Baltazar v. Sea World Parks & Entertainment LLC et al

Filing 33

ORDER Denying 26 Motion for Summary Adjudication; Granting 27 Motion to Exclude Testimony. Signed by Judge Michael M. Anello on 3/16/2017. (jjg)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

EUSEBIA BALTAZAR, an individual,

13
14
15
16

Case No.: 15cv2893-MMA (BLM)
ORDER GRANTING DEFENDANT’S
MOTION TO EXCLUDE
TESTIMONY OF PLAINTIFF’S
RETAINED EXPERT; AND

Plaintiff,
v.
SEA WORLD PARKS &
ENTERTAINMENT LLC, a limited
liability company,

17

[Doc. No. 27]
DENYING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT

Defendant.

18

[Doc. No. 26]

19
20

Plaintiff Eusebia Baltazar (“Plaintiff”) brings this action against Defendant Sea

21

World LLC1 (“Defendant” or “Sea World”) alleging two causes of action for negligence

22

and premises liability. See Complaint. Defendant moves to exclude the testimony of

23

Plaintiff’s retained expert Brad Avrit (Doc. No. 27), and moves for partial summary

24

judgment of Plaintiff’s claims. The Court found the matter suitable for determination on

25
26
27
28

1

Defendant Sea World LLC was erroneously sued as Sea World Parks & Entertainment LLC.
Doc. No. 1 at 2.

-1-

15cv2893-MMA (BLM)

1

the papers and without oral argument pursuant to Civil Local Rule 7.1.d.1. For the

2

reasons set forth below, the Court GRANTS Defendant’s motion to exclude testimony of

3

Plaintiff’s retained expert (Doc. No. 27), and DENIES Defendant’s motion for partial

4

summary judgment (Doc. No. 26).
FACTUAL BACKGROUND2

5
6

On December 1, 2013, Plaintiff visited Sea Worl d San Diego (“Sea World”) with

7

her family. While walking on the walkway outside of the Journey to Atlantis ride3 at Sea

8

World, Plaintiff caught her right foot in a concrete expansion seam. 4 As a result,

9

Plaintiff’s left foot slipped on the wet walkway, and Plaintiff fell to the ground fracturing

10

and dislocating her right ankle. Sea World employees bandaged Plaintiff’s foot and

11

escorted her out of the park.

12

The parties dispute whether Plaintiff was running or walking at the time of the

13

incident. The parties also dispute the location of Plaintiff’s fall. Finally, the parties

14

dispute whether Plaintiff spoke with Sea World employee Maria Miranda on the night of

15

the incident.

16

Plaintiff commenced this action against Defendant on November 20, 2015 in the

17

Superior Court of the State of California for the County of San Diego. See Doc. No. 1.

18

On December 23, 2015, Defendant removed the case to this Court on the basis of

19

diversity jurisdiction and answered Plaintiff’s Complaint. See id.

20

///

21
22
23
24
25
26
27
28

2

These material facts are taken from the parties’ separate statements of undisputed facts and
pertinent cited exhibits. Where a material fact is in dispute, it will be so noted. Facts that are immaterial
for purposes of resolving the current motion are not included in this recitation.
3

Journey to Atlantis is a water roller coaster ride that begins with a “splashy 60-foot plunge.”
See https://seaworldparks.com/en/seaworld-sandiego/Attractions/Rides/Journey-to-Atlantis.
4

Concrete expansion seams (also known as concrete joints) separate slabs of concrete.
Expansion seams are used to prevent cracks in the concrete due to the expanding and contracting of the
concrete with changes in temperature.
-2-

15cv2893-MMA (BLM)

1

DEFENDANT’S DAUBERT MOTION

2

On September 22, 2016, Mr. Brad Avrit, P.E., of Wexco International Corporation,

3

a safety engineer and accident reconstruction expert, offered a report providing his

4

opinions regarding Defendant’s liability relating to the safety of the subject area at the

5

time of the accident. See Doc. No. 27-1, Exh. B; Doc. No. 29-6, Exh. 5. Defendant

6

moves to exclude the opinions of Mr. Avrit in their entirety. Doc. No. 27-7 at 5.5

7

A.

8
9
10
11

Plaintiff’s Request to Exclude Evidence Pursuant to Rule 37(c)(1)
As an initial matter, Plaintiff requests the Court strike the declarations of Marc

LaHay and Buddy Burton6 submitted in support of Defendant’s Daubert motion because
Defendant disclosed these witnesses in violation of Federal Rule of Evidence 37(c)(1).
On July 12, 2016, Plaintiff deposed Ms. Darlene Walter, Defendant’s person most

12

knowledgeable about maintenance performed and contracts to perform services at the

13

location where Plaintiff fell. See Doc. No. 29-3, Exh. 2 at 3; Doc. No. 29-2, Exh. 1 at 2-

14

3. Defendant produced, and Ms. Walter reviewed, six (6) pages of documents including

15

the December 24, 2010 contract with True Champions Construction Services, and

16

invoices dated February 16, 2011, and January 19, 2012. Doc. No. 29-3, Exh. 2 at 3-4.

17

Plaintiff claims that contrary to the declarations of Mr. Burton and Mr. LaHay, Ms.

18

Walter testified that the construction work identified in the six (6) pages of documents

19

consisted of repairing ten spalled7 areas of concrete, but not that the worked also included

20

acid-etching or mechanical abrading. Doc. No. 29 at 4. Mr. Avrit reviewed Ms. Walter’s

21

deposition transcript and based his opinions in the Rule 26 report on her testimony. Id.

