Judge: Audra Mori, Case: 21STCV02274, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCV02274    Hearing Date: August 23, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Lauren Ruggiero (“Plaintiff”) filed this action against Defendant City of Los Angeles (the “City”) and 2003 Bouquet Canyon LLC dba Canyon Apartments, erroneously sued and served as The Canyon Apartments (“Bouquet Canyon”) for damages arising from Plaintiff’s trip and fall on a sidewalk.  Plaintiff alleges that defendants allowed a dangerous condition to exist on the sidewalk caused by overgrown tree roots underneath the sidewalk.  The tree allegedly existed on 2003 Bouquet Canyon LLC’s property.  The complaint asserts claims for negligence and premises liability. 

Defendant 2003 Bouquet Canyon LLC dba Canyon Apartments (“Canyon” or “Defendant”) now moves for summary judgment.  Plaintiff filed an opposition, and Plaintiff filed a reply.

2. Motion for Summary Judgment

a. Moving Argument

Defendant Canyon asserts that Plaintiff was jogging on a public sidewalk when she tripped and fell in front of Canyon’s apartment complex.  Defendant states that the area on the sidewalk where the fall occurred was previously repaired by the City with a black asphalt patch, and that the alleged condition was an uplift in the sidewalk with a height differential of one inch.  Defendant contends it is entitled to summary judgment under Civil Code § 846 because Defendant owed no duty to Plaintiff since Plaintiff was engaged in the recreational activity of jogging in front of Defendant’s apartment at the time of the incident.  Further, Defendant argues the condition was open and obvious, and that any alleged defect constituted a minor, trivial, or insignificant risk of injury.  Lastly, Defendant asserts that if Defendant has no liability to Plaintiff, the City’s cross-complaint against Defendant Canyon must also be summarily adjudicated. 

b. Opposing Argument

Plaintiff argues that Canyon is precluded from asserting that it is immune from liability under Civil Code § 846 because Defendant failed to plead an affirmative defense relating to recreation immunity under this section in its answer.  Further, Plaintiff argues that Defendant has not shown it is an owner of the sidewalk within the meaning of Civil Code § 846, that this statute does not apply to government owned public property, such as a sidewalk, and that Defendant has explicitly stated it did not own or control the sidewalk.  Plaintiff asserts that the City owns the sidewalk, while Defendant owns the abutting private property, including the subject tree that caused the uplift.  Additionally, Plaintiff avers that the sidewalk defect was not trivial or open and obvious as a matter of law, and that Defendant had actual notice of the condition.  Plaintiff, thus, contends there are triable issues of fact as to whether Defendant owed Plaintiff a duty of care, and whether the defective condition was open and obvious, or was a trivial defect as a matter of law. 

c. Evidentiary Objections

In Plaintiff’s separate statement submitted with her opposition, and Defendant Canyon’s response to Plaintiff’s additional material facts, the parties assert 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.

Additionally, Defendant submits 21 objections to Plaintiff’s evidence.  Objections 1-4, 8, and 18-21 are overruled.  Objections 11-13 and 15-17 are sustained.  Further, Objections 5 and 6 are sustained to the extent Plaintiff’s expert, Mark J. Burns, opines that the subject sidewalk defect constituted a dangerous condition.  Objections 7, 9-10, and 14 are not material to the disposition of the motion, so 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).)  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, 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: Civil Code § 846

The pleadings serve as the outer measure of materiality in a summary judgment motion and serve to frame the scope of the issues that must be addressed.  (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-82; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253 [“The pleadings delimit the issues to be considered on a motion for summary judgment…”].)  Objections, such as that liability is barred by an affirmative defense, are ordinarily deemed waived if the defendant does not raise them in its demurrer or answer to the complaint.  (Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 807-08 [statutory immunities under Government Code operate as affirmative defenses that must be pleaded and proved or are deemed waived].) 

