Judge Audra Mori, Case 20STCV23251 2023-02-02 Tentative Ruling

Plaintiffs Gevork Hovakemian (“Plaintiff”) filed this action against defendants Forest Lawn Memorial-Park Association, Inc., et al. for injuries Plaintiff sustained while at a funeral on defendants’ property on July 7, 2018. Plaintiff alleges that during the funeral, he was struck on the ankle by a “loose covering” that caused him to trip and fall while he was negotiating his way around the burial site. (Compl. at p. 4.) The complaint alleges a single cause of action for premises liability.

Defendants Forest Lawn Memorial-Park Association, erroneously sued as Forest Lawn Memorial-Park Association, Inc., and Forest Lawn Mortuary, erroneously sued as Forest Lawn Mortuary, Inc., (collectively, “Defendants”) now move for summary judgment. Plaintiff opposes the motion, and Defendants filed a reply.

Defendants assert that Plaintiff was allegedly struck by a roll of black tar paper that was picked up by a gust of wind and hit Plaintiff’s leg causing him to fall. Defendants argue they are entitled to summary judgment because the alleged condition that caused Plaintiff’s fall- the roll of tar paper- was trivial as a matter of law. Further, Defendants argue that Plaintiff’s claims fail because the roll of tar paper was an open and obvious condition, so Defendants had no duty to warn Plaintiff of the condition. Lastly, Defendants aver that they did not have any actual or constructive notice of the existence of the alleged dangerous condition.

Plaintiff contends that Defendants created the dangerous condition on their property by failing to secure the tar paper at the gravesite where Plaintiff was an attendee for the graveside service for Mary Stamboltsyan (“Stamboltsyan”). Plaintiff argues that Defendants’ failure to secure the tar paper resulted in the paper being blown into Plaintiff’s path and causing him to trip and fall. Plaintiff contends that there are triable issues of fact as to whether Defendants were negligent in the management of their premises, and that Defendants mischaracterize the tar paper as constituting a trivial defect. Additionally, Plaintiff contends that the condition created by Defendants was not open and obvious, and that notice of the condition is imputed to Defendants in this case because their employees created the condition.

With their motion, Defendants request that judicial notice be taken of (1) a weather report for July 7, 2018, from the website https://www.timeanddate.com/weather/usa/los-angeles/historic?month=7&year=2018 (Mot. Request for Judicial Notice (“RJN”) Exh. F), and of (2) an article entitled “Estimating Winds Speeds” published by the National Weather Services from the National Oceanic and Atmospheric Administrator (Mot. RJN Exh. G). Plaintiff opposes the request arguing that the records submitted are subject to dispute because the location of the weather station from which the data was obtained in Exhibit F is over thirteen miles away from the location of the incident.

Further, Plaintiff requests that the Court take judicial notice of a weather report for (1) July 7, 2018, from the website https://www.timeanddate.com/weather/usa/burbank/historic?month=7&year=2018 (Opp. RJN Exh. 4), and (2) of Google Maps printout indicating the mileage between the National Weather Service Weather Station located at Burbank-Bob Hope Airport, and Defendants’ Forest Lawn -Hollywood Hills location where the indictment took place (Opp. RJN Exh. 5).

In Defendants request for judicial notice of Exhibit F, and in Plaintiff’s request for judicial notice of his Exhibit 4, the parties are seeking judicial notice of weather reports obtained from a website to establish the weather conditions on the date of the subject incident on Defendants’ premises. The weather and wind conditions are disputed by the parties and neither establishes it is proper to take judicial notice of the reports from the timeanddate.com website. The Court was provided no basis for finding the internet generated weather reports are reliable. There is no information provided to show that the equipment or technology used to generate the reports is accurate or that timeanddate.com is a trustworthy source of information. Therefore, the request is denied as to Defendants’ Exhibit F and as to Plaintiff’s Exhibit 4.

As to Defendants’ exhibit G, an article entitled “Estimating Winds Speeds”, Defendants do not establish it is proper to take judicial notice of this article or that the matters asserted in the article are not reasonably subject to dispute. The request is denied as to Defendants’ Exhibit G.

