Filed 11/26/14 Sumrall v. Winco Foods CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE
STATE OF CALIFORNIA

APRIL SUMRALL, Plaintiff and Appellant,

v. WINCO FOODS, LLC, Defendant and Respondent. D066360

(Super. Ct. No. RIC504899)

APPEAL from a judgment of the Superi or Court of Riverside County, John G. Evans, Judge. Affirmed. Biren/Katzman and Matthew B. F. Biren for Plaintiff and Appellant. Nisson, Pincin & Hill, James W. Pinc in and Duane H. Ti mmons for Defendant and Respondent. Plaintiff April Sumrall appeals a judgment entered on a jury verdict in favor of defendant Winco Foods, LLC (W inco), in her personal inju ry action against it. On appeal, she contends the trial court prejudi cially erred by excluding deposition testimony2 of Winco's expert witness, who resided more than 150 miles from the trial location and was not called by Winco to testify at trial.
FACTUAL AND PROCEDUR AL BACKGROUND At about 1:00 p.m. on February 22, 20 08, Sumrall entered a Temecula grocery store operated by Winco. It had rained all morning that day. Af ter apparently walking through a carpeted foyer/cart room, she stepped onto the painted concrete floor inside the store. She slipped, fell, and was injured. Sumrall filed a personal injury action ag ainst Winco, alleging it was negligent by allowing rain water to accumulate on the st ore's concrete floor, making it slippery and dangerous. On December 13, 2011, Michael Stapleford, Winc o's expert, was deposed in California. Counsel for Sumra ll and Winco were present. At his deposition, Stapleford testified he lives in the State of Washington. On November 16, 2011, he went to the store and inspected its floor. Based on his inspection, he concluded the "fl oor offers adequate traction when it's dry. It is slippery when it's wet." As part of his inspection, he performed a coefficient of friction test, or "s lip index," using a trib ometer. His wet floor tests, performed with water completely covering the floor, showed the floor was "in the slippery range" with coefficients of friction ranging from 0.10 to 0.16. 1 He believes the threshold for slipping is 0.43, meaning there would be no chan ce of anyone slipping. In

1 He also tested the floor when it was only "damp," resulting in coefficients of friction of 0.19 and 0.32.3 comparison, the American National Standa rds Institute (ANSI) apparently uses a standard of 0.5. He believes that a floor becomes "slippery" in the range of 0.2 to 0.3. At trial, Sumrall presented the te stimony of Bethany Thompson, a Winco employee at the Temecula store. Thompson te stified she had been taught that Winco's floors are slippery when wet. Winco pres ented the testimony of Rudy Morfin, the Temecula store's manager, wh o testified the store's main tenance department kept a "sweep log," to ensure the floors were clea n, free of debris, and safe. The sweep log showed that on February 22 , 2008, an inspection was pe rformed at 12:43 p.m. and Sumrall fell at 1:01 p.m. that day. On cro ss-examination by Sumrall, Morfin testified he endeavored to keep the store's floors dry beca use he recognized that a wet floor was a slip hazard to customers. A videotape from the st ore's security camera s howing Sumrall's fall was played for the jury. Sumr all also presented the testim ony of Vojislav Banjac, a risk and safety scientist, regarding his opinion on the cause of her slip and fall. Based on his viewing of the videotape and in spection of the site, Banjac stated her fall was caused by a loss of traction followed by a lo ss of stability. He did not perfo rm a slip resistance test on the store's floor. Banjac stated that water could cause a lack of traction on the floor. During trial, Winco apparently inform ed Sumrall it did not intend to call Stapleford as one of its defense witnesses. Out of the jury's presence, Sumrall requested that the trial court allow her to read into evidence certain excer pts from Stapleford's deposition testimony because he resided out of state and was unavailable as a witness. Winco objected to admission of that evidence, arguing Staple ford was not unavailable.4 The trial court asked Sumrall for authority fo r reading the depositi on testimony. Sumrall replied that Stapleford testified at his de position that he resided in the State of Washington and no longer had a business office in Huntington Beach. She also argued Stapleford was outside the subpoena power and was unavailable. Citing Code of Civil
Procedure 2 former section 2025, she argued she shoul d be allowed to present Stapleford's sworn deposition testimony regardin g his test results, which were favorable to her. The court stated: "This is something that just seems inherently unfair to me that, to allow this type of testimony to come in on the last day of trial when it might be difficult for [Winco] to get the person here in court to testify. And the reason for that is is that . . . it's not uncommon in civil cases that when the deposition of an expert is taken that the party who hires the expert will not cross-examine his own expert at the time of the deposition, and so even though . . . [Winco] would have been present at the time, this isn't a third pa rty witness. This is really an expert witness. So my ruling's going to be that I'm not going to allow you to do that." Shortly thereafter, Sumrall rested her case in chief. By a vote of 11 to 1, th e jury returned a special verdict finding Winco was not negligent in the use or maintenance of its pr operty. The trial court entered judgment for Winco. Sumrall filed a motion for new tria l, arguing the court prejudicially erred by excluding Stapleton's deposition testimony, thereby precluding Banjac from relying on Stapleton's coefficient of friction test resu lts to testify that the floor was extremely slippery, or "slippery as ice," when wet. Winco opposed the motion. At the hearing on

