Judge: David B. Gelfound, Case: 22CHCV01491, Date: 2024-08-12 Tentative Ruling

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Case Number: 22CHCV01491    Hearing Date: August 12, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION FOR SUMMARY JUDGMENT

Motion filed: 2/13/24

MOVING PARTY: Defendants Mark Coyne, as trustee of the Paseo Trust, dated April 5, 2016; Paquita Izabel Engle-Fiallos; and RW Property Services, Inc.

RESPONDING PARTY: Plaintiff Lynda Buss

NOTICE: OK.

RELIEF REQUESTED: An order granting the Motion for Summary Judgment on Plaintiff’s Complaint

EVIDENTIARY OBJECTIONS: Plaintiff’s evidentiary objections are OVERRULED.

TENTATIVE RULING: The motion is DENIED.

BACKGROUND

This action arises out of alleged premises liability at 23927 Via Hamaca, Valencia, California 91354 (the “Subject Property”).

On December 27, 2022, Plaintiff Lynda Buss (“Plaintiff/Cross-Defendant” or “Buss”) filed a Complaint against Defendants/Cross-Complainants Mark Coyne, as trustee of the Paseo Trust, dated April 5, 2016 (“Coyne”); Paquita Izabel Engle-Fiallos (“Engle-Fiallos”); and RW Property Services, Inc. (“RW Property”) (collectively, “Defendants/Cross-Complainants”), alleging Negligence (Premises Liability). Subsequently, on February 21 and 24, 2023, Defendants Coyne, RW Property and Engle-Fiallos filed their respective Answers to the Complaint.

On March 3, 2023, Defendants/Cross-Complainants filed their Cross-Complaint against Buss, alleging (1) Implied Indemnity, (2) Express Indemnity, (3) Contribution, and (4) Declaratory Relief. Subsequently, on March 14, 2023, Plaintiff/Cross-Defendant filed her Answer to the Cross-Complaint.

On February 13, 2024, Defendants/Cross-Complainants filed the instant Motion for Summary Judgment. Subsequently, Plaintiff/Cross-Defendant filed her Opposition and Defendants/Cross-Complainants replied on August 5, 2024.

ANALYSIS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted 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 a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).) 

“[I]f the moving papers establish a prima facie showing that justifies a [ruling] in the [moving party’s] favor, the burden then shifts to the [opposing party] to make a prima facie showing of the existence of a triable material factual issue.”' (Citation.)" (See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900, quoting Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950.) “The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) 

A.    Motion for Summary Judgment

             As framed by the Complaint, Plaintiff alleges she tripped and fell over a defective and substandard condition of the concrete driveway at the Subject Property. (Compl. ¶ 11.)

1)      Premises Liability and Negligence

The elements of premises liability and negligence cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’  [Citation.]”  (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)  While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe.  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)

However, “[a] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.”  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (Caloroso).)  The “trivial defect defense” is an aspect of duty that a plaintiff must plead and prove and allows a court to determine whether a defect is trivial as a matter of law.  (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.)  “If the defect is of such trivial character that it presents no element of conspicuousness or notoriety, its continued existence does not impart constructive notice” to the landowner.  (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73.)  To assign liability for a defect, the landowner must have notice not only of the condition of the sidewalk, but also of the dangerous character of such condition.  (Whiting v. National City (1937) 9 Cal.2d 163, 165.) 

To determine whether a condition is¿trivial¿as a matter of law, “[t]he legal analysis involves several steps.  First, the court reviews evidence regarding the type and size of the defect.  If that preliminary analysis reveals a¿trivial¿defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.  If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law....”¿¿(Stathoulis¿v. City of Montebello¿(2008) 164 Cal.App.4th 559, 567-568.)

In sum, these issues “only become questions of law when reasonable minds cannot differ on them. If reasonable minds can differ on those questions, or if they are reasonably debatable, they are questions of fact and should be submitted to the jury. “ (Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 699, superseded by statute on other grounds.)

Here, Defendants/Cross-Complainants’ undisputed material facts (“UMFs”) establish the following: On July 28, 2021, it was the first time that Buss parked in the driveway and walked on the driveway to the house and back to the car. (UMF, No. 5.) Buss tripped on the driveway in the area closest to the grass. (UMF, No. 10.) She tripped on the lip of the pavement on the front driveway when the front part of one foot got caught. (UMF, No. 6.) The deviation of the driveway at the location of Buss’s fall closest to the grass, was no greater than 3/4 inch. (UMF, No. 11.)

