Filed 2/22/18 Medina v. Costco Wholesale Corp. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



MARTHA MEDINA,

Plaintiff and Appellant,

v.

COSTCO WHOLESALE CORPORATION,

Defendant and Respondent.


E066387

(Super.Ct.No. CIVDS1415938)

OPINION


APPEAL from the Superior Court of San Bernardino County. Michael A. Sachs, Judge. Affirmed.
Law Offices of Siamak Vaziri, Siamak Vaziri and Mark J. Giannamore for Plaintiff and Appellant.
Gibbs & Fuerst, Michael T. Gibbs and Kevin L. Borgen for Defendant and Respondent.
Plaintiff and appellant Martha Medina appeals after a jury trial where the jury found in favor of defendant and respondent Costco Wholesale Corporation (Costco). Medina sued Costco based on negligence and premises liability causes of action claiming she slipped and fell on something slippery and wet outside Costco’s warehouse in Rancho Cucamonga (the Warehouse), injuring herself. Medina sought to call Brad Avrit as an expert witness to testify that shopping carts and shoes tracked contaminants such as oil and dust from the parking lot to the area where she fell and caused her to slip and fall.
Costco brought its “Motion in Limine For Order Limiting Trial Testimony [of] Plaintiff’s Retained Expert Brad Avrit” (MIL) prior to trial, seeking to exclude the testimony because it was based on speculation and was not a proper subject of expert testimony. The trial court granted the MIL and the matter proceeded to trial without Avrit’s testimony. The jury found in favor of Costco. Medina claims on appeal that the trial court abused its discretion by excluding Avrit’s testimony.
FACTUAL AND PROCEDURAL HISTORY
A. ACCIDENT AND COMPLAINT
On November 30, 2012, Medina was walking into the Warehouse when she suddenly slipped and fell. She injured her side. It was raining that day and the floor was very wet where she fell.
On October 24, 2014, Medina filed her complaint for damages (complaint) based on the causes of action of premises liability and negligence. As for premises liability, she alleged that Costco operated the Warehouse, which was open to the public. On November 30, 2012, Costco and each of its employees and agents operated the warehouse so negligently as to proximately cause Medina to slip and fall at the subject location near the store entrance. As a result, she received injuries that continued to cause her severe pain and discomfort. She incurred medical expenses due to her injuries. She was unable to carry out her usual occupation as a homemaker.
For her negligence cause of action, Medina alleged that Costco failed to maintain the subject location in a reasonably safe condition and breached its duty to its customers by failing to keep the store entrance, walkways and paths dry and free of debris and other hazards; allowed water, moisture, debris and other hazards to remain in the store entrance, walkways and paths for an unreasonable period of time; failed to warn Medina of the danger present on the store entrance walkway at the time of the incident; failed to place warning signs or cones warning of the slip hazard in the area; and failed to exercise due care with respect to the matters alleged in the complaint. Medina further alleged she was injured as a result of the fall, she incurred medical expenses, and she was unable to carry out her usual occupation of homemaker.
Costco filed an answer generally denying the complaint and raising affirmative defenses.
B. DEPOSITION OF BRAD AVRIT
A deposition was taken of Medina’s expert, Avrit. Avrit was retained to work on the case in March 2016. In investigating the matter, he reviewed the discovery documents, the deposition testimony of Medina, and Dario Sandoval, who was one of Costco’s employees. Avrit investigated the weather conditions at the time of the incident. He observed aerial photographs of the scene and reviewed industry standards regarding safety standards for preventing slip and fall incidents. Further, he reviewed the entrance to a nearby Target store, which used a different method of storing the shopping carts than Costco.
Enrique Rivera, a forensic engineer, performed an inspection of the Warehouse for Avrit. He took photographs, measurements of the slope of the walkway and conducted some slip-resistance testing based on water being present in the entryway. The slip resistance testing showed that if the surface leading into the Warehouse was kept dry, it was not slippery. Further, if it was wet with just water, it was slip resistant. The surface had been cleaned prior to Rivera’s inspection so there was no evidence of contaminants.
Avrit proffered that if there were contaminants on the surface of the entryway into the Warehouse, it could cause a slippery condition. He was asked if he had seen any evidence that there were contaminants on the surface when Medina fell, and he responded, “[c]ircumstantial evidence.” Avrit insisted Medina would not have fallen if just water was on the surface.
