Judge: Glenn R. Salter, Case: 20-1164891, Date: 2023-08-03 Tentative Ruling

The motion of the plaintiff for new trial is DENIED.

The court granted the defendant’s motion for summary judgment on the ground that the uplift in the sidewalk was a trivial defect as a matter of law.  (See ROA 89.)

The motion for new trial is brought pursuant to Code of Civil Procedure section 657.  However, the plaintiff does not indicate which ground is being asserted.  (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745 [new trial motion can only be granted on ground specified in the motion].)

The plaintiff argues that the court should have accepted the declaration of her expert.  But none of the cases she cites are in point.  No expert declaration is necessary in a trip and fall case.  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928.)  And here, her expert’s declaration was based on pure speculation.  The photographs taken at the time of the incident were the best evidence given the area had been altered after the incident.  The photographs were also consistent with the testimony of the maintenance person as to the height of the uplift.

Finally, the inclusion of “new evidence” and her expert’s expertise in the use of photogrammetry is unhelpful because there is no indication that any of this evidence was “newly discovered.”  This evidence should have been presented at the time of the original hearing.  (Plancarte v. Guardsmark, LLC (2004) 118 Cal.App.4th 640, 646 [lack of sufficient diligence justifies denial of motion].)

The defendant shall give notice.