2 All statutory references are to the Code of Civil Procedure unless otherwise specified.5 Sumrall's motion for new trial, the trial c ourt concluded it had not erred by excluding Stapleton's deposition testimony and, even if it had erred, the error was harmless in the circumstances of this case. On August 15 , 2012, the court entered an amended judgment in favor of Winco. Sumrall timely filed a notice of appeal.
DISCUSSION
I Admission of Deposition Testimony Generally In general, all relevant evidence is ad missible at trial. (Evid. Code, § 351.) "Relevant" eviden ce includes evidence "having any tendency in reason to prove or disprove any disputed fact that is of cons equence to the determin ation of the action." (Evid. Code, § 210.) Depositi on testimony of witnesses, if relevant, may be admitted at trial in certain circumstances. (§ 2025.620.) Section 2025.620 provides: "At the trial or any other hearing in the action, any part or all of a deposition may be used against any party who was present or represented at the taking of the de position . . . so far as admissible under the rules of evidence applied as though the depon ent were then present and testifying as a witness, in accordance with the following provisions: "(a) Any party may use a deposition for the purpose of contradicting or impeaching the testimony of the de ponent as a witness, or for any other purpose permitted by th e Evidence Code. [¶] . . . [¶] "(c) Any party may use for any purpos e the deposition of any person or organization, including that of any party to the action, if the court finds any of the following: "(1) The deponent resides more than 150 miles from the place of the trial or other hearing.6 "(2) The deponent, without the procurement or wrongdoing of the proponent of the deposition for th e purpose of preventing testimony in open court, is any of the following: [¶] . . . [¶] "(D) Absent from the trial or othe r hearing and the court is unable to compel the deponent's attendance by its process. "(E) Absent from the trial or othe r hearing and the proponent of the deposition has exercised reasonable diligence but has been unable to procure the deponent's attendance by the court's process. . . ." (Italics added.)
II Exclusion of Stapleford' s Deposition Testimony Sumrall contends the trial court prejudi cially erred by excluding Stapleford's deposition testimony.
A Sumrall asserts the trial court erred by de nying her request to present Stapleford's deposition testimony at trial because the record shows Stapleford resided in the State of Washington, more than 150 m iles from the place of trial (Riverside, California), and Winco was represented by counsel at Staple ford's deposition. Therefore, she argues section 2025.620's requirements for admissi on of Stapleford's deposition testimony were satisfied. Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248 ( Monroy ), at page 264, stated: "[S]ection 2025.620, subdivision (c)(1) permits the introduction of deposition testimony in lieu of liv e testimony if '[t]he deponent resides more than 150 m iles from the place of tria l or other hearing.' Unavailability need not be shown. Hearsay can be used to provide7 the foundation to establish that a deponent resides 150 miles from the courthouse [citation]." In this case, Stapleford testified at his deposition that he resided in the State of Washington. We take judicial notice that th e State of Washington is more than 150 miles from the courthouse in Riverside, California. (Evid. Code, §§ 459, subd. (a), 452, subd. (h); Monroy , supra , 164 Cal.App.4th at p. 264 [judic ial notice that Puebla, Mexico, is more than 150 miles from Los Ange les, California, courthouse]; cf. Dept. of Social Welfare v. Gandy (1942) 56 Cal.App.2d 2 09, 211 [judicial notice that Santa Monica is less than 100 miles from Los A ngeles].) The parties do not cite, and we are unaware of, any evidence or other informatio n in the record suggesting St apleford did not reside in the State of Washington, or at least 150 mile s from Riverside, California, at the time of the April 2012 trial in this cas e. Accordingly, the record clearly shows section 2025.620, subdivision (c)(1)'s requirement was satisfied. Furthermore, the record shows Winco was represented by counsel at Stapleford's de position. Because both requirements for admissibility of Stapleford's deposition tes timony under section 2025.620, subdivision (c)(1), were satisfied, the trial court abused its discretion by excluding that deposition testimony at trial. (Cf. Monroy , supra , 164 Cal.App.4th at pp. 264-266.) The court's reason for excluding that testimony (i.e., it w ould be unfair to Winc o because it could not8 cross-examine Stapleford at tr ial) is not a valid reason under section 2025.620 to exclude that testimony. 3
B Sumrall asserts the trial court's erro r in excluding Stapleford's deposition testimony was prejudicial. She has the burde n on appeal to show it is reasonably probable she would have obtained a more fa vorable result had the error not occurred. ( People v. Watson (1956) 46 Cal.2d 818, 836.) Based on our review of the whole record , we conclude Sumrall has not carried her burden to show the trial court's error was prejudicial under the Watson standard. Had the court admitted Stapleford's deposition testimon y, the jury would ha ve heard evidence regarding Stapleford's coefficient of friction test results. It would have learned that Stapleford testified the store's floor is "slippery when it's wet" or, alternatively stated, is "in the slippery range." His testing of the floor when wet resulted in coefficients of friction ranging from 0.10 to 0.16, compared to his threshold for slipping of 0.43 (i.e., meaning there would be no chance of anyone slipping). He testified a floor becomes "slippery" in the range of 0.2 to 0.3. If Stapleford's deposition testimony had been admitted, the jury would have learned the store's floor was s lippery when wet. However, as Winco asserts, the jury already heard the testimony of two store employees (i.e., Morfin and Thompson) that the floor was sli ppery when wet. Also, Banjac, Sumrall's

