Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

BACKGROUND 

This is a trip and fall case.  Plaintiff Angelo R. Arena, who is 93 years old, alleges that on November 26, 2021, he was walking on the Malibu Pier walkway located at 23000 Pacific Coast Highway, when he trip and fell.  Plaintiff alleges that Defendant Malibu Pier Partners, LLC was negligent in the ownership and/or maintenance of its property so as to create and/or maintain the allegedly dangerous condition in the pier floor.     

Defendant contends Plaintiff tripped due to an elevation change between adjacent planks in Plaintiff’s direction of travel.  (UMF No. 6.)  The greatest elevation change in the location of the incident is approximately 3/8 of an inch, which Defendant characterizes as a “trivial defect”.  (UMF No. 7, 12.)   

Defendant contends the elevation changes on the pier were open and obvious, as anyone who walks onto the pier would immediately be able to see and feel the unevenness of the planks while walking down the pier.  (UMF No. 10.)  The weather on the date of the incident was clear and sunny.  (UMF No. 13.)  On the day of the incident, there were also multiple caution signs posted at various locations on the pier, that read “Caution Uneven Surfaces Walk with Care.”  (UMF No. 14.)_ 

Plaintiff disputes that he tripped because of an elevation change.  Plaintiff claims he tripped over a shim rising up from between the floor planks on the pier.  (Plaintiff’s Additional Material Facts (“AMF”) No. 17.)  Plaintiff’s wife (Alexa Arena) took a picture of the shim immediately after Plaintiff’s fall.  (AMF No. 19.)  The picture shows the shim was rising up between two wooden floorboards on the pier.  (AMF No. 20.)   

Plaintiff’s forensic engineer expert determined that the wooden shim that caused the fall had a height of 1.10 inches above the adjacent floor planks.  (AMF No. 30.)  Plaintiff’s expert opines that the existence of a protruding shim between floorboards in excess of ½ inch created a dangerous condition for pedestrians.  (AMF No.  432.)   The height of the shim was high enough to cause a trip or misstep event, but low enough that it would not be readily apparent.  (AMF No. 43.)  Plaintiff’s expert opines that while uneven surfaces are typical on a wooden pier, singular vertical protruding objects such as the subject shim are not anticipated or foreseeable.  (AMF No. 52.)   

Plaintiff’s forensic expert concluded that the location of the incident presented a hazardous and substandard condition and a substantial fall hazard for pedestrians acting in a reasonable manner.  (AMF Nos. 44-45, 52.)  On the issue of causation, he opined that the subject incident occurred as a direct result of a hazardous condition that consisted of a vertically protruding shim present within the wooden plank walkway surface of the pier.  (AMF Nos. 47-48.)  Finally, he found that the warning signs did not relieve the duty of the Defendant to prevent vertical protrusions such as a shim along the accessible pedestrian paths.  (AMF No. 51.) 

This hearing is on Defendant’s motion for summary judgment or in the alternative for summary adjudication.  Defendant argues: (1) the condition that allegedly caused Plaintiff to trip and fall constituted a trivial and insignificant defect as a matter of law because the elevation change in the location of the incident was, at most, 3/8 of an inch; (2) the condition of the pier, namely that the wooden planks are not perfectly flat, is open and obvious and would have been immediately apparent to Plaintiff as he was walking on the pier, and (3) even if there was a dangerous condition caused by the small height difference between the planks and deck nails, multiple warning signs were posted on the pier and in the area where Plaintiff fell.   

LEGAL STANDARD 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Ritchfield Co. (2001) 25 Cal.4th 826, 843.)  Code Civ. Proc. §437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Minor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67).   

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element or to establish a defense.  (Code Civ. Proc. §437c(p)(2); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  

A moving party may prevail by establishing “the absence of evidence to support the [responding party’s] case.”  (Leslie G. v. Perry & Assoc. (1996) 43 Cal.App.4th 472, 482.)  The defendant must show the plaintiff does not possess needed evidence and also that the plaintiff cannot reasonably obtain the evidence.  (Aguilar v. Atlantic Ritchfield (2001) 25 Cal.4th 826, 854.) 

