Judge: Anne Hwang, Case: 19STCV26475, Date: 2023-09-14 Tentative Ruling

Case Number: 19STCV26475    Hearing Date: September 14, 2023    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2.      Separate Statement

3.      Request for Judicial Notice

4.      Compendium of Evidence

OPPOSITION PAPERS

1.      Opposition to Motion for Summary Judgment

2.      Opposition to Evidence

3.      Separate Statement

REPLY PAPERS

1.      Reply

2.      Objection

BACKGROUND

On July 30, 2019, Plaintiff Jessica Lee (“Plaintiff”) filed her complaint against Defendant, City of Los Angeles (“Defendant” or “City”) alleging two counts of premises liability for: (1) negligence and (2) dangerous condition of public property.  (Compl., at p. 4.)  On October 24, 2019, Defendant filed its answer.

Plaintiff’s premise liability cause of action is based on a September 13, 2017, trip and fall incident on a public sidewalk.  (Plaintiff’s Claim for Damages.) Plaintiff alleges that it was the dangerous condition of the sidewalk that caused her to fall and sustain injuries. (Id.)

LEGAL STANDARD

“[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”].)     

EVIDENTIARY OBJECTIONS

Defendant’s 9/7/2023 evidentiary objections to: (1) Declaration of Plaintiff’s expert, Gary Gissell (“Plaintiff’s Expert”) are overruled as to No. 1 and (2) Screen Shot CCTV TV are sustained as to No. 2.

Defendant’s 6/28/23 request that the Court take judicial notice of: (1) this action’s Complaint; (2) Plaintiff’s Claim for Damages; (3) Special Interrogatories, Set One, propounded by the City of Los Angeles to Plaintiff Lee; and (4) Plaintiff’s response to Special Interrogatories, Set One.  (Request for Judicial Notice, pg. 2.)  The Court may take judicial notice of material that is part of a file in the Court in which the matter is being heard provided Defendant specifies the part of the Court file sought to be judicially noticed, which Defendant has done.  (See CRC Rule 3.1306(c).) 

This action’s Complaint and Plaintiff’s Claim for Damages are part of the Court’s record.   However, the special interrogatories are not a part of the record or otherwise noticeable.  (See Evid. Code §452.)¿

The Court GRANTS Defendant’s Requests for Judicial Notice as to the Complaint and Plaintiff’s Claim for Damages.

The Court DENIES Defendant’s Request for Judicial Notice as to the Special Interrogatories.

DISCUSSION

The Incident

            This case arises from a trip and fall accident that took place while Plaintiff was walking on a sidewalk located on the East side of Union Drive just north of its intersection with 6^th Street in Los Angeles, on September 13, 2017. (UMF 1.) Plaintiff alleges that the sidewalk was “cracked and uneven,” and “jagged and broken with debris in the cracked sidewalk.” (UMF 4; Plaintiff’s Resp.) The location is near the corner of 6^th and Union, where Tres Amigos Market is located, where Plaintiff worked seven days a week for about 16 years. (UMF 7, 8.)

Analysis

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.) 

This motion turns on whether the “crack in the sidewalk,” “broken with debris,” is a dangerous condition or a trivial defect.

The Trivial Defect Doctrine

“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.

1.      Size of the Defect.

            “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 (noting that a differential of one and three-quarter inches “hovers at the very upper limit of sidewalk height differentials any court has deemed trivial as a matter of law”.)  “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].)

            Here, City argues that the size of the uplift is less than 1 ¼ inch, varying from ½ inch when measured from slab to slab of the walking surface, to 1 ¼ when measured from down within the crack between the sidewalk slabs and not relative to the level of the adjacent concrete. (UMF 15; Decl. Mark Blanchette ¶ 7, 8.) In support, City submits the Declaration of Mark Blanchette, a biomechanics consultant. On April 3, 2023, he inspected the location and measured the differentials at their various points. (Id.) City also submits photographs taken at the time of his inspection. (Id. at Exh. B, C, D1-4, E, F, G.)

