Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County, No. 30-2008-00115390, Glenda Sanders, Judge.
Rager & Noiroux and Kathleen Rager for Plaintiff and Appellant Bobbie Neyland.
Lewis Brisbois Bisgaard & Smith and Roger L. Bellows for Defendant and Appellant Marriott Hotel Services, Inc.
Bullard, Brown & Beal, Lee H. Graham and Patrick E. Naughton for Defendant and Respondent Towne Park, Ltd.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Bobbie Neyland sued defendant Marriott Hotel Services, Inc. (Marriott) for injuries she suffered in a fall while entering a hotel operated by Marriott. Later, plaintiff filed an amendment to the complaint adding defendant Towne Park, Ltd. (Towne Park), the company that provided valet services to the hotel. Marriot moved for summary judgment. Finding no dangerous condition on the property as a matter of law, the trial court granted the motion and entered judgment in Marriott’s favor. But the judgment directed the parties to bear their own costs.
Towne Park also moved for summary judgment. Citing the prior ruling for Marriott, the trial court granted Towne Park’s motion and entered judgment for it as well.
Plaintiff appeals both judgments. In addition, she has requested we take judicial notice of California regulations concerning disability access. Marriott appeals from the portion of the first judgment that denied recovery of its costs. We grant plaintiff’s request for judicial notice. For the reasons discussed below we affirm both judgments on the merits, but reverse the portion of the judgment for Marriott concerning the recovery of costs.
FACTS AND PROCEDURAL BACKGROUND
Shortly before 5:00 p.m. one May afternoon, plaintiff, her daughter, and other family members arrived at the Irvine Marriott Hotel in a minivan. The driveway leading to the hotel’s front entrance has a raised curb along its outer portions and a zero-curb face at the portico covering the doorway. Adjacent to the driveway’s zero-curb face is a red-colored 36-inch wide Americans with Disabilities Act (ADA) mandated detectable warning strip (warning strip). The warning strip consists of numerous circular truncated domes, .9 inch in diameter and.2 inches in height spaced approximately 2.35 inches apart.
Traffic along the hotel’s driveway was heavy, forcing the minivan to stop several car lengths from the front entrance. A valet opened the vehicle’s doors and plaintiff and the others stepped out of it. They went to the adjacent sidewalk, which at that point consisted of a smooth paved concrete surface, and proceeded towards the hotel’s entrance. Plaintiff, who lives in Louisiana, had never been to the hotel before that day. She was wearing a jacket, pants, and sandals with rubber soles and low heels.
As plaintiff approached the hotel entrance, she saw the warning strip and several chairs in the middle of the sidewalk, some of which were occupied. A large man sat in the first chair “slumped down... with his legs stretched out in front of him.” According to Betty Neyland, plaintiff’s daughter, there were planters blocking the group from walking behind the chairs.
The members of plaintiff’s party shifted course and began to walk lengthwise on the warning strip. Plaintiff claimed she had never seen a similar warning strip before, but acknowledged discerning a difference in the walking surface. After taking three or four steps, she tripped and fell forward onto her left knee, hands, and face.
Plaintiff filed suit against Marriott. Her amended complaint contained two causes of action. The first count, for negligence, alleged Marriott “allow[ed] a dangerous condition to exist whereby chairs were pushed up to the car unloading area at the entrance, ” thereby “blocking the unloading zone, ” and “prevented [plaintiff] from having safe access to the flat sidewalk surface....” The second count, for premises liability, alleged plaintiff’s “entrance to [the] hotel... was blocked by large chairs with patrons seated in them that had been moved up to the unloading zone, ” thereby “forcing her to [use]... a handicapped bump strip between the driveway and flat sidewalk, ” and its “uneven surface caused [her] to stumble and fall....”
Marriott moved for summary judgment. It argued there was no dangerous condition at the hotel entrance and, alternatively, any dangerous condition was either obvious or amounted to only a trivial defect.
Diana L. Harrison, the hotel’s director of operations, submitted a declaration stating Marriott had not “received any prior notice[] that anyone had ever tripped and fallen in the area of the ADA warning strip... since the date it was constructed in May 2007, ” nor had it ever been altered or repaired. Marriott also submitted a declaration from Bob Evans, a licensed architect retained as a consultant and who inspected the hotel entrance. Evans claimed “[t]he design, configuration and construction of the ADA warning strip in the area where plaintiff fell is compliant with industry standards and the [f]ederal... [r]egulations... in effect at the time of its construction, ” plus it was “designed for pedestrian use and is not a dangerous or defective walking surface.” Marriott also presented evidence both the sidewalk and warning strip were dry, in good condition, and there was no trash or debris where plaintiff fell.
