1 

Filed 2/19/15 Lopez v. Ralph’s Grocery CA4/2 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION TWO 

PAULA LOPEZ et al., 

 Plaintiffs and Appellants, 

v. 

RALPH’S GROCERY COMPANY et al., 

 Defendants and Respondents. 

 E059969 

 (Super.Ct.No. CIVBS1100443) 

 OPINION 

 APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. 

Affirmed. 

 Law Offices of Richard Devirian and Richard C. Devirian; Esner, Chang & Boyer 

and Andrew N. Chang for Plaintiffs and Appellants. 

 Cihigoyenetche, Grossberg & Clouse, Katharine L. Spaniac and Anthony C. 

Ferguson for Defendants and Respondents. 

 Plaintiffs and appellants Paula Lopez and Stephen A. Lopez brought suit against 

defendants and respondents Ralph’s Grocery Company (Ralph’s) and TVL Properties, 
2 

LLC (TVL or, collectively with Ralph’s, defendants) following the death of Patrocinio 

Lopez, who was the husband of Paula Lopez and father of Stephen A. Lopez. Mr. Lopez 

died from injuries suffered when he tripped and fell in the parking lot of a grocery store 

operated by Ralph’s and located on property owned by TVL. 

 Plaintiffs appeal from the trial court’s grant of summary judgment in favor of 

defendants. Plaintiffs contend, among other things, that defendants failed to meet their 

initial burden of production, that the trial court’s reliance on the trivial defect doctrine to 

find defendants not liable as a matter of law was erroneous, and that they raised a triable 

issue of material fact as to whether the condition that injured Mr. Lopez was open and 

obvious. For the reasons stated below, we affirm. 

I. FACTS AND PROCEDURAL BACKGROUND 

 On July 13, 2011, at about 7:00 p.m., while retrieving a shopping cart in the 

parking lot of a “Food 4 Less” grocery store in Barstow, California, Mr. Lopez tripped 

over a speed bump and fell. Tragically, he died of injuries resulting from the fall—

specifically, a ruptured spleen. 

 The speed bump at issue is rubber, and was installed by attaching it to the asphalt 

of the parking lot on July 25, 2010. It is approximately six feet long, one foot wide, and 

two and one-fourth inches in height. It is black in color, with large, yellow diagonal 

stripes painted across the top curved portion. Between that top curved portion and the 

bottom edge of the speed bump is a vertical edge of between one-half and nine-sixteenths 

of an inch in height. According to plaintiffs’ accident reconstruction expert, who 
3 

examined the site of Mr. Lopez’s accident, the speed bump had also separated somewhat 

from the asphalt to which it was attached, causing the vertical edge to “migrate[], in some 

locations, to a height as great as 13/16 of an inch.” Plaintiffs’ expert’s theory, based on 

his examination of the accident site and review of security video of Mr. Lopez’s fall, is 

that Mr. Lopez’s foot did not just strike the speed bump, but also became “trapped” 

underneath it, causing him to lose his balance and fall.1

 Plaintiffs’ “Complaint for Wrongful Death,” filed on August 24, 2011, alleges two 

causes of action. The first cause of action is untitled, but in substance asserts a claim for 

negligence or premises liability. (See Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 

994, 998 [elements of premises liability cause of action are the same as negligence cause 

of action].) The second cause of action is for product liability.2

 Defendants’ motion for summary judgment or, in the alternative, summary 

adjudication, was filed on May 2, 2013. After a hearing on August 9, 2013, the trial court 

granted summary judgment in favor of defendants. The court entered judgment on 

September 13, 2013. 

 1 The security video was not submitted as evidence in support of or in opposition 

to defendants’ motion for summary judgment, so it does not appear in our record on 

appeal. Apparently, however, both defendants’ and plaintiffs’ experts did review that 

video. 

