PERKINS vs CHEVYS FRESH MEX, et al.

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

Tentative Ruling

Defendants FM Restaurants Chevy’s OpCo, LLC and Xperience Restaurant Group (collectively, “Defendants”) joint motion for summary judgment on Plaintiff Dorothy Perkins’ (“Plaintiff”) First Amended Complaint is DENIED as follows.

Factual Background

This action arises out of Plaintiff’s fall at the Chevys Fresh Mex restaurant located at 1369 Garden Highway in Sacramento (“Chevys”).

On March 12, 2022, Plaintiff held a Celebration of Life for her late husband at Chevys. (UMF 1.) The event was held from approximately 1:00 p.m. to 4:00 p.m. in Chevys’ event room on the second floor. (UMF 2.) The weather that day was clear and sunny. (UMF 3.)

At approximately 3:30 p.m. or 3:45 p.m., Plaintiff went onto the outdoor patio adjacent to the event room to take photographs of her grandchildren. (UMF 4; Pl.’s Depo 74:21-25.) As of March 12, 2022, the patio surface consisted of longitudinal wooden deck boards arranged in parallel rows. (UMF 5.) The outdoor patio comprised two levels of decking. To go up or down between the patio levels, a person would have to ascend or descend two steps, which ran the length of the patio. (UMF 11; Pl.’s Depo, Ex. 2, photographs 5 & 6.) The uppermost step was the upper level of decking. (Ibid.) In other word, there was one stair tread between the two levels of decking. (Ibid.) Photographs taken on the day of the incident show that the stairs had intermittent black-and-yellow diagonalstriped tape on portions of the treads. (Ibid.)

Immediately prior to Plaintiff’s fall, she was standing on the upper patio platform. (UMF 6.) As she looked at her grandchildren to take their photograph with her phone, she stepped backward and fell down the decking stairs. (UMF 7.) Plaintiff testified that the fall “happened fast” and she does not recall the mechanics of how she lost her balance. (UMF 15.) Plaintiff was not looking at the ground when she fell. (Pl.’s Depo 73:25-74:5.) Plaintiff testified that she would not have stepped backward if she was aware of the stair transition behind her. (UMF 16, 23.) Plaintiff testified that she “would have stepped down [the stairs] forward and taken the picture from a further distance.” (Pl.’s Depo 77:25-78:12; see also Pl.’s Depo 78:15-22.)

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

During her deposition, Plaintiff marked on a photograph taken on the day of the incident, indicating where she was standing before she fell and where she landed after the fall. (UMF 9, 10; Pl.’s Depo, Ex. 2, photograph 6.)

No evidence has been produced identifying any prior incident at Chevys involving the same step area. (UMF 17.)

Plaintiff’s expert Daniel Paul Eriksson, a licensed architect whose market focus is commercial buildings and tenant improvements, avers that the construction of stairs in a commercial building is regulated by the California Building Code (“CBC”) in force at the time the building was constructed or subsequently altered. (Decl. of Daniel Paul Eriksson (“Eriksson Decl.”) ¶¶ 1-4.) The CBC requirement for stair tread striping has been a part of the code since 1989. (Id. at ¶ 8.) The current version of the code states:

Contrasting stripe. Interior stairs shall have the upper approach and lower tread marked by a stripe providing clear visual contrast. Exterior stairs shall have the upper approach and all treads marked by a stripe providing clear visual contrast.

The stripe shall be a minimum of 2 inches (51 mm) wide to a maximum of 4 inches (102 mm) wide placed parallel to, and not more than 1 inch (25 mm) from, the nose of the step or upper approach. The stripe shall extend the full width of the step or upper approach and shall be of material that is at least as slip resistant as the other treads of the stair. A painted strip shall be acceptable. Grooves shall not be used to satisfy this requirement.

(24 Cal. Code Regs., § 11B-504.4.1 (2025).) The 2013, 2016, 2019, and 2022 triennial versions of Section 11B-504.4.1 contain the same language.[1]

Plaintiff filed the Complaint in this action on February 23, 2024, and the operative First Amended Complaint (“FAC”) on October 1, 2024. The FAC alleges a single cause of action for premises liability based upon a dangerous condition. Plaintiff alleges:

///

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

Plaintiff, Dorothy Perkins[,] was attending a celebration of life at [Chevys]. While attending the celebration[,] Plaintiff . . . went out to take photos of her grandchildren when she slipped and fell on a step on the upper level of the deck of [Chevys]. Plaintiff was unable to see the first step due to the dangerous surface of the step; inadequate lighting at the location; no notice or warning of the steps; and the absence of a handrail to protect against harm, creating an unreasonable risk of harm. Plaintiff was severely injured in the fall. Defendants knew or should have known of this dangerous and unsafe condition through the exercise of reasonable care. Defendants failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition[.]