In this case, Defendant argues it is immune from liability under Civil Code § 846 because at the time of the incident Plaintiff was jogging, and thus, engaged in a recreational activity.  However, as Plaintiff argues, Defendant’s answer does not set forth an affirmative defense under Civil Code § 846.  Defendant, in reply, argues that it did assert a proper defense because its fourth affirmative defense asserts that Plaintiff fails to state a cause of action against Defendant, and Defendant determined through discovery that Plaintiff was jogging when she tripped.  Further, Defendant attests that the case it relies upon in asserting that jogging is a recreational activity, Rucker v. WINCAL, LLC (2022) 74 Cal.App.5th 883, was published after Defendant filed its answer. 

Defendant’s fourth affirmative defense states, “That the Complaint and each of the purported Causes of Action therein complained fails to state a Cause of Action against this answering defendant.”  There is absolutely no reference to any purported immunity in the fourth affirmative defense, or anywhere else in the answer.  (Opp. Habbas Decl. Exh. 1.)  The fourth affirmative defense merely challenges the material allegations of the complaint; this is not sufficient to allege new matter raised by an affirmative defense.[1]  Nowhere does the Answer cite to Civil Code § 846, which Defendant does not dispute existed at the time the Answer was filed.  Furthermore, while the evidence shows that Plaintiff’s deposition occurred on October 26, 2021, and Rucker v. WINCAL, LLC was published after Defendant filed an answer, Defendant did not file a motion for leave to amend its answer.  Instead, Defendant chose to file its motion for summary judgment on March 18, 2022.  (California Concrete Co. v. Beverly Hills Savings & Loan Assn. (1989) 215 Cal.App.3d 260, 273 [Where the defendant “chose to stand upon its answer as pled and force [the plaintiff] to undertake the time and expense involved in responding to the motion for summary judgment and later prosecuting an appeal… [the defendant] waived the defense …”].) 

Therefore, Defendant’s motion for summary judgment cannot be granted under Civil Code § 846, as Defendant failed to raise it in its pleadings.  (Id., supra, [summary judgment could not be granted as to causes of action to which federal affirmative defense purportedly was applicable where defendant had waived defense by failing to raise it]; FPI Development, 231 Cal.App.3d at 383-85, 401-03 [purported affirmative defenses were not at issue and therefore not proper grounds for summary judgment where answer pleaded only general denial].)

Even if the Court considered this defense, Defendant fails to show it is entitled to summary judgment under Civil Code § 846. 

Civil Code § 846 states:

(a) An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.

(b) A “recreational purpose,” as used in this section, includes activities such as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.

(c) An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby do any of the following:

(1) Extend any assurance that the premises are safe for that purpose.

(2) Constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed.

(3) Assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted except as provided in this section.

(d) This section does not limit the liability which otherwise exists for any of the following:

(1) Willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.

(2) Injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose.

(3) Any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.

            “ ‘Section 846 was enacted to encourage property owners to allow the general public to engage in recreational activities free of charge on privately owned property.’ [Citations.] ‘The statutory goal was to constrain the growing tendency of private landowners to bar public access to their land for recreational uses out of fear of incurring tort liability.’ [Citation.]”  (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 567-68.)  “ ‘In sum, …, the effect of section 846 is that an “owner” owes “no duty to keep his or her premises safe or to warn of hazards as to persons entering with permission for ‘any recreational purpose.’ ... [¶] Except as provided in [Civil Code section] 846,…’ [Citation.]”  (Manuel v. Pacific Gas & Electric (2009) 173 Cal.App.4th 927, 938.) 

            Here, Defendant relies on the following two undisputed facts in arguing it owed no duty of care to Plaintiff under Civil Code § 846: (1) that Defendant is the owner of the apartment complex located at 6920

Coldwater Canyon Ave., North Hollywood, CA, and (2) that Plaintiff testified that she was jogging for exercise at full speed along the sidewalk in front of its apartment complex when the alleged trip and fall occurred along the sidewalk.  (UMF 1-2.)  Based on its plain language, Civil Code § 846 provides immunity from liability to property owners who offer their property for use for recreational purposes.  However, as Plaintiff argues, Defendant offers no evidence to show that it has any ownership interest in the subject sidewalk where the incident occurred, whether possessory or nonpossessory, such that Defendant can avail itself of the immunity afforded by Civil Code § 846.  Rather, Plaintiff submits evidence showing that in response to Plaintiff’s written discovery requests, Defendant denied owning the sidewalk and asserted that the City owned and controlled it.  (Opp. Pl.’s AUMF 13-14.)  Defendant’s person most knowledgeable further testified during his deposition that Defendant neither owned, controlled, or maintained the sidewalk.[2]  (Opp. Pl.’s AUMF 16.) 

