Judge Jill Feeney, Case 20STCV12732 2022-09-09 Tentative Ruling

This is an action for premises liability, negligence, and dangerous condition of public property arising from a trip and fall accident which took place in 2019. Plaintiff Minerva Astengo filed her Complaint against Defendant the City of Glendale on April 1, 2020. Plaintiff named Southern California Gas Company a Defendant in this action on September 23, 2021.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

A party may join a motion for summary judgment by filing a separate statement that identifies the evidence demonstrating that the joining party is entitled to summary judgment. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.) In addition, the party must provide the notice required in Code Civ. Pro. section 437c when they file the joinder. (Id., at 636-37.) In Frazee, the Court of Appeal found that the trial court had incorrectly granted summary judgment on a joinder because the joinder did not include a separate statement and because the joinder was untimely.

Here, City filed its motion for summary judgment on June 13, 2022 and SoCalGas filed its motion for joinder on July 12, 2022. SoCalGas served its notice of joinder on July 12, 2022. SoCalGas was required to provide 75 days of notice plus two days because service was electronic. (Code Civ. Pro. sections 437c subd (a)(2), 1010.6 subd. (4)(B).) The last day for SoCalGas to serve notice was June 24, 2022. SoCalGas’s joinder is untimely because it served notice on Plaintiff on July 12, 2022, well after the June 24, 2022 deadline. Although SoCalGas argues that the statutorily required minimum is 28, days, Plaintiff correctly points out that Code Civ. Pro section 437c was amended to require a 75-day notice period. Accordingly, SoCalGas’s motion to join City’s motion for summary judgment is denied.

There is no common law tort liability for public entities in California, including negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 975.) Here, Plaintiff’s claim for negligence cannot be sustained because Defendant is a public entity and there is no common law negligence liability for public entities in California.

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)

Government Code Section 815.6 states: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Application of this provision requires that the enactment be obligatory, creating a mandatory duty on the public entity. (Haggis v. Los Angeles (2000) 22 Cal.4th 490, 498.)

The owner, occupant or person having the control or care of any lot or premises fronting upon any public street, lane or alley in the city shall keep the sidewalk immediately in front of such property and the space between the curb line and the property line of such property free from all holes or obstructions dangerous to life or limb, except such holes or obstructions as may have been caused by parkway trees or city-owned vehicles.”

Municipal Code Section 12.04.040(A) does not create a mandatory duty on the City. The municipal code section refers to any owner, occupant or person who has control or care of any lot or premises fronting on any public street. The code section clearly places a duty (in some circumstances) on adjacent property owners or lessees, not on the City itself. Hence, Government Code Section 815.6 does not apply.

Government Code section 835 states:¿“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 either:

The term “dangerous condition” means 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, subd. (a).) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn. 5.) “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.)

As to 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.)

Here, City’s evidence shows that Plaintiff fell on April 24, 2019 while walking to the Berolina Bakery located at 3421 Ocean View Blvd. in the city of Glendale. (UMF No. 1; Astengo Depo, 9:21-25, 10:2-5, 11:4-6.) Plaintiff never noticed the meter box in the sidewalk and nothing distracted Plaintiff immediately prior to the accident. (UMF Nos. 4-5; Astengo Depo., 13:8-25, 17:17-24, 18:23-19:2.) There were chairs and tables on the sidewalk outside the bakery. (UMF No. 7.) Plaintiff looked straight ahead as she walked toward the meter box lid directly in front of the bakery when her left foot caught on something and Plaintiff fell. (UMF Nos. 8-10.)

City bases its argument that the defect in the sidewalk was trivial on photographs of the meter box that allegedly caused Plaintiff’s fall. (Motion, p.4, Exhibits B, C.) The photographs were authenticated through the declaration of Marlene Urquilla, who testifies that she took the photographs of “the area where Ms. Astengo stated she fell, including the meter box lid” and that she took the photographs “approximately 1-2 hours after the incident.” (Decl., Urquilla, ¶3.) City does not provide any evidence of the actual height of the meter box. City argues that it “can be seen in the photographs” that “the offset is far below 1.25 inches.” (Motion, p.4.) No other accidents were reported to City involving the same location where Plaintiff fell. (UMF No. 11, Binder Decl., ¶¶2-4.)