Plaintiff’s opposition included declarations from two experts. Anthony Stein, a human factors professional, cited to “a significant body of literature” suggesting “irregularities in a walking surface increase the probability of a fall” to support a conclusion that simply because the warning strip “meets ADA specifications does not mean it cannot be a tripping hazard.”
The second expert was Jerry Zerg, a licensed architect who also inspected the hotel’s entrance, including the warning strip. Paragraphs 6, 7, 8, and 9 of Zerg’s declaration cited provisions of the California Building Code (Cal. Code Regs., tit. 24) to support his conclusion the warning strip “has one critical code violation and one probable code violation.” The critical code violation involved the warning strip’s failure to comply with a California Building Code requirement that the diameter of the “raised truncated domes” taper from “0.9 inch... at the base... to 0.45 inch... at the top....” (Cal. Code Regs., tit. 24, § 1121B.3.1, subd. (8)(a).) Zerg claimed “[t]he sides of the [truncated] domes [on the hotel’s warning strip] rise approximately straight up and are rounded off at the tops” rather than being flat. The probable code violation concerned “the color contrast between the warning strip and the adjacent surface. (Ibid.)
Paragraphs 14, 15, and 16 of Zerg’s declaration disputed Marriott’s claim its warning strip was designed for pedestrian use. Zerg asserted the strip “was designed to give a warning to people of low or no vision when vehicle traffic was dead ahead, ” and because it “is somewhat of a hazard... to... pedestrian[s], ” the ADA “limited the strip to one or two paces.” Thus, he concluded, “[t]he warning strip was meant to be a transition from walkway to roadway.”
The trial court sustained Marriott’s evidentiary objections to the entirety of Stein’s declaration and all but paragraphs 14, 15, and 16 of Zerg’s declaration. It then granted Marriott’s motion, finding “[o]n the undisputed material facts, no reasonable person would conclude that the conditions here, including the ADA warning strip and adjacent chairs, created a substantial risk of injury if the property was used with due care and in the manner it is reasonably foreseeable it would be used.” (Bold omitted.) Thus, it concluded “as a matter of law... there was no dangerous condition on the property.”
As noted, plaintiff amended the complaint to name Towne Park as an additional defendant. Towne Park separately moved for summary judgment. In addition to much of the material previously presented with Marriott’s summary judgment motion, Towne Park supported its request with a declaration from Ricky Garcia, its manager, who was on duty the day of the accident. Garcia stated, “Towne Park employees are responsible for assisting hotel patrons in and out of their vehicles and parking and retrieving their vehicles.... Towne Park does not own the furniture located in the front of the Marriott Hotel” and its “responsibilities at the... [h]otel do not include determining where the furniture... is to be located or positioned.”
Plaintiff’s opposition acknowledged Towne Park merely “provided valet services, ” and “did not own the furniture located in front of the... [h]otel.” But she submitted deposition excerpts from Garcia, Harrison, and Marriott’s loss prevention officer to the effect Towne Park maintained the hotel driveway, kept the sidewalk clean and free of debris, and “straightened any furniture.” She also asked the court to take judicial notice of several documents, including the declarations previously filed by Stein and Zerg and the California Building Code regulations.
The court granted plaintiff’s judicial notice request. But, citing its ruling on Marriott’s summary judgment motion, granted Towne Park’s motion again concluding “there was no dangerous condition on the property....”
DISCUSSION
1. Scope of Review
Code of Civil Procedure section 437c, subdivision (c) declares summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Both counts of the complaint were based on the existence of a dangerous condition on the hotel’s property that caused plaintiff’s fall and resulting injuries. A dangerous condition exists where a characteristic of the property presents a substantial risk of harm to a person who uses the premises in a reasonably foreseeable manner. (Akins v. County of Sonoma (1967) 67 Cal.2d 185, 196; see also Gov. Code, § 830, subd. (a).) “Premises liability is a form of negligence” wherein “[t]he owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)
A defendant may prevail on a summary judgment motion “by showing either one or more of [a cause of action’s] elements cannot be established or that a complete defense exists to it. [Citations.]” (Brinton v. Bankers Pension Services, Inc. (1999) 76 Cal.App.4th 550, 555.) The trial court granted summary judgment to both defendants, concluding no dangerous condition existed as a matter of law. While “[t]he existence of a dangerous condition ordinarily is a question of fact, ... the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. [Citation.]” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1117, 1133.)