            In addition, as the moving party, Defendant has the burden of showing that the immunity of Civil Code § 846(a) applies and that the exceptions under subdivision (d) do not apply.  (See generally, Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858–59 [shifting burden of summary judgment and section 846 immunity].)  Defendant does not offer any evidence to show that the exceptions under Civil Code § 846(d) do not apply in this case.

Moreover, Defendant relies on Rucker v. WINCAL, LLC (2022) 74 Cal.App.5th 883 (“Rucker”), in asserting that it owed no duty of care to Plaintiff; however, Rucker is distinguishable from the facts in this case.  In Rucker, the plaintiff was training for a half-marathon and was jogging through the defendant owner’s property when she encountered a homeless encampment that blocked her path.  (74 Cal.App.5th at 885.)  To avoid the encampment, the plaintiff ran onto the street’s bicycle path where she was struck and injured by a car.  (Id.)  The plaintiff alleged that the owner knew its premises was in a dangerous and unsafe condition but failed to take measures necessary to cure the condition or warn the plaintiff about it.  (Id. at 886.)  The undisputed evidence showed that the plaintiff entered the owner’s property for a recreational purpose- jogging- so the owner met its burden of showing that it owed the plaintiff no duty of care pursuant to Civil Code § 846. 

            Unlike in Rucker, where the plaintiff entered and was jogging on the owner’s property when she encountered the alleged unsafe condition, in this case, Plaintiff was jogging on a public sidewalk when she encountered the alleged condition that caused her to fall.  Plaintiff does not allege that she entered or was on Defendant’s property at the time of the incident; rather, she alleges that a tree on Defendant’s property caused the defective condition of the sidewalk to exist, which caused Plaintiff’s injury.  Defendant does not cite any authority showing that it is immune from liability under Civil Code § 846 for injuries that occurred on a publicly owned sidewalk abutting its property.  The mere fact Plaintiff may have been engaged in a recreational activity by jogging at the time of the incident does not alone establish that Defendant is immune from liability under Civil Code § 846.  As Plaintiff did not enter Defendant’s property, applying § 846 would not promote the policy of encouraging property owners to allow the public to engage in recreational activities free of charge on their property.  (Pacific Gas & Electric Co. (2017) 10 Cal.App.5th 563, 567-68.)

f. Trivial Defect Doctrine  

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.) 

            “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.  Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.  [Citation.]”  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)  There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm.  (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081).

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.)

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, Plaintiff was jogging along the sidewalk in front of Defendant’s apartment complex when the alleged trip and fall incident occurred.  (UMF 2.)  Plaintiff alleges that Defendant negligently “allowed a dangerous condition of public property to exist on the sidewalk in that a tree had grown at an angle under the sidewalk with no warning signs and the installation, maintenance and/or repair of the sidewalk was done negligently, inadequately, and improperly creating a hazard, trap and dangerous condition.”  (UMF 5.)  Based on the photographs of the subject sidewalk produced by Plaintiff in discovery, the height differential in the sidewalk where Plaintiff alleges she tripped was approximately one-inch.  (UMF 9-10.) The photographs further show the sidewalk where Plaintiff allegedly fell had two different colors- a black asphalt patch on top of gray concrete.  (UMF 11.)  Plaintiff testified that the weather was nice, and nothing prevented her from seeing the black asphalt and gray concrete, but she was not able to see the height differential between the gray concrete and black asphalt because the black asphalt camouflaged it.  (UMF 13.) 

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 the sidewalk uplift is abrupt, and that the height differential between the sidewalk and the adjacent grass is 7-5/16 inches, which produces running slopes as large as 39.5%, cross-slopes as large 7.4%, and the height differential of approximately one-inch between the two lifted concrete panels. 

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].) 