3 Furthermore, the record does not show the trial cour t cited or relied on Evidence Code section 352 to exclude Stapleford's de position testimony. Therefore, there is no reasonable ground on which the cour t could exclude that testimony.9 expert, testified Sumrall slipped because of a loss of traction (i.e., because of water on the floor). Stapleford's test resu lts simply confirmed the sli ppery condition of the store's floor when wet. Although his test results would have placed numerical values on the floor's slippery condition when wet, neither those results nor Stapleford's deposition testimony would have informed the jury that the floor was either extremely slippery or slippery as ice. Nevertheless, Sumrall argues that had Stapleford's deposition testimony been admitted at trial, she could have then presented testimony by her own expert, Banjac, regarding his interpretation of Stapleford's test results and, in partic ular, how slippery the floor is when wet. However, the trial reco rd does not contain any proof (e.g., offer of proof by Sumrall) regarding what Banjac's testimony would have be en had Stapleford's test results been admitted at trial. Evidence Code section 354, subdivision (a), provides that a verdict generally may not be reversed on appeal by reason of erroneous exclusion of evidence unless "[t]he substance, purpose , and relevance of the excluded evidence was made known to the court by the questions as ked, an offer of proof, or by any other means . . . ." An offer of proof "must set forth the actual evidence to be produced and not merely the facts or issues to be addresse d and argued [citation]. The trial court may reject a general or vague offer of proof that does not specify the testimony to be offered by the proposed witness." ( People v. Carlin (2007) 150 Cal.App.4th 322, 334.) An offer of proof generally must be made before or shortly after the trial court has made a ruling excluding evidence. ( Bowman v. Wyatt (2010) 186 Cal. App.4th 286, 329; Espinoza v.10 Calva (2008) 169 Cal.App.4th 13 93, 1398.) Here, Sumrall does not cite to, and we are unaware of, anything in the record showing sh e timely made an offer of proof to the trial court regarding what facts would have been proved had Stapleford 's deposition testimony been admitted and Banjac been allowed to tes tify regarding Stapleford's test results. Absent any such offer of pr oof, Sumrall, in effect, waiv ed her right to challenge on appeal the court's exclusio n of that evidence. ( Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 161-162; cf. Caira v. Offner (2005) 126 Cal.App.4th 12, 31.) Assuming arguendo Sumrall made an adeq uate offer of proof or an exception applies to that requirement, we nevertheless conclude she has not carried her burden to show the admission of Stapleford's depositio n testimony, and Banj ac's testimony based on it, probably would have resulted in a more favorable verdict for her. In arguing her motion for a new trial, Sumrall asserted, for the first time, that ha d Stapleford's test results been admitted, Banjac could have tes tified those test results showed the store's floor was "slippery as ice" when wet. Su mrall repeats that argument in her appellate briefs. However, she does not show that ha d Banjac testified the store's floor was slippery as ice when wet, it is reasonably pr obable based on all of the other evidence in the record that she would have obtained a more favorable verd ict. She does not show it is reasonably probable the jury would have found Winco negligent in the use or maintenance of its property had that eviden ce been admitted. The jury already had evidence showing the floor was slippery when wet. It also viewed a videotape showing the incident, including the conditions at th e time and how Sumrall slipped and fell.11 Based on all of the evidence, the addition of evidence that the floor was slippery as ice when wet would not likely have changed the jury 's finding that Winco was not negligent. Accordingly, the trial court's error in ex cluding Stapleford's de position testimony was not prejudicial under Watson . ( People v. Watson , supra , 46 Cal.2d at p. 836.)
DISPOSITION The judgment is affirmed. Winco is entitled to costs on appeal.

McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.

NARES, J.