As to Plaintiff’s Exhibit 5, Google maps printouts, Plaintiff does not establish judicial notice of the printout is proper to show the mileage between the National Weather Service Weather Station located at Burbank-Bob Hope Airport and Defendants’ premises where the incident occurred. Plaintiff provides no information regarding how the distance between the two locations is calculated on Google maps or information showing the distance shown in Exhibit 5 is accurate and reliable. (People v. Maxwell (1978) 78 Cal.App.3d 124, 130 [“The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter… A court is not required to seek out on its own initiative indisputable sources of information.”]; Ross v. Creel Printing & Fubl'g Co. (2002) 100 Cal.App.4th 736, 744 [“The burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice.”].)

Plaintiff submits five objections directed at certain material facts contained in Defendants’ separate statement. 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 statement.

Additionally, Plaintiff requests the entire declaration of Jack Glazer (“Glazer”), Defendants’ Crematory Operator and Licensed Crematory Manager, submitted with the moving papers be stricken. Plaintiff asserts that the incident occurred during a funeral service for Stamboltsyan that took place on July 7, 2018, but Glazer incorrectly states that the incident took place on July 15, 2018. Plaintiff contends Glazer’s entire declaration is therefore irrelevant and lacks foundation for the statements asserted therein concerning Stamboltsyan’s funeral. Defendants, in, reply, argue that Plaintiff is make an improper motion to strike under CCP § 436(b) that should be disregarded. Further, Defendants assert that the date of July 15, 2018, is an obvious typographical error.

Plaintiff’s Request to Strike Glazer’s declaration provides that Plaintiff is making a “Motion to Strike”. However, Plaintiff did not file a motion to strike. Rather, it appears that Plaintiff is objecting to Glazer’s declaration and to certain paragraphs in Glazer’s declaration. The request to strike the entire declaration is denied. Similarly, the request to strike paragraphs 4, 7, and 9 is denied.

Lastly, Defendants in their reply submit 20 objections Plaintiff’s evidence and separate statement filed with the opposition. Objections 1-7 to Plaintiff’s declaration are overruled. Objections 8-9 to Plaintiff’s counsel’s declaration are sustained to the extent that Defendants are objecting to Exhibits 4 and 5 referenced therein, as Plaintiff’s counsel does not sufficiently authenticate the internet printouts. Objections 10-20 are directed at certain responses of Plaintiff’s to facts asserted in the separate statement. As stated above, objections to a separate statement are improper, (Cal. Rules of Code, Rule 3.1354(b)), and the Court, thus, declines to rule on the purported objections to facts in Plaintiff’s separate statement.

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.)

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.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

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.)

“Property owners are required ‘ “to maintain land in their possession and control in a reasonably safe condition’ [citations] and to use due care to eliminate dangerous conditions on their property.’ [Citation.] But ‘ “a property owner is not liable for damages caused by a minor, trivial, or insignificant defect” on its property.’ ” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226.) “In general, ‘[w]hether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’ [Citations.]” (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d. 799, 810 [fn. omitted].)

“‘The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circumstances ... 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.’" Huckey v. City of Temecula, 37 Cal.App.5th 1092, 1104 (Cal. Ct. App. 2019). The trivial defect doctrine often comes into play in cases in which a small uprise in a sidewalk causes someone to trip and fall. In the absence of any aggravating circumstances,[1] a slight sidewalk uplift, for example, one that is less than three quarters of an inch, may be a trivial defect for which the city maintaining the sidewalk cannot be held responsible.

This case does not involve an uprise in a sidewalk, but a roll of tar paper. In this case, on July 7, 2018, Plaintiff was walking on a grass area on Defendants’ premises to attend the graveside services for Stamboltsyan when he fell. (Mot. Undisputed Material Facts (“UMF”) 1.) An employee of Defendants was present during the services, which Defendants assert was the then funeral director, Glazer. (Id. at 2.) In preparation for a graveside service, Defendants’ maintenance crew will typically remove the earth and place it in a mound at the base of a casket. (Id. at 3.) The casket lid is removed and placed at the end of the opening of the grave along with a pre-cut roll of tar paper. (Id.) The dirt, casket lid, and roll of tar paper are secured and placed beneath a piece of green turf at the base of the open gravesite. (Id.) It is Defendants’ policy and procedure to pre-cut the tar paper to measure approximately 96 inches long in length, which measures 39.5 inches long when rolled and weighs approximately 5 pounds. (See Id. at 4.)