“‘Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] “‘We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’” [Citation.]’” (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) Challenges to the evidentiary rulings made in relation to the motion are reviewed for abuse of discretion. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) “‘We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citation.]’ [Citation.]” (Wilson v. 21st Century Ins. Co., supra, 42 Cal.4th at p. 717.)
2. The Existence of a Dangerous Condition
Plaintiff contends “there is a triable issue of fact whether the conditions at the... [h]otel on the day of the accident... which forced [her] to use the continuously uneven [warning] strip as a path to enter the hotel... created a dangerous condition that caused [her] accident.” In support of this claim, she argues the trial court mistakenly believed Marriott’s compliance with the federal ADA in installing the warning strip eliminated the possibility that the strip created a dangerous condition. She further claims the trial court mistakenly assumed plaintiff and her family had alternatives means of reaching the hotel entrance. Finally, she contends the trial court abused its discretion in sustaining Marriott’s objections to her expert witness declarations.
Marriott and Towne Park dispute these claims. In its brief, Marriott notes the “chairs in the valet/shuttle waiting area... did not block or prevent [plaintiff] from having safe access to the walkway, ” the ADA-required warning strip “is a reasonably safe walking surface, ” and plaintiff “saw [both] the chairs and the ADA warning strip before she fell[] and... was able to take several steps around the people seated on the chairs and onto the warning strip prior to her fall.” It further contends that, even assuming a dangerous condition existed, no liability arose because the condition was open and obvious and, at best, amounted to only a trivial defect. Towne Park agrees there was “no dangerous condition as a matter of law....”
Generally, “[e]veryone is responsible... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property....” (Civ. Code, § 1714, subd. (a); see Rowland v. Christian (1968) 69 Cal.2d 108, 118-119.) But cases have recognized landowners are not “‘insurer[s] of safety’” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121), and “persons who maintain walkways... are not required to maintain them in an absolutely perfect condition” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398).
Plaintiff’s argument ignores the trial court’s explanation of its ruling. The court found no triable issue as to the existence of a dangerous condition after considering the entirety of the circumstances outside the hotel entrance. Plaintiff admitted seeing both the chairs and the warning strip, and she acknowledged being able to tell the difference between walking on the smooth concrete surface and on the warning strip. In addition, Marriott presented unrebutted evidence the accident occurred during daylight on dry ground where there was no debris or damage to the warning strip that would increase the hazard of using it as a walkway.
Noting courts have recognized “[t]he ADA permits reliance on state laws that provide greater protection” (Californians For Disability Rights v. Mervyn’s LLC (2008) 165 Cal.App.4th 571, 585; see also 42 U.S.C. § 12201(b)), and citing the portion of Zerg’s declaration that asserted the warning strip did not comply with the California Building Code, plaintiff argues mere compliance with the ADA did not preclude the existence of a dangerous condition. But in ruling on Marriott’s summary judgment motion, the trial court excluded this portion of Zerg’s declaration. Plaintiff further contends the court abused its discretion in doing so.
The trial court’s evidentiary rulings and consideration of the expert evidence appear to be somewhat conflicting. Plaintiff objected to the portions of Evans’s declaration that asserted the warning strip complied with federal law and was a safe walking surface for pedestrians. The court overruled her objections. Like Evans, Zerg was a licensed architect who had inspected the hotel’s warning strip. But the court sustained nearly all of Marriott’s objections to Zerg’s declaration, including his conclusions the warning strip failed to comply with state law. Then during oral argument the trial judge stated, “I discounted the expert opinions, ” but later noted “my ruling is based on the assumption that the A.D.A. rules were fully complied with.”
