Lopez v. Ralph's Grocery CA4/2 (2015) · DecisionDepot
Lopez v. Ralph's Grocery CA4/2
California Court of Appeal Feb 19, 2015 No. E059969Unpublished
Filed 2/19/15 Lopez v. Ralph’s Grocery CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
PAULA LOPEZ et al.,
Plaintiffs and Appellants, E059969
v. (Super.Ct.No. CIVBS1100443)
RALPH’S GROCERY COMPANY et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge.
Affirmed.
Law Offices of Richard Devirian and Richard C. Devirian; Esner, Chang & Boyer
and Andrew N. Chang for Plaintiffs and Appellants.
Cihigoyenetche, Grossberg & Clouse, Katharine L. Spaniac and Anthony C.
Ferguson for Defendants and Respondents.
Plaintiffs and appellants Paula Lopez and Stephen A. Lopez brought suit against
defendants and respondents Ralph’s Grocery Company (Ralph’s) and TVL Properties,
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LLC (TVL or, collectively with Ralph’s, defendants) following the death of Patrocinio
Lopez, who was the husband of Paula Lopez and father of Stephen A. Lopez. Mr. Lopez
died from injuries suffered when he tripped and fell in the parking lot of a grocery store
operated by Ralph’s and located on property owned by TVL.
Plaintiffs appeal from the trial court’s grant of summary judgment in favor of
defendants. Plaintiffs contend, among other things, that defendants failed to meet their
initial burden of production, that the trial court’s reliance on the trivial defect doctrine to
find defendants not liable as a matter of law was erroneous, and that they raised a triable
issue of material fact as to whether the condition that injured Mr. Lopez was open and
obvious. For the reasons stated below, we affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On July 13, 2011, at about 7:00 p.m., while retrieving a shopping cart in the
parking lot of a “Food 4 Less” grocery store in Barstow, California, Mr. Lopez tripped
over a speed bump and fell. Tragically, he died of injuries resulting from the fall—
specifically, a ruptured spleen.
The speed bump at issue is rubber, and was installed by attaching it to the asphalt
of the parking lot on July 25, 2010. It is approximately six feet long, one foot wide, and
two and one-fourth inches in height. It is black in color, with large, yellow diagonal
stripes painted across the top curved portion. Between that top curved portion and the
bottom edge of the speed bump is a vertical edge of between one-half and nine-sixteenths
of an inch in height. According to plaintiffs’ accident reconstruction expert, who
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examined the site of Mr. Lopez’s accident, the speed bump had also separated somewhat
from the asphalt to which it was attached, causing the vertical edge to “migrate[], in some
locations, to a height as great as 13/16 of an inch.” Plaintiffs’ expert’s theory, based on
his examination of the accident site and review of security video of Mr. Lopez’s fall, is
that Mr. Lopez’s foot did not just strike the speed bump, but also became “trapped”
underneath it, causing him to lose his balance and fall.1
Plaintiffs’ “Complaint for Wrongful Death,” filed on August 24, 2011, alleges two
causes of action. The first cause of action is untitled, but in substance asserts a claim for
negligence or premises liability. (See Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th
994, 998 [elements of premises liability cause of action are the same as negligence cause
of action].) The second cause of action is for product liability.2
Defendants’ motion for summary judgment or, in the alternative, summary
adjudication, was filed on May 2, 2013. After a hearing on August 9, 2013, the trial court
granted summary judgment in favor of defendants. The court entered judgment on
September 13, 2013.
1 The security video was not submitted as evidence in support of or in opposition to defendants’ motion for summary judgment, so it does not appear in our record on appeal. Apparently, however, both defendants’ and plaintiffs’ experts did review that video.
2 On appeal, plaintiffs have raised no claims of error with respect to the trial court’s ruling on their second cause of action, asserting only arguments relating to negligence or premises liability. We therefore do not further discuss the product liability cause of action.
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II. DISCUSSION
A. Standard of Review
The well-known principles generally governing appellate review of an order
granting a motion for summary judgment are as follows: “A trial court properly grants
summary judgment where no triable issue of material fact exists and the moving party is
entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision
de novo, considering all of the evidence the parties offered in connection with the motion
(except that which the court properly excluded) and the uncontradicted inferences the
evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has
‘shown that one or more elements of the cause of action, even if not separately pleaded,
cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable
issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials
of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action . . . .’” (Merrill v. Navegar, Inc.
Of course, “a tape measure alone cannot be used to determine whether the defect
was trivial,” because additional factors may make a defect “more dangerous than its size
alone would suggest.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927
(Caloroso).) In this case, however, there are no additional factors that indicate the
alleged defect to be “sufficiently dangerous to a reasonably careful person . . . .”
(Stathoulis, supra, 164 Cal.App.4th at pp. 567-568.) It was still light out at the time of
Mr. Lopez’s accident, 7:00 p.m. on a summer evening. There is no evidence of anything
concealing the speed bump, or any part of it, from Mr. Lopez’s view, or any weather or
other conditions of the parking lot that might have made the speed bump more hazardous
to a reasonably careful person. Mr. Lopez was generally familiar with the area, having
3 Plaintiffs’ expert’s declaration does not specifically establish that the point of maximum separation of the speed bump from the asphalt coincides with the point where the vertical edge of the speed bump is at its maximum. The declaration also does not establish that either maximum coincides with the specific part of the six-foot-long speed bump where Mr. Lopez tripped, though that information may well have been discernable from the security camera footage of the accident.
