Judge: Audra Mori, Case: 19STCV46510, Date: 2022-09-01 Tentative Ruling

Case Number: 19STCV46510    Hearing Date: September 1, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Sirious Ghermezian (“Plaintiff”) filed this action against defendants, County of Los Angeles, City of Los Angeles, the People of the State of California, acting by and through the Department of Transportation (erroneously sued as State of California, Caltrans), and Thrifty Oil Co. for injuries relating to Plaintiff’s trip and fall on June 11, 2019, on a sidewalk adjacent to the property located at 11540 Santa Monica Blvd., Los Angeles, CA 90025 (the “Property”). 

Defendant the People of the State of California, acting by and through the Department of Transportation (“DOT” or “Defendant”) now move for summary judgment.  Plaintiff opposes the motion, and Defendant filed a reply.

This matter was last heard on July 14, 2022, where after DOT submitted new evidence concerning the subject sidewalk defect for the first time on reply, the hearing was continued to allow Plaintiff to file a supplemental opposition, which Plaintiff filed on August 19, 2022.

2. Motion for Summary Judgment

a. Moving Argument

DOT argues it is entitled to summary judgment because the subject uplift in the sidewalk over which Plaintiff allegedly tripped and fell constitutes a trivial defect as a matter of law.  Defendant asserts that Plaintiff estimated the uplift was under one inch, and that Plaintiff had been to the location approximately three to four times but did not notice anything unusual about the sidewalk.  Further, Defendant contends there were no aggravating factors present that rendered the defect dangerous. 

b. Opposing Argument

Plaintiff argues that DOT failed to submit any photographic evidence in support of the motion, and that DOT fails to establish that the defect was minor and trivial.  Plaintiff contends the uplift was more than one-inch, loose pebbles and rocks were present, and that there were wood chips and leaves along the line between the higher and lower sidewalk slabs.  In particular, Plaintiff provides his counsel measured the uplift to be between 1-1/4 to 1-1/2 inches.  Plaintiff additionally states that his expert, Brad P. Avrit, PE (“Avrit”), opines that the sidewalk presented a dangerous condition. 

c. Reply and Supplemental Opposition

DOT, in reply, asserts that Plaintiff’s opposition directly contradicts his deposition testimony regarding the sidewalk uplift and incident.  Moreover, Defendant contends that even in considering Plaintiff’s evidence and argument that the uplift was up to 1-1/2 inches, the subject defect is trivial as a matter of law.  Defendant avers that the existence of leaves and pebbles does not constitute an aggravating circumstance sufficient to raise a triable issue of material fact.  Defendant DOT further submits photographs taken by defense counsel of the sidewalk uplift, which Defendant asserts show the uplift was less than one-inch high. 

In his supplemental opposition, Plaintiff contends that the Court should not consider Defendant’s photographs of the uplift submitted with the reply because they were not submitted with the moving papers.  Additionally, Plaintiff contends that even if the photos are considered, the measurements depicted are not accurate. 

                        d. Evidentiary Objections

            Defendant DOT submits 17 objections with its reply to Plaintiff’s evidence.  Objections 1-4, 9-10, 12-14, and 16-17 are overruled.  Objections 5, 6, and 11 are sustained as improper legal conclusions.  Objections 6 and 8 are sustained because Plaintiff’s expert, Avrit, improperly relates and relies on case-specific facts relayed by Plaintiff of which Barillas has not established independent knowledge.  (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”].)    

e. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.) 

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….”  (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5^th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

f. Analysis re: Trivial Defect Doctrine

A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable.  Ordinarily, the existence of a dangerous condition is a question of fact.  However, it can be resolved as a question of law if reasonable minds can come but to one conclusion.  It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects.  (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)

The Act defines a “ ‘[d]angerous condition’ ” as “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.) Public property is in a dangerous condition within the meaning of section 835 if it “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” [Citation.] A condition is not dangerous “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.” (§ 830.2.)  

(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.)

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.  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.  “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.”  (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.)

The Fielder court, after reviewing various appellate decisions involving defective walkways, concluded that the variance in these decisions as to what size of a depression, break, or nonalignment in a sidewalk constituted a mere trivial defect could be reconciled on the basis of whether there existed aggravating factors, such as lighting, debris, or a history of other similar injuries and thus rejected a rigid application of a “tape measure” test.

In Fielder, a pedestrian, who allegedly tripped on the raised edge of segment of sidewalk and suffered a fractured femur as result of her fall, sued the City of Glendale.  The appellate court held that: (1) it is for court to determine whether as matter of law a given defect in a sidewalk is not dangerous and (2) where the only facts alleged concerning whether the ‘defect’ was dangerous was evidence as to the depth of the depression and no evidence was presented as to any other surrounding circumstances or to other injuries to other persons on same spot, the approximate three-quarter-inch depression in the sidewalk at issue was not dangerous as matter of law.  The Fielder court also disregarded the testimony of the plaintiff's expert that the defect was dangerous, reasoning that “there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.”  (Fielder, supra, at p. 732.)