            Plaintiff offers the Declaration of Gary Gsell, a retired Superintendent from the City of Los Angeles, Bureau of Street Services, in opposition. He opines that the location of the incident was in the same condition as on March 28, 2022, when he conducted an inspection of the site. (Gsell Decl. ¶ 4.) Notably, Gsell arrived at similar measurements: “The incident occurred when Ms. Lee tripped over an uplift of 5/8 inch, with a second hold close to the uplift that measured 7 inches by 3 inches and was 1 ¼ inches deep.” (Id. ¶ 6.)

            Accordingly, the Court finds that the uplift measures at most 1 ¼ inch. The first factor, which is the most important factor, weighs heavily in favor of finding the uplift to be trivial as a matter of law.

2.  Additional Factors

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.)

            City argues that nothing visibly obstructed Plaintiff from seeing the imperfection in the sidewalk. (UMF 5.) Plaintiff argues that the incident happened at night, making the jagged, cracked sidewalk defect visibly difficult to see. (Pl. Resp. to UMF 5.) Plaintiff further argues that the accident took place after dark at approximately 8:00 p.m. (Pl. Resp. to UMF 1.) Plaintiff further argues that the sidewalk dangerous condition was also jagged and broken with debris in the cracked sidewalk, and that the dangerous condition was evidenced by debris in the crack. (Pl. Resp. to UMF 4-5.)

The condition here consists of an “elevation change due to a crack in the concrete that generally runs East to West across the width of the sidewalk, with the concrete on the North side of the crack elevated relative to the concrete on the South side. The concrete along the crack was firm and stable.” (Blanchette Decl. ¶ 7.) In other words, there is simply one uneven uplift.[1] Plaintiff claims that sidewalk is jagged and cracked. Jagged edges are aggravating factors to be considered. (Huckey, supra, 37 Cal.App.5th at p. 1105.)  However, the photographs submitted by both parties do not depict “jagged” or chipped edges along the horizontal planes of the slabs. Plaintiff does not cite to any evidence in support of her argument that there were jagged edges.  They are not perfect, 90 degree angles, but that is not the test. (Cf. Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 291 [finding photographic evidence (albeit “imprecise in quality and susceptible to various interpretations”) as revealing an “irregular and jagged break” sufficient to show the defect was not trivial as a matter of law].)  Unlike Barone, the parties’ photographs of the defect consistently show a regular and level uplift without jagged breaks.  Moreover, assuming there are chipped edges in the concrete slabs here, there is no evidence Plaintiff tripped on the portion of the defect with the chipped edges.

Other than Plaintiff’s testimony that it was dark outside at the time of the incident, Plaintiff does not dispute that nothing visually obstructed her from seeing the sidewalk or that she was otherwise distracted. (Opp., Exh. 2, 38:14-19.) She offers no evidence that something was concealing the defect at the time of the incident.

            Finally, the Court notes that it is undisputed that there is no evidence of other accidents on this sidewalk. (UMF 7; Pl. Resp.)

Plaintiff instead argues that Defendant had constructive notice, which Plaintiff argues offers a triable issue of fact.  The questions of "notice" and "duty to inspect" only arise if the court determines preliminarily that the defect was not trivial. (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73.) The California Supreme Court explained that if a defect is trivial, then the fact that a reasonable inspection would have revealed it does not give rise to liability. (Id.) Therefore, although Plaintiff’s expert states that City officials would have noticed it under reasonable inspection, because the defect is trivial it does not give rise to liability and the Court does not reach the issue of notice.[2]

            Accordingly, viewing the evidence in the light most favorable to Plaintiff, the Court finds that Defendant has set forth sufficient evidence to establish that there are no triable issues of material fact, and that Plaintiff has not set forth any triable issues of material fact as to the defect at issue here being trivial. The Court therefore will grant the motion for summary judgment.

CONCLUSION AND ORDER

Based on the foregoing, Defendant City of Los Angeles’ Motion for Summary Judgment is GRANTED.

            Defendant is ordered to give notice of this ruling and file a proof of service of such.