Judge: Audra Mori, Case: 20STCV09455, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV09455    Hearing Date: October 25, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Shoshana Zakaria (“Plaintiff”) filed this action against Defendant City of Beverly Hills (“Defendant”), et al. for damages arising from a trip and fall on a sidewalk on September 10, 2018.  Plaintiff alleges she tripped and fell because of an elevated and uneven sidewalk.  The first amended complaint alleges causes of action for negligence and premises liability, including a count based on a dangerous condition of public property.

Defendant now moves for summary judgment.  Plaintiff opposes the motion, and Defendant filed a reply.

2. Motion for Summary Judgment

a. Moving Argument

Defendant contends the subject sidewalk uplift that caused the incident was trivial and open and obvious to a person exercising due care.  Defendant asserts Plaintiff was familiar with the area where she tripped and fell, that nothing obstructed Plaintiff’s view of the sidewalk at the time of the incident, and that uplift was no more than one inch at its highest point.  Additionally, Defendant argues that it did not have actual or constructive notice of the alleged sidewalk uplift. 

b. Opposing Argument

Plaintiff argues that Defendant fails to meet its moving burden with competent evidence, and that Plaintiff’s expert establishes that Defendant’s photos do not accurately depict the true height of the defect, that the defect ranged in height from 1-1/4 to 1-1/2 inches, and that Plaintiff was acting in a reasonable manner at the time she was injured, among other things.  Plaintiff contends there is a triable issue of fact as to whether the sidewalk uplift that caused Plaintiff to fall posed a substantial risk of serious injury.[1] 

c. Evidentiary Objections

In Plaintiff’s separate statement submitted with her opposition, and Defendant’s response to Plaintiff’s additional material facts, the parties make objections to certain facts asserted.  Objections to a separate statement are improper.  (Cal. Rules of Code, rule 3.1354(b).)   The Court, therefore, declines to rule on the purported objections in the separate statements.  Nonetheless, the Court will consider only those facts supported by a sufficient evidentiary basis. 

Plaintiff further submits nine objections to the declaration of Robert Sahagun (“Sahagun”), the Street Services Manager for Defendant.  Objections 1-2 and 4-7 are overruled.  Objection 8 regarding Exhibit M attached to Sahagun’s declaration is also overruled.  (See Forest Lawn Memorial-Park Association v. Superior Court of Riverside County (2021) 70 Cal.App.5th 1, 15 [if witness at deposition recants earlier declaration statement, the statement should not automatically be inadmissible]; see also Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [declaration controverting deposition testimony does not make evidence inadmissible].)  Objections 3 and 9 are sustained to the extent Sahagun is asserting an improper legal conclusion. 

Additionally, Defendant submits six objections to Plaintiff’s and 12 objections to Plaintiff’s expert’s, Eris J. Barillas (“Barillas”), declarations attached to the opposition.  As to the objections to Plaintiff’s declaration, objections 1-6 are overruled. 

As to the objections to Barillas’s declaration, objections 1-3, 7, 9 and 11 are overruled.  Objections 4 and 6 are sustained to the extent Barillas asserts improper legal conclusions.  Objection 5 is sustained to the extent Barillas asserts case-specific facts concerning Plaintiff that Barillas has not established independent knowledge of and asserts an improper legal conclusion.  (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.”].)  Objection 8 is sustained to the extent that Barillas relays case-specific facts Barillas has not established independent knowledge of and asserts an improper legal conclusion.  Objections 10 and 12 are not material to the disposition of the motion, and thus, the Court declines to rule on them at this time.  (CCP § 437c(q).) 

d. 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).)  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.)

e. 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.)

In this case, Plaintiff is asserting a claim for dangerous condition of public property and negligence against Defendant.  (Opp. Pl.’s Additional Undisputed Material Facts (“AUMF”) 1.)  On “a warm sunny day” on September 10, 2018, approximately between 12:00 p.m. to 1:00 p.m., Plaintiff tripped and fell because of an uneven sidewalk condition located at or around 236-238 South Gale Drive in Beverly Hills.  (Mot. Undisputed Material Facts (“UMF”) 2.)  At the time of the incident, Plaintiff was on her way back home from attending a service at her synagogue; Plaintiff traversed the sidewalk numerous times for almost 20 years prior to the incident.  (Mot. UMF 3-4.)  Defendant asserts that there was nothing obstructing Plaintiff from observing the subject sidewalk offset, and that despite traversing the sidewalk on numerous occasions, Plaintiff never noticed the condition before.  (Mot. UMF 5-6.) 

