Case Number: BC713439 Hearing Date: December 10, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Rosalina Guzman alleges she tripped and fell near the soda dispenser in a food court at one of Defendant Costco’s warehouses on November 15, 2017. (Undisputed Material Fact No. 1.) The floor surrounding the soda dispenser is covered with slip-resistant epoxy and the remainder of the food court floor is concrete. (UMF No. 3.) The change in elevation between the concrete and epoxy floor is approximately 0.3125 inches. (UMF No. 9.) There is a plumbing access cover in the epoxy covered floor near the soda dispenser. (UMF No. 4.) The plumbing access cover measures 0.625 inches in depth, one foot in diameter, and the slope of the depression ranges from approximately 14%-16% around the circumference. Since the warehouse opened in 2015, there have been no reported incidents of anyone tripping or falling as a result of the plumbing access cover near the soda dispenser. (UMF No. 8.)

Defendant moves for summary judgment on the ground that there was no dangerous condition on its property.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or 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. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. EVIDENTIARY OBJECTIONS

Plaintiff’s Objection Nos. 1-27 are OVERRULED.

Defendant’s Objection Nos. 1-3 are OVERRULED.

Defendant’s Objection Nos. 4-6 are SUSTAINED.

IV. DISCUSSION

Defendant argues the plumbing access cover was not a dangerous condition but at most a trivial defect. “An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.) The law imposes no duty on a landowner to repair trivial defects or to maintain his or her property in an absolutely perfectly condition. (Ibid.) “A property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Where reasonable minds would reach only one conclusion, courts may determine “triviality” as a matter of law and the issue may be properly resolved by way of summary judgment. (Stathoulis, supra, 164 Cal.App.4th at p. 567.) However, a court may not “make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.” (Id. at p. 569.)

Defendant argues the plumbing access cover near the soda dispenser did not create a dangerous condition because it was only 0.625 inches in depth and a foot wide, with a slope of 14%-16%. Because Defendant contends Plaintiff does not know what she tripped on, Defendant also argues that the raised concrete across from the soda dispenser is only 0.3125 inches and is also a trivial defect. Defendant submits photos of both locations and cites to cases in which courts held that ¾ of an inch to 1 ½ inch height differential were considered trivial. Defendant also submits an expert opinion from John Brault, who states the measurements of the plumbing access cover are within construction industry standards. The Court finds Defendant has met its initial burden of showing the elevation created by the plumbing access cover or raised edge were trivial defects. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff’s expert, Herbert R. Summers, opines that Defendant’s expert opinion is faulty because the plumbing access cover is not a uniform depression. Rather, there are “4 inches of slope, 4 inches of flat, and four inches of slope.” (Summers Decl., ¶ 8.) Summers states this depression is not a flat surface and that the uneven pavement can lead to “sudden twisting and torqueing of the ankle which can also lead to instability” depending on how an individual steps into the depression. (Id.) Summers also states that the 14%-16% slope of the depression is twice the slope allowed for ramps in current building codes.

The cases about trivial defects cited by the parties involved sidewalk up lifts of less than 1 and a half inches. They did not involve a sloping depression and the potential danger it can create. Plaintiff’s expert explains that a sloping depression creates a different danger than an uplift. Defendant does not address that point. The Court cannot conclude based on this record that a sloping depression is the same as a sidewalk uplift or that reasonable minds would reach only one conclusion that the sloping depression is not a dangerous condition.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.