Jack B Clarke vs. The Hertz Corporation

The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that '[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th

34-2023-00337069-CU-PO-GDS: Jack B Clarke vs. The Hertz Corporation 02/10/2026 Hearing on Motion for Summary Judgment in Department 53

168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780-781).

Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make 'an affirmative showing' in support of its motion. (Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (CCP § 437c(p).) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (CCP § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Defendants’ separate statement includes the following facts which they assert are undisputed. On May 22, 2022, Plaintiff slipped and fell after stepping on the Mat with his left foot at the Hertz rental location at the Sacramento International Airport. (UMF 1) After going to the Hertz rental office building to obtain his keys to his vehicle, Plaintiff exited the building, walked across a street and then up onto a sloped concrete ramp that involved crossing a yellow ADA truncated dome mat without any issues. (UMF 3) Plaintiff continued along the walkway pulling a two-wheeled suitcase behind him with his right hand with his backpack slung over his left shoulder. (UMF 4) The walkway sloped down and ended at an asphalt parking lot.

The Mat was located where the walked sloped down. (UMF 5) Prior to the fall, Plaintiff had seen and appreciated the presence of the Mat as he approached it. (UMF 6) Plaintiff was generally familiar with truncated dome mats and aware that the mats were intended to assist persons with disabilities.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337069-CU-PO-GDS: Jack B Clarke vs. The Hertz Corporation 02/10/2026 Hearing on Motion for Summary Judgment in Department 53

(UMF 7) During his deposition Plaintiff did not testify that there was any dirt, moisture, debris, tears, irregularities or foreign substances on the Mat. (UMF 8)

The property where Plaintiff fell is owned by the County of Sacramento and leased to Hertz. (UMF 9) The area where the Mat is located is crossed by hundreds of people each day. (UMF 10) Other than Plaintiff’s fall, there have not been any complaints or problems with the Mat reported to Defendants. (UMF 11, 12) Defendants’ expert inspected the Mat and Plaintiff’s footwear on January 9, 2025. (UMF 13) The Mat had no tears, irregularities, or degradation which would impact a pedestrian. (UMF 14) The surface features of the walkway were open and obvious to a pedestrian. (UMF 15) Defendants’ expert declares that the subject mats are not only designed for the visually impaired to feel the raised bumps (truncated domes) with their feet, but they also provide better slip resistance and high contrast improving walking safety. The raised bumps and the surface texture and roughness would resist the foot movement avoiding slip. (UMF 16) The expert declares that the mats are intended to improve traction and slip resistance. (UMF 17) The height of the Mat’s domes were measured to be approximately 4 millimeters (approximately 5/32 of an inch or 0.157 inches). (UMF 19) Plaintiff’s shoe had a toe clearance of approximately 1.25 inches. (UMF 20) Defendants’ expert declares that because the toe clearance of Plaintiff’s shoes was higher than the height of the bumps, the bumps could not produce a trip hazard. (UMF 21) The expert opines that the domes on the Mat did not create a trip or slip hazard. (UMF 22)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [emphasis in original].) Premises liability is a form of negligence. “It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v.

Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “To exercise a degree of care that is commensurate with the risks involved, the owner must make reasonable inspections of the portions of the premises open to customers.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431.) Plaintiff has the burden to show that “the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so.” (Id.) “One way to carry that burden is to raise an inference that the hazardous condition existed long enough for the owner to have discovered it, if an owner exercising reasonable care would have learned of it.” (Id.)

The fact that an accident occurred alone is not sufficient and a landowner has no duty “to correct defects of which the owner is unaware and that cannot be discerned by reasonable inspection.” (Id. at 432.) “Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega, supra, 26 Cal.4th at 1205 [citations omitted].) “There must be some evidence, direct or

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. The Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

It is well settled that a property owner is not liable for damages caused by a minor, trivial, or insignificant defect in his property. (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal. App. 4th 383, 388.) The 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 Rests. (1987) 192 Cal. App. 3d 394, 398.) A court is permitted to determine that a particular defect is trivial as a matter of law “when reasonable minds can reach but one result.” (Bartell v. Palos Verdes Peninsula School District (1978) 83 Cal.App.3d 492, 497.)