Avrit offered as his research that Medina would not have fallen in front of the Warehouse if it was dry or just wet when she was just walking in a normal fashion. This meant that there was something different on the surface in the area where she fell. He surmised, “It would have been physically impossible for her to slip walking in a normal pace unless there was a contaminant present on the surface.”
Avrit was asked if there was a scientific study that contaminants were moved from one spot on the pavement in the parking lot to the Warehouse entrance by way of foot traffic or cart wheels. Avrit explained that there was no scientific study. He stated, “I think that’s common sense that if you have an open expansive parking lot and it just starts to rain, that you have oils and dirt that are on the surface of the parking lot that can be transferred from cart wheels that are pushed across the parking lot onto this entry area where the carts are stored.” Avrit could not identify the contaminant but guessed it was oil, dirt or grease. The best evidence he had that these contaminants were present was the description of how Medina described her fall. Her fall would not have been possible unless the contaminants were on the surface. He acknowledged the evidence that contaminants were present was circumstantial.
There was no documentation of contaminants in the investigation. Avrit explained it would be inevitable that there would be contaminants in the parking lot and they would be transferred to the entryway of the Warehouse. He stated that since there was rain that day, and it had not rained for two weeks, this increased the likelihood of contaminants being in the entryway.
Medina fell a few feet in from the parking lot, at the entryway. Avrit had been to the Warehouse about one and one-half years prior to the current case to investigate a different slip and fall case inside the store. He referred to a slip and fall prevention guide, which recommended mats be used in an entryway to absorb water, mud, soil, grease and oil.
Avrit indicated the entryway could be resurfaced to stop slipping with contaminants. Moreover, it should be regularly cleaned. It was his understanding that Medina was walking normally, on a flat surface, when she fell. He insisted that 99 percent of shoes would not be slippery on a slip-resistant walkway. He indicated it was rare that a shoe was worn out to the point that it was slippery itself.
Avrit concluded that the entryway to the Warehouse was not a safe surface when subjected to wet and contaminated conditions. The unsafe condition caused Medina to fall. The unsafe condition could have been easily and economically remediated to prevent slips and falls from occurring. Costco did nothing to address the issue. If the surface was only wet, and clean of contaminants, no fall would have occurred. Avrit admitted that the exact area where Medina fell was not tested for contaminants
Avrit stated the records showed Costco normally cleaned the entryway prior to the store opening each day and there was evidence they monitored the area every hour. There were no additional efforts made when it was raining. The closest monitor of rainfall that day was five to 10 miles. It had been lightly sprinkling the two hours leading up to the incident. He could not tell from photographs whether there were any contaminants in the entryway at the time of Medina’s fall. Avrit recommended that mats be placed in the entryway until the area could be resurfaced.
C. MIL
On May 12, 2016, Costco filed its MIL. Costco sought to limit Avrit’s testimony as follows: (1) Avrit may not offer testimony that Medina fell because of contaminants on the pavement; (2) Avrit may not testify that the contaminants were carried to where Medina fell by shoes and cart wheels; and (3) he may not offer his opinion that Costco should have altered the surface of its pavement so that it was slip proof even when covered by contaminants.
Costco argued there was no evidence of contaminants on the pavement where Medina fell. There was only Avrit’s “common sense” proposition that Medina slipped because there was something slippery. This was not beyond the common experience of the jury and was not a proper subject of expert testimony. Further, Avrit acknowledged it was common sense that contaminants would be transferred to the entryway by shoes and cart wheels, which was not beyond the jury’s experience. Further, Avrit was merely guessing that there may have been something in the parking lot that was transferred to the entryway of the Warehouse. He had no scientific explanation for the substances, how many substances were present, or how they got to the entryway. Further, California law did not allow Avrit to testify that Costco should have altered the surface.
Finally, Costco argued that it had to have notice of the dangerous condition. Avrit was seeking to impose liability on a strict liability standard.
D. OPPOSITION TO MIL
