Judge: Cynthia A Freeland, Case: 37-2021-00049331-CU-PO-NC, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00049331-CU-PO-NC KONRAD VS SIMA MANAGEMENT CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/02/2023

Defendant Sima Management Corporation ('Defendant')'s motion for summary judgment is granted.

Plaintiff Amalia Konrad ('Plaintiff')'s request for judicial notice is granted. Defendant's evidentiary objections are sustained.

Factual Background and Procedural History This action concerns a trip-and-fall accident. Defendant owns and operates an outdoor shopping mall known as The Village Faire and located at 2978 Carlsbad Blvd., Carlsbad, CA 92008 ('Village Faire').

Defendant Athleisure, Inc. dba Sun Diego Boardshop ('Sun Diego') is a tenant of Village Faire and operates a store located at #120 of Village Faire. See Defendant's Separate Statement of Undisputed Material Facts ('UMF') and Plaintiff's Opposition Thereto, ¶¶ 1-2. On September 21, 2021, Plaintiff arrived at Village Faire. Plaintiff testified that when she arrived at Village Faire, she stepped onto the sidewalk and approached Sun Diego with the intention of walking past it to get to a restaurant. Once on the sidewalk, Plaintiff noticed an A-frame sign in front of Sun Diego, facing the cars and blocking the walkway. See Defendant's UMF and Plaintiff's Opposition Thereto, ¶ 3. As Plaintiff walked toward the sign, she attempted to step off the sidewalk and onto the street so that she could go around the sign. In so doing, she stepped her left foot off the sidewalk but, as she attempted to step down and while her left foot was still in the air, the flipflop on her right foot caught on what is known as a 'Skatestopper bracket.' Ibid., ¶ 5. The Skatestopper brackets at Village Faire, known as the FA90CC bracket, are sold by Intellicept and are designed to prevent damage to curbs caused by skateboarding. Ibid., ¶¶ 5-6. The bracket has a vertical height of 0.189 inches when attached flat to a sidewalk. Ibid., ¶ 7. However, as Plaintiff's expert, Carl A. Beels, MS, notes in his declaration, the bracket has a 'bullnose' section that extends over the edge of the curb and is higher than the flat side. According to Mr. Beels, the bracket is roughly 0.25 inches tall on the flat side and 0.6875 inches tall on the bullnose/bulging side. After Plaintiff's right foot caught on the bracket, she fell forward and hit her left knee on another bracket, causing her to shatter her patella.

On November 22, 2021, Plaintiff commenced this action by filing a Complaint against Defendant and Sun Diego for general negligence and premises liability. See Defendant's Compendium of Exhibits, Ex. 1. Defendant now moves for summary judgment on all causes of action.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Calendar No.: Event ID:  TENTATIVE RULINGS

3020263 CASE NUMBER: CASE TITLE:  KONRAD VS SIMA MANAGEMENT CORPORATION [IMAGED]  37-2021-00049331-CU-PO-NC Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment is granted. '[C]laims for negligence and premises liability have the same elements – namely, (1) 'a legal duty of due care,' (2) 'breach of that duty,' and (3) 'proximate cause resulting in injury.'' Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal. App. 5th 917, 924 (quoting Kesner v. Sup. Ct. (2016) 1 Cal. 5th 1132, 1158).

The court finds that Defendant has demonstrated entitlement to judgment as a matter of law by demonstrating that Plaintiff cannot establish one or more elements of negligence and premises liability claims. Plaintiff contends that a dangerous condition was present because the placement of the sign obstructed her view of the bracket and caused her to trip and fall. The court respectfully disagrees. As a general rule, landowners have a duty 'to maintain land in their possession and control in a reasonably safe condition . . . Consequently, landowners are liable for injuries caused by a lack of due care in the maintenance of their property.' Jones v. Awad (2019) 39 Cal. App. 5th 1200, 1207 (internal citations omitted). 'To comply with this duty, a person who controls property must inspect [the premises] or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.' Ramirez v. PK I Plaza 580 SC LP (2022) 85 Cal. App. 5th 252, 261 (internal quotations omitted).

