plaintiff and her son, who witnessed the accident, have clearly testified that they witnessed no mopping, that the water on the path taken was not observed until after the fall, and that there were no signs, cones or warnings observed or observable on the premises. [Additional Facts Nos. 19, 20-24, 26, 29 and evidence cited, Crews Decl., paras. 5-8, 10, 12, 15, 16; Rodriguez Decl., paras. 1, 5-11, 13, 15, 16]. This evidence is sufficient, if credited by the trier of fact, to defeat any argument that the condition was open and obvious, trivial as a matter of law, or that the action is completely barred by any contributory negligence on the part of plaintiff, or on any other theory offered by defendants in the moving papers. The motion is denied in its entirety.

Objections with respect to the surveillance video—the court has considered the testimony only as it is referring to photographs included in the declaration itself, the court noting that some descriptions are not reflected in those photographs. [Martinez Decl., paras. 5, 6, 7, 8]. Objections to authentication of the surveillance video are MOOT in light of the failure to properly submit the video for consideration, as noted above. Remaining objections are OVERRULED, as pertaining to the weight of the testimony, not its admissibility,

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