Medina filed her opposition on May 17, 2016. Medina’s counsel insisted Medina would testify at trial that after she fell, she felt something slippery on her clothes that was not just water. Further, she felt the ground as she got up and it was slippery. She was not asked these questions in her deposition.
Excerpts from Medina’s deposition were attached. Medina stated she was walking under the canopy of the entryway into the Warehouse when she slipped. The floor was “very wet.” Her right foot slipped and she fell very “quickly” on her right side. She was asked to view photographs of where she fell. There was water on the floor where she fell.
Further, Medina indicated that Sandoval, who filled out an incident report at the time of the incident, provided evidence that a contaminant was present in the entryway. Sandoval was asked in his deposition if he observed any substance, such as water, oil or cardboard, in the area where Medina fell. He responded, “just water is all I observed or wetness of some sort.” He was also asked if, when the carts came back from the parking lot, they tracked in oil, grease and dirt. Sandoval indicated he could not say for sure if the carts brought in these substances. Sandoval could not be certain the entryway had been cleaned by a scrubber that morning but it was the usual practice to do so.
Avrit based his opinion that the fall was caused by contaminants by looking at aerial views of the parking lot, which showed stains from grease and oil; the properties of oil and water; and his prior experience in slip and fall cases involving contaminants. He indicated that the contaminants logically would come from the parking lot.
Based on the above, Medina argued that it was in the jury’s purview to determine the weight of the evidence offered by Avrit.
E. HEARING ON MIL
The trial court heard argument on the MIL prior to trial. The trial court had read the MIL, the opposition, Avrit’s deposition, Medina’s deposition and portions of Sandoval’s deposition. The tentative ruling was to grant the MIL.
The trial court noted it was aware that Medina would testify she had a sticky substance on her clothes but Avrit did not base his opinion on this statement. Avrit’s opinion that since there was discoloration in the parking lot, there was some type of contaminant, and that contaminant was transferred to the entryway by shoes and the cart wheels, was pure speculation. Further, Avrit admitted it was based on common sense and not any scientific study performed by him or Rivera. There was no testing done of the entryway to see what was on the surface. Avrit relied upon circumstantial evidence. Avrit himself admitted the presence of contaminants was based on common sense.
Medina’s counsel argued there was enough testimony to allow Avrit to enter his opinion that there were contaminants in the entryway. Costco argued the testimony by Avrit only addressed common sense and that expert testimony on the issue was not necessary. Further, there was no evidence of a contaminant.
The trial court asked what evidence there was that there was another substance on the surface other than water, and how the substance affected the coefficient of friction. Medina’s counsel argued Medina would testify that she had a slippery substance on her clothes. Medina’s counsel also argued that she would not have tripped unless there was some other substance tracked in by cart wheels and shoes. The trial court responded, “Other than tripping over her own feet?” Medina’s counsel denied Medina tripped over her own feet.
The trial court again expressed its concern that no experiments were conducted as to contaminants being tracked into the entryway by the cart wheels or shoes. Moreover, Avrit admitted it was common sense, which was not proper expert testimony. Counsel could still make the argument to the jury based on common sense by examining Costco’s employees as to why the entryway was consistently washed.
The trial court found that based on the information Avrit had at the time of his deposition, there was no factual basis for Avrit’s testimony. Further, the information was based on common sense and not any scientific testing. There were no tests conducted later as to how much contaminant could be transferred or how the rain impacted the transfer of contaminants. The MIL was granted.
Medina filed a motion for reconsideration seeking to have the trial court allow Avrit to testify at the trial. It was apparently denied with the court finding no new facts or laws were presented.
Trial proceeded and the jury found in favor of Costco, that it was not negligent in the maintenance of its property. Judgment was entered on June 28, 2016. Medina has not provided this court with the transcripts from the trial.
DISCUSSION
Medina contends the trial court erred by granting Costco’s MIL because the information relied upon by Avrit was proper for an expert; there was evidence that supported the foundation of his opinions; there was a proper basis for his opinion; and Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon) does not prevent the testimony here.
