Judge: H. Jay Ford, III, Case: 23SMCV00843, Date: 2024-06-18 Tentative Ruling

Case Number: 23SMCV00843    Hearing Date: June 18, 2024    Dept: O

  Case Name:  Lawrence Neumeister v. City of West Hollywood, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant City of West Hollywood

RESP. PARTY:         Plaintiff Lawrence Neumeister (no written opposition filed)

TENTATIVE RULING

            Defendant City of West Hollywood’s Motion for Summary Judgment is GRANTED. Defendant shows that the dangerous condition element of Plaintiff’s cause of action cannot be established. Plaintiff does not prove the existence of a triable issue of material fact as to the dangerous condition element.

            Defendant City of West Hollywood’s Request for Judicial Notice is GRANTED.

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

I.                Defendants Meet Their Burden to Show that Plaintiff cannot establish the Dangerous Condition Element of the cause of action

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

            Plaintiff Lawrence Neumeister’s (“Neumeister”) lone cause of action for Negligence is premised on Government Code 835. (See FAC, p. 3–5.) Section 835 provides as follows:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and 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) The 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.)

            To prevail on this type of claim, Neumeister must establish four elements: (1) the existence of dangerous condition; (2) proximate cause; (3) foreseeability of type of harm; and (4) negligence in the creation of, or notice of, the dangerous condition. (See Frazier v. County of Sonoma (1990) 218 Cal.App.3d 454, 458.)

            Government Code § 830 defines a “Dangerous condition” to mean “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830.) “A public entity is not liable for minor or trivial property defects that do not create a substantial risk of injury when the property is used with due care.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457, citing Gov. Code, § 835.2.) “The existence of a dangerous condition is ordinarily a question of fact but can be decided as a matter of law if reasonable minds can come to only one conclusion. (Id. at p. 1458.)

            “The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury provides 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, 399.)

            “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.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, collecting cases.) “The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. 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.” (Id. at p. 1105.) Such other factors the courts may consider are the following: "whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian's view of the defect, the plaintiff's knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident and whether the defect has caused any other accident." (Ibid.)

            Defendant City of West Hollywood (the “City”) provides declarations and evidence to show the subject sidewalk elevation was less than one inch where and when the alleged Neumeister incident occurred. (SSUF, ¶¶ 12–17, 19–20; Ferrante–Alan Decl., ¶¶ 3, 7, 8 Ex. A, E, F; Frye Decl., ¶¶ 7, 8, Ex. B; Wolfe Decl., ¶¶ 7–9, Ex. B–D.) The City declares that photographs taken by Neumeister of the incident location show that “subject sidewalk uplift had no jagged edges, cracking, nor broken pieces,” and Neumeister testified that these photographs were accurate descriptions of the subject sidewalk at the time of the incident. (SSUF, ¶¶ 11–13, 18; Ferrante-Alan Decl., ¶¶ 3, 7, Ex A [Plaintiff's deposition, 31:3-33–33:8, 35:12-15], E; Frye Decl., ¶ 8, Ex. A, B.) The City shows that Neumeister testified he did not did not have any obstructions to his view before the incident and he could not recall whether there was any debris or material on the ground when the incident occurred. (SSUF, ¶¶ 9–10; Ferrante-Alan Decl. ¶ 3, Ex A [Plaintiff's deposition, 26:8-13, 35:23–36:1].) The City shows that Neumeister testified he had walked the route where the subject sidewalk is located “approximately five to seven days a week, since March 2020.” (SSUF, ¶¶ 4; Ferrante-Alan Decl., ¶ 3, Ex. A [Plaintiff's Deposition, 18:1-19:3]. The City shows that Neumeister testified that the incident occurred at “approximately 4:20 p.m,” providing evidence that the sun had not set at the time of the subject incident. (SSUF, ¶¶ 5, 6; Ferrante-Alan Decl., ¶¶ 3–4, Ex. A [Plaintiff's Deposition 17:13-19], B; City’s RJN.) The City shows there they have not received any complaints related to the sidewalk uplift at the subject location. (SSUF, ¶¶ 21–22; Collins Decl., ¶¶ 6, 7.)

            The City has met their burden to show that the sidewalk uplift is trivial as a matter of law, and thus not a dangerous condition. The burden now shifts to Neumeister to show an existence of disputed material facts as to the dangerous condition element of his claim.  Neumeister did not provide any declarations or evidence to show the existence of a triable issue of material fact. Thus, the Court finds that summary judgment in favor of the City is proper. Evidence shows the sidewalk uplift at issue was under one inch, thus a trivial defect, and the additional factors did not present a substantial risk of injury.

            The City’s Motion for Summary Judgment is GRANTED.