Consequently, the one-inch height differential alone does not make the defect dangerous.  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 contends that the slopes of the sidewalk “is what created the tripping hazard.”  (Opp. at p. 21:5-6.)  While Plaintiff’s experts note that the subject sidewalk produced running slopes, neither expert actually explains how the slopes alone are what caused Plaintiff to trip and fall, or how they could have caused a trip and fall absent the height differential.  (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1456 [“An expert's opinion ‘unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion’ lacks evidentiary value and may be deemed conclusory. [Citation.]”]; Opp. Burns Decl. ¶¶ 8, 11, Gsell Decl. ¶¶ 21-22.)  Moreover, the Court has reviewed the photos of the sidewalk and does not find that the slopes rendered the sidewalk dangerous.  (Mot. Appendix of Exhibits Exhs. A-C; Opp. Habbas Decl. Exh. 4.)  The photos show that the subject approximate one-inch uplift exists between two concrete slabs.[3]  One of the slabs contains black asphalt where the slabs meet.  Each slab is slightly sloped upwards towards one another where they meet and where the height differential is.  Although each concrete slab is sloped upward, the slopes are not so steep as to present an unreasonable risk of injury to persons traveling across them exercising due care.  Plaintiff further contends that the slopes are steeper than those permitted by the 2019 California Building Code concerning ramps.  However, as Plaintiff acknowledges, there is no showing that this Building Code is applicable to sidewalks, and Plaintiff’s experts do not establish that this Building Code has otherwise been accepted as the proper standard for public sidewalks in California. 

Plaintiff further argues that there “most likely would have been shadows cast on/and/or around the subject defect from the adjacent tree” obscuring the defect.  (Opp. at 22-23:26-1.)  However, Plaintiff does not submit any evidence, such as a declaration from Plaintiff, stating that her vision of the defect was obstructed by shadows or that there were in fact shadows present at the time of the incident.  Defendant’s evidence shows that when asked about the weather at her deposition, Plaintiff described it as “beautiful … Sun shining, good temperature…” and Plaintiff stated there was no trash or leaves on the defect, and that it was not covered by anything.  (Mot. Appendix of Exhibits Exh. C at pp. 38-39:23-6, 53:3-8.)  The photos show that the height differential was in plain sight, the black asphalt was color contrasted from the adjacent concrete slab, and the shadows in the photos did not obstruct the defect. 

The evidence thus shows that the height differential and slopes were in plain sight 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.”].)  In evaluating the totality of the surrounding circumstances and the evidence presented, including the photographs of the condition, the size of the height differential, slopes, and the purported shadows do not create a triable issue of fact concerning triviality.  (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.”].)  Indeed, the Court of Appeal has held that a height difference between two concrete slabs that was no more than 1-7/8 inches, where a slab of concrete was pushed higher than a contiguous slab by tree roots, was trivial as a matter of law.  (Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43-44.)  “There was nothing to hide the defect or obstruct the view of one approaching it. The respondent tripped over it in broad daylight. She testified nothing distracted her attention as she approached the point where she tripped and fell.”  (Id.) 

Lastly, to the extent that Plaintiff argues that Defendant’s motion is unsupported by any expert evidence, 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, Plaintiff fails to raise a triable issue of material fact as to the triviality of the defect. 

g. The City’s Cross-Complaint

Defendant additionally argues that it is entitled to summary judgment as to the cross-complaint by the City against it for apportionment of fault, indemnification, and declaratory relief.  The City did not oppose the motion. 

Because Defendant Canyon is entitled to summary judgment on the complaint, it is also entitled to summary judgment on the City's cross-complaint for indemnification, apportionment of fault, and declaratory relief.  In the absence of any liability to plaintiff, Defendant has no obligation to indemnify the City.  (See Frank v. State of California (1988) 205 Cal.App.3d 488, 494 (“if the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff's injuries, another defendant may not pursue a claim for indemnity against that defendant”).  Further, because Defendant has no liability, there is no actual controversy to support a cause of action for declaratory relief.  (CCP § 1060.)  The City's cross-complaint, therefore, may be disposed of as a matter of law.

3. Conclusion

Defendant Canyon’s motion for summary judgment is granted as to Plaintiff’s complaint and the City’s cross-complaint against it.

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 23^rd day of August 2022