Although the Court cannot measure precisely the height of the meter box from a photograph alone, the photographs show that the meter box was straight, not jagged, and nearly flush with the rest of the sidewalk. Given the uniform shape of the meter box, the lack of obstructions around the meter box, and the apparent low height of the meter box, Defendant’s evidence is sufficient to show no issues of triable fact exist over whether the defect was trivial. The burden shifts to Plaintiff.

Plaintiff provides a declaration from Mark J. Burns, Senior Forensic Expert of a forensic engineering firm and licensed general building contractor. Burns attests that his measurements of the meter box show that the box measured as high as 11/16 of an inch. (Burns Decl., ¶9.) Plaintiff also provides evidence that the owner of the bakery where the meter box sits submitted complaints about customers tripping on the meter box. (UMF No. 11; City’s response to Requests for Admissions, p.3.) City concedes that it did receive one complaint from the owner of the bakery. (Reply, p.2-3.)

Even using the most favorable differential to Plaintiff, 11/16 inches, the Court finds the differential is trivial as a matter of law. This differential is within the differentials held by Courts of Appeal to be de facto trivial.¿(See, e.g., Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74, 256 P.2d 977, and cases cited therein [elevations ranging from three-fourths inch to one and one-half inches found minor]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50 [adjoining sidewalk panels varying from 5/8 inch to 1-3/8 inches in height is trivial]; and Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361 [1½ inches difference in elevation is trivial]; see also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092 [height differential ranges from 9/16”, 1”, and 1.21875” held to be a trivial defect].

The defects in the sidewalk caused by the meter box are trivial as a matter of law because the sidewalk is offset by less than an inch and no other conditions make the sidewalk dangerous. Plaintiff does not provide any other evidence of other factors such as debris, obstructions, weather, or visibility that would otherwise make the condition dangerous. Plaintiff’s own deposition testimony revealed that it was sunny, and nothing distracted her as she walked past the bakery. (UMF Nos. 3,7.)

Plaintiff attempts to use the declaration of expert Mr. Burns to establish that there was a “shadow” obstructing Plaintiff’s view of the meter box. However, in response to a special interrogatory asking if anything obscured her ability to see on the date of the incident, Plaintiff responded in the negative. (Exhibit D, Plaintiff’s Response to Special Interrogatory No. 29.) Plaintiff cannot manufacture a dispute through the testimony of an expert.( D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1; Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188.)

However, that said, even the evidence provided by Burns does not create a genuine issue of material fact. Attached at Exhibit 9 to the Declaration of Burns are pictures purporting to depict the area in similar lighting conditions as on the date of the fall. The Court notes that a large portion of the area at issue is not in shadow and that further the shadow is not so great as to obscure a pedestrian’s view.

In addition to visibility issues, the other aggravating factors that a court must consider in deciding whether a sidewalk defect is trivial include: (1) whether there were jagged edges or broken pieces of the walkway; (2) whether there was water, grease or debris concealing the defect; (3) the weather at the time of the incident; and (4) whether the defect caused any other accidents. (Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749.) In addition to the shadow issue, the only other aggravating factor at issue here is the issue of other accidents.

Here, Plaintiff produced an email that was sent on November 29, 2017 from the owner of the bakery in front of which the accident occurred to the City’s economic development coordinator. In that email, the owner stated that in past six months a number of customers had stumbled over the uneven cement located at the area at issue, including the on date of the email where it was reported (in the email) that an individual fell on her knees and was hurting a lot. (Plaintiff’s Exhibit 16.) The City concedes that this email was sent. (Plaintiff’s Exhibit 13.) According to the Declaration of Matthew Binder, the information in the email was not made part of the database created by City’s Maintenance Services Section, which did not list any prior accidents at the area in question.

Here, the information about the alleged prior accidents constitute hearsay. Plaintiff produces the email and a transcript of an officer’s interview of the individual who wrote the email. However, Plaintiff does not produce a declaration from this individual nor any deposition testimony. Plaintiff does not produce any admissible evidence regarding these alleged earlier incidents.

Moreover, assuming arguendo that a few other individuals had stumbled before, nothing about these alleged prior incidents undermines the conclusion based on all the other factors to be considered that the defect at issue did not create “a substantial risk of injury to a pedestrian using reasonable care.” (Nunez, 81 Cal.App.5th 749.)