2 On appeal, plaintiffs have raised no claims of error with respect to the trial 

court’s ruling on their second cause of action, asserting only arguments relating to 

negligence or premises liability. We therefore do not further discuss the product liability 

cause of action. 
4 

II. DISCUSSION 

A. Standard of Review 

 The well-known principles generally governing appellate review of an order 

granting a motion for summary judgment are as follows: “A trial court properly grants 

summary judgment where no triable issue of material fact exists and the moving party is 

entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision 

de novo, considering all of the evidence the parties offered in connection with the motion 

(except that which the court properly excluded) and the uncontradicted inferences the 

evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 

‘shown that one or more elements of the cause of action, even if not separately pleaded, 

cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable 

issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials 

of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable 

issue of material fact exists as to that cause of action . . . .’” (Merrill v. Navegar, Inc. 

(2001) 26 Cal.4th 465, 476-477; Code Civ. Proc., § 437c, subd. (p)(2).) “In reviewing 

whether these burdens have been met, we strictly scrutinize the moving party’s papers 

and construe all facts and resolve all doubts in favor of the party opposing the motion.” 

(Innovative Business Partnerships, Inc. v. Inland Counties Regional Center, Inc. (2011) 

194 Cal.App.4th 623, 628 [Fourth Dist., Div. Two].) 
5 

B. Analysis 

The trial court found defendants not liable for negligence or premises liability 

based on the trivial defect doctrine, and alternatively because the speed bump at issue 

was an “open and obvious condition . . . .” Plaintiffs contend defendants did not meet 

their initial burden of production in support of their motion, and that in any case they 

produced sufficient evidence to preclude application of the trivial defect doctrine, and to 

raise a triable issue of material fact as to whether the condition that injured Mr. Lopez 

was open and obvious. For the reasons stated below, we affirm the trial court’s judgment 

in favor of defendants. 

1. Defendants made an adequate prima facie showing of the nonexistence of any 

triable issue of material fact. 

Plaintiffs note that the exact measurements of the speed bump at issue, or the 

alleged defect in the speed bump, were not included in defendants’ moving papers, and 

argue on that basis that defendants failed to meet their initial burden of production to 

show that the trivial defect doctrine applies or that the condition that injured Mr. Lopez 

was open and obvious. Although plaintiffs’ premise is undisputed, we disagree with their 

conclusion. 

As the trial court noted in the hearing on defendants’ motion, nothing in the 

moving papers and supporting documents established the exact measurements of the 

speed bump at issue, or the alleged defect in the speed bump. Those measurements were 

provided to the court later, by plaintiffs’ expert’s declaration submitted in support of the 
6 

opposition. Nevertheless, if defendants had failed to meet their initial burden, it would 

not matter what plaintiffs later submitted; the motion would be properly denied. (See 

Barber v. Chang (2007) 151 Cal.App.4th 1456, 1463 [“If the evidence does not support 

judgment in the defendant’s favor, we must reverse summary judgment without 

considering the plaintiff’s opposing evidence”].) 

Despite the lack of exact measurements, however, defendants’ moving papers did 

include photographs of the speed bump at issue. These photographs enabled the trial 

court to view the allegedly hazardous speed bump, and to make a general evaluation of its 

size and the surrounding conditions, even if exact measurements were not available. 

Plaintiffs cite no authority—and we are aware of none—in support of the notion that, 

absent exact measurements of an alleged defect, a defendant seeking summary judgment 

cannot make even a prima facie showing that the defect is trivial, or that the allegedly 

dangerous condition is open and obvious. 

We conclude, upon de novo review of the evidence, that the trial court correctly 

concluded defendants had satisfied their initial burden of production. We turn, therefore, 

to plaintiffs’ arguments that they produced sufficient evidence to demonstrate a triable 

issue of fact. 

2. Summary judgment in favor of defendants is appropriate under the trivial defect 

doctrine. 

“The trivial defect doctrine is not an affirmative defense. It is an aspect of a 

landowner’s duty which a plaintiff must plead and prove.” (Stathoulis v. City of 
7 

Montebello (2008) 164 Cal.App.4th 559, 567 (Stathoulis).) The fundamental principle 

underlying the doctrine is that “[s]ome defects are bound to exist even in the exercise of 

reasonable care in the maintenance of property and cannot reasonably be expected to 

cause accidents.” (Id. at p. 566.) In applying the doctrine, the trial court determines 

whether a defect is trivial as a matter of law, serving thereby as “a check valve for the 

elimination from the court system of unwarranted litigation which attempts to impose 

upon a property owner what amounts to absolute liability for injury to persons who come 

upon the property.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-

399.) 