“Motions in limine are a commonly used tool of trial advocacy and management in both criminal and civil cases. . . . The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party. A typical order in limine excludes the challenged evidence and directs counsel, parties, and witnesses not to refer to the excluded matters during trial.” (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669.)
Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” “Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may reasonably rely.” (Sargon, supra, 55 Cal.4th at p. 770.)
“[W]e review [the trial court’]s ruling excluding or admitting expert testimony for abuse of discretion.” (Sargon, supra, 55 Cal.4th at p. 773.) “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (Ibid.)
Initially, the trial court properly excluded Avrit’s testimony as it was based on common knowledge and would not assist the jury. “[E]xpert testimony is generally inadmissible on topics ‘so common’ that jurors of ordinary knowledge and education could reach a conclusion as intelligently as the expert.” (People v. Lindberg (2008) 45 Cal.4th 1, 45.) “In determining the admissibility of expert testimony, ‘the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury.’ ” (Ibid.)
Avrit himself admitted that no scientific experiments were conducted and it was common sense that the cart wheels and shoes tracked in contaminants to the entryway of the Warehouse. Avrit intended to testify that the cart wheels and shoes could track contaminants from the parking lot to the entryway but had no further evidence as to the type or quantity of the contaminants. He did no experiments as to the amount transferred or how much contaminant would cause the entryway to become slippery. The trial court properly noted that there was no testimony by Avrit as to the coefficient of friction with the contaminants. The expert testimony proffered by Avrit was based on common experience and was unnecessary to assist the jury.
Moreover, Avrit’s opinion was based on pure speculation. In Sargon, supra, 55 Cal.4th 747, the court addressed whether expert opinion as to future profits on a dental implant machine was properly admitted expert testimony. It first found, “[U]nder Evidence Code section 801, the trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion. As we recently explained, ‘[T]he expert’s opinion may not be based “on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors. . . . [¶] Exclusion of expert opinions that rest on guess, surmise or conjecture [citation] is an inherent corollary to the foundational predicate for admission of the expert testimony: will the testimony assist the trier of fact to evaluate the issues it must decide?” ’ ” (Id. at p. 770.)
It further found, “the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies. Rather, it conducts a ‘circumscribed inquiry’ to ‘determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert’s general theory or technique is valid.’ [Citation.] The goal of trial court gatekeeping is simply to exclude ‘clearly invalid and unreliable’ expert opinion.” (Sargon, supra, 55 Cal.4th at p. 772.)
Here, there was no credible basis for Avrit to conclude that contaminants were present where Medina fell. Medina stated in her deposition that the entryway was very wet but described no contaminants. There were no pictures or video of contaminants. Although it was offered that Medina would testify at trial that her clothes were slippery after she fell, Avrit did not have this evidence when he reached his opinion. Additionally, Avrit had reviewed Sandoval’s deposition, but Sandoval only said that he could not say with certainty that the carts brought in oil and grease.
Avrit did no experiments to determine the amount of contaminants transferred to the entryway from the parking lot. Avrit did not provide information as to how slippery the surface would be with these contaminants. Avrit merely speculated that there was some type of contaminant, which caused Medina’s fall. As noted by the trial court, it was equally speculative that Medina may have tripped over her own feet. Avrit’s speculative testimony was properly excluded by the trial court. (Sargon, supra, 55 Cal.4th at p. 772.)
Moreover, Medina has made no effort to establish how she was prejudiced by the exclusion of Avrit’s testimony short of stating that the jury necessarily found in favor of Costco once Avrit’s testimony was excluded. “No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial . . . and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed” (Code of Civ. Proc., § 475.) Here, Medina has made no argument how she was prejudiced by the exclusion of Avrit’s testimony at trial. The record does not include the testimony at trial. We cannot conclude the exclusion of Avrit’s testimony, which was based on common sense and experience, was prejudicial.
DISPOSITION
The trial court’s order granting Costco’s motion in limine is affirmed. Costco is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS



MILLER
Acting P. J.


We concur:


CODRINGTON
J.


SLOUGH
J.