Defendants contend that even if Plaintiff tripped on a roll of tar paper, the tar paper was a trivial defect as a matter of law. However, Defendants do not cite any authority holding that an object such as a roll of tar paper with the above dimensions or weight, or encountered by persons in similar circumstances, constitutes a trivial defect as a matter of law. The photos of an exemplar roll of tar paper submitted by Defendants do not establish that the tar paper roll would not create a substantial risk of injury if persons were required to encounter the tar paper while walking on Defendants’ premises. (See Mot. Glazer Decl. Exh. E.)

Furthermore, Defendants assert that the roll of tar paper used for the Stamboltsyan service was not blowing across the grass but was placed near the foot of the open grave where Plaintiff fell. (Mot. UMF 5.) Defendants also contend that two witnesses testified that they did not observe any obstruction, object or obstacle that may have contributed to Plaintiff's falling, and that no witness has testified that the roll of tar paper was moving freely around the Stamboltsyan service. (Id. at 7-8, 10.) Defendants argue that the tar paper used for the service was properly secured. (Id. at 12-13.) In arguing that the tar paper was not moving and was secured, Defendants rely on Glazer’s declaration, where Glazer states that at the time of the incident on “July 15, 2018,” he was a funeral director assigned to oversee Stamboltsyan’s graveside service. (Mot. Glazer Decl. ¶ 4.) However, Plaintiff alleges that the subject incident occurred on July 7, 2018, not July 15, 2018. Although Defendants state that this is a typographical error in their Objections to Plaintiff’s Motion to Strike, the declaration on its face states that Glazer was present for Stamboltsyan’s funeral service on July 15, 2018, and Glazer does not cure this alleged typographical error.

Nevertheless, even if the Court accepts that Glazer’s statement, “At no point before, during or after the graveside services of Mary Stamboltsyan did I observe a piece of tar paper unsecured or rolling around the premises,” and that other witnesses testified they did not see a roll of tar paper cause Plaintiff’s fall, Plaintiff submits his own declaration stating that as he was walking in a grass area, a roll of black paper suddenly hit his left ankle and caused him to fall. (Opp. Hovakemian Decl. ¶ 8.) Further, Plaintiff submits the deposition testimony of a third party stating that they saw the roll of paper next to Plaintiff when they saw Plaintiff fall. (Opp. diDonato Decl. Exh. 7 at pp. 30-31:20-7.) Therefore, to the extent that Defendants contend no dangerous condition existed because the tar paper was properly placed, in making all reasonable inferences in non-moving Plaintiff’s favor, Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether the tar paper was pushed or rolled into Plaintiff’s leg.

Finally, as to Defendants’ contention that the weather on July 7, 2018, was approximately 79 degrees with no more than six mile an hour winds, Defendants’ request for judicial notice of the evidence they rely on to support this assertion was denied. Additionally, Plaintiff testified that the wind was “gusting,” by which Plaintiff meant there were moments were the wind was blowing hard and then would stop. (Opp. diDonato Decl. Exh. 1 at p. 29:2-14.) Plaintiff’s testimony is sufficient to raise a triable issue of material fact as to whether the weather on the date of the incident was such that the roll of tar paper could have been blown or pushed into Plaintiff’s leg and caused him to fall.

Based on the foregoing, Defendants fail to establish that the roll of tar paper that caused Plaintiff to fall constituted a trivial defect as a matter of law.

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) However, this is not always the case. (Ibid.) “[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.)

Stated in general terms, the no-duty exception for open and obvious dangerous conditions provides that “ ‘if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ ” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447, 221 Cal.Rptr.3d 701.) Thus, the rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger. (Ibid.)

The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition. (Martinez, supra, 121 Cal.App.4th at p. 1184.) In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer). (Kasparian, supra, 156 Cal.App.4th at pp. 24-25.)

Nonetheless, the obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)

Foreseeability is an elastic factor, and the degree of foreseeability necessary to warrant a finding of a duty will vary from case to case. (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 509.) In determining whether a given harm was foreseeable, “it is necessary to review the ‘totality of the circumstances’ including the nature, condition and location of the defendant's premises [Citation], in light of the firmly established rule that ‘what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]’ ” (Id.)

