Judge Jill Feeney, Case Number: 21STCV25852, Date: 2023-08-03 Tentative Ruling

This is an action for premises liability and negligence arising from a trip and fall incident which took place in February 2021. Plaintiff Joan Cornelius filed her Complaint against Defendants County of Los Angeles and the City of Covina on July 14, 2021.

“A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co.¿(1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Code of Civil Procedure sections 657 and 659. Under Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.

A new trial motion is available to challenge the granting of a summary judgment motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.) When a new trial is granted following summary judgment, the new trial motion is in the nature of a¿motion for reconsideration¿(Code Civ. Proc., section 1008) and subject to the same requirements (Passavanti v. Williams¿(1990) 225 Cal.App.3d 1602, 1606.)

A motion for new trial must be filed within 15 days of the date of mailing of entry of judgment by the clerk of the court or within 180 days after entry of judgment, whichever is earliest. (Code Civ. Proc., section 659.)

Here, Defendant’s evidence shows that on February 5, 2021, 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, 2021. (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 ½ 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 ½ and 13/16 of an inch. (Gurrola Decl., ¶6.)

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].

The defects in the sidewalk 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. 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 defendant in Fajardo provided no evidence of how high the displacement was between two concrete slabs. Additionally, there was a factual issue about the size of the defect because measurements of the site showed the defect was between 13/16 of an inch high and 1 and 3/16 of an inch high. Finally, other factors in Fajardo made the defect more dangerous, including the uplift’s irregular and jagged shape, as well as evidence that the concrete slab was hollowed out and broken in some places.

Here, unlike in Fajardo, Defendant did provide evidence of the size of the defect and there were no aggravating factors, such as the weather conditions, debris, shadows, or other conditions that would have made the defect more dangerous.

Plaintiff also argues that trivial defects generally involve defects that are a fraction of an inch. Plaintiff cites many cases where courts have ruled that offsets of anywhere between ½ inches to 1 and ½ inches were trivial as a matter of law. These cases to not appear to support Plaintiff’s position because the offset here was at most 13/16 of an inch. This measurement is well-within what courts have determined to be trivial as a matter of law.

Plaintiff also argues that her expert, Martin Balaban, provided evidence that the subject defect was not trivial. In the original ruling, the Court sustained Defendant’s objection to this legal conclusion and stated as follows.

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.)

Plaintiff argues that Balaban had an absolute right to rely on California case law in support of his opinion. However, Plaintiff cites no legal authority supporting this argument. Moreover, it is well-settled that the manner in which the law should apply to particular facts is a legal question and not subject to expert opinion. (Ferreira v. Workmen's Comp. Appeals Bd. (1974) 38 Cal.App.3d 120, 126 (citing L. A. Teachers Union v. L.A. City Bd. of Ed. (1969) 71 Cal.2d 551, 556.) Furthermore, an expert’s opinions are not substantial evidence if they are based on incorrect legal theories. (Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378..)

Here, Balaban inappropriately provided an expert opinion on how the legal question of whether the alleged defect was trivial as a matter of law applied to the facts at hand. Second, Balaban based his opinion on an incorrect legal theory that differentials are only trivial as a matter of law if they are between ½ to ¾ of an inch. However, as Plaintiff’s opposition concedes, California courts have found differentials between ½ of an inch to 1 and ½ of an inch to be trivial.

Plaintiff also argues that Defendant had notice of the alleged condition. However, the Court’s original ruling did not include an analysis of notice because it was unnecessary after the Court granted Defendant’s motion for summary judgment on the grounds that the alleged defect was trivial. Plaintiff reiterates arguments from her original opposition and relies on the same facts that were in the records when the Court originally ruled on the motion for summary judgment.

Plaintiff’s counsel, Paul M. Mahoney, submitted a declaration that was irrelevant to the motion at hand and impugned the integrity of the court. Defendant objected to the declaration on the grounds that it is irrelevant, speculative, and lacks foundation. The Court sustains Defendant’s objections.

The Court notes that the Court of Appeal found that Mahoney was in contempt for making similar statements in a different matter. (In re Mahoney (2021) 65 Cal.App.5th 376, 381.) The case was published “as a cautionary tale” to instruct others on the importance of professional speech not undermining confidence in the courts. (Id.) Due to the nature of the declaration, in addition to sustaining Defendant’s objections to the declaration, the declaration is stricken from the record.