Judge: Anne Hwang, Case: 21STCV24084, Date: 2023-09-29 Tentative Ruling

Case Number: 21STCV24084    Hearing Date: September 29, 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 of Undisputed Material Facts in Support of Motion for Summary Judgment

3. Declaration of Carla Smith

4. Declaration of Robert Sahagun

5. Declaration of Karen Lee

OPPOSITION PAPERS:

1. Memorandum of Points and Authorities in Opposition  

2. Plaintiff’s Separate Statement in Opposition

3. Response to Defendant’s Undisputed Material Facts

REPLY PAPERS:

1. Defendants’ Reply to Plaintiff’s Opposition to Motion for Summary Judgment
2. Reply to Plaintiff’s Response to Separate Statement
3. Objection to Declaration of Gary Gsell

BACKGROUND

Plaintiff Daryl Keith Roach (Plaintiff) sued the City of Beverly Hills (“Defendant”) for damages relating to injuries Plaintiff sustained on February 11, 2020, when he stepped off a curb, landing in a hole/ depression in the street in front of the curb, which caused him to lose his balance and fall.

Defendant moves for summary judgment on the grounds that there is no evidence of a dangerous condition on the public property, the condition did not pose a substantial risk of injury to foreseeable users exercising due care, and that Defendant had no actual or constructive notice of a dangerous condition. Plaintiff opposes. Defendant replies.

OBJECTIONS

            Defendant objects to portions of the Declaration of Gary Gsell. The Court declines to rule on the objections because consideration of the declaration does not change the Court’s findings herein.

LEGAL STANDARD – SUMMARY JUDGMENT

“[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”].) 

DISCUSSION

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”  (Gov. Code § 830(a).) 

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  (Gov. Code § 835.)  Consequently, a public entity is only liable for a dangerous condition of property if it either creates the condition or has actual or constructive notice of the condition.  (Gov Code §835(b).)

            Defendant argues that (1) the subject hole/ depression was not a dangerous condition of public property, as a matter of law, because any defect was trivial, (2) the condition did not pose a substantial risk of injury to foreseeable users exercising due care, and (3) Defendant did not have actual or constructive notice of it.

1. 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 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, involving a city street, 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.

            Defendant offers the following undisputed facts:

-          On February 11, 2020, at approximately 4:30 p.m., Plaintiff tripped and fell at 436 N. Bedford Dr., allegedly due to a condition on the street while walking to his car. (UMF 2.)

-          At the time of the incident, weather conditions were sunny and clear. (UMF 3.)

-          Plaintiff fell when he stepped off of the sidewalk and into the street at or about a depression. (UMF 4.)

Plaintiff offers the following facts:

-          The hole in the City Street measures 2 inches deep and 21 inches wide. (PUMF 3.)

-          The location where the pothole was present is a location where people enter or exit the sidewalk at that location, and pedestrians are looking at traffic when stepping on the street. (PUMF 6.)

a.      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.)  “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, the parties agree that the depression is approximately 2 inches deep and 21 inches wide. Although Defendant argues that the depression is in the street, not a sidewalk, this factor nonetheless weighs in favor of the issue being determined by a jury, rather than by the Court as a matter of law. (Stathoulis, supra, 164 Cal.App.4th at 566 (finding the “gouge marks in a street” were about one inch deep and noting 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” (citation and quotation omitted).)

b.      Additional Factors

There does not appear to have been any debris, or other cars or obstructions to impede Plaintiff’s ability to see the depression, the weather conditions were sunny and clear, and it was approximately 4:30 p.m. The City presents evidence that no other incidents were reported, which weighs in the City’s favor. On the other hand, there appear to be some cracks and loose material based on the photographs presented. (Lee Decl., Exh. I.) In consideration of all of factors, and construing the evidence in the light most favorable to Plaintiff, the Court cannot say as a matter of law that the depression was trivial.

2. Actual/ Constructive Notice

A public entity had actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  (Gov. Code § 835.2(a).)  “To establish actual notice, ‘[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question’; ‘it is not enough to show that the [public entity's] employees had a general knowledge’ that the condition can sometimes occur. [Citation.]”  (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.)

A public entity had constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  (Gov. Code § 835.2 (b).)  On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition.  (Gov. Code § 835.2 (b)(1)-(2).)  “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.”  (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.)  “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.”  (Ibid.) 

Although the conspicuousness of the condition and the length of time it existed are normally questions of fact for resolution by the jury, they may be resolved as matter of law where the plaintiff's evidence as to either element is legally insufficient. (Kotronakis v. City & County of San Francisco (1961) 192 Cal.App.2d 624, 629 [jury verdict for plaintiff reversed where there was no evidence the puddle of vomit in which plaintiff slipped had been on the sidewalk longer than overnight]; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318-319, 321 [summary judgment proper where plaintiff failed to provide evidence to rebut the City's showing the condition was not obvious].)

Plaintiff does not dispute that the City had no actual notice of the depression. (Opposition at pg. 6.) As to the issue of constructive notice, Defendants offers the following facts:

-          The City’s Street maintenance program obligates any Public Work and City staff to report any deficiencies observed to the Street Services Bureau of the City. (UMF 6.)

-          The last City inspection of its Street Network prior to the incident was conducted in 2016, during which time no condition necessitating attention was revealed at the subject location of Plaintiff’s incident, but rather a condition survey indicated the location to be “Excellent.” (UMF 8.)

-          A review of the City’s database for any work orders revealed that the City conducted a tree well repair on August 7, 2019, near the location of Plaintiff’s fall. However, there was no request for service generated, indicating that the City employees did not spot any defective condition in the area that necessitated attention. (UMF 9.)

-          The City never received any prior complaints, service requests or work orders for the subject condition located at 436 N. Bedford Dr, prior and subsequent to Plaintiff’s incident. (UMF 10.)

-          The City never received any Claim for Damages nor Complaints related to any incident involving the alleged condition or 436 N. Bedford Dr. (UMF 12.)

Plaintiff offers the following facts:

-          The City inspects for the overall condition of the street for the purpose of budgeting street resurfacing but does not address individual defects as part of this program. (PUMF 4.)

-          The city does not follow up on defects unless a new request is made by the public. (PUMF 5.)

No direct evidence has been presented regarding whether the depression existed for a sufficient period of time. The City presented evidence that on August 7, 2019, work was performed around a tree well on the sidewalk, but the work did not involve the roadway. (Sahagun Decl. ¶ 16.) Nonetheless, there was no reporting or request for service for any defect in the street.[1] (Id.) The incident occurred on February 11, 2020. Plaintiff’s expert, Gary Gsell, inspected the site on July 21, 2020 and measured the 2 inch deep by 21 inch wide depression.[2] (Gsell Decl. ¶ 6.) Defendant provided a photograph purportedly dated May 2019, which depicts a faint outline, and a photograph purportedly dated March 2021, which depicts a darker outline of a depression. (Lee Decl. Exh. H.) The Court concludes that there are triable issues of fact regarding how long the depression, as it was experienced by Plaintiff, existed.

However, whether a nontrivial defect is sufficiently obvious depends on all of the circumstances, including the location of the defect. (See, e.g., Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361.) Here, the location is a city street, not a sidewalk.[3] The 2019 and 2021 photographs are not very useful for comparison purposes due to the lighting and different vantage points. However, both pictures demonstrate that the depression is “slight in size and not similar to a large sign that was clearly visible from a public street that police regularly patrolled. The pictures only support inferences that the structure was not obvious.” (Heskel, 227 Cal.App.4th at 320.) As in Heskel, Plaintiff appears to be arguing that since the condition is visible the City had constructive notice. However, as in Heskel, this argument “does not demonstrate that it was of a substantial size or so visible from public thoroughfares that the City, in the exercise of due care, should have become aware of it and taken corrective action to cure it.”[4] (Id. at 321.)

Plaintiff argues that “[o]n May 8, 2017, the City performed a pothole repair at or near where the deficit was on the date Plaintiff sustained an injury. Clearly, the City knew of other defects in the area and repaired them long before the subject incident. And the City would have discovered the subject defect if it had a reasonable inspection protocol.” (Opposition at pg. 7.) Plaintiff’s facts in his separate statement of undisputed facts faults the City for not addressing individual defects as part of its program. (PUMF 4.) Notwithstanding that Plaintiff has not established that the condition existed in May of 2017,[5] Plaintiff has not set forth any evidence that the depression would have been discovered by a different reasonably adequate inspection system. In other words, Plaintiff argues that the City only inspects for the overall condition of the street,[6] suggesting that the inspection program is inadequate, but does not present any admissible evidence that a different inspection system (considering the practicability and cost weighed against the likelihood and magnitude of potential danger) would have uncovered the depression. Plaintiff’s argument that the inspection system is inadequate simply because it did not uncover the depression is insufficient.

The City has met its burden to demonstrate that there are no triable issues of material fact that the City had constructive notice of the depression. Plaintiff has not met his burden to show that there are triable issues of material fact. Accordingly, summary judgment is granted.[7]

CONCLUSION AND ORDER

            Based on the foregoing, Defendant City of Beverly Hill’s Motion for Summary Judgment is granted.

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