Judge: Anne Hwang, Case: 22STCV22441, Date: 2024-06-26 Tentative Ruling

Case Number: 22STCV22441    Hearing Date: June 26, 2024    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 or in the alternative, for Summary Adjudication; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Facts

3.      Declaration of Richard Mendoza

4.      Declaration of Stephen Lavey

5.      Declaration of Jessica Pickering

6.      Declaration of Jeanne-Marie K. Litvin

7.      Evidence in Support of Motion

OPPOSITION PAPERS

1.      Plaintiff’s Memorandum of Points and Authorities in Opposition; Declaration of Lafayette Clarke

2.      Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts

3.      Declaration of Lafayette Clarke

4.      Declaration of Enrique Rivera

REPLY PAPERS

1.      Reply

2.      Objection to Declaration of Enrique Rivera

3.      Objections to Plaintiff’s Evidence

BACKGROUND

On July 12, 2022, Plaintiff Jacqueline Susan Tosolini (“Plaintiff”) filed a complaint against Defendant City of Torrance (“Defendant”) for injuries related to a fall on a lifted portion of sidewalk. Plaintiff asserts a cause of action for premises liability based in general negligence and dangerous condition of public property.

Defendant now moves for summary judgment, or in the alternative, summary adjudication, of the following issues: (1) Defendant is not liable on a theory of general negligence; (2) Plaintiff cannot establish that a dangerous condition of public property existed; and (3) Plaintiff cannot show that the condition was caused by a public employee or that Defendant had actual or constructive notice.

Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

“[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”].)           

EVIDENTIARY OBJECTIONS

The Court declines to rule on Defendant’s objections to the Declaration of Enrique Rivera and Plaintiff’s other evidence as they have no effect on the ruling herein.

DISCUSSION

A. General Negligence

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.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088.) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) Moreover, to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) 

Here, Defendant argues summary adjudication should be granted as to the general negligence cause of action because the claim is based on common law. As such, Defendant, as a public entity, cannot be held liable. The Court agrees. Plaintiff does not dispute this in opposition and therefore fails to meet her burden.

Accordingly, the Court grants summary adjudication as to the negligence cause of action. 

B. Dangerous Condition of Public Property

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).)

1.      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].)

“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.)

Here, Defendant argues that Plaintiff cannot produce evidence that the sidewalk was a “dangerous condition.” Defendant offers the following facts:

-          On May 14, 2021, at approximately 1:00 or 2:00 p.m., Plaintiff, who was 62 years of age at the time, was taking a walk with her husband and their dog. (UMF 4.)

-          Plaintiff’s husband had their dog on a leash, and they were in a single file line with the dog in the front, followed by her husband, and with Plaintiff in the back, trailing two to three sidewalk panels behind her husband. (UMF 5.)

-          According to Plaintiff, the weather was kind of gloomy at the time of her walk, but there were no visibility issues. (UMF 7.)

-          Plaintiff does not have any vision issues (UMF 8.)

-          Plaintiff was not looking at the sidewalk prior to falling, but was looking around to enjoy the view. (UMF 9.)

-          Plaintiff lives so close to the location of the alleged fall that she could see her house from the location. (UMF 10.)

-          Plaintiff was familiar with the area and walked past 3114 Sonoma Street 100 times prior to the incident and had never noticed the displacement before. (UMF 11.)

-          The defect in the sidewalk was a small irregularity with a nonalignment of two horizontal slabs of no greater than 1.5 inches as identified by Plaintiff in her discovery. (UMF 35.)

Defendant offers photographs produced by Plaintiff in her response to Demand for Production Set One. The photographs show the sidewalk lift that purportedly caused the injury. (Litvin Decl., Exh. G.) Two photographs show a close-up view of the lift with a tape measurer showing a lift of greater than 1.5 inches. In response, Plaintiff claims the “size of the defect measures approximately 2 inches.” (PUMF 1.) Neither Defendant nor Plaintiff have accurately characterized the measurement in the photograph. Moreover, Plaintiff’s own expert opines that the measurement is approximately 1 and 5/8 inches in height. (Rivera Decl. ¶ 11.) This measurement comports with the tape measure in the photograph.

Construing the evidence in the light most favorable to Plaintiff, the Court finds the absence of a triable issue of fact. The lift is about 1 and 5/8 inches in height, which weighs in favor of Plaintiff. (But see Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43 [sidewalk defect of 1 and 5/8 inches to 1 and 7/8 inches is trivial as a matter of law].) However, based on a review of the photographs, there are no cracks, jagged edges, holes, or other defects that make the defect more dangerous, but rather a smooth edge along two concrete slabs. There is no evidence of any significant debris or other material that would obstruct a pedestrian’s view of the defect on the day of the incident; in fact, the slabs are different colors which make the defect more obvious. Although the weather was “gloomy,” it was in the afternoon and it is undisputed that there “were no visibility issues.” (UMF 7.) Accordingly, the Court grants Defendant’s motion for summary judgment.[1]

CONCLUSION AND ORDER

            Based on the foregoing, Defendant City of Torrance’s Motion for Summary Judgment/Adjudication is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.

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