Judge Jill Feeney, Case 21STCV25852 2023-04-11 Tentative Ruling

Plaintiff argues that the uplifted sidewalk had a differential of 13/16 of an inch and that there is a triable issue of material fact over whether the defect was trivial. Plaintiff also argues that Defendant was responsible for maintenance and cleaning of the sidewalk and should have seen the dangerous condition.

Defendant argues that its employees did not find any nontrivial deviations or uplift in the sidewalk during its inspections. Defendant also argues that Plaintiff failed to provide any evidence to prove that additional factors exist that would make the uplifted sidewalk a dangerous condition.

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).)

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.)

Courts should not solely rely upon the size of the defect, though size may be one of the most relevant factors. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105.) Other circumstances a court should evaluate include “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 accidents.” (Id.) Thus, a court is to decide whether a defect is dangerous “only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” (Id.)

Here, Defendant’s evidence shows that on February 5, 2021 at about 10:00 a.m., Plaintiff tripped over an uplift in the sidewalk adjacent to 4337 North Sunflower Avenue, Covina, CA 91724. (UMF No. 1.) At the time of the incident, the sky was clear and there were no weather conditions, debris, or shadows that would have prevented Plaintiff from seeing the uplift on the subject sidewalk. (UMF No. 2.) Plaintiff took daily walks on the subject sidewalk and has been walking in that area since approximately 2015. (UMF No. 4.) Plaintiff was not looking forward while walking because she was distracted by vehicles in the area and had her head turned. (UMF No. 3.) Plaintiff did not know about or notice the uplift in the sidewalk prior to her fall. (UMF No. 4.) Plaintiff could have avoided the uplift if she was looking forward while walking. (UMF No. 6.) There were no complaints or reports related to any pavement uplifts or deviations on the subject sidewalk between July 2017 and February 5, 202, the date of the accident. (Shelton Decl., ¶17.)

Defendant also provides a declaration from a public works maintenance worker, Adam Martinez, who testifies that he personally took measurements and photographs of the lifted sidewalk and noted that the deviation in the subject sidewalk was between one-half and 13/16 of an inch from the lowest point to the highest point. (Martinez Decl., ¶6.) Another public works maintenance worker, Joaquin Gurrola, also confirms that the differential was between 1/2 and 13/16 of an inch. (Gurrola Decl., ¶6.)

Defendant also provides two photographs of the sidewalk at issue. These photographs were authenticated by Plaintiff and show the sidewalk configuration as it existed on the date of the accident. (Defendant’s Exhibit 9, Plaintiff’s Verified Responses to Special Interrogatories, Set One and Attached Photographs.) The photos clearly demonstrate that the defect alleged by Plaintiff is an uplift between concrete slabs of sidewalk. There are no other irregularities in sight, such as dirt, debris, jagged edges, an asphalt patch or the like.

Even using the most favorable differential to Plaintiff, 13/16 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].

Defendant has demonstrated that there is no genuine issue of material fact regarding the existence of other factors which would transform the defect which is trivial in size into a non-trivial defect. The weather was fine on the day of the accident and the accident took place during daylight hours. There was no dirt or debris or anything else obstructing Plaintiff’s view of the sidewalk. Plaintiff had walked on the sidewalk numerous times since 2015. The sidewalk itself did not have jagged edges, an asphalt patch or any other deformities other than the raised slab of concrete. Nobody reported a previous accident at this site. Plaintiff was not looking ahead at the time that she tripped, but rather was distracted by some traffic noise. (Cornelius Depo., 21:9-18.)

The defect in the sidewalk is trivial as a matter of law because the sidewalk is offset by less than an inch and no other conditions make the sidewalk dangerous. Defendant thus meets its burden of showing there are no triable issues of material fact over whether the uplifted sidewalk was a trivial defect. The burden shifts to Plaintiff.

Expert witnesses may not testify about issues of law or draw legal conclusions. (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122 (citing Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178.)) Evidence Code, section 801(b) permits a judge to determine whether the matter on which an expert relies in forming the opinion is of a type on which the expert may reasonably rely as a basis for the particular opinion offered. An expert opinion has no value if its basis is unsound, and matter that may provide a reasonable basis for one opinion may not necessarily provide a reasonable basis for another opinion. (Sargon Enters., Inc. v University of So. Cal. (2012) 55 C4th 747, 769–770.)

Here, Balaban improperly draws a legal conclusion by opining that differentials of ½ to ¾ of an inch are trivial as a matter of law. Because Balaban’s opinion of whether the defect is trivial is based on an improper legal conclusion rather than his education, experience, or other reasonable basis, Balaban’s opinion is of no value.

Plaintiff testifies in her own declaration that on the date of the incident, she was wearing running shoes and carrying a cell phone. (Cornelius Decl., ¶4.) However, the Court sustained Defendant’s objections with respect to Plaintiff’s testimony that the sidewalk was in a dangerous condition because it is an improper expert opinion under Evidence Code, sections 800.

Plaintiff cites cases, including Sheldon v. City of Los Angeles (1942) 55 Cal.App.2d 690 and Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, for the proposition that other factors may make a defect more dangerous despite a defect’s size. However, those cases involved obstructions to a defect’s visibility, such as a bench or tree leaves, which raised triable issues of material fact over whether a defect was trivial. Here, Plaintiff was not paying attention to the sidewalk because she was looking into the street after hearing the sound of screeching brakes. This distraction did not obscure the uplifted sidewalk from view and would not have made the condition more dangerous to a reasonably careful person. 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 also cites Fajardo v. Dailey (2022) 85 Cal.App.5th 221 as requiring the denial of Defendant’s motion. In Fajardo, unlike the facts here, defendant’s expert failed to provide a basis for the conclusion that the height differential at issue was less than one inch. (Id. at 227-228.) Moreover, in Fajardo, unlike here, there was a genuine issue of material fact about whether factors other than size rendered the defect nontrivial as defendant in that case did not meet its burden by producing a photo or other evidence regarding the condition of the asphalt patch at issue in Fajardo. (Id. at 228.) Moreover, in Fajardo, the Court of Appeal also found that the plaintiff submitted a photograph showing that the defect at issue had a rough texture, uneven surface, a jagged edge, and missing pieces, thus demonstrating other facts that could have rendered the condition nontrivial. (Id. at 229.)