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visited the same grocery store on many occasions previously. Where, as here, there is no
evidence that any other conditions made the alleged defect dangerous, it is properly
deemed trivial as a matter of law. (Caloroso, supra, at p. 927.)
As noted, plaintiffs did submit the declaration of an accident reconstruction expert,
opining among other things that the speed bump that tripped Mr. Lopez was a serious
hazard. We conclude, however, that this expert testimony is insufficient to create a
triable issue of fact. The declaration contends that the speed bump violates certain
standards for walkways—specifically, “ASTM document F1637”—but does not establish
that this standard has been accepted as the proper standard to apply to business parking
lots in California. (See Caloroso, supra, 122 Cal.App.4th at pp. 925, 928 [agreeing with
trial court’s rejection of expert opinion relying on ASTM standards].) The expert’s
citation to California regulations applicable to work areas—generally requiring that
walkways be kept free of dangerous obstructions, and that hazards be marked by some
method—does nothing to show that the speed bump at issue in this case was hazardous to
a reasonably careful person, or inadequately marked as a hazard. (See Cal. Code Regs.,
tit. 8, §§ 3272, subd. (c), 3273, subds. (a) & (b).) Plaintiffs’ expert also makes much of
the circumstance that the yellow stripes of the speed bump do not extend down from the
curved top of the speed bump onto its vertical edge or, obviously, the space between the
speed bump and the asphalt. He cites no authority, however, other than his own ipse
dixit, tending to indicate that this circumstance violates any accepted standard or
regulation. In any case, “regardless of whether a witness can be found to opine on the
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subject of a dangerous condition, the court must independently evaluate the
circumstances.” (Caloroso, supra, at p. 928.) Here, our independent evaluation of the
circumstances leads us to the same conclusion as the trial court: to the extent plaintiffs
have identified any defect in the speed bump at issue, that defect is trivial as a matter of
law.
Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261 (Dolquist), a case
emphasized by plaintiffs, does not require a different result. In that case, a woman was
injured when she tripped over a piece of reinforcing steel protruding up one-fourth inch
from a concrete tire stop, which itself was a maximum of five and seven-sixteenths
inches high, in a business’s parking lot. (Id. at pp. 264, 268.) The Dolquist court found
the protruding “rebar” did not constitute a trivial defect as a matter of law, rejecting the
“strict tape measure approach” urged by the defendant. (Id. at p. 268.) It found that the
protrusion was at least arguably “large enough to cause an injury while being small
enough to avoid easy detection,” and concluded on that basis that reasonable minds could
differ as to the dangerousness of the protrusion. (Id. at p. 270.)
We agree with the Dolquist court that a strict tape measure approach would be
inappropriate. Nevertheless, the circumstances of our case are different, and require a
different conclusion. The alleged defect at issue here is the bottom portion of a speed
bump, and the small space between the bottom of the speed bump and the asphalt of the
parking lot. A reasonably careful pedestrian stepping onto or over the speed bump at
issue would encounter no difficult-to-detect protrusion similar to that described in
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Dolquist. To encounter the alleged defect at all would require the pedestrian to strike his
or her foot against the bottom portion of a plainly visible speed bump. We therefore
reach a different conclusion than did the Dolquist court, applying the same law to quite
different facts.
Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, another
case emphasized by plaintiffs, is similarly distinguishable. In that case, the alleged
hazard at issue was a drain that was not flush with the surrounding brick of the walkway,
creating a depression varying in depth from one thirty-second of an inch to five-
sixteenths of an inch, and five inches in diameter. (Id. at pp. 21, 28-29.) However, in
reversing the trial court’s finding that the defect was trivial as a matter of law, the
Kasparian court credited the plaintiffs’ expert’s opinion that the drain at issue “‘pose[d] a
safety hazard to pedestrians who do not have any expectation that any drain is not flush
with the surrounding brick pavers.’” (Id. at pp. 28-29.) No similar expectation of a
perfectly flat walkway is reasonably attributed to pedestrians in parking lots such as the
one where Mr. Lopez fell; speed bumps in parking places are commonplace. We have no
quarrel with the Kasparian court’s explication of the law, but applying that law to the
facts of this case yields a different result.
In short: After de novo review of the evidence, construing all facts and resolving
all doubts in favor of plaintiffs, we are nevertheless persuaded that, to the extent plaintiffs
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have identified any defect in the speed bump at issue, that defect is trivial as a matter of
law.4
III. DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST J. We concur:
RAMIREZ P.J.
RICHLI J.
4 Because this conclusion is an independently sufficient basis for granting summary judgment in favor of defendants, we need not and do not discuss the trial court’s alternative ruling that the condition that injured Mr. Lopez was open and obvious, or the parties’ arguments with respect to that ruling.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the alleged defect in the speed bump was trivial as a matter of law, thereby precluding a claim for negligence or premises liability.
Issues
Did the defendants meet their initial burden of production for summary judgment?
Does the trivial defect doctrine apply to the speed bump as a matter of law?
Did the plaintiffs raise a triable issue of material fact regarding the dangerousness of the condition?
Disposition. affirmed
Quotations verified verbatim against the opinion
“The trivial defect doctrine is not an affirmative defense. It is an aspect of a landowner’s duty which a plaintiff must plead and prove.”
“In this case, however, there are no additional factors that indicate the alleged defect to be “sufficiently dangerous to a reasonably careful person . . . .””