Case Number: LC097805 Hearing Date: June 12, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SHANNON DANIELLE PHILLIPS,
Plaintiff(s),
vs.

WESTFIELD FASHION SQUARE, LLC, ET AL.,

Defendant(s).

CASE NO: LC097805

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #39
June 12, 2014

Defendant, Sherman Oaks Fashion Associates, LP’s Motion for Summary Judgment is Denied.

1. Background Facts
Plaintiff, Shannon Danielle Phillips filed this action against Defendant, Sherman Oaks Fashion Associates, LP (Erroneously sued as Westfield Fashion Square, LLC and Westfield Group) for damages arising out of a slip and fall incident.

2. Motion for Summary Judgment
At this time, Defendant moves for summary judgment. Defendant contends it is entitled to judgment as a matter of law because (a) any defect in the property was trivial, and (b) it complied with its duty to ensure the premises were reasonably safe at the time of the fall.

3. Evidentiary Objections
Defendant filed evidentiary objections with its reply papers. Defendant’s objections fail to comply with CRC 3.1354(b), in that the objectionable material is not quoted or set forth in the objections. The objections are therefore overruled.

4. Initial Note
Plaintiff’s opposition fails to comply with CRC 3.1110(f), in that the exhibits are not tabbed. This defect rendered review of Plaintiff’s opposition difficult. Plaintiff is ordered to comply with all Rules of Court in the future in connection with this case.

5. Trivial Defect Doctrine
Defendant’s first contention is that the suit is barred by the trivial defect doctrine. As Plaintiff correctly notes in opposition, there is no authority applying the trivial defect doctrine to a slip and fall, as opposed to trip and fall, incident. The doctrine applies when a defect causes a plaintiff to trip, but that defect is trivial as a matter of law.

Persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.)

The motion for summary judgment on the ground that the wet floor was trivial is denied.

6. Compliance with Duty of Care
Defendant’s second contention is that it complied with the duty of care to keep the premises reasonably safe. Defendant contends it did so because:
• The floor was not excessively wet;
o The floor is not soaked or covered in puddles;
o The tile is made of non-slip absorbent material;
o The scrubbing machine vacuumed up excess water;
• The conditions near the area were safe;
o The mall had been closed for ½ hour prior to the fall;
o The area was well-lit;
o There was a caution sign placed by the person who washed the floors;
• The condition of the floor was not concealed – there was a caution sign placed on the floor;
• Plaintiff had seen caution when wet signs before, and knows what they mean. She knew the mall was closed at the time of the accident, and she should have known that malls do maintenance once they are closed;
• No prior incidents occurred in the subject area.

The Court will assume, for purposes of ruling on this motion, that the foregoing facts, if established, would meet Defendant’s burden, as a matter of law, to show that it complied with its duty to maintain the premises in a safe condition. The facts, however, are disputed.

First, Defendant attempts to establish that the floor was made of a porous and highly absorbent material, so that the tile was not prone to becoming slick. See fact 5 in the separate statement, and the Declaration of Molly Unger, ¶7. Unger establishes that she was the district manager of a retail store in the subject mall from 2004 until 2012, at which time she became the mall’s general manager. Notably, the fall occurred in 2010. She declares that the floor where Plaintiff fell was made of an extremely porous/absorbent material that the mall understood would minimize the risk of the floor becoming wet or slippery.

There are two problems with fact 5. First, Unger’s declaration fails to explain how she knows about the porousness or absorbency of the subject flooring. She is not an expert in flooring. Second, the video, attached as Exhibit B to the moving papers, shows two different types of flooring – tiles that appear to be terra cotta, as well as brighter tiles that are white and a bit shiny. It is clear, from the video, that Plaintiff slips on the brighter white tile, and not on the terra cotta style tile. Unger fails to explain the two types of flooring, or to state whether they are both made of the same material.

Even if Unger’s declaration were sufficient in this regard, Plaintiff raises triable issues of material fact concerning whether the white tiles on which she slipped were quite slippery. See Plaintiff’s Declaration, ¶6, wherein she states that the tile on which she fell was soapy and wet and very slippery. See also the Declaration of Jay William Preston, ¶18, wherein Preston explains that the floor where Plaintiff slipped has been replaced since the incident, but the upstairs floor is a style similar to that where Plaintiff originally fell. Preston explains that the white tiles, in contrast to the terra cotta tiles, were smooth and made out of marble, and would be very slippery when wet. Defendant argues that Preston’s declaration cannot be considered in this regard, because Preston admits that the flooring has been changed since the incident. Defendant, however, was the entity that chose to change the flooring. Additionally, Defendant does not dispute that the flooring upstairs remains substantially the same as the flooring on which Plaintiff slipped, such that an inspection of the upstairs flooring would be sufficient to render an expert opinion.

Additionally, there are triable issues of material fact concerning the “Caution: Wet Floor” sign that Defendant’s employee placed in the subject area. The video accompanying the moving papers shows the employee placing the sign outside the door to the store in which Plaintiff was shopping, and to the left. Plaintiff, however, exits the store to the right, and then doubles back as though she realizes she needs to re-enter the store. There is absolutely no caution sign in Plaintiff’s line of sight at any time. The sign could, of course, have been placed in front of the entrance to the store, such that it would have been visible to anyone leaving the store. It was not.

Finally, there are triable issues of material fact concerning whether Defendant waited long enough to begin its cleaning process after the mall closed. Defendant establishes that the mall itself closed at 9:00 p.m., and that the incident occurred shortly after 9:30 p.m. However, the video of the incident clearly shows that the store in which Plaintiff was shopping, Wet Seal, had its doors wide open when the fall occurred. Defendant argues in reply that this is because individual stores may leave their doors open after closing time to permit shoppers to complete their purchases. Regardless of the reason, the video clearly shows that shoppers were able to enter and exit individual stores at the time of the incident.

In light of the numerous triable issues of material fact, the motion for summary judgment is denied.

Dated this 12th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court