Judge Jill Feeney, Case 21STCV17504 2023-01-19 Tentative Ruling

Defendant that Plaintiff does not have any evidence to support at least one essential element of her claims, specifically: (1) Plaintiff cannot establish the existence of a dangerous condition since any defect was trivial; (2) if there was a dangerous condition, it was open and obvious; (3) Defendant did not have actual or constructive notice of a dangerous condition; and (4) Plaintiff cannot prove causation.

Plaintiff argues that there are genuine triable issues of material fact as to whether a dangerous condition existed, whether the condition was trivial, whether Defendant had a duty to warn about the defect, and whether Defendant had knowledge of the condition.

Defendant argues that the shoe photographs, purchase information, accident scene photographs, and the Leonite Concrete Contract are all unauthenticated and should not be considered. Plaintiff’s declaration is also self-serving and directly contradicts her deposition testimony. Defendant also argues that Plaintiff’s expert relies on inapplicable statutes and standards and fails to explain how any characteristic of the driveway pose a danger aside from his reference to the inapplicable statutes and guidelines. Defendant also argues that the Court may evaluate the driveway’s condition from photographs.

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).)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

A property owner owes no duty to somebody injured by a defect that is trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922,927.) The “trivial defect defense” is not an affirmative defense, but part of the duty that a plaintiff must plead and prove. (Id.)

The body of caselaw addressing the trivial defect defense concerns defects in walkways, usually sidewalks. “Persons who maintain walkways, whether public or private, are not required to maintain them in absolutely perfect condition.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399.) The issue to be decided here is whether Plaintiff has established a triable issue of fact as to whether there was a dangerous condition on the walkway at issue that Defendant had a duty to repair.

It is up to the Court to determine if a defect is trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App. 5th 1092, 1105.) Courts employ a two-step process in determining if a walkway defect at issue is trivial. (Id.)

First, a court must determine the type and size of the defect at issue, usually the depth or height of the walkway’s depression or elevation. (Id.) Assuming the Court finds a defect to be trivial in the first instance, a court must then go on to consider whether additional factors present created a substantial risk of injury, even if the defect itself was small. These factors include such things as whether there were any broken pieces or jagged edges in the areas 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, weather at the time of the accident and whether the defect has caused other accidents. (Id.) If the court determines that 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.)

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. (Caloroso, 122 Cal.App. 4th 922, 977, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 (and cases cited therein) and Fiedler v. City of Glendale, 71 Cal.App.3d 724, Fn. 4 (same).)

Here, Defendant’s evidence shows that Plaintiff is Defendant’s niece and Defendant owned the residential property at 10000 Sunset Blvd., Los Angeles, CA 90077. (UMF Nos.1-2.) The driveway at issue is composed of stamped concrete installed in 1984. (UMF No. 3.) On May 18, 2019, Plaintiff visited the property for a charity event when she fell while walking on the stamped concrete portion of the driveway at the property near the front kitchen windows. (UMF Nos.7, 10.) Plaintiff wore flat footwear, it was a clear sunny day, and the ground was dry at the property. (UMF Nos. 6, 8.) The exact location of Plaintiff’s fall cannot be identified, but she fell in about the area where the green dots are placed on Exhibits 6 and 7 to Defendant’s motion. (UMF No. 11.)

Plaintiff did not look at the ground before or after her fall. (UMF Nos. 12-13.) There were no objects, leaves, or debris on the driveway. (UMF No. 14.) Plaintiff testified that she fell when her sandal toe became wedged between the faux cobblestones on the driveway. (UMF No. 15.)

Defendant provides expert testimony from John Brault, an adjunct assistant professor at the University of Southern California, where he performs walkway safety research in the Musculoskeletal Biomechanics Research Laboratory. (UMF No. 16.) Mr. Brault inspected and measured the driveway at issue between July 21, 2021 and August 23, 2022. (UMF No. 18.) Brault’s measurements showed that the crevasses between the stamped cobblestones measured consistently one half to three quarters inches in width and five-sixteenths inches in depth. (Brault Decl., ¶7.) These measurements are analogous to the width and depth of a typical control joint between two concrete slabs in a public sidewalk. (Id., ¶8.) There are no abrupt elevation changes except for the narrow, shallow gaps between the cobblestones. (Id., ¶7.)