 “The legal analysis involves several steps. First, the court reviews evidence 

regarding the type and size of the defect. If that preliminary analysis reveals a trivial 

defect, the court considers evidence of any additional factors such as the weather, lighting 

and visibility conditions at the time of the accident, the existence of debris or 

obstructions, and plaintiff’s knowledge of the area. If these additional factors do not 

indicate the defect was sufficiently dangerous to a reasonably careful person, the court 

should deem the defect trivial as a matter of law and grant judgment for the landowner.” 

(Stathoulis, supra, 164 Cal.App.4th at p. 567.) 

 Our preliminary analysis of the evidence yields the conclusion that, to the extent 

there is any defect in the speed bump at issue, that defect is trivial. As noted, the 

purported defect on which plaintiffs rest their arguments is the vertical edge of the speed 

bump, combined with any area beneath the speed bump resulting from separation from 
8 

the asphalt. Based on the testimony of plaintiffs’ expert, this combination resulted in a 

vertical tripping hazard of something less than an inch and a half in height—a maximum 

of thirteen-sixteenths of an inch of separation from the asphalt, and a maximum of ninesixteenths of an inch of vertical edge.3 An inch-and-a-half defect in a walkway is within 

the size range that previous courts have found to be trivial. (See Barrett v. City of 

Claremont (1953) 41 Cal.2d 70, 74 [collecting cases]; Fielder v. City of Glendale (1977) 

71 Cal.App.3d 719, 724, fn. 4 [collecting cases].) 

 Of course, “a tape measure alone cannot be used to determine whether the defect 

was trivial,” because additional factors may make a defect “more dangerous than its size 

alone would suggest.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 

(Caloroso).) In this case, however, there are no additional factors that indicate the 

alleged defect to be “sufficiently dangerous to a reasonably careful person . . . .” 

(Stathoulis, supra, 164 Cal.App.4th at pp. 567-568.) It was still light out at the time of 

Mr. Lopez’s accident, 7:00 p.m. on a summer evening. There is no evidence of anything 

concealing the speed bump, or any part of it, from Mr. Lopez’s view, or any weather or 

other conditions of the parking lot that might have made the speed bump more hazardous 

to a reasonably careful person. Mr. Lopez was generally familiar with the area, having 

 3 Plaintiffs’ expert’s declaration does not specifically establish that the point of 

maximum separation of the speed bump from the asphalt coincides with the point where 

the vertical edge of the speed bump is at its maximum. The declaration also does not 

establish that either maximum coincides with the specific part of the six-foot-long speed 

bump where Mr. Lopez tripped, though that information may well have been discernable 

from the security camera footage of the accident. 
9 

visited the same grocery store on many occasions previously. Where, as here, there is no 

evidence that any other conditions made the alleged defect dangerous, it is properly 

deemed trivial as a matter of law. (Caloroso, supra, at p. 927.) 

 As noted, plaintiffs did submit the declaration of an accident reconstruction expert, 

opining among other things that the speed bump that tripped Mr. Lopez was a serious 

hazard. We conclude, however, that this expert testimony is insufficient to create a 

triable issue of fact. The declaration contends that the speed bump violates certain 

standards for walkways—specifically, “ASTM document F1637”—but does not establish 

that this standard has been accepted as the proper standard to apply to business parking 

lots in California. (See Caloroso, supra, 122 Cal.App.4th at pp. 925, 928 [agreeing with 

trial court’s rejection of expert opinion relying on ASTM standards].) The expert’s 

citation to California regulations applicable to work areas—generally requiring that 

walkways be kept free of dangerous obstructions, and that hazards be marked by some 

method—does nothing to show that the speed bump at issue in this case was hazardous to 

