Case Number: EC059403    Hearing Date: September 05, 2014    Dept: B

19. EC059403
MAHNAZ SADANIAN vs TARGET DEPARTMENT STORE
Motion for Summary Judgment
Trial Setting Conference

The Complaint alleges that the Plaintiff suffered personal injuries on the Defendant’s premises when her hand struck a price tag and was cut. There are two causes of action in the Complaint: 1) Premises Liability and 2) Negligence.

This hearing concerns the Defendant’s motion for summary judgment. The Plaintiff’s Complaint pleads two causes of action against the Defendant. The first cause of action for negligence and the second cause of action for premises liability are both based on the tort theory of negligence and have the following essential elements:

1) duty,
2) breach of that duty,
3) causation, and
4) damages.
Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472, 480.

Under CCP section 437c, the Defendant’s burden of proof to obtain summary judgment is to demonstrate that the Plaintiff cannot establish an essential element of her first and second causes of action. The Defendant argues that the Plaintiff cannot establish the element of breach of duty because the price tag that allegedly injured the Plaintiff was not a dangerous condition. In addition, the Defendant argues that the Plaintiff cannot establish that the price tag caused the Plaintiff’s alleged injuries.

An initial issue is that the Plaintiff claims that she did not receive proper notice of this motion. The Defendant served the Plaintiff’s attorney, Isaac Toveg, by hand delivering the motion to him at 3166 Cadet Ct., Los Angeles, CA 90068 on April 5, 2014 (see copy of proof of service in exhibit A to reply papers). This satisfies the requirements of CCP section 437c because the Defendant served the motion 75 days before the hearing.
Further, under California law, the Court may treat an opposition on the merits as a waiver of a defect in notice. Alliance Bank v. Murray (1984) 161 Cal. App. 3d 1, 7. Here, the Plaintiff’s opposition papers include arguments directed at the merits of the Defendant’s motion for summary judgment. Since the Plaintiff’s opposition papers include arguments on the merits, the Court considers the Plaintiff to have waived any defect in the notice and issue a ruling on the merits.

1. Breach of Duty
Under California law, a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (finding that a sidewalk crack less than one-half inch in depth was a trivial defect). The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398. Further, what constitutes a minor defect may be a question of law. Id. at 397. The issue of whether a defect is dangerous may be resolved as a question of law if reasonable minds can come to but one conclusion. Chowdhury v. City of Los Angeles (1995) 38 Cal App 4th 1187, 1194.
The Defendant provides the following evidence in its Separate Statement of Facts (“SSF”):

1) the Plaintiff was pushing a shopping cart and suffered an injury when a price sign cut into the fifth finger (SSF 1);
2) photographs of the price sign that were taken by the Plaintiff 5 to 7 minutes after the incident are in exhibit A to the Defendant’s Compendium of Evidence (SSF 7);
3) the Defendant’s expert, Mack Quan, tested an exemplar of the price tag that was similar to the price tag at issue with the following differences: it is slightly shorter in width, does not requires rings to be attached to the shelves, and is made of plastic with returned corners(SSF 8 to 9); and
4) Mack Quan determined from the tests that the edges of the price tag are not sharp (SSF 10 and 11).

The Defendant did not have the price tag at issue tested. Further, the Defendant did not provide a photograph of the price tag tested by Mack Quan to permit a comparison to the price tags in the photographs taken by the Plaintiff. Indeed Mr.Quan does not indicate in his declaration any knowledge that the tag he tested was not the tag in place at the time of the incident. As a result, there is no way to conclude that he would have reached the same conclusions- that the tag was not a dangerous condition and that the accident could not have occurred in the manner described by Plaintiff.
This omission of evidence is fatal to Defendant’s motion for summary judgment.

A review of the photographs taken by the Plaintiff reveals that the price tag at issue was attached to a display of shoes for purchase. The price tag appears to consist of a clear, plastic sleeve into which the price tag was slid. The Defendant’s evidence in the opinions of Mack Quan indicates that a similar price sign was not dangerous because it did not include sharp edges that could cut a person’s skin. There is no evidence that the sharpness of the tag tested by Mr. Quan is the same as the tag involved in the incident.

Accordingly, the Defendant has not met its burden of proof.