Toward that end, the Second District Court of Appeal has stated: Foreseeability of harm is typically absent when a dangerous condition is open and obvious. (Osborn, supra, 224 Cal.App.3d 104 at pp. 114-121, 273 Cal.Rptr. 457.) '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, 9 Cal.Rptr.2d 124.) In that situation, owners and possessors of land are entitled to assume others will 'perceive the obvious' and take action to avoid the dangerous condition. (Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408, 319 P.2d 418.) An exception to this general rule exists when '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).' (Osborn, supra, 224 Cal.App.3d at p. 122, 273 Cal.Rptr. 457, italics omitted.) In other words, while the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.

Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, 447.

Defendant concedes that it did not provide a warning to patrons as to the danger of the sign or its Calendar No.: Event ID:  TENTATIVE RULINGS

3020263 CASE NUMBER: CASE TITLE:  KONRAD VS SIMA MANAGEMENT CORPORATION [IMAGED]  37-2021-00049331-CU-PO-NC placement. However, it contends that it was under no obligation to do so because a dangerous condition was not present. The court agrees. The undisputed evidence shows that Plaintiff, the moment she entered the sidewalk, perceived the sign and understood the need to go around it given its position in the middle of the walkway. While the photographic evidence establishes that the sign did, in fact, traverse a vast majority of the sidewalk (which, according to Mr. Beels, left Plaintiff only 11 inches of sidewalk for purposes of going around the sign), there is no evidence that Plaintiff chose to approach the sign or use the street to avoid the sign out of necessity or other circumstances. Put differently, Plaintiff has not established that an exception to the 'open and obvious' doctrine applies where, as here, a party is utilizing a public sidewalk attached to a parking lot with multiple avenues available to him/her to avoid an object blocking the sidewalk.

As to the bracket, the court finds that it constitutes a trivial defect as a matter of law. The 'trivial defect defense,' which is available to private, nongovernmental landowners, relieves a property owner from liability for damages caused by a minor, trivial, or insignificant defect in property. See Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927. It is not an affirmative defense; rather, it is an aspect of duty that the plaintiff must plead and prove. Ibid. 'The law imposes no duty on a landowner . . . to repair trivial defects, or 'to maintain [its] property in an absolutely perfect condition.'' Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, 566 (quoting Ursino v. Big Boy Restaurants (1987) 192 Cal. App. 3d 394, 398-399. 'Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents.' Ibid. In determining whether a sidewalk defect is dangerous as a matter of law, the court must analyze more than just the size of the defect – though it may be one of the most relevant factors. Rather, the court must consider 'all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest . . . .' Fajardo v. Dailey (2022) 85 Cal. App. 5th 221, 227 (quoting Caloroso, 122 Cal. App. 4th at 927).

In this case, even if the court were to accept Plaintiff's evidence regarding the height and size of the bracket, it would still be a trivial defect as a matter of law. Indeed, multiple courts have held that defects of greater height than the subject bracket were trivial as a matter of law. See, e.g., Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1101 ('Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law'); Cadam v. Somerset Gardens Townhouse (2011) 200 Cal. App. 4th 383, 385-386 (height differential between three-fourths and seven-eighths of an inch deemed trivial); 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 inches). Moreover, the evidence does not demonstrate other circumstances that may have made the bracket more than trivial.

Plaintiff contends that the placement of the sign by Sun Diego is an aggravating factor; however, as explained above, the sign was an open and obvious condition, and no evidence has been presented that Plaintiff was required to take the route she did to avoid the sign in the first place.

Accordingly, the court grants Defendant's motion for summary judgment.

Conclusion In light of the foregoing, the court grants Defendant's motion for summary judgment. The court directs Defendant to submit a proposed Judgment within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 20, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 20, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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