22

Plaintiff claims, “[a]t no time after receiving Mr. Avrit’s Rule 26 report on September 23,

23
24

5

25

6

26

All citations refer to the pagination assigned by the CM/ECF system.

On November 9, 2016, Sea World served Amended Initial Disclosures identifying Mr. Lahay
and Mr. Burton as individuals with personal knowledge of the acid etching and spall repairs made to the
Journey to Atlantis walkway between December 2010 and December 2013.

27
7

28

The term “spalled” refers to areas of broken or chipped concrete.

-3-

15cv2893-MMA (BLM)

1

2016 and/or before taking Mr. Avrit’s deposition on November 7, 2016 did Sea World

2

disclose Mr. Burton and Mr. LaHay’s information that they now submit to this Court.”

3

Id. Plaintiff requests the Court strike the Declarations of Mr. Burton and Mr. LaHay

4

pursuant to Federal Rule of Civil Procedure 37(c)(1). Id. at 10.

5
6
7
8

Federal Rule of Civil Procedure 37(c)(1) provides in pertinent part:
If a party fails to provide information or identify a witness as Required by
Rule 26(a) or (e), the party is not allowed to use that information or witness
to supply evidence on a motion, at a hearing, or at a trial, unless the failure
was substantially justified or is harmless.

9
10
11

Fed. R. Civ. P. 37(c)(1).
Here, the Court finds no discovery violation. Defendant first produced the relevant

12

six (6) documents on June 22, 2016. See Doc. No. 30-1 at 63-85. Defendant produced

13

the same six (6) documents on July 12, 2016. See id. at 86-102. The December 24, 2010

14

contract states in pertinent part, “we will clean, etch and mechanically abrade the surface

15

to remove the environmental build up with a special environmentally safe non metallic

16

system.” Doc. No. 29-4 at 2 (emphasis added). Moreover, the contract provides that

17

True Champions “will work with the Sea World Safety Team to test pre-selected areas

18

before and after to confirm that the slip resistance level meets or exceeds the parks [sic]

19

safety requirements.” Id.

20

During Ms. Walter’s deposition, Plaintiff’s counsel did not question her about the

21

acid etching of the concrete walkway. See Doc. No. 29-3 at 9-11. Ms. Walter described

22

ten (10) “areas that have spalled, which means that the concrete has popped out.” Id. at

23

10. Plaintiff’s counsel then asked Ms. Walter “[a]nything else [the contract] is

24

describing?” Id. Ms. Walter answered, “[the contract] identifies courtyard areas,

25

disposal, references [True Champions’] work, the prepping. Do you want me to run

26

through all that, or –” Id. Plaintiff’s counsel said, “[n]o, I guess I just want – it’s in

27

English, but I figured I’d ask you if there was a less technical way of describing the work

28

that they were doing based on that document, if you can describe it?” Id. Ms. Walter
-4-

15cv2893-MMA (BLM)

1

responded, “Okay. Essentially, it’s identification of various areas where the concrete had

2

popped out.” Id. at 10. Although Ms. Walter did not volunteer any information about

3

acid-etching or mechanical abrading, the documents produced to Plaintiff on two

4

occasions clearly contain information about the maintenance work performed. Plaintiff’s

5

failure to question Mr. Walter about the etching and mechanical abrading mentioned in

6

the December 24, 2010 contract does not result in a violation of Rule 37(c)(1).

7

Further, Plaintiff asserts Defendant acted in bad faith by failing to identify and

8

produce Mr. LaHay and Mr. Burton as its persons most knowledgeable about

9

maintenance and repair work. See Doc. No. 29 at 5. As Defendant points out, at the time

10

it designated Ms. Walter as its person most knowledgeable in July 2016, it was unaware

11

that Plaintiff would designate an expert who would rely upon slip resistance testing

12

conducted in 2010, several years prior to Plaintiff’s fall. See Doc. No. 30 at 6.

13

Defendant asserts it “did not realize the significance of the changes made to the walkway

14

surface in 2011, until deposing Mr. Avrit in November 2016.” Id. On November 9,

15

2016, just two days after Mr. Avrit’s deposition, Defendant served Amended Initial

16

Disclosures identifying Mr. Lahay and Mr. Burton as individuals with personal

17

knowledge of the acid etching and spall repairs, respectively. Doc. No. 30-1 at 103-108.

18

The Court previously set November 11, 2016 as the cut-off date for discovery. Doc. No.

19

11 at 2. Because the disclosure took place before the close of discovery, Plaintiff could

20

have deposed Mr. LaHay and Mr. Burton, but failed to do so.

21

In sum, the Court finds no discovery violation because Defendant timely disclosed

22

the relevant six (6) documents outlining the repair work done at the Journey to Atlantis

23

walkway, Plaintiff’s counsel did not question Ms. Walter about the etching or mechanical

24

abrading mentioned in the December 24, 2010 contract, Defendant served its Amended

25

Initial Disclosures two days after learning Mr. Avrit has not inspected the subject area,

26

and did so prior to the close of discovery. Accordingly, the Court DENIES Plaintiff’s

27

request to exclude the declarations of Mr. Lahay and Mr. Burton.

28

///
-5-

15cv2893-MMA (BLM)

1
2

B.