A moving defendant may rely upon factually devoid discovery responses to shift the burden of proof.  (Union Bank v. Superior Court (1995) 31 Cal.App. 4th 573, 581, 590.)  Thus, in Union Bank, the Court found that the defendant had met its burden of proof for summary judgment, by relying upon plaintiff’s discovery responses, which contained no facts supporting the fraud causes of action at issue in that case.  (Id. at 581, 592-593.)   

Once the defendant has met that 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 a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)  The responding party may not simply rely on mere allegations or denials of the pleadings but must set forth specific facts showing that a triable issue of material fact exists with respect to the claim at issue.  (Aguilar, 25 Cal.4th at 844.) 

REQUEST FOR JUDICIAL NOTICE 

Defendant requests judicial notice of the operative complaint.  The Court grants the request pursuant to Cal. Evid. Code §§ 452(d), 452(h) and 453. 

EVIDENTIARY OBJECTIONS 

The Court overrules Defendant’s Objection Nos. 1, 2 and 3 and sustains Objection No. 4 to the Declaration of Alexa Arena.  The Court overrules Objection Nos. 5 and 6 and sustains Objection No. 7 to the Declaration of Alice Arena.  The Court overrules Objection Nos. 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 and sustains Objection No. 18 to the Declaration of Jonathan Smilove.  The Court overrules Objection Nos. 19, 20, 22, 23, 24, 25, 29, 30, 31 and 33 and sustains Objection Nos. 21, 26, 27, 28 and 32 to the Declaration of Alex Zaretskiy.    

DISCUSSION 

Trivial Defect 

Defendant argues that the claims for negligence and premises liability both fail because the alleged defect was trivial.  The Court disagrees. 

Although the “trivial defect” defense was developed in the context of a public entity’s liability for a dangerous condition, the defense is also available to non-governmental entities.  (Ursino v. Big Boy Rests. (1987) 192 Cal.App.3d 394, 396-397.)  Under the defense, a landowner is not liable for a trivial or insignificant defect as a trivial defect does not pose an unreasonable risk of harm.  (Id. at 398-399 (the duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects).)  

In appropriate cases, the trial court may determine whether a given defect was trivial as a matter of law.  (Huckey v. City of Temucula (2019) 37 Cal.App.5th 1092, 1104-1105.) “Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by¿way of summary judgment.” (Id.)  If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.  (Id.) 

California courts utilize a multi-step analysis in determining whether a defect is trivial, and the size of the defect is one factor that must be considered.  (Fielder v. City of Glendale (1977) 71 Cal.App.3d 718, 731.)  Our Supreme Court has held that, as a matter of law, a height variance in a walking surface of even one and a half inches is a trivial defect.  (Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 365-368; see also Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47, 50 (adjoining sidewalk panels varying from five-eights of an inch and an inch and three-eighths was trivial); Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43 (height deviation measuring one and five-eighths inches and one and seven-eighths inches was trivial); Huckey, 37 Cal.App.5th at 1107 (“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.”); Whiting v. City of National City (1937) 9 Cal.2d 163, 165-166 (holding that a three-fourths inch differential in sidewalk elevation was too trivial of a defect to impose liability).   

However, cases have differentiated between risks posed by gaps and cracks in sections of sidewalks and those posed by protrusions that extend up through the surface of the sidewalk.  The Court in Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, held that unlike sidewalk cases, where the planes are horizontal, a protrusion located in an area where foot traffic occurs poses a greater danger.  (Id. at 270.)  In Dolquist, a quarter-inch high protrusion of metal re-bar was deemed “large enough to cause an injury while being small enough to avoid easy detection.”  (Id.) 

Similarly in Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463, 467-468, the Court held that a “vertically projecting obstruction” was not a minor defect as a matter of law, where photographs showed that abutting sections of two sidewalk slabs were not in horizontal alignment and that one section ranged from ½ inch to approximately one inch higher than the other.  The court held: “This created an obstruction sufficient to cause a person to trip providing the shoe were to be caught by the vertically projecting obstruction of the higher slab[.]”  (Id.) 

Here, Defendant argues that Plaintiff fell because of a trivial elevation change between adjacent planks and a deck nail.  (UMF No. 7.)  Plaintiff, however, has presented evidence that a vertically protruding shim caused his fall.  (AMF Nos. 17-18, 48.)   