(FAC at p. 4.)

Legal Standard

In ruling on a motion for summary judgment/adjudication, the Court engages in a threestep process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.)

Next, the Court must determine whether the moving party has met its burden.

A defendant moving for summary judgment bears the burden of showing that one or more elements of the plaintiff’s cause(s) of action cannot be established, or that there is a complete defense to the cause(s) of action. (Aguilar v. Atlantic Richfield Co. (2001) 25

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

Cal.4th 826, 850 [quoting Code Civ. Proc., § 437c, subd. (p)(2)].) “The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group 2025 Update) ¶ 10:241 [citing cases] [emphasis omitted].) “Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established.” (Id. at ¶ 10:242 [citing Aguilar, supra, at p. 854].)

Once the moving party has met its initial burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or an affirmative defense claimed. (Code Civ. Proc., § 437c, subd. (p)(1); Aguilar, supra, at p. 850.) If the moving party fails to meet its burden, however, the motion must be denied; the opposing party need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468-477.)

Finally, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn therefrom in the light most favorable to the opposing party. (Aguilar, supra, at p. 843; Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [“[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.”].) Summary judgment is properly granted only if the moving party’s evidence establishes that there is no issue of material fact to be tried. (Lipson v. Super. Ct. (1982) 31 Cal.3d 362, 374.)

Evidentiary Objections

Pursuant to Code of Civil procedure section 437c, subdivision (q), the Court only rules on the objections to evidence deemed material to its disposition of the motion.

Defendants’ objections to the Declaration of Daniel Paul Eriksson are ruled on as follows: Defendants’ objections to paragraphs 1 and 5 of Mr. Eriksson’s Declaration are overruled.

Discussion

Defendants jointly move for summary judgment on the FAC, arguing that the single

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

cause of action for premises liability fails as a matter of law because “the undisputed evidence shows that it was Plaintiff’s own inattentiveness, and not a dangerous condition, that was the sole precipitating cause of her fall.” (Not. of Mot. & Mot. 2:8-14.) Defendants argue: “The step condition was open and obvious with clear warning stripes printed across the full length of the wooden stairs, no handrail was legally required, and there was no dangerous condition as a matter of law. Plaintiff’s lack of attention to her surroundings was the sole cause of her fall.” (Mem. of P.&A. ISO Mot. (“MPA”) 5:8-11.)

Plaintiff opposes the motion, rejoining that Defendants do not meet their initial burden of establishing that one or more elements of her premises liability cause of action cannot be established. (Opp’n 1:21-23.) Plaintiff asserts:

. . . Rather than establishing as a matter of law that the subject patio stair transition was not dangerous, that their warnings were adequate, or that the condition played no role in Plaintiff’s fall, Defendants rely primarily on selective excerpts of Plaintiff’s deposition testimony to argue that Plaintiff was not looking at the ground at the moment of the incident while taking photographs of her grandchildren during a family event. That evidence does not negate duty, dangerous condition, or causation as a matter of law. To the contrary, it presents, at most, an issue of comparative fault for the jury. Defendants presented no expert testimony regarding code compliance, human factors, or visibility, and instead rely almost exclusively on selective excerpts of Plaintiff’s deposition testimony in an effort to negate dangerous condition, causation, and notice as a matter of law.

This case involves a commercial patio with a change in elevation that Defendants themselves attempted to mark with warning striping. . . . At most, Defendants’ evidence raises issues of comparative fault, not an absence of dangerous condition, causation, or notice as a matter of law. Because multiple triable issues of material fact remain, Defendants’ motion must be denied.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

....

Plaintiff’s expert testimony, together with Plaintiff’s deposition testimony, Defendants’ own photographs, and the physical configuration of the subject stair transition, creates a triable issue as to whether the condition posed a foreseeable risk of harm to patrons using the patio. A reasonable jury could conclude that a change in elevation on a commercial patio, coupled with visually ineffective or non- compliant striping, created a condition that was not reasonably safe for invitees. Defendants’ own photographs further support that the stair transition blended with the surrounding deck surface and was not delineated by continuous striping across the full walking path.

....

Moreover, the dangerousness of a condition must be evaluated in the context in which it is encountered. Here, Plaintiff was attending a family event at Defendants’ restaurant and event space, where patrons were expected to socialize, move about the patio, interact with others, and engage in ordinary social conduct. Under these circumstances, it was entirely foreseeable that patrons would not be staring directly at the walking surface at every moment. A jury could reasonably conclude that the subject stair transition, as configured and marked, created a foreseeable risk of misstep or fall.

