Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00069, Date: 2024-06-13 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00069, Date: 2024-06-13 Tentative Ruling

Case Number: 23GDCV00069 Hearing Date: June 13, 2024 Dept: E

Hearing Date: 06/13/2024 – 8:30am
Case No. 23GDCV00069
Trial Date: 09/30/2024
Case Name: NORA SHAMIRYAN v. CITY OF GLENDALE; and DOES 1-50 inclusive

TENTATIVE RULING ON MSJ

BACKGROUND
Plaintiff, Nora Shamiryan, filed the instant action on 1/12/2023.

Plaintiff alleges that on May 24, 2022, she tripped and fell as a result of the defective and uneven/raised sidewalk which is owned, operated, or otherwise controlled by Defendant, City of Glendale.

Defendant’s motion for summary judgment was initially scheduled for February 9, 2024. However, two notices of continuances were filed on 12/12/2023 and 3/25/2024. The notice filed on 3/25/2024 indicated that the motion was continued from April 26, 2024 to June 13, 2024.

RELIEF REQUESTED¿
“Defendant City of Glendale (“City”) will and hereby does move the Court for an order, pursuant to California Code of Civil Procedure section 473c, granting judgment in its favor as to the entire complaint on the following grounds:

1. Plaintiff’s sole cause of action against City —Dangerous Condition of Public Property fails as a matter of law because the subject offset constitutes a trivial defect.¹

2. Plaintiff’s sole cause of action against City —Dangerous Condition of Public Property fails as a matter of law because even if the offset was not trivial, City did not have notice of the condition.

This Motion will be based on this Notice, on the attached Memorandum of Points and Authorities, on the declarations and exhibits submitted herewith, on the Separate Statement of Undisputed Material Facts, and upon such other and further evidence, both oral and documentary, as may be presented at the hearing of this Motion.”

(Def. Mot. p. 1-2.)

Footnote 1 states, “On March 30, 2023, the Court dismissed Plaintiff’s first cause of action for general negligence and second cause of action, count one, for negligence at her request.” (Def. Mot. p. 2.)

Procedural
Moving Party: Defendant, City of Glendale

Responding Party: Plaintiff, Nora Shamiryan

Moving Papers: Notice/Motion; Separate Statement; Evidence in Support; Proposed Order

Opposing Papers: Opposition; Separate Statement; Rosescu Declaration; Shakhgeldyan Declaration; Proof of Service; Proposed Order

Reply Papers: Reply; Objections to Plaintiff’s Evidence; Objections to Plaintiff’s Separate Statement; Proposed Order

Section 437c(a)(2)

Under Code of Civil Procedure (“CCP”) § 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. (Code Civ. Proc., § 437c(a)(2).)

Here, Defendant’s motion is timely.

Section 437c(a)(3)
“The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.” (CCP § 437c(a)(3).)

Here, the motion is timely.

LEGAL STANDARD MOTION SUMMARY JUDGMENT
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

ANALYSIS

Dangerous Condition of Public Property
Toeppe v. City of San Diego outlines the statutory scheme for causes of action for dangerous condition of public property:

A dangerous condition of public property “means 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.” (§ 830, subd. (a). The elements for that cause of action are: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758, 140 Cal.Rptr.3d 722; § 835.)

(Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 925-926.)

Or as Government Code § 835 defines the cause of action:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) 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

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code § 835.)

““Dangerous condition” means 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).)

Further, as stated in Caloroso v. Hathaway:

The decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial. A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 734, 139 Cal.Rptr. 876.) Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect.

(Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

Additionally, Government Code § 830.2 defines when a condition of public property is not dangerous:

A condition is not a dangerous condition within the meaning of this chapter 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.)

As stated in Stathoulis v. City of Montebello:

The trivial defect doctrine is not an affirmative defense. It is an aspect of a landowner's duty which a plaintiff must plead and prove. (Caloroso, supra, 122 Cal.App.4th at p. 927, 19 Cal.Rptr.3d 254.) The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. (Ursino, supra, 192 Cal.App.3d at p. 399, 237 Cal.Rptr. 413.) “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.” (Caloroso, supra, 122 Cal.App.4th at p. 929, 19 Cal.Rptr.3d 254; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704, 50 Cal.Rptr.2d 8.) “The rule which permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.... [A] landowner is not an insurer of the safety of its users.” (Ursino, supra, 192 Cal.App.3d at p. 399, 237 Cal.Rptr. 413.)

(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567.)

Discussion – Dangerous Condition
Defendant argues that the defects that caused the instant injury were trivial and that there was no dangerous condition as a matter of law.

The following material facts of Defendant went undisputed by Plaintiff:

1. On the afternoon of May 24, 2022, Plaintiff left her home to go for a walk.

2. The weather was sunny and clear.

3. Plaintiff was mainly looking straight ahead as she walked.

4. At about 2:30 to 3:00 pm, Plaintiff tripped and fell due to an offset sidewalk at 600 South Street, near the intersection of Kenilworth Avenue in Glendale.

