Judge: Frank M. Tavelman, Case: 23AHCV00842, Date: 2025-01-10 Tentative Ruling

Case Number: 23AHCV00842    Hearing Date: January 10, 2025    Dept: A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Elizabeth (Elizabeth) & Robert (Robert) Broggi (collectively Plaintiffs) bring this action against the City of Pasadena (Pasadena). Plaintiffs alleges Elizabeth was injured when she tripped on an uplifted portion of the sidewalk located at 250 S. Berkely Ave. in Pasadena, CA. Plaintiffs maintain causes of action for Premises Liability (stated by Elizabeth) and Loss of Consortium (stated by Robert).

Before the Court is a Motion for Summary Judgment brought by Pasadena. Pasadena argues that no triable issue of fact exists as to the following issues:

1.      The uplift in the sidewalk is not a dangerous condition.

2.      The uplift in the sidewalk constitutes a trivial defect.

3.      Pasadena lacked notice of the alleged dangerous condition.

Pasadena further argues that because Elizabeth’s Premises Liability cause of action fails, so to must Robert’s cause of action for Loss of Consortium. Plaintiffs oppose the motion and Pasadena replies.

ANALYSIS: 

I.                    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 Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 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. Manor 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, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿ 

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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. (C.C.P.¿§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.)¿ 

¿ 

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.)¿ 

II.                 EVIDENTIARY OBJECTIONS

Plaintiffs’ Evidentiary Objection No. 1 is OVERRULED. The portion of Elizabeth Broggi’s deposition in which she testified that she was standing with both feet on he sidewalk is directly relevant to this litigation. This motion is primarily concerned with whether an uplift in the sidewalk was a dangerous condition, thus Elizabeth’s status as a pedestrian on that sidewalk is relevant.

Plaintiffs’ Evidentiary Objection No. 2 is OVERRULED. The declaration of Public Works Street Maintenance Superintendent Jeffrey Wong stating that he observed no obstruction at the site is directly relevant to the determination of whether the uplift in the sidewalk was trivial.

Defendant Pasadena’s Evidentiary Objections Nos. 1-5 are OVERRULED. The declaration of forensic engineer Phil Rosescu properly sets forth the foundation for the photos of the sidewalk attached. Rosescu specifically states under penalty of perjury that these photos were taken by him during his site inspection.

Defendant Pasadena’s Evidentiary Objections Nos.  6-27 are OVERRULED. Each of the statements objected to constitute Rosescu’s expert opinion on the danger posed by an uplifted sidewalk to pedestrians. Each of the exhibits objected to are scientific studies which Rosescu specifically relies upon in forming his expert opinion. As such, Rosescu has appropriately laid the foundation for these statements. The Court further finds that each of these statements are sufficiently related to the subject of Rosescu’s expertise as a forensic engineer.  

III.              MERITS

To prevail on its motion, Pasadena must demonstrate that no triable issue of fact exists as to any essential element of Plaintiffs’ claim for Premises Liability. Given that Pasadena is a public entity, any liability for injury caused by a dangerous condition of its property is governed by Gov. Code § 835. To prevail on such a claim, Plaintiffs must demonstrate:

(1)   that the property was in a dangerous condition at the time of the injury,

(2)   that the injury was proximately caused by the dangerous condition,

(3)   that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and

(4)   that either: (a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code § 835 [numeration of elements added].)

Here, Pasadena argues that no triable issue of fact exists as (1) to the dangerous nature of the sidewalk uplift and (2) whether Pasadena had notice of the alleged defect.

Trivial Defect

Courts in the State of California have generally recognized that a property owner has no duty to repair “minor” defects. (See Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757 [“a property owner is not liable for damages caused by a minor, trivial, or insignificant defect’ on its property.”].) This principle, known as the trivial defect doctrine, recognizes that “‘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.’” (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26–27.)