Motion to Exclude Expert Opinions and Testimony of Mr. Avrit
Defendant moves to exclude the opinions of Mr. Avrit in their entirety because his

3

opinions do not meet the prerequisites for expert testimony admissibility established by

4

Federal Rule of Evidence 702 and Daubert v. Merrett Dow Pharmaceuticals, Inc., 509

5

U.S. 579 (1993). Doc. No. 27-7 at 5. While Defendant does not dispute that Mr. Avrit is

6

qualified to testify as an expert in this case, Defendant asserts Mr. Avrit’s opinions are

7

unreliable and should be excluded for two reasons: (1) Mr. Avrit’s 2010 test results are

8

irrelevant to the conditions at the time of Plaintiff’s fall because of intervening changes to

9

the subject walkway; and (2) Mr. Avrit failed to follow testing protocol when conducting

10

his 2010 slip resistance testing.

11

1.

12

Rule 702 of the Federal Rules of Evidence provides that expert opinion evidence is

Legal Standard

13

admissible if: “(a) the expert’s scientific, technical, or other specialized knowledge will

14

help the trier of fact to understand the evidence or to determine a fact in issue; (b) the

15

testimony is based on sufficient facts or data; (c) the testimony is the product of reliable

16

principles and methods; and (d) the expert has reliably applied the principles and methods

17

to the facts of the case.” Fed. R. Evid. 702. As the Ninth Circuit recently explained:

18
19
20
21
22
23
24
25
26
27
28

Under Daubert and its progeny, including Daubert II, a district court’s
inquiry into admissibility is a flexible one. Alaska Rent-A-Car, Inc. v. Avis
Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013). In evaluating proffered
expert testimony, the trial court is “a gatekeeper, not a fact finder.” Primiano
v. Cook, 598 F.3d 558, 565 (9th Cir. 2010) (citation and quotation marks
omitted).
“[T]he trial court must assure that the expert testimony ‘both rests on a
reliable foundation and is relevant to the task at hand.’” Id. at 564 (quoting
Daubert, 509 U.S. at 597). “Expert opinion testimony is relevant if the
knowledge underlying it has a valid connection to the pertinent inquiry. And
it is reliable if the knowledge underlying it has a reliable basis in the
knowledge and experience of the relevant discipline.” Id. at 565 (citation and
internal quotation marks omitted). “Shaky but admissible evidence is to be
attacked by cross examination, contrary evidence, and attention to the
burden of proof, not exclusion.” Id. at 564 (citation omitted). The judge is
-6-

15cv2893-MMA (BLM)

1
2
3

“supposed to screen the jury from unreliable nonsense opinions, but not
exclude opinions merely because they are impeachable.” Alaska Rent-A-Car,
738 F.3d at 969. Simply put, “[t]he district court is not tasked with deciding
whether the expert is right or wrong, just whether his testimony has
substance such that it would be helpful to a jury.” Id. at 969-70.

4
5

City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1043 (9th Cir. 2014). “Challenges

6

that go to the weight of the evidence are within the province of a fact finder, not a trial

7

court judge. A district court should not make credibility determinations that are reserved

8

for the jury.” Id. at 1044.

9
10

2.

Analysis

In his Rule 26 report, Mr. Avrit outlines his various findings from the slip

11

resistance testing conducted in 2010. See Doc. No. 29-6. Mr. Avrit found that the

12

surface of the subject walkway had a slip resistance index of .32 to .35 when wet from

13

the splash of the Journey to Atlantis water ride. Id. at 4. Mr. Avrit indicated that

14

nationally recognized industry standards acknowledge a floor surface is sufficiently slip-

15

resistant if it has a slip resistance of .50 or above. Id. at 5. Thus, Mr. Avrit concludes

16

that “the subject walkway was in an unsafe condition at the time of the incident.” Doc.

17

No. 29-6 at 6. Further, Mr. Avrit opines that “SeaWorld created the subject unsafe

18

condition by using a walkway surface embedded with pieces of ceramic tile that are

19

slippery when wet in an area that is consistently exposed to water.” Id. Defendant moves

20

to exclude Mr. Avrit’s opinions because Mr. Avrit relies upon slip resistance testing

21

conducted in February 2010, despite the fact that “substantial changes” were made to the

22

location between 2010 and Plaintiff’s fall on December 1, 2013. Doc. No. 27-7 at 9.

23

In Michaels v. Taco Bell Corp., a patron slipped and fell on the floor in a Taco Bell

24

restaurant. 2012 WL 4507953, at *1 (D. Or. 2012). The floor at that location was wet

25

from having been recently mopped. Id. Taco Bell moved to exclude the plaintiff’s

26

retained expert, Mr. Karlin, from testifying for failure to reliably apply his testing

27

methodology to the facts of the case. Id. During Mr. Karlin’s deposition, Mr. Karlin

28

admitted he did not know what kind of tile was present in the Taco Bell restaurant when
-7-

15cv2893-MMA (BLM)

1

he tested it. Id. at 9. Moreover, “Karlin failed to satisfactorily explain why, when he had

2

adequate opportunity to acquire and incorporate this knowledge into his testing, he failed

3

to do so.” Id. Mr. Karlin also did not explain the reasons he used the testing methods

4

described in his report, and how those various methods are relevant to the conditions of

5

the tile floor present at the time of Plaintiff’s fall. Id. The court found Mr. Karlin’s

6

report lacked information directly relevant to the court’s assessment of the validity of his

7

testing methodology and whether his methodology was reliably applied to the facts of the

8

case. Id. The court issued an order striking Mr. Karlin’s report and precluding him from

9

testifying at trial. Id. at 11.