Arguendo, if Defendant met its burden of proof, then under CCP section 437c, the burden of producing facts showing a question of fact is shifted to the Plaintiff.

The Plaintiff meets her burden because she offers facts creating a question of fact with Mack Quan’s opinion that the edges of the price tag were not sharp. First, the Plaintiff, Mahnaz Sadania, offered facts in her declaration. Ms. Sadania states in paragraph 3 that her fifth finger was cut by the price tag sign and was bleeding. This is sufficient to create a question of fact whether the price tag had a sharp edge that was a dangerous condition.
Further, the Plaintiff’s attorney, Isaac Toveg, who is the Plaintiff’s husband, was with the Plaintiff when she was injured. Mr. Toveg states in paragraph 3 of his declaration that the plastic price tag caused injuries to the Plaintiff when it came into contact with the Plaintiff’s fifth finger of her right hand. Mr. Toveg states that the price tag and its attachments extended more than six inches into the aisle. Further, Mr. Toveg states in paragraph 11 that he felt the plastic tag and felt that it had sharp, flat edges. Mr. Toveg states that the present price tags for Target are smaller and do not protrude six inches into the aisle.
The Defendant objects that Mr. Toveg is not an expert and that his testimony regarding the sharpness of the price tag is inadmissible. If the fact sought to be proved is one within the general knowledge of laymen, expert testimony is not required; otherwise the fact can be proved only by the opinions of experts. Truman v. Vargas (1969) 275 Cal. App. 2d 976, 982. The quality of “sharpness” is one within the general knowledge of a lay person and a lay person can readily determine whether an edge is sharp or not. Accordingly, expert testimony is not required on whether the edge of a price tag is sharp.
Further, Evidence Code section 800 permits a lay person to offer opinions that are based on their own perceptions. Mr. Toveg provides an opinion that the price tag was sharp based on his own perception of the price tag. This is an admissible opinion.
The Defendant repeatedly notes that Mack Quan’s testimony is “objective” and “scientific”. These are merely rhetorical terms that are used to persuade the trier-of-fact to assign greater weight to Mack Quan’s opinions than to the Plaintiff’s testimony. Mark Quan’s use of “science” in his opinions does not render them irrefutable. Instead, the percipient testimony offered by the Plaintiff in her opposition is sufficient to create a question of fact with the opinions on “sharpness” offered by Mark Quan after he examined an exemplar of the price tag.

The facts in the Plaintiff’s opposition papers raises a question of fact whether the price tag in existence at the incident had a sharp, flat edge that caused the Plaintiff’s finger to bleed. This creates a question of fact whether the price sign was a dangerous condition based on facts demonstrating that it had a sharp edge that could cut a person’s skin.

Accordingly, the Defendant is not entitled to summary judgment because there are questions of fact regarding the element of breach of duty.

2. Causation
The Defendant argues that the price tag could not have caused the Plaintiff’s alleged injuries. The Defendant relies upon the following evidence to demonstrate that the price tag did not cause the Plaintiff’s injuries:

1) the Defendant’s expert Mack Quan, visited the premises and examined a shopping cart (SSF 13); and
2) Mack Quan offers the opinion that it was physically impossible for the sign to have into contact with the Plaintiff’s hands on the shopping cart because it could not have extended into the aisle sufficiently far to reach the Plaintiff’s hands (SSF 14 to 17).

Again, the Declaration of Mr. Quan is not helpful for the Defendant since he did not use the dimensions of the prior tag, nor even acknowledge that there were differences between the two tags. Accordingly, the Court cannot conclude that Defendant has met its burden of proof.
Even were the Court to find that Defendant met his burden of proof, the Plaintiff readily creates a question of fact with the facts in the declaration of herself and a percipient witness, Isaac Toveg, that her hand was injured when it came into contact with the price tag. Since this fact raises a question as to whether the price tag caused the injuries to the Plaintiff, there is a question of fact regarding the element of causation.

Accordingly, the Defendant is not entitled to summary judgment because there are questions of fact regarding the element of causation.

Therefore, the Court denies the Defendant’s motion for summary judgment because there are questions of fact whether the price tag had sharp edges and whether the price tag caused the Plaintiff’s injuries.