When presented with a motion for summary judgment, courts may determine that a walkway defect is trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092,1104; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567.) “‘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.’” (Stathoulis, at 567; see Kasparian, supra, 156 Cal.App.4th at 28.) But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate. (Kasparian, at 28 [quotation marks and citation omitted].)

California Courts have developed two substantially similar tests to determine whether a sidewalk defect is trivial as a matter of law. In Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, the Court of Appeal set out the following two part test:

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, at 567; see also Nunez supra, 81 Cal.App.5th at 758 [adopting two-step framework]; Huckey supra, 37 Cal.App.5th at 1105.)

More recently, in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110, the Court of Appeal read Gov. Code § 830.2 to require a more “holistic” approach, stating, “[a]lthough we agree with the premise that the size of the defect is the primary determinant of triviality, as discussed below, we modify the prevailing two-step framework into a holistic, multi-factor analysis.” Regardless, the Stack court confirmed that the size of the defect remains the most important consideration. (Stack supra, 91 Cal.App.5th at 110 ["We begin with the most important factor: the defect's size."] [cleaned up].)

As concerns size, courts have routinely held that some sidewalk defects of less than one inch have are trivial as a matter of law. (See, e.g., Huckey at 1095-1096, [height differentials from nine-sixteenths of an inch and 1.21875 inches found to be trivial]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [elevations from three-fourths inch to one and one-half inches found to be minor]; Meyer v. San Rafael (1937) 22 Cal.App.2d 46, 47 [elevations of adjoining sidewalk panels [five-eighths of an inch to an inch and three-eighths found to be trivial].) The holding in Stack confirms as much. (Stack, at 112 [“[W]hen the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law, i.e., that it is minor or trivial.”].)

Regardless, “…there is no firmly fixed arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous. This is because a court should not rely solely upon the size of the defect ... although the defect's size 'may be one of the most relevant factors' to the court's decision." (Id. at 112-113 [cleaned up].)

As concerns these additional factors, the Stack court noted that trial courts typically consider (1) the nature and quality of the defect (including whether it has jagged breaks or cracks), (2) whether anything was obstructing or concealing the defect (for instance, an object, debris, or other substance), (3) the lighting and weather conditions at the time of the incident, and (4) whether the defect has caused other accidents; and plaintiff's familiarity with the area. (Id. at 115.)

In summation, for Pasadena to prevail in this argument it must demonstrate that there is no triable issue of fact as to the triviality of the sidewalk uplift. Pasadena must show that size of the uplift in the sidewalk is within the realm of triviality as observed by the courts in Huckey, Stathoulis, and others. Assuming Pasadena has shown the size to be trivial, it must also show there is no triable issue of fact as to any aggravating circumstances which would draw the uplift out of the realm of triviality.

As concerns the size of the uplift in the sidewalk, the Court finds Pasadena has sufficiently evidenced that the defect was trivial. Pasadena submits the declaration of its Public Works Street Maintenance Superintendent Jeffrey Wong. Wong states that he has held the position since 2020 and has previously held the position of Crew Supervisor. (Wong Decl. ¶ 1.) Wong states his job requires intimate knowledge of the city infrastructure, specifically its sidewalks. (Wong Decl. ¶ 2.)

On February 17, 2023, approximately three months after Elizabeth’s incident, Wong visited the site. (Wong Decl. ¶ 6.) Wong states he observed, “…one location where sidewalk exhibited a height differential in between two concrete slabs in front of 250 S. Berkely Ave.” (Wong Decl. ¶ 7.) Wong states he then took a photo of the uplift, a copy of which is attached to his declaration as Exhibit A. (Id.) Wong then states that city employee Juan Chavez Ramirez (Chavez) measured the uplift in the sidewalk with a measuring tape. (Wong Decl. 8.) Wong states that this measurement revealed the uplift in the sidewalk to be between .75 inches to one inch. (Wong Decl. ¶ 8.) Photographs of Chavez with the tape measure are attached as Exhibits B and C. (Id.) Lastly, Wong states that he observed no visual obstructions to the uplift. (Wong Decl. ¶ 10.)