a reasonably careful person, or inadequately marked as a hazard. (See Cal. Code Regs., 

tit. 8, §§ 3272, subd. (c), 3273, subds. (a) & (b).) Plaintiffs’ expert also makes much of 

the circumstance that the yellow stripes of the speed bump do not extend down from the 

curved top of the speed bump onto its vertical edge or, obviously, the space between the 

speed bump and the asphalt. He cites no authority, however, other than his own ipse 

dixit, tending to indicate that this circumstance violates any accepted standard or 

regulation. In any case, “regardless of whether a witness can be found to opine on the 
10 

subject of a dangerous condition, the court must independently evaluate the 

circumstances.” (Caloroso, supra, at p. 928.) Here, our independent evaluation of the 

circumstances leads us to the same conclusion as the trial court: to the extent plaintiffs 

have identified any defect in the speed bump at issue, that defect is trivial as a matter of 

law. 

Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261 (Dolquist), a case 

emphasized by plaintiffs, does not require a different result. In that case, a woman was 

injured when she tripped over a piece of reinforcing steel protruding up one-fourth inch 

from a concrete tire stop, which itself was a maximum of five and seven-sixteenths 

inches high, in a business’s parking lot. (Id. at pp. 264, 268.) The Dolquist court found 

the protruding “rebar” did not constitute a trivial defect as a matter of law, rejecting the 

“strict tape measure approach” urged by the defendant. (Id. at p. 268.) It found that the 

protrusion was at least arguably “large enough to cause an injury while being small 

enough to avoid easy detection,” and concluded on that basis that reasonable minds could 

differ as to the dangerousness of the protrusion. (Id. at p. 270.) 

 We agree with the Dolquist court that a strict tape measure approach would be 

inappropriate. Nevertheless, the circumstances of our case are different, and require a 

different conclusion. The alleged defect at issue here is the bottom portion of a speed 

bump, and the small space between the bottom of the speed bump and the asphalt of the 

parking lot. A reasonably careful pedestrian stepping onto or over the speed bump at 

issue would encounter no difficult-to-detect protrusion similar to that described in 
11 

Dolquist. To encounter the alleged defect at all would require the pedestrian to strike his 

or her foot against the bottom portion of a plainly visible speed bump. We therefore 

reach a different conclusion than did the Dolquist court, applying the same law to quite 

different facts. 

Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, another 

case emphasized by plaintiffs, is similarly distinguishable. In that case, the alleged 

hazard at issue was a drain that was not flush with the surrounding brick of the walkway, 

creating a depression varying in depth from one thirty-second of an inch to fivesixteenths of an inch, and five inches in diameter. (Id. at pp. 21, 28-29.) However, in 

reversing the trial court’s finding that the defect was trivial as a matter of law, the 

Kasparian court credited the plaintiffs’ expert’s opinion that the drain at issue “‘pose[d] a 

safety hazard to pedestrians who do not have any expectation that any drain is not flush 

with the surrounding brick pavers.’” (Id. at pp. 28-29.) No similar expectation of a 

perfectly flat walkway is reasonably attributed to pedestrians in parking lots such as the 

one where Mr. Lopez fell; speed bumps in parking places are commonplace. We have no 

quarrel with the Kasparian court’s explication of the law, but applying that law to the 

facts of this case yields a different result. 

 In short: After de novo review of the evidence, construing all facts and resolving 

all doubts in favor of plaintiffs, we are nevertheless persuaded that, to the extent plaintiffs 
12 

have identified any defect in the speed bump at issue, that defect is trivial as a matter of 

law.4

III. DISPOSITION 

 The judgment is affirmed. Defendants shall recover their costs on appeal. 

 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

 HOLLENHORST 

 J. 

We concur: 

 RAMIREZ 

 P.J. 

 RICHLI 

 J. 

 4 Because this conclusion is an independently sufficient basis for granting 

summary judgment in favor of defendants, we need not and do not discuss the trial 

court’s alternative ruling that the condition that injured Mr. Lopez was open and obvious, 

or the parties’ arguments with respect to that ruling.