10

Here, the Court finds Mr. Avrit’s opinions to be irrelevant and inadmissible for

11

several reasons. First, Mr. Avrit did not conduct any inspection or slip resistance testing

12

for the sole purpose of forming his opinions in this case. Instead, Mr. Avrit relied upon

13

slip resistance testing he conducted on February 9, 2010—more than three years prior to

14

Plaintiff’s fall. Doc. No. 27-1 at 90, 92. Mr. Avrit conducted the 2010 slip resistance

15

testing in connection with his retention as an expert in another case (Fletcher v. Anheuser

16

Busch Inc.). Mr. Avrit admitted that after being retained as an expert in this case, he had

17

sufficient time to go to the scene and visit it, but never did. Id. at 90. Similar to

18

Michaels, in which Mr. Karlin failed to acquire additional information about the type of

19

tile present at the Taco Bell restaurant, Mr. Avrit had an opportunity to inspect the

20

Journey to Atlantis walkway prior to issuing his opinions, but did not do so.

21

Second, Mr. Avrit claimed the conditions of the surface area where Plaintiff fell

22

are substantially similar to the conditions of the walkway at the time of Mr. Avrit’s

23

February 2010 inspection. Doc. No. 27-1 at 96. Plaintiff asserts the tiles and glass

24

embedded in the decorative bands on the Journey to Atlantis walkway have remained the

25

same since 2010. See Doc. No. 29 at 5-6. However, Mr. Avrit admits that he reviewed

26

the six (6) documents containing the 2010 True Champions services contract, the

27

February 2011 invoice, the 2012 invoice, and a September 2013 maintenance work order.

28

Doc. No. 27-1 at 93-94. These documents outline the various changes to the walkway,
-8-

15cv2893-MMA (BLM)

1

including acid-etching, mechanical abrasion, and the jackhammering and re-pouring of

2

spalls completed in February 2011. Doc. No. 27-3 at 7; 29-4 at 3. Additionally, in

3

January 2012, True Champions performed additional repair and resurfacing work in the

4

Journey to Atlantis Soak Zone walkway. Doc. No. 27-3 at 11; Doc. No. 29-4 at 4.

5

Finally, in September 2013, Conan Construction cut, removed, and re-poured numerous

6

areas of spalled concrete, including portions of the aggregate concrete inlaid with pieces

7

of blue ceramic tile, and stones and/or shells, in the Journey to Atlantis Soak Zone

8

walkway. Doc. No. 27-3 at 13; Doc. No. 29-4 at 5 (emphasis added).

9

Further, when asked at his deposition whether Mr. Avrit knew what, if any,

10

changes had been made to the surface area where Plaintiff fell, Mr. Avrit replied, “[n]o.”

11

Doc. No. 27-1 at 96. Mr. Avrit testified that he has no scientific data regarding the slip

12

resistance of the walkway at or near the time of Plaintiff’s fall. Id. at 106. Rather,

13

Plaintiff’s description of her fall serves as “circumstantial evidence” that suggests the

14

surface area where Plaintiff fell was substantially similar to Mr. Avrit’s findings during

15

his last inspection in February 2010. Id. Similar to Michaels, in which the expert failed

16

to acquire and incorporate critical information into his testing, Mr. Avrit failed to inquire

17

about what changes were made between 2010 and Plaintiff’s fall in 2013, failed to

18

inspect the subject walkway, and failed to conduct additional testing as to the condition

19

of the walkway at or near the time of Plaintiff’s fall and incorporate those findings into

20

his report.

21

Third, in his expert report, Mr. Avrit recommended “acid-etching the tiles

22

embedded in the subject walkway would make the subject walkway slip resistant when

23

wet.” Id. at 85. However, at the exact location Mr. Avrit conducted his February 9, 2010

24

testing, Sea World did acid-etch the Journey to Atlantis Soak Zone walkway prior to

25

Plaintiff’s fall in December 2013. LaHay Decl. ¶¶ 5, 7. Sea World also jackhammered

26

out, removed, and re-poured portions of the walkway prior to Plaintiff’s fall on December

27

1, 2013. Burton Decl. ¶ 6. Mr. Avrit, having received and reviewed invoices suggesting

28

significant changes, did not re-inspect the walkway because he did not “know that that
-9-

15cv2893-MMA (BLM)

1
2

would yield any relevant information.” Doc. No. 27-1 at 95.
Finally, when asked during his deposition whether the plaintiff in Fletcher and

3

Plaintiff in this case fell in the same location, Mr. Avrit testified, “I think it -- I can’t say

4

with certainty, but I expect that it would have similar surface characteristics given my

5

observations of how that area was constructed and maintained.” Doc. No. 27-1 at 98.

6

Plaintiff argues the surface area on which the Fletcher plaintiff and Ms. Baltazar slipped

7

“is substantially similar because of the tile that is embedded above the surface of the

8

concrete.” Doc. No. 29 at 9. Yet, as noted above, Mr. Avrit acknowledges he does not

9

know what changes were made to the walkway. See Doc. No. 27-1 at 96. Mr. Avrit’s

10

failure to inspect or conduct additional testing raises serious questions about the

11

relevancy of his opinions in this case. Plaintiff cites no case law supporting the notion

12

that an expert’s opinions are relevant and admissible when evidence suggests the basis

13

for the expert’s opinions have significantly changed. As such, the Court finds Mr.

