On 04/11/2018 a Personal Injury - Other Personal Injury case was filed by DALENE SCHNEIDER against THE PIKEN COMPANY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
THE PIKEN COMPANY
CORAL TREE CAFE
DOES 1 TO 50
ALLIANCE FOOD LLC
ALLIANCE FOOD LLC
SAVIN ADAM J.
GROSS ARNOLD WILLIAM
ESQ. ANGELA M. ROSSI
GMELICH THOMAS PATRICK
11/15/2019: Proof of Service (not Summons and Complaint)
10/2/2019: Notice - NOTICE NOTICE OF LODGING DEFENDANT'S COMPENDIUM OF EXHIBITS IN SUPPORT OF MSJ
10/2/2019: Separate Statement
10/2/2019: Motion for Summary Judgment
10/4/2019: Joinder to Motion for Summary Judgment / Adjudication
10/4/2019: Separate Statement
10/9/2018: Proof of Service by Substituted Service - of Summons
10/11/2018: Notice - Notice of Change of Address
1/28/2019: Proof of Service by Substituted Service
3/26/2019: Notice of Deposit - Jury
3/29/2019: Motion to Compel - MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA FOR PRODUCTION OF DOCUMENTS
5/16/2019: Response - RESPONSE NON-OPPOSITION TO MOTION TO COMPEL
6/4/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
4/11/2018: SUMMONS -
4/11/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -
Hearing04/12/2021 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearing04/14/2020 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing03/30/2020 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearing12/19/2019 at 13:30 PM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary AdjudicationRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Alliance Food LLC (Defendant)Read MoreRead Less
Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by The Piken Company (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
DocketSeparate Statement; Filed by Alliance Food LLC (Defendant)Read MoreRead Less
DocketNotice (Compendium of Exhibits in Support of Joinder to the Piken Co.); Filed by Alliance Food LLC (Defendant)Read MoreRead Less
DocketJoinder to Motion for Summary Judgment / Adjudication; Filed by Alliance Food LLC (Defendant)Read MoreRead Less
DocketMotion to Compel (Compliance with Deposition Subpoena for Production of Documents); Filed by The Piken Company (Defendant)Read MoreRead Less
DocketNotice of Deposit - Jury; Filed by The Piken Company (Defendant)Read MoreRead Less
DocketNotice of Deposit - Jury; Filed by Dalene Schneider (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by Dalene Schneider (Plaintiff)Read MoreRead Less
DocketAnswer; Filed by The Piken Company (Defendant)Read MoreRead Less
DocketNotice (Notice of Change of Address); Filed by Dalene Schneider (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service (of Summons); Filed by Dalene Schneider (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketComplaint; Filed by Dalene Schneider (Plaintiff)Read MoreRead Less
Case Number: BC701677 Hearing Date: December 19, 2019 Dept: 5
THE PIKEN COMPANY, et al.,
Case No.: BC701677
Hearing Date: December 19, 2019
[Tentative] order RE:
(1) DEFENDANT THE PIKEN COMPANY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
(2) DEFENDANT ALLIANCE FOOD LLC DBA CORAL TREE CAFÉ’S JOINDER TO DEFENDANT THE PIKEN COMPANY’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Plaintiff Dalene Schneider (“Plaintiff”) filed this action against The Piken Company and Alliance Food LLC dba Coral Tree Café, asserting causes of action for general negligence and premises liability. Plaintiff alleges that she tripped and fell on a crack in the ground while walking toward the entrance of the Coral Tree Café. The restaurant is operated by Alliance Food LLC (“Alliance”), which leases the space from The Piken Company (“Defendant”). Defendant moves for summary judgment or, in the alternative, summary adjudication. Alliance joins in the motion. Plaintiff opposes Defendant’s motion, which is granted.
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. (Code Civ. Proc., § 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.)
The Court rules as follows on Plaintiff’s evidentiary objections:
1. The Court need not rule on this objection, as it did not rely on this evidence in deciding the motion. (Code Civ. Proc. § 437c(q).)
2. The Court need not rule on this objection, as it did not rely on this evidence in deciding the motion. (Code Civ. Proc. § 437c(q).)
3. The Court need not rule on this objection, as it did not rely on this evidence in deciding the motion. (Code Civ. Proc. § 437c(q).)
