Judge Anne Hwang, Case Number: 19STCV19970, Date: 2023-10-23 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

On June 7, 2019, Plaintiff Geraldine Easley (Plaintiff) filed a complaint against Defendant City of Long Beach (Defendant) and Does 1 to 10 for premises liability (dangerous condition of public property) after she allegedly tripped on a gap between a metal plate on a gangway.

Defendant now moves for summary judgment arguing that no triable issue of material fact exists. Defendant argues the condition was a minor or trivial issue under Government Code section 830.2 and that Plaintiff cannot prove notice of the alleged condition. Plaintiff opposes.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

To establish a claim of dangerous condition on public property, a plaintiff must prove: (1) that the defendant owned or controlled the property; (2) that the property was in a dangerous condition at the time of the injury; (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) that defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) that plaintiff was harmed; and (6) that the dangerous condition was a substantial factor in causing plaintiff’s harm. (Gov. Code, § 835; CACI No. 1100.) A “dangerous condition” is a condition of public property that creates a substantial (as distinguished from a minor, trivial, or significant) risk of injury to members of the general public when the property [or adjacent property] is used with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition. (Gov. Code, § 830; CACI No. 1102.)

“Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property. But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property. The so-called ‘trivial defect doctrine’ recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226 [cleaned up].)

“In limited circumstances a court may determine a walkway defect is trivial as a matter of law. Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment. But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.” (Id. at p. 226.)

California Courts have developed two substantially similar tests to determine whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law. In Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68, the Court of Appeal set out a two part test. “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 ....” (See also Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758 [adopting two-step framework]; Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105 [same].)

More recently, in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110, the Court of Appeal read Government Code section 830.2 to require a more “holistic” approach, stating, “[a]lthough we agree with the premise that the size of the defect is the primary determinant of triviality, as discussed below, we modify the prevailing two-step framework into a holistic, multi-factor analysis.” The Court will follow Stack’s holistic approach, although the result would be the same under either test.

“We begin with the most important factor: the defect’s size.” (Stack, 91 Cal.App.5th at p. 110 [cleaned up].) “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107; see Stathoulis, supra, 164 Cal.App.4th at p. 568 [“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”]) A more “accurate encapsulation” of the law, according to Stack, is that “when the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law, i.e., that it is minor or trivial.” (Stack, supra, 91 Cal.App.5th at p. 112.) “That said, there is no firmly fixed arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous. This is because a court should not rely solely upon the size of the defect ... although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.” (Id. at pp. 112–113 [cleaned up].)

The Court next considers additional factors. “Beyond size, additional factors courts typically consider in assessing a sidewalk condition’s triviality as a matter of law are: the nature and quality of the defect (including whether it has jagged breaks or cracks); whether anything was obstructing or concealing the defect (for instance, an object, debris, or other substance); the lighting and weather conditions at the time of the incident; whether the defect has caused other accidents; and plaintiff's familiarity with the area.” (Stack, supra, 91 Cal.App.5th at p. 115.) With respect to the various foregoing factors, Stack held that “individual familiarity is not a proper factor for consideration within the trivial defect doctrine.” (Id. at p. 120.) The Court will address each factor in turn.

- Plaintiff alleges that while walking up the gangway, her sandal caught a space/ gap between a metal plate and the walkway ramp and fell to the ground. (UMF 2.)

- The gap between the metal plate and the ramp that Plaintiff caught was approximately 1 inch high. (UMF 6.)

- Plaintiff testified that she either caught the gap area within the green or the red box depicted in Exhibit 2B of her deposition. (UMF 7.)

- Prior to day of the accident, Plaintiff had used the subject gangway approximately 2 to 3 times before, and the last time prior to the accident was two to three months before the subject accident. (UMF 8.)

- At the time of the accident, it was a sunny day, and the walkway was dry. (UMF 9.)

- There was no debris on the walkway or the metal plate at the time of the accident. (UMF 10.)

- Moreover, there was no shadow casting over the walkway or the metal plate at the time of the accident. (UMF 11.)

- Eric Woodson is the City of Long Beach's Superintendent of Marine Maintenance for Parks, Recreation, and Marine. (UMF 15.)

- Upon a search of CityWorks, City's Maintenance Management Work Order System, Mr. Woodson found no service requests for the subject location gangway going back 10 years. (UMF 16.)

- The City of Long Beach operates a call for service basis system for the City's gangways. The City relies on notification of a request for inspection, repair, or maintenance from either a citizen or a City employee. As far as an inspection, there is no preventative maintenance inspection that is followed. (UMF 17.)

- In his role as Superintendent of Marine Maintenance for Parks, Recreation, and Marine, Mr. Woodson's search did not find any prior reports of injury from any trip and falls on the subject gangway. (UMF 18.)