14

Avrit’s testimony and report are irrelevant and inadmissible.

15

Plaintiff argues that pursuant to Federal Rule of Evidence 7038, Mr. Avrit can rely

16

on Defense expert Mr. Carl Beels’ 2016 slip resistance test results to support his opinion

17

that the blue tile and glass embedded in the walkway is slippery when wet. Doc. No. 29

18

at 8. However, Rule 703 “merely relaxes, for experts, the requirement that witnesses

19

have personal knowledge of the matter to which they testify.” Claar v. Burlington

20

Northern R. Co., 29 F.3d 499, 501 (9th Cir. 1994) (emphasis added); see also Daubert,

21

509 U.S. at 591 (noting that Rule 703’s “relaxation of the usual requirement of firsthand

22

knowledge. . . is premised on an assumption that the expert’s opinion will have a reliable

23

basis in the knowledge and experience of his discipline.”). Rule 703, however, “does not

24

deal with the authority of the court to scrutinize an expert’s methodology or reasoning.”

25

26
27
28

8

Rule 703 provides in pertinent part, “[a]n expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally observed.” Fed. R. Evid. 703. Moreover,
“[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an
opinion on the subject, they need not be admissible for the opinion to be admitted.” Id.
-10-

15cv2893-MMA (BLM)

1

Claar, 29 F.3d at 501. Because the Court finds Mr. Avrit does not meet the prerequisites

2

for expert testimony admissibility under Rule 702, the relaxed requirements of Rule 703

3

do not apply to Mr. Avrit.

4

In sum, the Court finds that Mr. Avrit’s testimony lacks the underlying reliability

5

necessary under Daubert and Rule 702 to be relevant to the jury in determining whether

6

Defendant is liable. “A court may conclude that there is simply too great an analytical

7

gap between the data and the opinion proffered.” General Elec. v. Joiner, 522 U.S. 136,

8

146 (1997). Accordingly, based on the foregoing, the Court GRANTS Defendant’s

9

motion to exclude Plaintiff’s expert testimony. Mr. Avrit’s expert report is stricken and

10

Mr. Avrit is precluded from testifying at trial.9

11
12
13

DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
A.

Requests for Judicial Notice
As a preliminary matter, both parties filed requests for judicial notice. For the

14

reasons set forth below, the Court GRANTS the parties’ respective requests for judicial

15

notice.

16

1.

17

Generally, a court must take judicial notice if a party requests it and supplies the

Legal Standard

18

court with the requisite information. Fed. R. Evid. 201(d). “A judicially noticed fact

19

must be one not subject to reasonable dispute in that it is either (1) generally known

20

within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

21

determination by resort to sources whose accuracy cannot reasonably be questioned.”

22

Fed. R. Evid. 201(b); see Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th

23

Cir. 1986) (citing Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70

24

(9th Cir. 1956)). While a court may take judicial notice of matters of public record, it

25
26
27
28

9

Because the Court finds Mr. Avrit’s report and opinions to be unreliable, the Court need not
reach Defendant’s additional basis for exclusion—Mr. Avrit’s alleged failure to adhere to protocol when
conducting his 2010 slip resistance testing.
-11-

15cv2893-MMA (BLM)

1

may not take judicial notice of a fact that is subject to reasonable dispute. Fed. R. Evid.

2

201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). For example,

3

“when a court takes notice of another court’s opinion, it may do so not for the truth of the

4

facts recited therein, but for the existence of the opinion, which is not subject to

5

reasonable dispute over its authenticity.” Lee, 250 F.3d at 690.

6

2.

7

Defendant requests the Court take judicial notice of two documents (Exhibits A-B)

Defendant’s Request for Judicial Notice

8

in support of its motion for partial summary judgment. Doc. No. 26-4 (hereinafter

9

“DRJN”). Exhibit A is a copy of City of San Diego Standard Drawing G-10: Concrete

10

Joint Details. Exhibit B is a copy of City of San Diego Standard Drawing SDG-109:

11

Sidewalk Joint Locations. Plaintiff did not file an opposition to Defendant’s request for

12

judicial notice.

13

The Court finds Exhibits A and B to be matters of public record, the authenticity of

14

which is not subject to reasonable dispute. See Fed. R. Evid. 201(b). Accordingly, the

15

Court GRANTS Defendant’s request for judicial notice.

16

3.

17

Plaintiff requests the Court take judicial notice of civil action Fletcher v. Anheuser

Plaintiff’s Request for Judicial Notice

18

Busch Inc., case number 09cv6376, pending in the United States District Court, Central

19

District of California in support of her opposition to Defendant’s motion for partial

20

summary judgment. Doc. No. 28-2. Defendant did not file an opposition to Plaintiff’s

21

request for judicial notice.

22

To the extent that Plaintiff seeks to establish the existence of the civil action

23

pending in the Central District, the Court GRANTS Plaintiff’s request for judicial notice.

24

However, to the extent that Plaintiff seeks to provide supplemental authority for the

25

Court’s consideration, such a request is misguided. See In re Bare Escentuals, Inc. Sec.

26

Litig., 745 F. Supp. 2d 1052, 1067 (N.D. Cal. 2010) (“[t]he court may take judicial notice

27

of the existence of unrelated court documents, although it will not take judicial notice of

28

such documents for the truth of the matter asserted therein.”); see also Garcia v.
-12-

15cv2893-MMA (BLM)

1

California Supreme Court, 2014 WL 309000, at *1 (N.D. Cal. Jan. 21, 2014) (“a request

2

for judicial notice is not a proper vehicle for legal argument.”).