Defendant maintains a program where it inspects all public sidewalks on a four-to-five-year cycle.  (Mot. UMF 7.)  In determining whether a condition needs to be repaired, Defendant’s staff members take into consideration the condition’s appearance, including the height differential, physical defects such as cracks, deterioration, and the location of the condition.  (Mot. UMF 8.)  Further, on March 13, 2018, with information provided by Infrastructure Management Services, who Defendant hired to assess the slope variations in sidewalks, Defendant conducted an inspection of the relevant sidewalk reporting 1/2- and 3/4-inch uplifts; Defendant found no conditions requiring repairs.  (Mot. UMF 10.)  Defendant has found no prior requests, complaints, work orders, or claims pertaining to the subject offset.  (UMF 11.)  Defendant further attests that its Street Services Manager, Sahagun, conducted his own investigation of the subject offset and found a height differential of one inch at the highest point.  (UMF 12.)  In addition, Defendant submits a photo of the sidewalk offset produced by Plaintiff which depicts the offset being approximately one inch, and no more than 1-1/4 inches, high.  (Mot. Kim Decl. Exh. F.) 

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 contends that the subject sidewalk defect posted a substantial risk of injury.  Plaintiff asserts that Defendant’s Street Services Manager admitted at his deposition that he had no personal knowledge of the photos of the subject condition attached to his declaration, (Mot. Sahagun Decl. Exh. M), and that the Street Services Manager did not know whether the photographs were accurate. Further, Plaintiff argues that Defendant’s photos do not accurately depict the true height of the offset because it ranged in height from 1-1/4 to 1-1/2 inches. 

While Defendant’s Street Services Manager states that he inspected the subject sidewalk on March 19, 2019, Plaintiff submits evidence showing that in response to a written discovery request, Defendant stated that no one acting on its behalf had inspected the scene of the incident.  (Opp. Compendium of Evid. Razi Decl. Exh. F No. 12.7.)  Defendant offers no explanation for this contradiction between its Street Services Manager’s declaration and Defendant’s discovery response.  (See Scalf v. D. B. Log Homes, Inc. (See Scalf v. D B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1521 [credibility of admissions are valued so highly that controverting affidavits may be disregarded].)  Further, during his deposition, the Street Services Manager indicated that he did not have personal knowledge regarding the photos attached to his declaration. [2]    (Compare Mot. Sahagun Decl. ¶ 25, with Opp. Compendium of Evid. Razi Decl. Exh. B at pp. 39-40:12-8.)  Nevertheless, even if the Court disregards the Street Services Manager’s statement in his declaration entirely, Defendant submits a photo produced by Plaintiff that shows the subject offset to be approximately one-inch high.  (Mot. Kim Decl. Exh. F.)  Plaintiff does not dispute that this photo depicts the offset.  Regarding the evidence of 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).) 

Plaintiff, however, contends that the offset ranged in height from 1-1/4 to 1-1/2 inches.  Even in accepting the subject sidewalk offset was up to 1-1/2 inches high, “[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]; Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43-44 [no liability for sidewalk elevation differential up to one and seven-eighths inch]; 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 stated by Plaintiff’s expert, this alone does not make the defect dangerous.  “[S]ize 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 does not dispute that the incident occurred on a “warm sunny” day between noon and 1:00 p.m.  (Opp. Pl.’s AUMF 2.)  Further, Plaintiff testified that a bush in a planter box adjacent to the sidewalk was not hindering her view of the sidewalk, that there was no liquid on the ground, that there was no debris on the ground, and that the offset was not covered by anything.  (Mot. Kim Decl. Exh. B at pp.40-41:13-23, 7-14.)  However, Plaintiff now contends that shadows and shading caused by the adjacent foliage were cast over the offset and likely inhibited Plaintiff’s view of the defect.  Defendant, in reply to this argument, submits Plaintiff’s deposition testimony wherein when Plaintiff was asked whether the planter caused the area to be shaded, Plaintiff responded, “I’m not sure.”  (Reply Kim Exh. G at pp. 45-46:24-8.)  The photos of the defect submitted by Plaintiff show some shadows on the sidewalk in the area of the offset.  (Opp. Compendium of Evid. Cohen Decl. Exh. A, Barillas Exh. B.)  More specifically, they show the type of shade that is commonly observed when foliage or trees exist beside a sidewalk.  However, the entire sidewalk is not shaded; the photos show portions of the sidewalk in bright sunlight.  Moreover, the photos taken from more of a distance show the sidewalk and subject offset are in plain sight despite being partly shaded.  Plaintiff does not identify any other aggravating factors that rendered the defect dangerous, and the evidence shows that the offset did not have any jagged edges.  Furthermore, Plaintiff admits that she had traversed the subject sidewalk numerous times over the past 20 years.  (Mot. Kim Decl. Exh. B at pp. 20-21:20-14.)  Therefore, a reasonable factfinder would not conclude that the existence of the shadow over the subject offset created a dangerous condition.  (See Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758 [shadows did not make sidewalk offset any more dangerous than its size would suggest].) 