Here, Defendants argue that the black tar paper, which Defendants again contend was properly stored, by its dimensions was open and obvious. (Mot. UMF 4.) In asserting that the roll of tar paper was open and obvious, Defendants primarily rely on two photographs. The first photograph is attached as Exhibit E to Glazer’s declaration, which Glazer describes as an “exemplar roll of tar paper.” (Mot. Glazer Decl. ¶ 5.) The second is a photo of a roll of the paper seen standing upright and taken indoors. (Mot. Byrge Decl. Exh. A, Exhibit 5 attached thereto.) When asked during his deposition whether this photo showed the same type of paper that rolled into his ankle, Plaintiff responded, “Yes.” (Mot. Byrge Decl. Exh. A at p. 79:3-11.)

The issue with these photos is that neither depicts what the roll of tar paper looked like under the same or similar conditions as when Plaintiff encountered the tar paper that allegedly caused his fall. Defendants themselves assert that there were 50 to 100 persons present at the gravesite services, (Mot. UMF 9), and thus, the Court cannot determine based on the exemplar photo and the indoor photo of a similar roll of paper that the tar paper that caused Plaintiff’s fall would have been open and obvious such that a person would reasonably have been expected to see it when walking through Defendants’ premises for a graveside service. Further, even if the roll of paper itself was obvious when merely laying on the floor or grass, there is no evidence demonstrating that it was open and obvious to persons that a roll of tar paper could be pushed or rolled into their legs while walking. Questions regarding Plaintiff’s appreciation of the risk of walking near a gravesite, or his imputed knowledge of it, are for the jury to decide.

Accordingly, Defendants do not meet their moving burden of establishing that the alleged dangerous condition of the roll of tar paper was open and obvious as a matter of law such that Defendants had no duty to warn or remedy the condition.

“The owner of a premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

Nonetheless, “[w]here the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; see also Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 386 [where it could be inferred based on the evidence that defendant’s employees caused the dangerous condition, the knowledge of the condition was imputed to defendant].)

In this case, Defendants argue that they did not have actual or constructive notice of the alleged dangerous condition, which Defendants assert was the roll of tar paper rolling on the property. However, as Plaintiff argues in opposition, the standard is whether Defendants had actual or constructive notice of the dangerous condition and/or whether Defendants created the dangerous condition. (See Getchell, 203 Cal.App.4th at 385.)

Defendants admit that they used a roll of tar paper in preparing the gravesite for Stamboltsyan’s service, and that Defendants’ service director assured that the roll of tar paper was properly secured beneath green turf one hour before the graveside services. (Mot. UMF 3, 13.) Plaintiff submits Glazer’s deposition testimony showing the following exchanges regarding securing a roll of tar paper:

A It is placed directly under the green Astro turf or carpet, if you will, along with the soil and other materials.

A For both, to keep it in place, to keep it from going anywhere, and also aesthetically that it's not visual out in the open.

Q Well, okay. How would it go some place? Tell me. I mean, it doesn't have legs. But how -- how – is it placed to -- to maintain it so it's not blown away, for example?

Q Okay. And is there a particular title or person or persons who are responsible for the placement of the tar paper underneath the green carpet?

A From my understanding, it's a little bit of everybody's responsibility involved with the service.

Q Now, you had mentioned earlier in your deposition that the reason why the tar paper is placed underneath the green carpet was so that it remains secure, and was not moving around or blown away by wind; correct?

(Id. at p. 46:5-22.) Thus, Defendants’ employees were responsible for placing the roll of tar paper in a secure place so that it would not be blown away by the wind during a service, and Glazer acknowledged breezes were not an unusual occurrence on Defendants’ property. If Defendants or their employees thus did not properly secure a roll of tar paper, Defendants would be responsible for creating the alleged dangerous condition that caused Plaintiff’s fall. Furthermore, as analyzed above, Plaintiff testified that the wind was gusting on the day and precise location of the incident, and that a roll of tar paper rolled into and suddenly hit his ankle.

Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether Defendants created the dangerous condition by failing to properly secure a roll of tar paper on their property at the subject gravesite such that a roll of paper was allowed to roll into Plaintiff’s leg and cause him to fall while he was walking. (See Getchell, 203 Cal.App.4th at 385 [“Where, however, ‘the evidence is such that a reasonable inference can be drawn that the condition was created by employees of the [defendant], then [the defendant] is charged with notice of the dangerous condition.’”].)

Hon. Audra Mori

Judge of the Superior Court

[1] “[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.)