Defendant moves for summary judgment on four grounds: (1) The allegedly dangerous condition was a trivial defect as a matter of law; (2) There is no evidence that any act by Defendant was a substantial factor causing Plaintiff’s injuries; (3) There is no evidence that Defendant had actual or constructive notice of the allegedly dangerous condition; and (4) The allegedly dangerous condition was open and obvious. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki
“The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circumstances . . . no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104, quoting Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27.) “The trivial defect doctrine is not an affirmative defense.” (Id.) “It is an aspect of duty that a plaintiff must plead and prove.” (Id.)
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.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 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.)
Defendant relies on the declaration of John Brault, M.S., a biomechanics and walkway safety expert. Brault states that her performed a site inspection and concluded that the crack at issue was 3/8 inch at its maximum height. (Declaration of John Brault, ¶ 7.) Brault also opines that there are no structures or objects that could have obstructed Plaintiff’s view of the crack. (Id., ¶ 7.) This evidence is sufficient to satisfy Defendant’s burden, shifting the burden to Plaintiff to proffer sufficient evidence that the crack is not a trivial defect.
Plaintiff relies on her own deposition testimony, in which she testified that that the height of the crack may have been an inch high:
Q: Can you describe the crack for me as you remember it at the time you looked down at it.
A: It was blacktop.
A: And I think it was about like that, maybe. Maybe an inch.
Q: Okay. And was it, like, a -- what’s the word I’m looking for? – a raised part, or was there a hole, a crack that had a hole that your toe went into? Do you know how --
A: I don’t remember.
Q: When you said it was about an inch, the crack itself was raised about an inch?
(Plaintiff’s Evidence, Exh. #2, Deposition Transcript of Plaintiff, p. 65:9-22.) Plaintiff also relies on the deposition testimony of her companion, Dennis Mangan:
Q: Okay. Do you have any recollection of the difference in -- you said a different level. Do you have any recollection of the difference in the height of the level?
A: A half inch to inch, something like that.
(Id., Exh. #3, at p.27:22-24.) Even assuming there is sufficient foundation for these opinions, a crack of a half-inch to one inch does not give rise to a triable issue. The Second District has held that cracks less than ½ inch in height are trivial as a matter of law (see Caloroso, supra, 122 Cal.App.4th at 929.) Courts have also found that cracks greater than ½ inch in height may be trivial as a matter of law absent any aggravating conditions. (Whiting v. City of National City (1937) 9 Cal.2d 163; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50). “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1097, citations omitted.)
In this case, Plaintiff proffers no evidence of any aggravating conditions. To the contrary, the record reflects that the incident occurred on a clear and sunny day between 12 noon and 1:30 p.m. (Defendant’s Evidence, Ex. B, p. 58:6-15, 67:11-13.) Plaintiff testified that did not notice anything unusual on the ground at the time. (Defendant’s Evidence, Ex. B, p. 61:6-13.) Plaintiff argues that there was debris in the parking lot, relying on the testimony of Dennis Mangan:
Q: Did you see any kind of debris or problems in the parking lot as you walked across it?
A: Not until after.
(Plaintiff’s Evidence, Exh. #7, Deposition Transcript of Plaintiff, p. 22:21-23.) This testimony does not create a triable issue. As an initial matter, it is a compound question referencing either “debris” or “problems,” so the answer is unclear whether Mangan is referencing debris or “problems,” i.e., the crack on which Plaintiff tripped. Putting that aside, this testimony does not establish that there was any debris in the immediate area of the crack that obstructed Plaintiff’s view or contributed to the accident.
Plaintiff also suggests that Plaintiff’s view was obstructed by Mangan because she walked behind him. To the extent this is an aggravating factor, Defendant is not responsible, and Plaintiff did not name Mangan as a defendant in this case.
CONCLUSION AND ORDER
Based upon the foregoing, the Court grants Defendant’s motion for summary judgment because there is no triable issue whether the crack at issue is a trivial defect. Because Alliance properly joined in the motion, the Court also grants summary judgment to Alliance on this ground. The Court need not reach Defendant’s remaining arguments. Defendant shall provide notice and file proof of such with the Court.
DATED: December 19, 2019 ___________________________
Hon. Stephen I. Goorvitch
Judge of the Superior Court