3

Accordingly, the Court GRANTS Plaintiff’s request for judicial notice of Fletcher

4

v. Anheuser Busch Inc., case number 09cv6376, for the limited purpose of establishing

5

the existence of the case.

6

B.

Motion for Partial Summary Judgment10

7

Defendant claims Plaintiff has alleged at least three theories of liability that,

8

working independently or in conjunction, caused her fall: (1) Plaintiff’s right shoe caught

9

an expansion seam in the concrete walkway; (2) Plaintiff’s right shoe caught an uneven

10

or spalled concrete expansion seam in the walkway; and (3) Plaintiff’s left foot slipped.

11

Defendant moves for partial summary judgment as to those portions of Plaintiff’s

12

negligence and premises liability causes of action that are based upon her first two

13

theories of liability. Doc. No. 26-6 at 5.

14

1.

15

“A party may move for summary judgment, identifying each claim or defense – or

Legal Standard

16

the part of each claim or defense – on which summary judgment is sought. The court

17

shall grant summary judgment if the movant shows that there is no genuine dispute as to

18

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

19

P. 56(a). The party seeking summary judgment bears the initial burden of establishing

20

the basis of its motion and of identifying the portions of the declarations, pleadings, and

21

discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v.

22

Catrett, 477 U.S. 317, 323 (1986). The moving party has “the burden of showing the

23

24
25
26
27
28

10

Plaintiff objects to Defendant’s submission of the deposition testimony of herself, Mr. Avrit,
and Sea World employee Maria Miranda, on the grounds that the deposition transcript excerpts did not
include Reporter’s Certifications in compliance with Orr v. Bank of America, 258 F.3d 764 (9th Cir.
2002). Doc. No. 28 at 2-4. Upon the filing of Defendant’s motion, however, Defendant lodged with the
Court the deposition transcripts of these individuals, all of which included the Reporter’s Certifications.
See Doc. No. 26-5. As such, Plaintiff’s objections are OVERRULED.

-13-

15cv2893-MMA (BLM)

1

absence of a genuine issue as to any material fact, and for these purposes the material it

2

lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S.

3

H. Kress & Co., 398 U.S. 144, 157 (1970). A fact is material if it could affect the

4

outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S.

5

242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient

6

evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248.

7

The party opposing summary judgment cannot “‘rest upon the mere allegations or

8

denials of [its] pleading’ but must instead produce evidence that ‘sets forth specific facts

9

showing that there is a genuine issue for trial.’” Estate of Tucker v. Interscope Records,

10

515 F.3d 1019, 1030 (9th Cir.), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P.

11

56(e)).

12

2.

13

In her Complaint, Plaintiff alleges Defendant “breached [its] duty of care to

14

Plaintiff when [it] permitted cracked and wet concrete pavement to exist where customers

15

and patrons, including Plaintiff, were invited to pass.” Complaint ¶¶ 23, 34 (emphasis

16

added). Defendant argues that to the extent that any defect in the concrete expansion

17

seams caused or contributed to Plaintiff’s fall, such defects were trivial and as a result,

18

Defendant owes Plaintiff no duty of care pursuant to California law.11 Plaintiff claims

19

“Defendant failed to carry its burden” as to the condition of the expansion seams at the

20

time of Plaintiff’s fall. Doc. No. 28-1 at 4.

21

Concrete Expansion Seam Theory of Liability

“It is well established in California that although a store owner is not an insurer of

22

the safety of its patrons, the owner does owe them a duty to exercise reasonable care in

23

keeping the premises reasonably safe.” Ortega v. Kmart Corp., 36 P.3d 11, 14 (Cal.

24

2001). In order for a plaintiff to establish premises liability on a negligence theory, a

25
26
27
28

11

The parties agree Plaintiff’s claims are governed by California law. See Doc. Nos. 26-6 at 5,
28-1 at 6; see also Erie Railroad v. Tompkins, 304 U.S. 64, 71 (1938) (noting that a federal court sitting
in diversity jurisdiction must apply the substantive law of the forum state).
-14-

15cv2893-MMA (BLM)

1

plaintiff must prove: (1) duty; (2) breach; (3) causation; and (4) damages. Baker v. Major

2

League Baseball Props., Inc., 2009 WL 291249, at *4 (S.D. Cal. 2009) (citing Ortega, 36

3

P.3d at 14). “[T]he question whether a duty of care exists, the breach of which may

4

constitute negligence, is a question of law.” Brown v. Nagata, 2009 WL 5218036, at *3

5

(N.D. Cal. 2009). California, however, has recognized that “persons who maintain

6

walkways, whether public or private, are not required to maintain them in an absolutely

7

perfect condition.” Ursino v. Big Boy Restaurants, 237 Cal. Rptr. 413, 415 (Cal. Ct. App.

8

1987). Rather, under the trivial defect doctrine12, “[t]he duty of care imposed on a

9

property owner, even one with actual notice, does not require the repair of minor

10

defects.” Id. “Although sometimes referred to as the trivial defect defense, the trivial

11

defect doctrine is ‘not an affirmative defense but rather an aspect of duty [ ] plaintiff must

12

plead and prove.’” Kasparian v. AvalonBay Cmtys., 66 Cal. Rptr. 885, 896 (Cal. Ct.

13

App. 2007).