“[C]ompeting, conflicting evidence presented by... experts” can “foreclose[]... the... grant [of a] summary judgment....” (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 30; see also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) “‘It is sufficient, if an expert declaration establishes the matters relied upon in expressing the opinion, that the opinion rests on matters of a type reasonably relied upon, and the bases for the opinion. [Citation.]’ [Citation.]” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123.) Furthermore, “when considering the declarations of the parties’ experts, we liberally construe the declarations for the plaintiff’s experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. [Citation.]” (Id. at pp. 125-126, fn. omitted.)
But even assuming the trial court’s evidentiary rulings were erroneous, we conclude it would not change the ultimate result in this case. Zerg’s claim of a probable code violation due to a failure to provide an adequate color contrast between the warning strip and the adjacent sidewalk is irrelevant. Plaintiff acknowledged seeing the warning strip well before she stepped onto it, and once she began to walk on the warning strip, she admittedly noticed a difference between its surface and the concrete sidewalk.
The purported critical building code violation concerned the fact the warning strip’s truncated domes, although in full compliance with federal requirements, did not taper from.9 inches at the base to.45 inches at the top as required by the California Building Code. Defendants rely on the trivial defect doctrine to support affirming the trial court’s judgments. Towne Park’s brief asserts “[i]t defies all logic” to hold “the miniscule differences between the dimensions for different designs of truncated domes actually mean[] one design is ‘dangerous, ’” and reaching such a conclusion “would make property owners the virtual insurers of the safety of any person who walks on a warning strip....”
We agree with these sentiments. “It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. [Citation.]” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) While “[c]ourts have referred to this simple principle as the ‘trivial defect defense, ’... it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.” (Ibid.) Thus, “[t]he duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d at p. 398.)
The trial court’s minute order reflects it relied on this doctrine to find the hotel’s walkway did not present a dangerous condition. It ruled “[o]n the undisputed material facts, no reasonable person would conclude that the conditions here, including the ADA warning strip and adjacent chairs, created a substantial risk of injury if the property was used with due care and in the manner it is reasonably foreseeable it would be used.” (Bold omitted.) (See Gov. Code, § 830.2 [using similar language to define trivial defect doctrine applicable to actions under Tort Claims Act].)
Of course, a determination as to whether the trivial defect doctrine applies “does not rest solely on [a purported defect’s] size....” (Caloroso v. Hathaway, supra, 122 Cal.App.4th at p. 927.) A court must also “consider[]all of the circumstances surrounding the accident that might make the defect more dangerous, ” including “whether the walkway had any broken pieces or jagged edges and other conditions, ” “whether there was debris, grease or water concealing the defect, ” and “whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.” (Ibid.)
Here, the accident occurred during the day. Plaintiff acknowledged both seeing the warning strip before she stepped on it and noticing a difference between its surface and that of the adjacent concrete sidewalk. The warning strip was in good condition and had not been previously altered or repaired. Also there was no evidence of prior falls on the warning strip, nor the presence of water, trash, or other debris that could have contributed to the accident.
Based on the entire record, we hold the trial court properly concluded plaintiff failed to present evidence sufficient to establish a triable issue of material fact existed as to the presence of a dangerous condition on the hotel’s property. Therefore, we affirm both judgments on the merits.
3. The Denial of Costs to Marriott
When entering judgment for Marriott, the trial court directed each party to bear its own costs. Marriott appeals from this portion of the judgment, arguing it is entitled to costs as a matter of right. We agree.
Code of Civil Procedure section 1032, subdivision (b) declares, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” The statute defines the phrase “‘[p]revailing party’” to “include[]... a defendant in whose favor a dismissal is entered....” (Code Civ. Proc., § 1032, subd. (a)(4); see also Cano v. Glover (2006) 143 Cal.App.4th 326, 331 [“‘A defendant in whose favor a dismissal is entered is the prevailing party and is entitled to costs’” regardless of whether “‘the plaintiff voluntarily dismisses or where the trial court orders an involuntary dismissal’”].) Therefore, the trial court abused its discretion in denying Marriott recovery of its costs.
DISPOSITION
Appellant’s request for judicial notice is granted. The portion of the judgment in case number G042944 dismissing appellant’s action against respondent Marriott is affirmed. The portion of that judgment directing each party to bear its own costs is reversed and the matter is remanded to the superior court with directions to amend the judgment to award respondent Marriott its costs of suit. The judgment in case number G043459 is affirmed. Respondents Marriott and Towne Park shall recover their costs on appeal.
WE CONCUR: BEDSWORTH, J., IKOLA, J.