8. There were no shadows covering the offset sidewalk.

(UMF 1-8.)

What there is much dispute about is the height of the uplift in the sidewalk that Plaintiff allegedly tripped over.

Defendant argues that the height of the uplift of the offset sidewalk where Plaintiff tripped is 1.5 inches or less. Specifically, Defendant provided the declaration of Jesus Valencia, a Cement Worker Finisher for the City of Glendale Public Works, that measured the offset at its highest point, which was recorded as 1 and 1/8 (or 1.125) inches. (See Valencia Decl. ¶¶ 1-3.)

In Opposition, as to the height of the offset, Plaintiff disputes UMF 5 regarding the height of the offset by arguing:

The height of the uplift of the offset sidewalk where Plaintiff precisely tripped [sic] is not less than 1.5 inches. Moreover, Exhibit C which has been referenced in the Declaration of Mr. Valencia depicts one photograph of a measurement of the section of the sidewalk where Plaintiff alleges she tripped and fell, however, the photograph is taken at an angle that does not show the complete width of the defective sidewalk. In fact, Plaintiff refers to her expert Mr. Rosescu’s photograph referenced in his declaration which does in fact show the exact location of the measurement. Thus, it is unclear what portion of the sidewalk Mr. Valencia was measuring, and is therefore disputable as to the alleged 1 1/8 inches measurement.

(Pl. Sep. Stmt. UMF 5.)

In relevant part of Plaintiff’s expert’s (Philip Rosescu, a Forensic Engineer with Aperture, see Rosescu Decl. ¶ 3) declaration, Rosescu states:

At the time of incident, Ms. Shamiryan was walking eastward along the sidewalk of South Street when her left foot encountered a height differential causing her to trip and fall. The subject uplift was repaired with an asphalt ramp at the time of Aperture’s May 17, 2023 inspection however, inspection photographs indicate that the subject uplift measured approximately 1-1/2 inches in height.

(Rosescu Decl. ¶ 7.)

The Reply points out that Rosescu never inspected the location of the incident, and instead offered opinions based on his review of photographs, therefore his opinion lacks foundation and personal knowledge.

Further, the Reply argues that Rosescu is an engineer, and he improperly offered opinions in the field of human factors. Reply also argued that under Evidence Code § 801(b), Rosescu is not qualified to offer opinions in the field of human factors.

Complicating the analysis here are the inconsistencies in Plaintiff’s deposition testimony.

For example, Defendant’s UMF 7 states, “Although there were some leaves and branches on the sidewalk, nothing blocked Plaintiff’s view of the offset.”

However, the deposition testimony of Plaintiff doesn’t fully support this proposition because Plaintiff’s deposition testimony is unclear at best.

Q. Okay. Was there anything obstructing your view of the raised sidewalk at the time of the accident?

A. No.

(Shamiryan Depo. p.23, ln 23-25.)

Even though Plaintiff admits that nothing was obstructing her view of the raised sidewalk at the time of the accident, before she answered that question, she answered as follows:

Q. Okay. And did you say that there were branches or something or weeds or something there?

A. Yes, dry leaves, branches.

Q. Except for the fact that we don't see any dry leaves or branches in Exhibit 2, does it accurately show the way the sidewalk looked at the time of the accident?

A. Yes, it's the same. There was no green because all the green had dried.

(Shamiryan Depo. p. 19, ln 3-10.)

Therefore, at best, Plaintiff’s testimony is noncommittal; at worst, it seems to undermine her claims here.

Further, Defendant’s UMF 6 states, “The offset sidewalk did not have any jagged edges or broken pieces.” (Def. UMF 6.)

Plaintiff’s deposition testimony states:

Q. Okay. That's fine. So the raised sidewalk that you tripped on -- it did not have any jagged edges, did it?

A. The edges of the sidewalk?

Q. Right. They weren't jagged in any way, like jagged and broken; right?

A. I don't know. I couldn't tell.

(Shamiryan Depo. p. 23, ln 16-22.)

The Plaintiff’s deposition ranges from indifferent to contrary to the legal positions taken by Plaintiff in opposition here. Given this, and the seemingly undisputed testimony of the Defendant’s expert, it appears that the Plaintiff has failed to establish that there is a triable dispute of a material fact as to the issue of the dangerous condition.

Constructive Notice

In the event that the Court is convinced otherwise as to the first issue—whether there was a dangerous condition—the Court will take up the issue of constructive notice.

Further, under § 835.2:

(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

(Gov. Code § 835.2.)

Here, the parties do not appear to be arguing that there was actual notice. The parties seem to be disputing whether or not there was constructive notice.