14

In Ursino, a restaurant customer tripped over a raised section of concrete in the

15

parking lot and fractured her hip. 237 Cal. Rptr. at 413. Importantly, the parties in that

16

case stipulated to the location of the plaintiff’s trip and fall, that the edge of the cement

17

section in question “was raised no higher than three-fourths of an inch,” and that the

18

thirty-two (32) photographs submitted “accurately depicted the sidewalk in question on

19

the day of the accident.” Id. at 414. The restaurant moved for summary judgment,

20

arguing that it owed the plaintiff no duty because the three-fourths of an inch height

21

differential amounted to only a trivial defect. Id. at 413. The court affirmed the trial

22

court’s grant of summary judgment, noting that reasonable minds could not differ and

23

that the defect in question was trivial. Id. at 414-15.

24
25
26
27
28

12

The trivial defect doctrine originated to shield public entities from liability where conditions
on public property create a risk of such a minor, trivial or insignificant nature in light of the surrounding
circumstances. Kasparian, 66 Cal. Rptr. at 896. The trivial defect doctrine, however, “has been
expanded to embrace actions against private landowners.” Id.

-15-

15cv2893-MMA (BLM)

1

Here, Defendant has failed to meet its burden of demonstrating the absence of a

2

genuine issue of material fact exists as to the triviality of any defect in the expansion

3

seams. Notably, the parties dispute the location of Plaintiff’s fall. In fact, Plaintiff

4

claims she never spoke to Ms. Miranda on the night of the incident or pointed to Ms.

5

Miranda where she fell. Baltazar Decl. ¶¶ 4-7. Thus, it will be a jury’s role at trial to

6

determine the location of Plaintiff’s fall. However, even assuming that Plaintiff fell in

7

the location Defendant contends, the evidence Defendant proffers in support of its motion

8

is insufficient to establish the absence of a genuine issue of material fact on this theory of

9

liability. In support of Defendant’s motion, Defendant submits testimony from Plaintiff’s

10
11

deposition and the declaration of Maria Miranda, a Sea World employee.13
At her deposition, Plaintiff testified that she caught her right foot in a concrete

12

expansion seam prior to her fall. See Doc. No. 26-2 at 7. Concrete expansion seams are

13

required by applicable building codes and industry standards. DRJN, Exhs. A-B.

14

Further, Ms. Miranda claims that on the night of December 1, 2013, she interviewed

15

Plaintiff after her fall. Miranda Decl. ¶ 3. “During the interview, Plaintiff told me the

16

exact location where she fell. Based thereon, I photographed the location.” Miranda

17

Decl. ¶ 4. Ms. Miranda’s two photographs from the night of the incident are attached to

18

her declaration as Exhibit 1. Miranda Decl. ¶ 4, Exh. 1. Defendant argues the two

19

photographs show that “the concrete surface is free of any defects and show typical

20

expansion seams.” Doc. No. 26-6 at 8. Further, Ms. Miranda contends that “[o]n the

21

night of the incident, I inspected the location where Plaintiff told me she fell. I did not

22

see any spalls, cracks, holes, gouges, or any deformities in the concrete walkway in the

23

location where Plaintiff fell.” Miranda Decl. ¶ 6. Ms. Miranda also submits a third

24

photograph, which she did not take on the night of the incident, “depicting a bird’s eye

25

26
27
28

13

Defendant also submits deposition testimony from Plaintiff’s retained expert, Brad Avrit, in
support of its motion for partial summary judgment. See Doc. No. 26-6 at 8. However, for the reasons
outlined above in the Court’s ruling on Defendant’s Daubert motion, the Court declines to consider such
testimony.
-16-

15cv2893-MMA (BLM)

1

view of the subject walkway,” wherein Ms. Miranda marked the location where Plaintiff

2

fell. Miranda Decl. ¶ 5, Exh. 2.

3

Unlike Ursino, in which the court reviewed thirty-two (32) photographs, and

4

considered the three-fourths of an inch height differential between the slabs of concrete in

5

question, Defendant submits only two photographs taken on the night of the incident, and

6

does not submit any evidence of a height differential between the expansion seams. In

7

fact, Defendant admits that “[i]n the instant case, there is no evidence that any concrete

8

expansion seams had any height differential . . . ” Doc. No. 26-6 at 8 (emphasis added).

9

While Ms. Miranda claims she did not observe any spalls or cracks on the night of the

10

incident, she does not indicate whether there was any height differential between the

11

concrete expansion seams. The cases Defendant cites in support of its motion all

12

involved situations in which the parties submitted, and the courts relied upon, evidence of

13

the height differential between the concrete slabs or expansion seams in question. See

14

Ness v. San Diego, 301 P.2d 410, 410 (Cal. Ct. App. 1956) (finding a height differential

15

of seven-eighths of an inch to be a trivial defect); Whiting v. Nat’l City, 69 P.2d 990, 990

16

(Cal. 1937) (finding a three-quarter inch height differential to be trivial).

17

The Court also finds the photographs Defendant submitted to be insufficient for

18

Defendant to meet its initial burden. While the photographs depict an aerial or overhead

19

view of the expansion seams at the alleged location of Plaintiff’s fall, Defendant does not

20

submit any photographs taken at ground level, which could reveal a height differential

21

between the expansion seams. The overhead perspective does not provide the Court with

22

sufficient context to evaluate the depth and levelness of the expansion seams. As such,

23

Defendant has presented insufficient evidence to establish the absence of a genuine issue

24

of material fact. See Kasparian, 66 Cal. Rptr. at 896 (“Summary judgment cannot be

25

based on photographs where the reviewing court concludes either reasonable minds

26

might differ as to whether the photographs correctly depict the alleged defect and the

27

surrounding circumstances. . .”).