The Court finds that Defendant has met his burden of establishing that the crevasses between the stamped cobblestones are trivial. The width of the gaps is narrow, at one half to three quarters of an inch. The height differential between the cobblestone and the narrow gap is five sixteenths of an inch. 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 crevasses between the cobblestones are trivial as a matter of law because the gaps are less than one inch wide and less than one inch deep. There were no other conditions making the driveway dangerous, such as weather, debris, or visibility. Moreover, Plaintiff was familiar with the driveway and had traversed it many times when visiting her uncle over the years.

Plaintiff provides expert testimony from Ban Choi, a forensic scientist from the Institute of Risk and Safety Analyses. (Choi Decl., ¶3.) Choi testifies that the driveway was uneven and non-uniform with gaps varying between 0.5 inches and 1.8 inches in width with height differentials of 0.4375 inches and 0.813 inches. (Choi Decl., ¶6b.) Plaintiff was wearing shoes with tips measuring 0.625 to 0.688 inches in height. (Id., ¶6d.) Choi also testifies that the cobblestones were not in compliance with the American Society of Testing and Materials, the Americans with Disabilities Act, the California Building Code, and the Uniform Building Code. (Id., ¶¶6c-6j.)

Plaintiff also submits her own declaration stating that she looked at the ground as she was getting out of the car. (Ligerman Decl., ¶5.) Jill Zalben, her cousin, caught her attention and momentarily distracted her as she walked toward her. (Id.)

Even using the differentials most favorable to Plaintiff, the crevasses are less than one inch in depth according to Plaintiff’s expert. The widest gap recorded by Plaintiff’s expert between the cobblestones at any point is 1.8 inches. The Court finds that these measurements show the crevasses are trivial as a matter of law because gaps of this size would not pose an unreasonable risk of harm. And no other factors weigh in favor of finding the defect to be non-trivial. Plaintiff had visited her uncle many, many times and had encountered the driveway numerous time. The day was sunny and there was no obstruction of the driveway.

Plaintiff also argues that Defendant’s photographs of the driveway were taken over three years after the incident and it should be left to the jury to decide whether the photographs are probative. However, there is no real dispute over the fact that the driveway has been changed since the accident. Plaintiff’s own expert conducted his inspection of the area in August 2022, also three years after the accident.

Plaintiff also argues there is a white substance in Exhibit 11 to Braut’s declaration filling in the gaps between the stones. However, closer views of the stones (Exhibits 12 and 13) reveal that there is not any white substance in the gaps.

A property owner “is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it.¿ (Ortega, 26 Cal.4th at 1203, 1206.)

Defendant’s evidence shows that the driveway at issue was in excellent condition at the time of the fall. (UMF No. 27.) There were no complaints about the driveway at the property made to Defendant or anyone on his behalf. (UMF No. 25.)

The Court notes that Defendant suffers from Alzheimer’s Disease. (Zalben Depo.: 34:2-12.) Defendant’s daughter testified that her parents had owned the property since 1982 and had installed the driveway in 1984. (Zalben Decl., ¶2.) Zalben indicated that she was not aware of any previous falls on the driveway and that she was personally aware of numerous large events held at the home over the years. (Zalben Decl. ¶¶ 4.5.)

Defendant’s employee, Carlos Tejada, has been inspecting the property for maintenance for over 25 years and did not notice any defects or need for repair on the property’s driveway. (Tejada Decl., ¶¶2-4.) Tejada personally inspected the property prior to the charity event at which Plaintiff fell and did not identify any conditions of concern with respect to the driveway. (Tejada Decl., ¶ 5.). Tejada, who worked daily at the house Monday to Friday and also worked at special events, never saw or heard of anybody falling prior to the incident here. (Tejada Decl., ¶¶ 4-5.)

Plaintiff argues essentially because Defendant has Alzheimers and his wife is dead, Defendant cannot meet his burden of proof in this area. The Court disagrees. In particular, the declaration of Tejada who worked maintaining the property and was present at the property constantly is probative on this point.

Moreover, Defendant has demonstrated that Plaintiff cannot establish that Defendant had actual or constructive notice of any falling hazard with respect to the driveway. (Reply at pgs. 9 through 11.) Plaintiff testified that she was unaware of seeing or hearing about anybody else falling on the driveway. Moreover, Plaintiff’s daughter testified that although she fell once on the driveway, nobody saw her fall and she did not tell anybody about the fall until after Plaintiff fell. She also stated that she was not aware of any other falls occurring on the property other than her own and her mother’s.