THERESA ZLATUNICH, ET AL VS. BURLINGAME BAY ASSOCIATES, ET AL

September 11, 2026 Law and Motion CalendarPAGE 10 HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ 9:00 AM Line 3 24-CIV-06301 THERESA ZLATUNICH, ET AL VS. BURLINGAME BAY ASSOCIATES, ET AL

THERESA ZLATUNICH LAWRENCE S. VIOLA BURLINGAME BAY ASSOCIATES MALCOLM D. DONALDSON

Defendant Burlingame Bay Associates’ Motion for Summary Judgment

TENTATIVE RULING:

Defendant Burlington Bay Associates’ Motion for Summary Judgment is DENIED, as follows:

Overview

Plaintiff Theresa Zlatunich fell on October 7, 2023, after taking about two steps onto the wooden Anza Lagoon Pedestrian Footbridge (the “Wooden Footbridge”) in Burlingame; her husband Philip Zlatunich claims loss of consortium. Defendant Burlingame Bay Associates is the lessee responsible for maintaining the roughly 140-foot span where she fell. Defendant here moves for summary judgment.

Legal Standard

Cal. Code of Civ. Proc. section 437c governs both summary judgment and summary adjudication motions, and a motion for summary adjudication proceeds in all procedural respects as a motion for summary judgment. (Cal. Code of Civ. Proc. section 437c.) The statute permits parties to move for summary adjudication either independently or as an alternative to summary judgment, and courts apply the same substantive legal standards to both types of motions. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623.)

The moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444.) If the movant carries this burden of production, it causes a shift, and the opposing party must then make a prima facie showing of the existence of a triable issue of material fact. (Id.; see also Lemm v. Ecolab Inc. (2023) 87 Cal.App.5th 159.) This burdenshifting framework applies regardless of which party moves for summary judgment or summary adjudication.

September 11, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ How parties carry their respective burdens depends on which party would bear the burden of proof at trial. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120.) A defendant moving for summary adjudication must present evidence that either "conclusively negates an element of the plaintiff's cause of action" or shows "that the plaintiff does not possess, and cannot reasonably obtain," evidence necessary to establish at least one element of the cause of action. (Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 924-925 quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.)

A triable issue of material fact exists only where the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Cal. Code of Civ. Proc. section 437c.) Courts must view the evidence in the light most favorable to the opposing party and strictly construe the evidence of the moving party, resolving any evidentiary doubts in favor of the opposing party. (Lemm v. Ecolab Inc., supra, 87 Cal.App.5th 159.) The trial court's role involves no findings of fact. (Raghavan v. Boeing Co., supra, 133 Cal.App.4th 1120.)

Evidentiary Objections

Defendant’s evidentiary objections are OVERRULED.

Analysis / Trivial Defect

Defendant argues that Plaintiffs have failed to show that Plaintiff Theresa Zlatunich’s October 7, 2023 trip and fall was caused by more than a trivial defect.

The trivial defect doctrine recognizes that some defects are bound to exist even when reasonable care is exercised in property maintenance, and that such defects cannot reasonably be expected to cause accidents. (Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559.) Although initially developed in the context of public entity liability under California Government Code sections 830 and 830.2, the doctrine extends equally to private, nongovernmental landowners. (Caloroso v. Hathaway (2004) 122 Cal.

App. 4th 922.) In a two-step process, “[f]irst, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law ....” (Huckey v. City of Temecula (2019) 37 Cal.

App. 5th 1092, 1105, quoting Stathoulis, supra, 164 Cal.App.4th at pp. 567-568.)

The court decides triviality as a matter of law only if reasonable minds can come to only one conclusion; if the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule that the defect is not dangerous as a matter of law. (Stack v. City of Lemoore (2023) 91 Cal. App. 5th 102, 110.)

September 11, 2026 Law and Motion Calendar

HONORABLE MICHAEL L. MAU, Department 20 ________________________________________________________________________ Defendant here argues that the size of the purported defect that may have caused Theresa Zlatunich’s fall would be 7⁄8 inch at most, with Plaintiffs unable to identify which board Plaintiff tripped on, making the defect trivial and unidentifiable, and that additional factors do not elevate the defect to a dangerous condition. However, Defendant’s Memorandum and Separate Statement of Undisputed Material Facts, (as supplied by Plaintiffs in their Separate Statement in Opposition), do not address whether Plaintiffs can supply evidence of a raised nail amounting to a dangerous condition. Defendant therefore has not met its burden to demonstrate that Plaintiffs do not possess and cannot reasonably obtain evidence necessary to establish at least one element of the cause of action.

With respect to whether Theresa Zlatunich could identify what she tripped on at the time of her fall, Defendant points to the Theresa Zlatunich Depo., p. Exh. C of the Onur Decl., at p. 13:12-18 as showing that Plaintiff could not identify what she tripped on at the time of her fall and could not state whether it was a board or a nail that caused her fall. Plaintiffs offer evidence that her right foot caught on a raised plank or a nail two steps onto the South end of the Wooden Footbridge. (Undisputed Material Fact “UMF” No. 10; Theresa Zlatunich Decl., ¶¶ 3; Daniel Decl., ¶¶4, Ex.

B [Theresa Zlatunich Depo., p. 31:1-5].) Viewed in the light most favorable to Plaintiffs, this evidence supports a reasonable and probable inference that the defendant’s negligence was a substantial contributing factor to Plaintiff’s trip and fall. (Kaney v. Custance (2022) 74 Cal.App.5th 201, 217.) It therefore establishes a triable issue of material fact sufficient to defeat summary judgment even if Defendant had met its initial burden.

Photographs from December 6, 2023 provide evidence on the Wooden Footbridge of protruding deck screws, a wood knot extending above the walking surface, a deck plank out of plane with an adjacent plank, recesses in the wooden planks, protruding nails, gaps, and general unevenness. (Additional UMF No. 20; Viola Decl., ¶¶3-5, Exh. A; Kelley Decl., ¶25, Exhs. B, D.) Additionally, Plaintiffs offer evidence of prior complaints and incidents involving the Wooden Footbridge including a reported fall regarding a loose nail. (Additional UMF No.’s 23- 25; Daniel Decl., ¶¶ 7, 14, Exh.’s, D, J.) This evidence shows a hazard that is qualitatively different than a mere flush height differential, and Defendant’s position that it amounts to a trivial defect because of height measurements is therefore unsupported.

The Motion is accordingly DENIED.

Any party who contests a tentative ruling must email Dept20@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to CRC Rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the CRC. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be filed or e-filed only, do not email or mail a hard copy to the Court.