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Herships v. Mannington Mills1/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff Howard Herships appeals in propria persona from a judgment of the San Francisco Superior Court, following the trial court's grant of summary judgment in favor of defendant and respondent Mannington Mills, Inc. upon appellant's personal injury action against respondent. Appellant contends reversal of summary judgment is required because: (1) the court abused its discretion by denying his request to continue the summary judgment motion to allow him to complete discovery; (2) respondent's expert physically inspected the premises without notice to appellant; and (3) appellant was denied due process of law under the Fourteenth Amendment to the United States Constitution where the court allowed respondent to proceed on the summary judgment motion without affording him the opportunity to depose respondent's expert witness. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 9, 1999, appellant filed a first amended complaint seeking recovery for damages he suffered when he slipped on the wet floor when exiting the shower room of the Folsom Street Hotel on or about February 4, 1998. Appellant sued the hotel, its owner, and respondent Mannington Mills, Inc., the manufacturer of the sheet vinyl floor covering used on the floor. Respondent filed an answer to the amended complaint on January 28, 2000 and at the same time filed a cross-complaint for indemnity against the hotel and its owner. Trial was set for January 2, 2001.
On November 3, 2000, respondent filed a notice of motion and motion for summary judgment seeking entry of judgment in its favor and against appellant, to be heard December 1, 2000. Exhibits to the motion included the declarations of John Ryan, district manager for respondent, Milo Bell, a licensed mechanical engineer and expert in safety engineering and testing, and a copy of a document detailing the results of testing of the Mannington Mills sheet vinyl flooring tests performed on the type of vinyl flooring used in the hotel. Ryan declared he had inspected the floor where appellant allegedly fell and identified it as a Mannington Mills vinyl floor product called Monarch Blue, Model No. 90005, sold for residential applications in kitchens, bathrooms, and washrooms. Bell declared that he had "reviewed the results of the coefficient of friction testing of the Mannington Mills sheet vinyl flooring (Model No. 90005) at issue in this case, indicating test results for the flooring both wet and dry, and using a variety of shoe sole surfaces." "The coefficient of friction values shown for the various tests performed all meet or exceed accepted industry safety standards, and in my expert opinion the Mannington Mills flooring is safe, and not unreasonably slippery or dangerous." Attached to and identified in the Bell declaration, was the document reporting the coefficient friction testing and its results. Respondent also submitted a declaration from the testing company verifying that the report was a true copy of that prepared by the company based on the testing of that model floor.
Respondent sought summary judgment on the grounds that discovery had confirmed appellant "has no admissible evidence with which to support his claim that the Mannington flooring was defective" either in design or manufacture.
Based upon these declarations, resp
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