Plaintiff further contends that Defendant received advanced warning of the offset, that Defendant violated its own Pedestrian Safety Inspection Program that mandated less severe conditions to be remedied, and that Defendant’s Street Services Manager agreed he would have recommended that the offset be grinded down.  Plaintiff, however, fails to cite any authority for the position that Defendant’s internal policy for its sidewalks overrides the trivial defect doctrine or is used to determine whether a condition passed a substantial risk of injury.  The fact that a city endeavors to cure defects, upon notice, even when those defects are trivial under the law, does not support imposition of judgment against that city when the law finds those defects to be trivial.  Similarly, the fact that Defendant had advanced warning of the condition and that Defendant’s Street Services Manager agreed he would recommend remedying the offset are not controlling in determining whether the defect was trivial or not.  This evidence does not establish that the offset was a dangerous condition.  (See Id., supra, at 758-59 [“We cannot agree the City's policy that sidewalk height differentials between a half-inch and one-and-a-half inches should be repaired—in part because they are tripping hazards—renders the nonalignment of the sidewalk slabs here a dangerous condition…”].)  Rather, Plaintiff must show that the defect was a tripping hazard, and the surrounding area posed a substantial risk of injury when used with due care.  (Id. at 759 [“the City does not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard—only those defects that create a substantial risk of injury to a pedestrian using reasonable care.”]; Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-10.) 

As the Court in Huckey v. City of Temecula stated,

To be sure, the height differential posed some risk of injury. Construed in the light most favorable to plaintiff, the record supports a reasonable inference that height differentials higher than one-half inch pose a trip hazard to pedestrians. But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§§ 830, 830.2.)

(37 Cal.App.5th at 1109-10 (emphasis in original).)  The evidence shows that the offset was in plain sight and “would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care’ at the time plaintiff fell.”  (Id. at 1109.)  In evaluating the totality of the surrounding circumstances and the evidence presented, including the photographs of the condition, the size of the height differential and purported shadows do not create a triable issue of fact concerning triviality.  (Stathoulis, 164 Cal.App.4th at 568-69.) 

            Lastly, although Plaintiff’s expert opines the offset constituted a hazardous condition, 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.  Given this ruling, the Court does not reach the notice issues. 

                        f. General Negligence

Except as otherwise provided by statute, “[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.”  (Gov. Code § 815(a).)  “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]”  (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)  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 (emphasis in the original). It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.)  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.)  “[S]ection 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.”  (Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129.) 

            Here, Plaintiff’s claims against Defendant are based on a dangerous condition of public property.  While Plaintiff contends she is also asserting a cause of action for negligence against Defendant, (Opp. Pl.’s AUMF 1), Plaintiff does not argue that Defendant is liable for Plaintiff’s injuries under any theory other than for a dangerous condition of public property.  Per Metcalf v. County of San Juaquin (2008) 42 Cal.4th 1121, 1129, when a claim against a governmental entity is premised on the contention that the entity’s property was dangerous, § 835 is the exclusive remedy under which a plaintiff can pursue a claim.  (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 [It has been recognized that it is impermissible to sue a public entity for common law negligence].)

            Therefore, Plaintiff fails to state a claim for general negligence against Defendant.

3. Conclusion

Defendant’s motion for summary judgment is granted.

Moving Defendant 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 25^th day of October 2022