Defendants/Cross-Complainants argue that the height differential of 3/4 inch on the driveway is trivial as a matter of law, citing case laws including Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1108 (Huckey) [“granting summary judgment where height of sidewalk differential was at its highest at one and 7/32 inches, or 1.21875 inches.”] (Mot. at p. 6); Beck v. City of Palo Alto (2019) 150 Cal.App.2d 39, 43 [“holding sidewalk defect that city measured at once and one-eight inches and plaintiff claimed to measure at one and five-eights inches was trivial as a matter of law”] (Mot. at p. 7); and Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367 [“holding sidewalk defect that measured one and one-half inches was trivial.”] (Mot. at p. 7).

Notably, as Huckey, supra, instructs, in determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect – in this case, on the depth or height variance of the driveway – since “a tape measurement alone cannot be used to determine whether the defect was trivial.” (Caloroso, supra, 122 Cal.App.4th at p. 927.) A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. (Fielder v. City of Glendora (1977) 71 Cal.App.3d 719, 734 (Fielder).)

Here, Buss contends that the cases cited by Defendants/Cross-Complainants are distinguishable from the instant matter for a significant fact that the defective condition here existed on a sloped driveway, rather than a flat sidewalk. (Opp’n. at p. 11, AMF, Nos. 28-29.) Buss maintains that “Slope is therefore an ‘aggravating factor’ that changes the calculus of a trivial defect analysis. (Id. at p. 13.)

Furthermore, Buss presents additional material facts (“AMF”) to demonstrate the other dangerous conditions exist, including a height difference of approximately two and one-quarter inches between the edge of the lower panel and the adjacent grass (AMF, No. 31), multiple uplifts and inconsistent slopes within the driveway (AMF, No. 33), sign of root system for the tree extends under the driveway (AMF, No. 34), and significant shadows of the tree across the driveway (AMF, No. 16.)

Considering all of the circumstances surrounding the accident and treating the size of the defect as “one of the most relevant factors” (see Fielder, supra, 71 Cal.App.3d at 734), the Court finds two cases to be illustrative.

In Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, the defect in the sidewalk involved a raised section measuring between 1/2 to 5/8 of an inch. While acknowledging that in many cases, an even greater differential had been held to constitute a trivial condition as a matter of law, the Johnson court emphasized the presence of other factors, such as the fact that it was the plaintiff’s first time walking at the location of the accident, it occurred at night, and the sidewalk was shadowed by overhead trees. These factors led the court to find that reasonable minds could differ as to whether or not the condition was dangerous or defective, or merely trivial. (Id, at p. 152, superseded by statute on other grounds.)

In contrast, in Caloroso, the plaintiff tripped over a slight crack in a walkway. (Caloroso, supra, 122 Cal.App.4th at p. 925.) The Caloroso court found the defect to be trivial as a matter of law, reasoning that even if all inferences were drawn in favor of the plaintiff, and assuming that bright midmorning light had impaired her view of the crack, the inescapable fact that the crack was less than one-half inch at its greatest rendered the disputed issues about light and shadow in the circumstances of that case immaterial. (Id. at p. 929.)

Here, the Defendants/Cross-Complainants assert that the height variance between two concrete slabs of the driveway is 3/4 of an inch, while Plaintiff disputes this, estimating the variance to be between 3/4 to 13/16 inch in depth (AMF, No. 32). Despite the dispute, the alleged defect size clearly falls beyond the range considered of the Johnson case. Additionally, similar to the “other factors” in the Johnson case, it was the first time that Buss had parked in the driveway and walked on it to the house and back to her car. (UMF, No. 5.) Moreover, the tree located in the raised planter bed next to the driveway at the Subject Property hangs over the driveway, casting significant, splotchy shadows across the driveway. (AMF, No. 16.)

Furthermore, as compared to Johnson, there are additional factors in the present case: the lower panel of the concrete has a vertical or running slope of 12.4% and a horizontal or cross slope of 2.2% (AMF, No. 29); a height difference of approximately 2 1/4 inches exists between the edge of the lower panel and the adjacent grass (AMF, No. 31); multiple uplifts and inconsistent slopes exist within the driveway (AMF, No. 33); and the tree’s root system may had extended beneath the driveway (AMF, No. 34).

            Considering these factors and in accordance with relevant precedents, the Court finds that reasonable minds could differ on whether the defect was trivial. This leads the Court to conclude that Plaintiff has satisfied her burden of establishing a prima facie case, demonstrating the existence of a triable material factual issue.

            Based on the above, the Court DENIES the Motion for Summary Judgment.

CONCLUSION

The Motion for Summary Judgment filed by Defendants/Cross-Complainants is hereby DENIED.

Moving party to provide notice.