With respect to Defendant arguing that there was no constructive notice, Defendant’s UMF 9-10 states:

9. After Plaintiff filed a Claim for Damages, Matthew Binder, Street Maintenance Supervisor, searched City records for complaints or reports of sidewalk defects or accidents at the subject location going back to the year 2013.

10. Mr. Binder found no complaints, service requests or reports about the offset that pre-dated Plaintiff’s accident.

(Def. UMF 9-10.)

In Plaintiff’s Opposition Separate Statement to UMF 9-10, for both 9 and 10, Plaintiff responded with the following:

Defendant City of Glendale’s Person Most Knowledgeable, Matthew Binder, was deposed on April 10, 2024. Mr. Binder testified that he was unsure if he or someone else from his office inputted the information into the City’s database to run a query for complaints or reports of sidewalk defects or accidents at the subject location going to back the year 2013. Mr. Binder testified that he has been trained to run a search of the address closest to the defective sidewalk to populate a claims history. Mr. Binder, however, only speculates that the subject search performed by someone else would have been done using the same parameters. The subject database does not include any inspections that would have been performed by the City that is not in response to a complaint. In fact, Mr. Binder’s declaration indicates that he found no complaints, service requests or reports about the offset that pre-dated Plaintiff’s accident, and no mentioned of inspections of the subject sidewalk and the surrounding area that were performed prior to the subject incident. Moreover, Mr. Binder testified that the city’s forestry department is responsible for pruning and maintaining city trees located in city parkways. Mr. Binder testified that the if a city employee, including urban forest employees, who notice uplifted sidewalks are mandated to follow the city’s ‘quality of life’ policy to report any conditions that can affect the quality of life, including uplifted sidewalks that can cause injury to traversers, like Plaintiff. Furthermore, Mr. Binder testified that on November 7, 2017, the city staff recommended that the city council approve a motion awarding the construction contract to Excel Paving Company in the amount of $1,258,891.50 for the safe routes to schools improvements project, which included street and sidewalk improvements for the benefit of nearby schools. This effectively placed the city on notice of the subject dangerous condition of public property, where Plaintiff fell, as early as November 2017. The location of the subject incident was included in the scope of work that was to be performed by Excel Paving however Mr. Binder did not know, despite being PMK presented for this case, if Excel Paving improve any of the sidewalks in front of 600 South Street (location of subject incident).

(Pl. Oppo. Sept. Stmt, UMF 9-10.)

The Court notes that because Plaintiff’s Opposition to UMF 9-10 is difficult to decipher, the Court will include Plaintiff’s arguments asserted in its opposition memorandum:

The Google image (attached to Mr. Rosescu’s Declaration as Figure “3”) shows the dangerous condition existed as far back as November 2017, a good 4.5 years prior to this incident. (Decl. of Rosescu P.4 ) Certainly 4.5 years is long enough to discover a dangerous condition on sidewalks.

The City admits that it does not have any system to inspect the sidewalks for dangerous conditions. (Depo of Mathew Binder, P. 16 L.18-21.) Thus, there is evidence that there was no reasonable inspection system, as there was no inspection system at all! [sic]

In fact, Mr. Binder’s declaration indicates that he found no complaints, service requests or reports about the offset that pre-dated Plaintiff’s accident, and no mentioned of inspections of the subject sidewalk and the surrounding area that were performed prior to the subject incident. Moreover, Mr. Binder testified that the city’s forestry department is responsible for pruning and maintaining city trees located in city parkways. Mr. Binder testified that the if a city employee, including urban forest employees, who notice uplifted sidewalks are mandated to follow the city’s ‘quality of life’ policy to report any conditions that can affect the quality of life, including uplifted sidewalks that can cause injury to traversers, like Plaintiff. Furthermore, Mr. Binder testified that on November 7, 2017, the city staff recommended that the city council approve a motion awarding the construction contract to Excel Paving Company in the amount of $1,258,891.50 for the safe routes to schools’ improvements project, which included street and sidewalk improvements for the benefit of nearby schools. This effectively placed the city on notice of the subject dangerous condition of public property, where Plaintiff fell, as early as November 2017. The location of the subject incident was included in the scope of work that was to be performed by Excel Paving however Mr. Binder did not know, despite being PMK presented for this case, if Excel Paving improve any of the sidewalks in front of 600 South Street (location of subject incident).

(Oppo. p. 16-17.)

In Reply, Defendant asserted several objections to the evidence that the Opposition relied on for Defendant having constructive notice.

The Court will hear argument as to if there was constructive notice on behalf of the City.

The Court will hear argument. The Opposition is difficult to decipher as to the arguments asserted, and as to what evidence the Opposition is relying on. If the Plaintiff plans to rely on specific evidence, they need to point the Court to precisely where they are obtaining their evidence.

“The questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are properly left to the jury.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 843.)

TENTATIVE RULING

The Court’s tentative ruling is that the Defendant’s motion for summary judgment is GRANTED.