As noted above, Defendants seek summary judgment on the basis that the Mat was not a dangerous condition, was an open and obvious condition, was a trivial defect, and that Defendants did not have actual or constructive knowledge of any dangerous condition.

Here, the Court finds that Defendants have failed to meet their initial burden that they are entitled to judgment as a matter of law. Defendants’ legal arguments and several of their undisputed material facts are premised on their expert’s declaration. Specifically, they argue that their expert has concluded that the Mat was not in a dangerous condition at the time Plaintiff fell, that any condition was open and obvious or a trivial defect, and that they could not have had notice of any condition because the expert concluded that the Mat was not dangerous.

UMFs 16 and 22 state that the domes on the Mat would resist foot movement avoiding slip and that the Mat did not create a trip or a slip hazard. (UMF 16, 22.) Further, UMF 14 states that the Mat had no tears, irregularities, or degradation that would impact a pedestrian. (UMF 14.) Despite these asserted UMFs, however, Defendants’ expert expressly declares that he did not test the Mat for slip resistance because according to him it is inherently difficult to obtain an accurate measurement on this type of mat. (Ravani Decl. ¶ 14) Defendants’ expert did measure the slip resistance in areas on the approach to the Mat, but not the Mat itself. (Id. ¶ 13.)

Defendants’ expert only conducted testing on whether the Mat created a tripping hazard based on the height of the Mat’s domes. (Id. ¶ 15.) Indeed, the expert concluded that due to the height of the domes and the shoes Plaintiff wore at the time of the fall, the Mat “could not produce a trip hazard for the plaintiff.” (Id. ¶¶ 19, 20.) The Court is aware that the final paragraph of Defendants’ expert’s declaration states that the Mat did not “create a trip or slip hazard on the walkway surface at the time and location of the subject accident.” (Id. ¶ 21.)

However, the expert offers no details for any conclusion regarding whether the Mat created a slip hazard. Again, the inspection and measurements of the Mat described by the expert only specifically discuss why the height of the domes did not “produce a trip hazard.” (Id. ¶¶ 19, 20.) Thus, Defendants have not negated the possibility that the Mat created a slip hazard and thus have failed

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00337069-CU-PO-GDS: Jack B Clarke vs. The Hertz Corporation 02/10/2026 Hearing on Motion for Summary Judgment in Department 53

to demonstrate that they are entitled to judgment as a matter of law on Plaintiff’s complaint on the basis that the Mat is not a dangerous condition, that any condition was open and obvious or a trivial defect, or that they did not have any notice of a dangerous condition. The burden therefore never shifted to Plaintiff to demonstrate the existence of a triable issue of material fact. On this basis alone, the motion is denied.

Given the above, the Court need not separately address Defendants’ specific legal arguments regarding the presence of a dangerous condition, whether the condition of the Mat was a trivial defect, and whether they had actual or constructive notice of any defect. This is so because those arguments are all premised on the same UMFs and in any event hinge on Defendant’s expert’s declaration which fails to adequately address whether the Mat created a slip hazard. Further, the Court need not and does not consider Plaintiff’s arguments regarding the existence of a triable issue of material fact.

Defendants’ motion for summary judgment is denied.

Plaintiff’s evidentiary objections are overruled.

The Court declines to rule on Defendants’ evidentiary objections. The Court is not required to rule on objections to evidence that is not material to the disposition of the motion. (CCP § 437c(q).) Defendants’ objections would only be relevant if the Court concluded that Defendants met their initial burden which they did not.

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Defendants’ counsel is ordered to notify Plaintiff’s counsel immediately of the tentative ruling system and to be available at the hearing in person, via Zoom or by telephone, in the event Plaintiff’s counsel appears without following the procedures set forth in Local Rule 1.06(B).

The minute order is effective immediately. No formal order pursuant to California Rules of Court, Rule 3.1312 or further notice is required.