Plaintiffs do not dispute that the size of the uplift falls within the realm of triviality. Plaintiffs present no evidence in contravention of the testimony offered by Wong as to the length of the uplift. In other words, it appears entirely undisputed that the length of the uplift was at or below one inch.

Plaintiffs instead offer the declaration of forensic engineer Phil Rosescu (Rosescu) as to the dangers posed by an uplift of this size. Rosescu states that he personally inspected the site on February 1, 2023, about two and a half months after the incident. (Rosescu Decl. ¶ 8.) Rosescu states that the uplift in the sidewalk was measured at .875 inches (Id.) Rosescu attaches his photographs of the site as Exhibit B to his declaration. Rosescu states that, in his opinion, an uplift of this size constitutes a hazardous condition to pedestrians exercising reasonable care. (Rosescu Decl. ¶ 9.) Rosescu bases this opinion on the fact that the average person’s step measures around .55 inches, a statistic derived from a study attached to his declaration. (Rosescu Decl. ¶ 9, Exh. C.) Rosescu opines that deviations in the sidewalk greater than the average step pose a tripping threat. (Id.)

The Court finds the declaration of Rosescu is insufficient to create a triable issue of fact on the matter of triviality. “[T]he fact that a witness can be found to opine that [a given] condition constitutes a significant risk and a dangerous condition does not eliminate this court's statutory task, pursuant to section 830.2, of independently evaluating the circumstances.” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) In other words, triviality in this context is a legal question and not a factual one. Whether an uplift of .875 inches could pose a hazard to a pedestrian is a different inquiry than whether such an uplift is trivial as a matter of law. The trivial defect doctrine is intended as, “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.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.) When taken to its logical extreme, an uplift of any size could be said to pose a pedestrian safety hazard thereby resulting in strict liability upon a property owner for any sidewalk that is not perfectly level. As a matter of civil engineering an .875 inch uplift may pose a tripping hazard, but as a matter of law such a defect has been found time and time again by the courts to be trivial.  However, the Court’s inquiry does not end here, as the defect’s size is not determinative alone.

Stack makes clear that a defect’s size is not the only factor in determining triviality. The Court must also review the evidence as to the nature/quality of the defect, the conditions on the day of the incident, and whether any extenuating circumstances caused the otherwise trivial defect to be more dangerous than it would have been.

The critical dispute here as to the nature/quality of the defect is whether, as Plaintiffs claim, the uplift was accompanied by a missing “chunk of cement” which created an uneven surface. The Court finds the evidence presented does not support the assertion that a chunk of concrete was missing from the sidewalk. The only evidence that Plaintiffs cite in support of this argument are Wong’s photographs. (See Wong. Decl. Exhs. A-B.) While the photos show what appears to be a slight abrasion of the uplifted portion, they do not show that a “chunk of concrete” is missing. To the extent that the uplifted portion is abraded, such abrasion actually appears to lower the height discrepancy very slightly between the sidewalk panels. The Court also notes that Rosescu’s declaration is silent as to any portion of the sidewalk which is purportedly missing. Although not cited by Plaintiff in support of this argument, the Court finds the photos attached to the Rosescu declaration show the same slight abrasion. (Rosescu Decl. Exh. A.)

Plaintiffs also argue that Elizabeth’s lack of familiarity should play a role in the Court’s determination. (See Grigoryan Decl. Exh. A, Broggi Depo. p. 12 [wherein Elizabeth confirms that this was her first time visiting her son’s home in Pasadena].)  The Court does not find the addition of this factor to be persuasive.  It is well established that the occurrence or nonoccurrence of prior similar accidents at the same site is relevant to the determination of whether a condition is dangerous.” (Stack, at 119 citing Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.) In Stack the court was presented with evidence that the plaintiff has previously jogged pass the offending portion of sidewalk on some 300 occasions without incident. (Id.) Stack acknowledged that familiarity may play a role in determining the existence of dangerous condition, but explicitly held that familiarity should play no part in determining whether such a defect is trivial. (See Stack at 12 [“We respectfully part ways with the Court of Appeal precedent weighing a particular plaintiff's familiarity with the defect as part of the dangerous condition analysis. In our view, individual familiarity is not a proper factor for consideration within the trivial defect doctrine.].)

