2012-00135540-CU-PO

Lynn Howard vs. Kaiser Foundation Hospitals

Nature of Proceeding:      Motion for Summary Judgment

Filed By:   Harper, S. Bradford

Defendant Kaiser Foundation Hospital’s (“Kaiser”) Motion for Summary Judgment is
ruled upon as follows.

This is an action for negligence and premises liability.  Plaintiff alleges that on
November 19, 2010, she slipped and fell while walking from the parking lot to Kaiser’s
facility.  Plaintiff alleges that she slipped and fell while walking across an ADA
detectable warning surface.  The warning surface is bright yellow and consists of
raised truncated domes.

The motion for summary judgment is DENIED as Kaiser fails to satisfy its initial burden
to demonstrate that no triable issue of material fact exists.  The Court notes that
Plaintiff’s premises liability cause of action includes two counts: (1) negligence, and (2)
willful failure to warn.  Here, Kaiser only addresses the negligence count and not the
willful failure to warn counts.  While Kaiser argues in reply that Plaintiff’s complaint is
deficient as it does not include a description of any dangerous condition, Kaiser did not
demurrer to the complaint.  Thus, Kaiser conceded that Plaintiff’s allegations were
sufficient. As Kaiser has failed to address all counts in premises liability cause of
action, and has only moved for summary judgment, the motion must be denied.

Further, Kaiser’s expert on ADA compliance, Brian McCuster, CASp, only opines
regarding the installation of the ADA detectable warning surface.  Here, Plaintiff
alleges in both causes of action that Kaiser negligently “maintained, repaired and
serviced” the ADA warning strip.  (See Complaint.)  Kaiser, however, proffers no
evidence regarding the “maintenance, repair, and service” of the ADA warning strip.
“The issues raised by a motion for summary judgment are framed by the pleadings.”  (
th
Dromy v. Lukovsky (2013) 219 Cal.App.4   278, 282; see also Leek v. Cooper (2011)
194 Cal.App.4th 399, 415.)  As Kaiser fails to address these additional claims included
in Plaintiff’s complaint, the motion must be denied.

Lastly, Kaiser fails to demonstrate that it did not have prior notice of any slips/falls on
the ADA strip.  While Kaiser’s points and authorities states that “there had been no
prior falls on the ADA detectable warning strip where Ms. Howard fell” (Kaiser’s MPAs,
7:6-7), Kaiser fails to proffer evidence to support this fact.  Additionally, this fact is not
in Kaiser’s separate statement.  “If it is not set forth in the separate statement, it does
not exist.” (Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477.)

Given all of the above, Kaiser has not satisfied its initial burden, thus the burden does            not shift to Plaintiff to demonstrate a triable issue of material fact.  The Court also need
not address Kaiser’s remaining arguments.

Plaintiff’s objection to the entirety of Brian McCusker’s declaration is overruled.

Plaintiff’s objections to the portions of Brian McCusker’s declaration are sustained.

Kaiser’s objections to Plaintiff’s opposition are overruled.

The motion for summary judgment is DENIED.

Plaintiff is admonished for failing to timely serve her opposition.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(A).  Defendant’s counsel is directed to contact Plaintiff’s
counsel forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative
ruling procedure.  If Defendant’s counsel is unable to contact Plaintiff’s counsel prior to
hearing, Defendant’s counsel shall be available at the hearing, in person or by
telephone, in the event opposing party appears without following the procedures set
forth in Local Rule 1.06(A).