(Opp’n 1:23-4:7.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause[[2]] resulting in injury.” (Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 832; see Brooks v. Eugene Burger Mgmt. Corp. (1989) 215 Cal.App.3d 1611, 1619 [“Premises liability is a form of negligence based on the holding in Rowland v. Christian [(1968)] 69 Cal.2d 108, and is described as follows: The owner of premises is under a duty to exercise ordinary care in

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.”].)

“[T]hose who own or occupy property have a duty to maintain their premises in a reasonably safe condition. [Citations.] To comply with this duty, a person who controls property must inspect [the premises] or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.” (Staats, supra, at p. 833 [internal quotation marks, footnote, and citations omitted].)

“An owner of real property is not the insurer of [a] visitor’s personal safety. However, an owner is responsible for an injury occasioned to another by [the owner’s] want of ordinary care or skill in the management of his or her property. Accordingly, landowners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-944 [internal quotation marks and citations omitted].)

“Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) Where the dangerous condition was created by the property owner, knowledge thereof is imputed. (See, e.g., Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806; Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.)

“The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . . .” (Rowland, supra, at p. 119.) “The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the riskcreating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372.)

“[I]n certain circumstances, a landlord has no duty to remedy or warn of a dangerous condition that is open and obvious.” (Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 993.) “Stated in general terms, the no-duty exception for open and

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

obvious dangerous conditions provides that if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. [T]he rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger.” (Id. at pp. 993-994 [internal quotation marks and citations omitted]; see CACI No. 1004.) Whether a condition is “open and obvious” may present a question of fact. (Ibid.)

Applying the above standards to the record in this case, the Court finds that a triable issue of material fact exists on each element of Plaintiff’s premises liability claim. Based on Plaintiff’s deposition testimony and the photographs taken on the date of the incident, whether the deck stairs were an open and obvious condition cannot be determined as a matter of law. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 23-25 [discussing a court’s use of photographs concerning an alleged dangerous condition].)

The photographs taken on the afternoon of the incident do not show an appreciable height difference between the levels of patio decking and/or the tread between them, and the patio awning creates shadowing near the patio’s stairs. Moreover, the Court notes that the same photographs evince that the contrast striping on the patio stairs does not extend the full width of the step, in apparent violation of CBC section 11B- 504.4.1.[3] Even if the stairs were in compliance with all applicable safety laws and regulations at the time of the incident, such compliance “in and of itself, does not establish that the owner has utilized due care.” (Lawrence v.

La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 31; accord Amos v. Alpha Prop. Mgmt. (1999) 73 Cal.App.4th 895, 901 [stating that compliance with applicable regulations does not necessarily negate breach of duty].) Moreover, “[t]he mere fact that a particular kind of an accident has not happened before does not show that such accident is one which might not reasonably have been anticipated. Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.” (Lawrence, supra, 231 Cal.App.4th at pp. 31-32 [internal quotation marks and citations omitted].)

For the stated reasons, Defendants’ motion is denied. This case cannot be decided as a matter of law based on the summary judgment record.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

Plaintiff’s counsel shall prepare an order pursuant to Code of Civil Procedure section 437c, subsection (g), and California Rules of Court, rule 3.1312.

[1] Under Evidence Code section 451, subdivision (b), the Court must take judicial notice of California’s administrative regulations even absent a request to do so. The 2013, 2016, 2019, 2022, and 2025 triennial editions of the CBC are available on the California Department of General Services’ website at https://www.dgs.ca.gov/BSC/Codes. [2] “A plaintiff meets the causation element by showing that (1) the defendant’s breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm, and (2) there is no rule of law relieving the defendant of liability. [Citation.] These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

[3] The requirement that the stripe “extend the full width of the step or upper approach” applies whether the subject stairs are considered to be “interior” or “exterior” under the CBC.

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV003295: PERKINS vs CHEVYS FRESH MEX, et al. 07/07/2026 Hearing on Motion for Summary Judgment in Department 16C

The Department 16C Zoom Link is https://saccourt-ca-gov.zoomgov.com/j/16030877014 and the Zoom Meeting ID is 160 3087 7014. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed on the Court Reporter Services webpage available on the Sacramento Superior Court website at https://saccourt.ca.gov/general-information/court-reporter-services-transcripts. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://saccourt.ca.gov/home/showpublisheddocument/227/639084034465370000.

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.