In Ursino, the plaintiff was walking on a sidewalk on the defendant’s property and tripped over the raised edge of one of the concrete sections of the sidewalk.  The raised edge was no more than three-fourths of an inch, the accident occurred in the morning, the weather was fair and dry, nothing concealed the defect, the plaintiff had frequented the restaurant on an average of once per week over 15 years, the raised edge had been there for between one to five years, neither party knew of any prior similar incidents, the plaintiff’s walking pattern was affected by her age, and 32 photographs of the sidewalk area at issue confirmed, to the trial and appellate courts, that reasonable minds could not differ and that the defect was in fact trivial.  (Ursino, supra, at pp. 396-397.)

In Kasparian, the plaintiff, an elderly tenant, had sustained serious injuries when she tripped over a recessed drain in the ground in an apartment complex.   In overruling the trial court’s grant of summary judgment in favor of the defendant based on the trivial defect doctrine, the appellate court held that the trial court only focused on the depth of the recession and ignored the recessed nature of the drain when viewed in the context of the surrounding circumstances.  Kasparian’s expert stated that the hole created for the drain grate was uneven, with heights ranging from 1/32 inch to 5/16 inch.  He opined that the size and profile of the depression created for the grate varied from one end to the other which posed a safety hazard to pedestrians who did not have any expectation that any drain was not flush with the surrounding brick pavers.  The survey of the other drains in the immediate vicinity of the drain in question confirmed that those drain covers were flush with the brick/paver surface, and the slope to the drain was nearly level unlike the drain in question.  The slope to the drain in question was dramatically more severe than that found in customary drains.  Moreover, there were no warnings or color distinctions to warn pedestrians that the drain was recessed.  The expert opined that the surrounding circumstances of the location of the accident made the area very hazardous given the drains from a distance appeared similar in color to the bricks/pavers, the drains were not distinguishable by color and texture from the surrounding pavers, and in the totality of the circumstances they could not be easily detected even in daylight.  (Kasparian, supra, at pp. 28-29.)

In Caloroso, a pedestrian, who tripped over a crack in a walkway, and her husband sued the defendant property owner for personal injury and consortium damages.  It was undisputed that the difference in elevation created by the crack in the walkway was less than half an inch at the highest point.  Elevations ranging from three-fourths inch to one and one-half inches were found minor and trivial as a matter of law.  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74.)  Following this line of cases, the Caloroso court held that the defect at issue should also have been deemed trivial as a matter of law, unless there was disputed evidence that other conditions made the walkway dangerous.  In an attempt to raise a triable issue of material fact, the plaintiff submitted an expert declaration on the issue of triviality.  Citing Evidence Code §801(a), the appellate court held that no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous.  The photographs of the crack submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal.  Regardless of whether a witness can be found to opine on the subject of a dangerous condition, the court must independently evaluate the circumstances.  (Caloroso, supra, at p. 928, citing Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.)  The appellate court also found no foundation for the plaintiff’s expert’s opinion that noncompliance with certain building codes and standards made the crack dangerous. The expert failed to indicate that the codes and standards cited had been accepted as the proper standard in California for safe sidewalks.  Moreover, there was no indication regarding whether such codes applied to existing walkways as opposed to new construction.  Thus, the trial court properly concluded that the defect was trivial as a matter of law, and summary judgment was appropriate.  (Caloroso, supra, at p. 929.)

Here, on the date of the incident, June 11, 2019, the weather was nice and sunny.  (UMF 1-2.)  While Plaintiff was walking towards a market in a strip mall, Plaintiff’s foot got stuck on a raised portion of a deviation between two slabs of cement sidewalk.  (UMF 3.)  Plaintiff was walking in the middle part of the sidewalk when he tripped and fell.  (UMF 4.)  Defendant attests that Plaintiff estimated that the subject sidewalk uplift was less than one inch.  (UMF 5.)  Plaintiff had been to the relevant location three or four times previously, and on the date of the incident, Plaintiff did not notice anything unusual about the sidewalk.  (UMF 6.)  Defendant asserts that there have been no prior complaints regarding tripping hazards at the relevant location.  (UMF 7.)  Furthermore, with its reply, Defendant submits photographs showing that the subject uplift was under one inch.[1]  (Reply Khayalian Decl. ¶ 6 Exhs. D-E.) 

The foregoing is sufficient under the standards discussed above, to meet the moving burden to show Defendant is entitled to summary judgment under the trivial defect doctrine.  Because Defendant meets its moving burden, the burden shifts to Plaintiff to raise a triable issue of material fact regarding triviality. 

