Case Number: BC649670 Hearing Date: May 24, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Collette Tremain,

Plaintiff,

v.

Stein Mart, Inc., et al.,

Defendants.

Case No.: BC649670

Hearing Date: May 24, 2018

[TENTATIVE] order RE:

DEFENDANT’s motion for summary judgment

BACKGROUND

Plaintiff Collette Tremaine (“Plaintiff”) alleges that on February 10, 2015, Plaintiff suffered personal injuries when she tripped and fell on uneven floor tiles on the property owned or operated by defendant Stein Mart, Inc. dba Stein Mart (“Defendant”).

Plaintiff filed this action on February 7, 2017, alleging a cause of action for Negligence.

Defendant moves for summary judgment on the negligence claim. Plaintiff opposes, and Defendant has replied.

Evidence

Plaintiff’s Objections to Defendant’s Evidence

Plaintiff makes several objections to the Declaration of Molly Sheehan.

· Objection 1: Overruled as to all objections. Each of Plaintiff’s arguments relate to the weight of Sheehan’s testimony rather than the admissibility. Plaintiff contends that Sheehan’s declaration is filled with speculation because the declaration contradicts Sheehan’s testimony at deposition. However, mere contradiction is not a sufficient basis to deem a piece of testimony inadmissible. In Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451, the Court of Appeal stated: “In determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party.” While a court may take the contradiction into account when determining whether a party has met its burden, contradiction is not grounds for inadmissibility. Plaintiff also argues that Sheehan is incompetent. Nothing in the record supports such a finding. Sheehan states in her declaration that she would competently testify if she was called as a witness. Further, Plaintiff offers no evidence or support to show that Sheehan is incompetent to testify before the Court.

· Objection 2: Overruled. Plaintiff contends that Sheehan cannot correctly authenticate or identify the photographs attached as Exhibit 2. However, Plaintiff’s contention is based on a contradiction between the declaration and Sheehan’s testimony at deposition. These contradictions do not render the photographs inadmissible. Further all that need be established for a picture to be admissible is “the introduction of evidence sufficient to sustain a finding that it is the writing[[1]] that the proponent of the evidence claims it is.” (Evid. Code § 1400, subd. (a).) Here, Sheehan states that she was present shortly after the fall and that the photograph accurately depicts the condition of the area at the time of the incident. This evidence is sufficient to authenticate the photographs marked as Exhibit 2.

· Objections 3 and 4: Overruled. Plaintiff’s arguments again relate to the weight of the testimony — not the admissibility. Mere contradiction does not render a piece of testimony inadmissible.

Defendant’s Objections to Plaintiff’s Evidence

Defendant objects to paragraph 6 of the Declaration of Ronald Tremain: Sustained. The testimony is inadmissible as hearsay evidence. Tremain is repeating information told to him by his sister-in-law. The testimony is also inadmissible as a subsequent remedial measure under Evidence Code § 1151. Even if the Court overruled the objection, it would not affect the Court’s analysis below.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

DISCUSSION

Plaintiff alleges in the complaint that she was injured while she was traversing an aisle in Defendant’s store. (Compl., at ¶ 11.) Plaintiff was walking with clothes draped over her arms when she tripped and fell due to an uneven, tile floor. (Ibid.)

The elements of a premises liability claim and a negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Defendant moves for summary judgment on the ground that any defect was trivial as a matter of law and thus cannot give rise to a duty on the part of Defendant.

“It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990.) Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. The ‘trivial defect defense’ is available to private, nongovernmental landowners.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) While most cases involving trivial defects relate to sidewalks, the triviality of a defect has also been applied to flooring conditions inside a building. (See Graves v. Roman (1952) 113 Cal.App.2d 584, 585 [holding that a height differential of one-eighth of an inch between linoleum pieces was a trivial defect as a matter of law].)

In determining whether a defect is trivial, “[w]here 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 p. 929.) In determining whether a defect is trivial as a matter of law, the court first “reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567–568.)

To meet its burden, Defendant submits the declaration of Molly Sheehan to show the height of the defect. Sheehan states “My estimate of the height differential between the tiles was approximately ¼ inch.” (Sheehan Decl., at ¶ 3 [emphasis added].) Sheehan also declares that the area of the fall was “well lit by the store’s overhead lighting,” and no displays or merchandise blocked the area or created any shadows over the area where plaintiff fell. (Id. at ¶ 4.)

The Court finds that Defendant has failed to meet its burden to show that the defect was trivial as a matter of law. While Defendant does present some evidence as to the conditions present during the fall, such as the lighting and possible obstructions, Defendant fails to produce sufficient evidence as to the height of the defect. The only evidence provided regarding the height differential of the alleged defect is an estimate by Sheehan. Nothing in Sheehan’s declaration suggests that she has expertise or training in the estimation of height differentials. Moreover, Sheehan gives no indication how she arrived at her estimate, for example, whether she used a ruler or other tool to measure the height differential or whether she simply looked at the defective flooring and from what distance she made these observations. Thus, Sheehan’s estimate by itself is insufficient to show that the height differential was trivial as a matter of law.

Even if this evidence were sufficient to meet the Defendant’s burden, Plaintiff has provided sufficient evidence to both (1) call into question the evidence Defendant offers, and (2) to create a triable issue of material fact. Plaintiff offers the deposition testimony of Sheehan which contradicts the statements made by Sheehan in her declaration. At her deposition, Sheehan testified that she did not measure the height differential of the tiles. (Pl. Exh. B, Sheehan Depo, at pg. 35:9-12.) Sheehan also testified that she examined the lighting on the day of the incident and does not know where the overhead lights were located in relation to Plaintiff’s fall. (Pl. Exh. D., Sheehan Depo, at pg. 97:23-99:9.) Plaintiff also presents evidence that Defendant’s General Manager advised the Manger of Store Design and Construction, approximately one week before the incident, that several tiles needed to be replaced because they were a “trip hazard.” (Pl. Exh. A.)

Generally, a trial court must not weigh the credibility of the evidence on a motion for summary judgment. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 880.) However, “[i]n determining whether any triable issue of material fact exists, the trial court may, in its discretion, give great weight to admissions made in deposition and disregard contradictory and self-serving affidavits of the party.” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.) The deposition testimony of Sheehan presents contradictions with her declaration. These contradictions show that Sheehan’s self-serving declaration may be given less weight than her testimony at deposition. At the very least, these contradictions, in conjunction with the evidence from the store manager, establish the existence of a triable issue of material fact as to the danger of the differential and whether that defect was trivial. As such, Plaintiff has met her burden to show a triable issue of material fact.

According, Defendant’s motion for summary judgment is denied.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied.

All parties should note that the hearing on this motion will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

Defendant is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: May 24, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] A photograph is contained within the definition of a “writing” under Evidence Code § 250.