The Court disagrees with Defendant that Plaintiff’s “shim” theory is not supported by admissible evidence, and that the video of the incident conclusively proves there was no shim.  The declarations submitted by Plaintiff’s wife and daughter about their observations close to the time of the incident and a photo of the shim soon after the incident occurred are admissible.  The video also does not conclusively establish there was no shim as it can be argued that it is not close enough to have captured the shim.   

Under Dolquist and Rodriguez, the type of protrusion claimed by Plaintiff is not a minor defect.  When the evidence is so conflicting, as it is here, that different conclusions may reasonably be drawn regarding the dangerous character of the defects, such questions should be left to the jury.  (Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 667.) 

Open and Obvious 

Defendant next argues that the uneven surface of the pier was open and obvious.  Defendant contends that anyone walking on the pier “would immediately be able to see and feel the unevenness of the planks while walking down the pier [and] therefore [Defendant was] under no obligation to eliminate this open and obvious condition.”  The Court disagrees.   

A trial court should not rule as a matter of law that a risk is open and obvious if reasonable minds can differ on that point.  (Kasparian v. AvalonBay Communities Inc. (2007) 156 Cal.App.4th 11, 25 (reversing the trial court’s ruling that a walkway defect was open and obvious as a matter of law, where the plaintiff tripped over a raised edge of a recessed drain in a walkway).)   

Here, reasonable minds can differ on what caused Plaintiff to fall and whether that cause was open and obvious.  While an argument can be made that the unevenness of the planks might have been open and obvious, there is a triable issue as to whether a randomly occurring vertical shim of 1.10 inches in height would not have been expected by the Plaintiff or any reasonable pedestrian walking on the pier.  (AMF Nos. 45, 52.)   

Plaintiff has presented evidence that the shims were random and not consistent.  Plaintiff’s expert observed that “shims were identified throughout the pier in various conditions” ranging from “reasonably fresh and newly installed” to “aging, decaying and deteriorating wood.”  (AMF No. 29.)  While the floorboards on the pier were fastened to the underlying structure with nails, the shims were not fastened and as such, were allowed to move freely.  (AMF No. 30.)  Plaintiff’s expert also observed that the shims between floorboards on the pier “creep up over time” due to exposure to the elements and loading tension between adjacent floorboards, as well as the general expansion of the wooden materials.  (UMF No. 31.)  So unlike the relatively predictable unevenness of the horizonal wooden planks on the pier walkway, the shims rose and fell at different times and at different heights, periodically creeping up to trip a pedestrian. 

On these facts, the Court concludes reasonable minds can differ on whether the open and obvious defense should prevail as a matter of law.        

Warning Signs 

Defendants next argue that even if the pier walkway created a dangerous condition, the posted signs adequately warned visitors of uneven surfaces.  Defendant claims that multiple caution signs were posted at the entrance of the pier, along the side of the pier and toward the far end of the pier.  The Court disagrees.   

There is a triable issue as to the adequacy of the content as well as placement of the signs.  Warning signs that are too far away to properly warn of the risk or that would be confusing can constitute a failure to adequately warn of a dangerous condition.  (See Bunker v. City of Glendale (1980) 111 Cal.App.3d 325, 328-329.)  Here, Plaintiff’s expert identified only two warning signs – one at the entrance on a parallel-facing open gate about 30 feet from the location of the incident, and the other on a handrail on the opposite side of the pier where Plaintiff was walking, about 35 feet away and also parallel to his path.  (AMF Nos. 53-54.)  As in Bunker, given the large size of the pier, triable issues exist as to whether the posted signs were in an adequate location to properly warn Plaintiff of the risks associated with the walkway.     

Triable issues also exist as to whether the signs’ content was adequate to warn Plaintiff of randomly appearing, vertically protruding wooden shims along the length of the walkway.  While the signs read “Caution Uneven Surfaces, Walk with Care,” reasonable minds would differ about whether a warning about an uneven surface could be interpreted to warn about random, hidden vertical protrusions.       

CONCLUSION 

Based on the foregoing, the Court DENIES Malibu Pier Partners, LLC’s motion for summary judgment.    

   

IT IS SO ORDERED. 

 

DATED: March 7, 2024 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court