Lujambio v. Mept West Hills

Filed 1/16/08 Lujambio v. Mept West Hills CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara M. Scheper, Judge. Affirmed.

Law Offices of Gregory B. Byberg, Gregory B. Byberg and Kousha Berokim for Plaintiff and Appellant.

Law + Brandmeyer, Yuk K. Law and Christopher Stogel for Defendants and Respondents.

__________________________

Appellant Lora Lujambio appeals after summary judgment in a trip and fall case was granted in favor of respondents Mept West Hills, LLC and Trammell Crow Services, Inc. The trial court determined the undisputed facts demonstrate that the alleged defect was trivial as a matter of law and constituted a basis for the summary judgment. Appellant contends the trial court erred by disregarding appellants own testimony and the opinion testimony of her expert, and by failing to find a triable issue of material fact existed as to a dangerous or unsafe condition. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2003, appellant began working for Countrywide Home Loans in a building located in West Hills, California. On September 16, 2003, appellant was walking towards a bank of elevators in the building when she tripped and fell on a metal plate between the main lobby floor and one of the elevators. Appellant alleged she sustained serious injuries when she fell on the subject property because of a dangerous condition that was allowed to exist and which defendants had notice of and failed to repair or warn of.

The lobby floor was comprised of marble tile, was clean and free of debris at the time of the accident and was fully illuminated. A metal strike bolt receiver plate was located on the floor in the threshold area between the ground floor lobby and the elevator vestibule and was secured by two screws. The metal plate affixed to the floor measured 1 5/8 inches wide, 3 1/2 inches long, and .122 inches thick. A coworker of appellant testified that the plate looked like a silver business card.

Tim Singletary, the buildings engineer, inspected the strike bolt receiver both before the accident and immediately after appellants accident. At all times, the strike bolt receiver was secured to the marble lobby floor by two screws. Those screws never protruded above the top of the hold down plate. In addition, the components of the strike bolt receiver did not protrude over the top of the hold down plate. Based on his personal observation following the accident, Mr. Singletary noted that the metal plate rested upon the marble floor and there was no gap between the floor and the metal plate either vertically or horizontally. Lanisha Jenkins testified that there were no vertical spaces between the plate and the floor.

Appellant denies having seen the metal plate prior to the date of the accident but alleges that at the time she fell there was a portion of the plate which protruded above the hold-down plate. Appellant testified at her deposition that later in the day following the accident she looked at the metal plate. She did not, however, take measurements of this protrusion or even bend down to get a close look at the device. Appellant did estimate the height of the alleged protrusion to be 1/2 inch but then ultimately concluded the alleged protrusion was the same thickness as her ring which when measured with a ruler was determined to be 1/4 inch thick.

Appellant had never tripped over the subject metal plate during the time she worked in the building, and neither appellant, her coworker Lanisha Jenkins, nor building engineer Tim Singletary were aware of any other accidents involving the metal plate.

Appellant filed her complaint alleging general negligence and premises liability. Respondents filed their answer denying each and every allegation set forth in the complaint. Following extensive discovery, respondents filed a motion for summary judgment. In support of the motion, respondents filed the declarations of building engineer Tim Singletary and a retained expert engineer Ned Wolfe.

Appellant filed opposition to the motion for summary judgment and attached the declaration of Thomas Gunzler, appellants retained expert engineer. Respondents filed their reply in support of the motion for summary judgment together with written objections to certain contents of the declaration of Thomas Gunzler. On September 20, 2006, the day before the hearing, appellant filed a supplemental declaration of her retained expert Gunzler, however the court found such supplemental declaration to be untimely.

On September 21, 2006, the court heard the motion for summary judgment. Following argument by the parties the court granted the motion. Appellant timely appealed.

DISCUSSION

1. Standard of Review

A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. If the moving party carries his burden of production, then the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. The trial court found appellant had not carried her burden.

The trial courts grant of summary judgment is subject to de novo review. In de novo review, we must consider all the evidence and any and all reasonable inferences which can be drawn therefrom, and view such evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

A longstanding principle in California holds that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in the property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) This principle is referred to as the trivial defect defense and is a limitation on the duty owed by the property owner. (Ibid.) The trivial defect defense is available to private, nongovernmental landowners. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399.)

The decision whether the defect is dangerous as a matter of law does not rest solely on the size of protrusion or defect. The court should also consider all of the circumstances surrounding the accident that might make the defect more dangerous than its size. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 729.)

2. The trial court properly determined the alleged defect is not the subject of

expert testimony and was trivial as a matter of law.

Appellant argues on appeal that the trial court erred by ignoring the opinion of appellants expert Thomas Gunzler regarding the dangerous condition of the metal plate. Mr. Gunzler provided a declaration which stated in part the Dust-Proof Strike . . . was mounted in the elevator lobby . . . on a smooth ceramic tile floor not mortised to accept its mounting plate; . . . [and] therefore protruded above that floor. (Emphasis in original.)

Evidence Code section 801, subdivision (a) provides that the opinion of an expert witness is limited to testimony [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact. An appellate court will not disturb the trial courts ruling on the admissibility of opinion evidence absent an abuse of discretion. Discretion is abused when the trial court taking all of the circumstances before it into consideration exceeds the bounds of reasons.

Here, the trial court determined the alleged defect in the lobby area . . . is not the proper subject of expert testimony. No expert was needed to decide whether the height of the protrusion was dangerous. This was a proper ruling given the well established rule of cases involving similar factual circumstances and because the determination of whether an alleged defect is dangerous is well within the common knowledge of lay judges and jurors. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 732; Caloroso, supra, 122 Cal.App.4th at p. 928; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361 [one and one-half inches difference in elevation]; Whiting v. City of National City (1937) 9 Cal.2d 163 [adjoining sidewalk panels differing in elevation three-fourths inch at the highest point]; Robson v. Union Pacific R.R.Co. (1945) 70 Cal.App.2d 759, 769 [.25 of an inch deep hole was trivial]; Graves v. Roman (1952) 113 Cal.App.2d 584, 585 [one-eighth inch strip was trivial].)

In deciding whether the alleged defect was trivial, the trial court based its decision on objective findings as to the conditions at the time of the accident rather than on any expert opinions. The trial court reviewed photographs of the metal plate and declarations of engineers establishing the plate was .122 inches thick, a fact undisputed by appellant. After the fact and from memory, appellant estimated the plate protruded .25 inches from the ground. Furthermore, the court considered, and Ms. Lujambio did not dispute, that the area was well-lighted and free of debris, appellant was familiar with the area, had walked there many times and at the time of the accident there were no crowds of people obstructing her view of the area or preventing her from seeing where she was walking.

As to the filing of the supplemental declaration of Mr. Gunzler, the court properly determined it was untimely since it was filed the day before the hearing on the summary judgment motion. Code of Civil Procedure section 437c, subdivision (b)(2) requires any declarations or affidavits used to support an opposition to a motion for summary judgment be filed not less than 14 days before the hearing. In this case, the supplemental declaration was filed one day before the hearing. As such it was untimely. In any event, this declaration would not have benefited appellant since Mr. Gunzlers supplementary conclusion stated the plate may have projected above the floor surface by more than 0.25. (Italics added.) Such conclusion was too speculative.

In conclusion, the defect in this case was one that properly could be said as a matter of law to have been not dangerous. The trial court properly found that no triable issue of any material fact existed and that respondents were entitled to summary judgment as a matter of law.

DISPOSITION

The judgment is affirmed. Respondents entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, Acting P.J.

We concur:

ZELON, J.

WILEY, J.*

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*Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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