- In his role as Superintendent of Marine Maintenance for Parks, Recreation, and Marine, Mr. Woodson's search did not find any prior reports of prior work or repairs to the gangways for the North Long Dock. Had a repair been made, it would have been documented in the Maintenance Management System CityWorks. Staff would have received a work order, and then whatever was done in that particular area or whatever the job entailed would have been documented. (UMF 19.)

Here, Defendant has met its burden. Defendant offers that the gap in the walkway was around one inch. This puts the defect within the range of elevations that previous courts have found to be minor and trivial as a matter of law. Additionally, the incident occurred on a sunny day, in the afternoon, there was no debris on the ramp, and there were no prior reports of injury on the gangway. Based on the Court’s review of the photographs, the gap was based on a metal plate that looks different from the rest of the gangway. Defendant has met its burden to show there are no triable issues of fact that the defect is trivial as a matter of law.

- On the two or three prior occasions she used that gangway, Plaintiff does not recall noticing a space or gap between the gangway and the metal plate and does not know how long the space or gap had been there prior to her fall. (AUMF 5.)

- When shown a close-up photograph during deposition and asked if he could estimate the gap based on the photograph, Woodson responded, “Just looking at it, I would say a quarter of an inch.” (AUMF 12.)

- Woodson testified that “when you have high and low tide, your dock --- the gangway sways up and down,” and “as the tide raises, it slides a certain way, and then when the tide lowers, it slides.” (AUMF 13.)

- When shown another photograph of the gangway after the fall and asked whether he could discern high tide or low tide given the size of the gap, Woodson said he could not tell just by looking at the picture. When asked to assume it was low tide when the photograph was taken, and asked if there would have been more of a gap at high tide, Woodson responded, “I don’t have that answer.” (AUMF 14.)

- Woodson agreed that on some of the 80 docks he oversees, “the plates are flush, one on top of the other with no gap with Teflon between the plates.” He has no explanation as to why some docks are flush, as opposed to the configuration of the gangway Plaintiff fell on “where there’s a space and then there’s Teflon in between.” (AUMF 24.)

Plaintiff disputes the gap was 1 inch based on testimony of Woodson, who estimated the gap was maybe ¼ inch based on photographs. (AUMF 4, 6, 10-14.) However, Woodson admitted he did not measure the gap. The one-inch measurement offered by Defendant is based on Plaintiff’s Response to Special Interrogatory Number 2. (Diao Decl., Exh. 3.) Therefore, there does not appear to be an actual dispute about the height of the gap.[1]

In addition, while Plaintiff proffers that the gangway moves with the tide, she fails to describe how that attribute makes the gap more dangerous to a foreseeable user. A public improvement can be dangerous due to its relationship with its surroundings, even though the improvement itself is not defective. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149.) However, here, Plaintiff does not present evidence about how the moving of the gangway with the tide made the gap dangerous. Plaintiff relies on cases where a gangway and a dock, and a dock and boat, move relative to each other, but does not present any evidence regarding the gap at issue here. (Opposition at p. 8.)

Plaintiff also argues that the sidewalk cases cited by Defendant are not analogous to the facts here and should not be relied upon. The cases cited by Plaintiff however, while having some connection to docks, do not discuss dangerous conditions on public property. (See CNA Ins. Co. v. Workers' Comp. Appeals Bd. (1997) 58 Cal.App.4th 211; Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252.) While the location of the defect impacts the analysis regarding notice (see Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 525), in examining whether a defect is trivial, “[t]he question is not the location of the defect, per se, but whether it may reasonably be anticipated pedestrians will use the surface as a public walkway.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 fn.2 [analyzing a hole in the street].) Here, like a sidewalk, the gangway is provided for pedestrians. Plaintiff does not explain why a heightened standard should apply, particularly where, as here, the plate at issue causing the defect is different in appearance from the rest of the gangway.

Considering the evidence in the light most favorable to Plaintiff and construing all reasonable inferences in Plaintiff’s favor, Plaintiff has failed to meet her burden to establish a triable issue of fact that the defect is not trivial as a matter of law. Accordingly, the Court grants Defendant’s motion for summary judgment.[2]

Based on the foregoing, Defendant City of Long Beach’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] Plaintiff argues that other docks have transition plates that are flush with the gangway. (Opposition at p. 10.) However, there is no evidence regarding why other docks have plates that are flush and this one does not. In any event, the issue is whether this transition plate, which was not flush with the gangway, was a dangerous condition.

[2] In light of the Court’s ruling, the Court does not reach Defendant’s alternative argument regarding notice.

DEPT:	32
HEARING DATE:	October 23, 2023
CASE NUMBER:	19STCV19970
MOTIONS:	Motion for Summary Judgment, or in the Alternative, Summary Adjudication
MOVING PARTY:	Defendant City of Long Beach
OPPOSING PARTY:	Plaintiff Geraldine Easley