28

In viewing this record in the light most favorable to Plaintiff, the Court finds
-17-

15cv2893-MMA (BLM)

1

Defendant has failed to meet its burden of demonstrating the absence of a genuine issue

2

of material fact. As such, summary judgment on this theory of liability is inappropriate.

3

Accordingly, the Court DENIES Defendant’s motion for partial summary judgment as to

4

Plaintiff’s concrete expansion seam theory of liability.

5

3.

6

Defendant also moves for summary judgment as to Plaintiff’s uneven and/or

7

spalled expansion seam theory of liability. As noted above, Plaintiff alleges “the front tip

8

of [her] right shoe became stuck in a crack in the concrete surface, and she lost her

9

balance.” Complaint ¶ 16. As a result, Plaintiff “slipped in a puddle of water” and fell.

10

Complaint ¶ 17. Further, Plaintiff claims Defendant made “no effort” to “fill in the gaps

11

in the concrete pavement.” Complaint ¶¶ 24, 35. Defendant argues no triable issue of

12

material fact exists as to whether the expansion seams in the area where Plaintiff fell

13

were spalled or uneven. Doc. No. 26-6 at 8. Plaintiff, however, asserts Defendant failed

14

to carry its burden as to the condition of the expansion seams at the time of Plaintiff’s

15

fall. Doc. No. 28-1 at 4.

16

Uneven and/or Spalled Expansion Seam Theory of Liability

Here, for similar reasons as those outlined above, Defendant fails to meet its initial

17

burden of demonstrating the absence of a genuine issue of material fact as to the spalled

18

or uneven nature of the expansion seams. In support of Defendant’s motion for summary

19

judgment on this theory of liability, Defendant again submits testimony from Plaintiff’s

20

deposition and Ms. Miranda’s declaration. When asked if there was anything wrong with

21

the concrete in the area where Plaintiff’s foot caught the cement, Plaintiff replied, “[j]ust

22

the compartments.” Doc. No. 26-2 at 8. When asked if by the term “compartments”

23

Plaintiff meant the seams between the cement, Plaintiff replied, “[y]es.” Id. In

24

summarizing this testimony, Defendant asserts, “Plaintiff testified in her deposition that

25

the expansion seams in the area were neither uneven nor spalled at the time of her fall.”

26

Doc. No. 26-6 at 8.

27
28

Additionally, as outlined above, Ms. Miranda indicated that on the night of the
incident, she “did not see any spalls, cracks, holes, gouges, or any deformities in the
-18-

15cv2893-MMA (BLM)

1

concrete walkway in the location where Plaintiff fell.” Miranda Decl. ¶ 6. Further,

2

Defendant submits the two photographs Ms. Miranda took on the night of the incident.

3

Thus, Defendant contends it “has satisfied its burden of proof” that no triable issue of fact

4

exists as to the condition of the expansion seams at the time of Plaintiff’s fall. Doc. No.

5

26-6 at 9. Defendant asserts the burden now shifts to Plaintiff to present specific facts

6

showing that there is a genuine issue for trial. Id. at 10. The Court disagrees.

7

Contrary to Defendant’s assertions, Plaintiff did not testify at her deposition that

8

the expansion seams were neither uneven nor spalled at the time of her fall. Additionally,

9

Defendant admits that “[i]n the instant case, there is no evidence that any concrete

10

expansion seams had any height differential, spall, or other defect.” Doc. No. 26-6 at 8

11

(emphasis added). The absence of any evidence indicating a spall or uneven seams,

12

however, is insufficient for Defendant to rely on at the summary judgment stage.

13

Defendant bears the burden of demonstrating the absence of a genuine issue of material

14

fact. Moreover, Ms. Miranda did not comment on whether the expansion seams were

15

uneven on the night of the incident. Finally, the Court finds the photographs submitted

16

by Ms. Miranda and her accompanying declaration are inadequate to establish the

17

absence of a genuine issue of material fact as to the condition of the concrete expansion

18

seams on December 1, 2013. As noted above, the photographs only depict and overhead

19

view of the expansion seams in question. While the photographs do not appear to depict

20

any cracked surfaces surrounding the expansion seams, Defendant does not submit any

21

photographs taken at ground level which could reveal any uneven seams.

22

Without additional evidence as to the condition of the subject walkway on the

23

night of the incident, the Court finds summary judgment on this theory of liability is not

24

appropriate. See Adickes, 398 U.S. at 158 (“Given these unexplained gaps in the

25

materials submitted by [the moving party], we conclude that [the moving party] failed to

26

fulfill its initial burden of demonstrating . . . a critical element in this aspect of the case . .

27

.”). Accordingly, the Court DENIES Defendant’s motion for partial summary judgment

28

as to Plaintiff’s uneven and/or spalled expansion seam theory of liability.
-19-

15cv2893-MMA (BLM)

1
2

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to exclude the

3

testimony of Mr. Avrit, Plaintiff’s retained expert. Further, the Court DENIES

4

Defendant’s motion for partial summary judgment.

5
6

IT IS SO ORDERED.

7
8
9
10
11

Dated: March 16, 2017
_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-20-

15cv2893-MMA (BLM)