            In opposition, Plaintiff asserts that he actually estimated the uplift to be higher than one inch, and that Plaintiff’s counsel measured the uplift after the incident and found it to be 1-1/4 to 1-1/2 inches high.  Plaintiff further contends that concrete on the middle portion of the sidewalk where Plaintiff tripped had fallen apart, that the concrete surface of the lower sidewalk square where Plaintiff fell was broken up and loose pebbles and rocks were present, that there were wood chips and leaves along the line between the higher sidewalk and the lower sidewalk, and that the shadows from the adjacent building would obscure the tripping hazard. 

Concerning the approximate one-inch height differential, Courts have consistently found height differentials of less than one inch trivial as a matter of law.  (See Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 (ridge of one-half inch); Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (crack in sidewalk less than half an inch); Whiting v. National City (1937) 9 Cal.2d 163, 166 (differential of three-quarters of an inch).)  Moreover, “[s]everal decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568; see also, e.g. Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396-398 [three-fourths inch difference between sidewalk slabs trivial as a matter of law]; Ness v. City of San Diego (1956) 144 Cal.App.2d 668, 673 [seven-eighths inch difference between sidewalk slabs trivial as a matter of law]; accord. Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363 [one and one-half inch differential].) 

Accordingly, even if the Court accepts that the height differential was up to 1-1/2 inches high as attested to by Plaintiff’s counsel, this alone does not make the defect dangerous.[2]  However, “size alone is not determinative of whether a rut presents a dangerous condition. It is just one of several factors—albeit ‘[t]he most important of these factors’—for determining whether a given defect may be deemed trivial as a matter of law. [Citation.] We must also consider the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, and whether there is evidence anyone else has been injured by the same defect.”  (Stathoulis, 164 Cal.App.4th at 568.)

Plaintiff submits a declaration explaining that after he tripped, he looked at the sidewalk to determine why he fell and found the following: “One square was higher than the other. The concrete on the middle portion of the lower sidewalk square, where I had tripped, had fallen apart. The concrete surface of the lower sidewalk square where I fell was broken up and loose pebbles and rocks were present. In addition, there were wood chips and leaves along the line between the higher sidewalk and the lower sidewalk.”  (Mot. Ghermezian Decl. ¶ 6.)  While Defendant argues in reply that Plaintiff’s declaration contradicts his deposition testimony, Defendant does not point to specific testimony from Plaintiff that contradicts his statements.  Review of the deposition excerpts provided by Plaintiff does not show that Plaintiff  blamed his fall on the conditions mentioned in his declaration.[3]  Moreover, while Plaintiff asserts in his declaration that these alleged conditions were present, Plaintiff does not explain how any of them caused or contributed to the incident in any manner.  Plaintiff, for example, does not state that the wood chips or leaves obstructed his view of the defect, or that the alleged pebbles and rocks contributed to him tripping on the sidewalk uplift. 

Furthermore, to the extent that shadows from the adjacent building would have obscured the defect, Plaintiff does not submit any evidence, such as a declaration from Plaintiff, stating that his vision of the defect was obstructed by shadows or that there were in fact shadows present at the time of the incident.  The photos of the uplift show that it was in plain sight, did not have jagged edges, and did not pose a substantial risk of injury to a pedestrian using due care.  (See Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109 [“…height differential would have been in plain sight and, therefore, would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care’ at the time plaintiff fell.”]; Reply Khayalian Decl. Exhs. D-E; Opp. Barillas Decl. Exh. B, Avrit Decl. Exh. B.)  In evaluating the totality of the surrounding circumstances and the evidence presented, Plaintiff does not create a triable issue of fact concerning triviality.  (See Stathoulis, 164 Cal.App.4th at 568-69 [defect trivial where “it is clear there was no debris, and no cars or other obstructions to impede [the plaintiff’s] ability to see gouge marks in a street she had never before visited, on [a] dry, clear evening in an area lit by streetlamps.”].) 

Lastly, Plaintiff’s experts do not opine through admissible evidence what the size of the subject sidewalk uplift was, and thus, the expert testimony concerning the height of the uplift does not suggest the defect constituted a dangerous condition.  Nevertheless, Courts have rejected expert testimony in the area of interpretation of the trivial defect doctrine.  (See Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-1110; see also Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389 [“It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.”]; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 763 [“the proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment.”].) 

Based on the foregoing, Defendant meets its moving burden of showing it is entitled to summary judgment under the trivial defect doctrine.  Plaintiff fails to raise a triable issue of material fact as to the triviality of the defect. 

3. Conclusion

Defendant DOT’s motion for summary judgment is granted

Moving Defendant DOT is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 1^st day of September 2022