Judge: John C. Gastelum, Case: 20-01148663, Date: 2022-08-30 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendants, ESSEX MANAGEMENT CORPORATION AND VILLA ANGELINA APARTMENT FUND, LTD. move the court to summarily adjudicate the two causes of actions related to the purported trip and fall set forth in the first and second causes of action in Plaintiff WINONA LEWIS’ complaint. Specifically, Defendants seek adjudication of the following issues:
ISSUE 1: Plaintiff Cannot Prevail Because Any Alleged Defect is Trivial, Minor and Insignificant, and Does not Constitute a Dangerous Condition As a Matter of Law. Defendants are entitled to summary adjudication on the first and second causes of action related to the purported trip and fall incident because any alleged defect is trivial, minor and insignificant.
ISSUE 2: Essex Had No Duty to Warn Plaintiff of an Open and Obvious Condition on the Premises. Defendants are entitled to summary adjudication on the first and second causes of action related to the purported trip and fall incident because any alleged defect is open and obvious.
Motion is DENIED.
Trip and Fall Generally / Trivial Defect: Defendants cite to various authority for the proposition that the height differentials of up to one and one-half inches are trivial as a matter of law.
Defendants cite Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 which provided, in part, “It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990.) Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.” (Emphasis added.)
The
Court of Appeal also noted:
A court should decide whether a defect may
be dangerous only after considering all of the circumstances
surrounding the accident that might make the defect more dangerous than its
size alone would suggest. (Fielder v. City of Glendale, supra, 71
Cal.App.3d at p. 734, 139 Cal.Rptr. 876.) Aside from the size of the defect,
the court should consider whether the walkway had any broken pieces or
jagged edges and other conditions of the walkway surrounding the defect,
such as whether there was debris, grease or water concealing the defect, as
well as whether the accident occurred at night in an unlighted area or some
other condition obstructed a pedestrian's view of the defect.
(Id., emphasis added.)
The
Court of Appeal noted it was undisputed that the difference in elevation
created by the crack in subject walkway was less than half an inch
at the highest point, and that “Many decisions have held that sidewalk
defects greater than this were trivial as a matter of law. (See cases cited
in Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74, 256
P.2d 977 [elevations ranging from three-fourths inch to one and one-half
inches found minor] and in Fielder v. City of Glendale, supra, 71
Cal.App.3d at p. 724, fn. 4, 139 Cal.Rptr. 876 [same].)”, and therefore that
the defect in the Caloroso case should also be deemed trivial as a
matter of law, unless there is disputed evidence that other conditions
made the walkway dangerous.
(Id., emphasis added.)
Initially, however, it appears even Defendants admit the gap may have been larger than 1 ½ inches. UMF No. 20 states:
20. As Plaintiff was walking, the tip of Plaintiff’s right shoe got stuck on a one to two inch gap or separation between the square cement blocks on the sidewalk. RJN Exhibit 1 Verified Complaint, ¶47; Muench Decl. Exhibit 3, Plaintiff’s Deposition 47:24-48:8; 50:19-22; 52:6-8; 73:4-6.
(Emphasis added.)
Furthermore, Plaintiff disputes this fact, and provides the material fact that “As Plaintiff was walking, the tip of her right shoe became caught inside a 2+ inch gap, and stuck on a 2+ inch uneven elevation between the square cement blocks on the walkway path. (Defendants' Exhibit 1 Verified Complaint ¶13; Plaintiff's Deposition 48:17-49:20, 52:6-14; Plaintiff Dec. ¶7; Simonian Dec., Exhibit 2)
(Emphasis added.)
Indeed, Plaintiff declares, “As I was walking, the tip of my right shoe became caught inside a 2+ inch gap, and stuck on a 2+ inch uneven elevation between the square cement blocks on the walkway path.” (Decl., of Lewis ¶7.)
Therefore, the Court finds the defect was not trivial as a matter of law, being larger than the trivial defects in the authorities cited to by Defendants in the motion.
Additionally, even if the defect was trivial, there is other circumstances regarding the incident which establish the defect not trivial as a matter of law.
To that end, Plaintiff declared that:
12. The subject pathway on which I tripped and fell was lined with tall, bushy trees, along with multiple story buildings and apartment units, which cast dark shadows throughout the floor of pathway, creating light and shadowy contrasts on the floor, making it impossible for me to notice and/or avoid the 2+ inch gap and 2+inch elevation on the ground with my naked eye.
13. Leading up to the incident, the light and shadowy contrast on the ground obstructed my ability to notice any significant gaps and/or elevations on the ground.
(Emphasis added.)
Therefore, given all the circumstances, the Court cannot determine as a matter of law that the defect upon which Plaintiff slipped was trivial.
Open and Obvious: “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)
Here, as set forth above, there are triable issues of material fact as to whether the condition was open and obvious given Plaintiff declares the “light and shadowy contrast” obstructed her ability to see it. (Decl. of Lewis ¶13.)
Additionally, Plaintiff argues Defendants themselves did not notice the gap in order to repair it (see AMF Nos. 37-50 and evidence cited therein); and therefore, the defect was not open and obvious.
The issue should go to the trier of fact. Motion is DENIED.
RFJN of Complaint and Answer is granted.
Plaintiff to give notice.