Unlike the other additional factors (nature/quality of the defect, weather conditions, obstructions) a plaintiff’s familiarity with an area simply does not reflect the physical condition of the alleged defect. Even if familiarity was a valid factor to consider, Plaintiffs’ unfamiliarity with the area would not create a triable issue of fact. Stack discussed its plaintiff’s familiarity with the area as evidence that no defective condition existed. (Stack, at 119.) The defendant in Stack cited the plaintiff’s familiarity as evidence that no dangerous condition existed, in conjunction with the fact that no complaints had been made about the area. (Id.) In other words, Stack and other cases discuss “familiarity” with an area as dispositive of the existence of dangerous condition, they do not discuss “unfamiliarity” as rendering a defective condition nontrivial.

As concerns the other considerations under Stack, the Court finds no triable issue of fact. Pasadena has presented evidence that its City Street Maintenance Division had received no complaints about 250 S. Berkeley Ave since the inception of the division in 2012. (Templeton Decl. ¶ 9.) Plaintiffs have produced no evidence that there were any prior complaints about the area. Pasadena has also produced uncontroverted evidence that the weather conditions on the day of the incident were clear. (Exh. 1, Broggi. Depo. 20:5-15; Exh. 2. [wherein Plaintiffs identified the weather as “clear” in submitting their government claim.].) 

Lastly, the Court addresses the factor of obstruction. Plaintiffs plainly state that there were no obstructions here, instead arguing that the lack of an obstruction can be more dangerous because an obstruction can cause greater awareness of the defect. (See Opp. p. 7 [“Obstruction is in interesting point, because in this case we cannot point to any obstructions; however, using the totality of the circumstances and holistic approach as outlined in the case law above, it is the lack of obstructions that makes this particular differential in the sidewalk so dangerous.”].) The Court finds Plaintiffs’ argument unpersuasive. The argument is unsupported by any authority and appears duplicative of their argument that Elizabeth was not familiar with the area. The question at hand is whether the defect was trivial, not whether Pasadena was obligated to draw the public’s attention to the defect. This argument simply does not speak to triviality.

In conclusion, the Court finds Pasadena has sufficiently demonstrated that there is no triable issue of fact as to the trivial nature of the sidewalk uplift. Pasadena has produced evidence that the uplift measured less than the commonly recognized threshold of one inch, a measurement confirmed by Plaintiffs’ expert. Pasadena has also provided uncontroverted evidence that there were no extenuating circumstances, such as the nature of the defect, weather conditions, or obstructions. Plaintiffs have provided no evidence which creates a triable issue of fact as to any of the factors of triviality and thus have failed their burden.

Loss of Consortium

"A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse." (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) Here, given Plaintiffs’ have not demonstrated the viability of their only other cause of action for Premises Liability, it follows that Robert cannot maintain his action for Loss of Consortium.

Conclusion

The Court finds the evidence presented supports that there is no triable issue of fact as to the triviality of the sidewalk uplift. Given this finding, Plaintiffs cannot maintain their cause of action for Premises Liability, and in turn cannot maintain their cause of action for Loss of Consortium. Pasadena has presented uncontroverted facts negating an essential element to each of Plaintiffs’ claims and is thus entitled to summary judgment.  Accordingly, the motion for summary judgment is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Pasadena’s Motion for Summary Judgment came on regularly for hearing on January 10, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE CITY OF PASADENA’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

THE COURT ISSUES A TRIAL PREPARATION ORDER, AND ALL EXISTING DATES REMAIN.

THE CITY OF PASADENA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:       January 10, 2025                     _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles