Judge Anne Hwang, Case Number: 22STCV17257, Date: 2024-06-27 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.

On May 25, 2022, Plaintiff Tamara Bitner (“Plaintiff”) filed a complaint against Defendant City of Los Angeles (“Defendant”) for injuries related to a fall on a sidewalk. Plaintiff asserts a cause of action for negligence and premises liability.

Defendant now moves for summary judgment arguing that: (1) the area where Plaintiff fell was trivial as a matter of law; and (2) Defendant is not liable for a negligence cause of action.

“[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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520)

“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”].)

The Court declines to rule on Defendant’s objections to Plaintiff’s evidence as they have no effect on the ruling herein.

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 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.) 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).)

“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].)

“A condition is not a dangerous condition . . . if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

“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.”

“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.”]) “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.)

- At her deposition, Plaintiff testified that she tripped and fell on December 16, 2021 at about 7:10 to 7:20 p.m., and that it was fully dark, and a little drizzly, and that she had never been in the area of the Location before. (UMF 7.)

- At her deposition, Plaintiff testified that at the time that she tripped and fell she had no reason to believe that any debris or foreign substance caused her to trip and fall. (UMF 13.)

- At her deposition, Plaintiff testified that at the time she tripped and fell that the ground was not slippery and she did not slip when she fell. (UMF 14.)

- At her deposition, Plaintiff testified that at the time she tripped and fell at the Location there was nothing blocking her view of the sidewalk towards the asphalt. (UMF 16.)

- A search of the City’s database for the Location revealed that no other claims for the Location were retrieved for the period December 16, 2017, though December 16, 2021. (UMF 18.)

- At his inspection of the Location, Dr. Blanchette measured and photographed the uplift on which Plaintiff testified caused her to trip and fall and the measurement was 7/16 of an inch. (UMF 21.)

- At his inspection of the Location, Dr. Blanchette photographed the Location at 6:22 p.m., when the astronomical twilight was consistent with the lighting conditions at the time of Plaintiff’s trip and fall. The moon was up at the time of the incident at 96.3% full, whereas at the time of Dr. Blanchette’s inspection photo, the moon as up and 53.7 full. The contrast by color and shape between the asphalt patch and the adjacent concrete sidewalk was conspicuous. (UMF 22.)

Defendant also provides photographs of where Plaintiff fell, that were marked during Plaintiff’s deposition. Plaintiff confirmed the following characterizations during her deposition. The circle in exhibit D depicts where Plaintiff tripped. (Marston Decl. ¶ 4, Exh. C, Pl. Depo. 26:1–6; Exh. D [exhibit B in the deposition].) The star in exhibit F reflects the area where Plaintiff tripped. (Id., Pl. Depo. 28:16–29:2, Exh. F [exhibit D in the deposition].) Plaintiff testified that the toe of her shoe hit the raised edge, causing her to trip. (Id., Pl. Depo. 30:22–31:5.) Plaintiff then identified that the circle in exhibit G was the area that caused her toe to get caught. (Id., Pl. Depo. 32:13–22; Exh. G [also labeled exhibit G in the deposition].) Plaintiff also confirmed that the end of the ruler shown in exhibit H also represents the location that caused her toe to be caught. (Id., Pl. Depo. 53:12–22 [exhibit K in the deposition].)

Defendant’s safety expert, Mark Blanchette, conducted an inspection of the asphalt mound and measured the maximum elevation change to be 7/16 inches. (Blanchette Decl. ¶ 7, Exh. D1-2.) Mr. Blanchette observed no jagged or crumbling pieces at the subject location. (Id. ¶ 9.) Mr. Blanchette also took a photograph of the subject sidewalk during the same astronomical twilight as the time of the incident. (Id. ¶ 8, Exh. E.)

Although the size of the defect weighs in favor of Defendant, Defendant has not established the absence of a triable issue of fact as to the additional factors that courts typically consider in assessing a sidewalk condition’s triviality as a matter of law. The photograph in Exhibit E of Blanchette’s declaration shows that in the lighting conditions, there is a triable issue of fact as to what can be seen.[1] It appears that there is a discoloration, but it is not apparent that at that particular time (at least as depicted in the photograph) there is a visible defect of the asphalt mound not being flushed with the sidewalk. Plaintiff testified that it was too dark for her to see any debris on the ground. (Pl. Depo. 48:1–4.) She also testified that her shoe was caught in the space between the sidewalk and the raised portion of the mound. Even though Defendant sets forth evidence that the defect is only 7/16 inches, the condition here is different than a raised portion of sidewalk because of its concave nature that created a lip for Plaintiff’s shoe to get caught. Particularly in the lighting condition, there is a triable issue of fact regarding the visibility of that space where Plaintiff’s shoe was caught, and Defendant does not set forth facts that Plaintiff was asked whether she was able to observe that the asphalt patch was not flush with the sidewalk. Viewing the evidence and all reasonable inferences in the light most favorable to Plaintiff, the Court cannot conclude as a matter of law that the defect was trivial.

Because Defendant did not alternatively move for summary adjudication, and has not disposed of the entire action, the Court will not address its arguments surrounding the second cause of action for negligence.

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

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

[1] In Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25, the court explained that “[s]ummary judgment cannot be based on photographs where the reviewing court concludes either reasonable minds might differ regarding whether the photographs correctly depict the alleged defect and the surrounding environs or whether the photographs conclusively establish the defect was open and obvious.” Here, based on Exhibit E, the Court cannot say that reasonable minds cannot differ regarding whether the defect is trivial.

DEPT:	32
HEARING DATE:	June 27, 2024
CASE NUMBER:	22STCV17257
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant City of Los Angeles
OPPOSING PARTY:	Plaintiff Tamara Bitner