Judge Kerry Bensinger, Case Number: 19STCV22473, Date: 2023-09-08 Tentative Ruling

On June 27, 2019, Plaintiff, Efronia Manukyan, initiated this action against Defendants, City of Los Angeles (“City”), County of Los Angeles[1], and Zofia Wiacek[2], individually and as Trustee of the Wiacek Family Trust (“Wiacek”), for injuries and damages arising from a trip and fall on a portion of a sidewalk located in Los Angeles, California. Plaintiff asserts a single cause of action for Dangerous Condition of Public Property against City.

On October 25, 2022, City filed this motion for summary judgment. Plaintiff opposes and City replies.

On August 15, 2018, between 4:00 p.m. and 5:00 p.m., Plaintiff tripped and fell on an uneven portion of the sidewalk as she departed her cousin’s residence at 5717 W. La Mirada Avenue in Los Angeles, California.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿ (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)¿ “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿ While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿ [Citation.]¿ Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿ “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿ [Citation.]¿ Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.¿ [Citation.]”¿ (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿

Plaintiff and City have each submitted objections. Plaintiff objects to Paragraph 10 of the Declaration of Mark Blanchette and Paragraph 11 of the Declaration of Craig Shaw. City objects to twelve portions of the Declaration of Gary Gsell. The Court need not rule on these objections because they are not material to the disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

On August 15, 2018, between 4:00 p.m. and 5:00 p.m., Plaintiff tripped and fell on an uneven sidewalk condition after departing her cousin Tsovik Galechyan’s residence, which is located at 5717 W. La Mirada Avenue in Los Angeles. (City’s Undisputed Material Fact (“UMF”) UMF 1.) Plaintiff had visited Tsovik at the La Mirada Avenue residence about once per month during the previous five years. (UMF 2.) After visiting with Tsovik, Plaintiff exited the building and began walking towards a vehicle which was parked at the curb. (UMF 3.) Plaintiff’s cousin Asmik Farsakyan was in or near the vehicle and was going to give Plaintiff a ride home. (UMF 4.) As Plaintiff walked toward the vehicle, she remembered that she left her (sun) umbrella at Tsovik’s residence. (UMF 5.) Plaintiff turned around and began walking back toward Tsovik’s residence to retrieve her umbrella. (UMF 6.) While walking back to Tsovik’s residence, Plaintiff’s right foot struck an uneven sidewalk condition and she fell. (UMF 7.) Because the incident occurred between 4:00 p.m. and 5:00 p.m. on a day on which the sun set at 7:40 p.m., there was ample lighting at the location of the Plaintiff’s fall. (UMF 17.) The subject elevation change on which Plaintiff tripped is located at a North to South running seam in the sidewalk and exists between the East and West concrete slabs of the sidewalk. (UMF 21.) The elevation change is greatest at the southern edge of the sidewalk (planter side). (UMF 22.) The maximum elevation change at this seam is approximately 1 and 5/16th inches. (UMF 23.) There were no other claims for personal injury presented to the City due to any sidewalk condition located at 5717 W. La Mirada Avenue for the ten-year period preceding the date of Plaintiff’s incident. (UMF 24.) Due to the lack of funding and manpower available to the City’s Bureau of Street Services, the City maintains a reactive system of inspection and repair of its sidewalk, which is consistent with other major metropolitan cities in the United States. (UMF 27.)

To establish a claim of dangerous condition on public property, a plaintiff must prove: (1) that the defendant owned or controlled the property; (2) that the property was in a dangerous condition at the time of the injury; (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) that defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) that plaintiff was harmed; and (6) that the dangerous condition was a substantial factor in causing plaintiff’s harm. (Gov. Code, § 835; CACI No. 1100.) A “dangerous condition” is a condition of public property that creates a substantial (as distinguished from a minor, trivial, or significant) risk of injury to members of the general public when the property [or adjacent property] is used with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition. (Gov. Code, § 830; CACI No. 1102.)

This motion turns on two issues: (1) whether the offset or “uplift” in the subject sidewalk is a dangerous condition or a trivial defect, and (2) whether City had actual or constructive notice of the condition.

“Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property. But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property. The so-called ‘trivial defect doctrine’ recognizes that persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226 [cleaned up].)

“In limited circumstances a court may determine a walkway defect is trivial as a matter of law. Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment. But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.” (Id. at p. 226.) Courts have found that where a sidewalk slab is raised in elevation by only 3/4 of an inch, such a ‘defect’ is not dangerous as a matter of law. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 725 (listing cases that support the contention that “where a sidewalk slab is raised in elevation by only about 3/4 of an inch, such a ‘defect’ is not dangerous as a matter of law.”).) “[W]hen the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Id. at p. 726.)

“California Courts of Appeal typically follow a two-step analysis for determining whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law.” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 308. (Stack))[3] “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, 567-68; see Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758 [adopting two-step framework]; Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105 [same].)

City argues the alleged dangerous condition constitutes a trivial defect as a matter of law. In support, City points to the undisputed fact that the height differential of the subject sidewalk is 1 and 5/16ths inches. (UMF 23.) This height, City argues, falls within the type and size of defects held to be trivial. Not so. In Fielder, supra, the Court of Appeal observed that “when the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Fielder, 71 Cal.App.3d at p. 726.) Here, the parties agree the defect “strech[es] beyond one inch.” As such, the height differential of the first defect weighs heavily against finding the sidewalk condition trivial as a matter of law. (See Stack, supra, 91 Cal.App.5th at p. 114.)

The Court next considers additional factors. “Beyond size, additional factors courts typically consider in assessing a sidewalk condition's triviality as a matter of law are: the nature and quality of the defect (including whether it has jagged breaks or cracks); whether anything was obstructing or concealing the defect (for instance, an object, debris, or other substance); the lighting and weather conditions at the time of the incident; whether the defect has caused other accidents; and plaintiff's familiarity with the area.” (Stack, supra, 91 Cal.App.5th at p. 115.)

City argues there are no additional factors that would convert the defect into a dangerous condition: the incident occurred between 4:00 p.m. and 5:00 p.m. in August so there would not have been any issues as to lighting, (UMF 17); Plaintiff is familiar with the area as she visited her cousin once a month for the past five years, (UMF 2); there is an absence of prior incidents at the subject sidewalk, (UMF 24); and the defect did not have jagged edges nor was Plaintiff view obstructed by debris. The lighting, Plaintiff’s familiarity of the area, and the absence of prior incidents tend to support City’s position. However, Plaintiff submits evidence showing that the defect is not beveled or smooth. Rather, the edge of the displaced sidewalk appears irregular and jagged. (Upton Decl., ¶ 3, Ex. 1.) Plaintiff also submits evidence showing the subject sidewalk is covered in debris. (Upton Decl., Exs. 2 and 3.) In sum, the sidewalk condition at issue “can fairly be viewed as consisting of more than one defect.” (Stack, supra, 91 Cal.App.5th at p. 115.) City fails to meet its initial burden to show the defect was trivial as a matter of law.

“To recover under section 835, a plaintiff must prove ... that the public entity either created the dangerous condition through a negligent or wrongful act or omission of its employee, or had actual or constructive notice of the dangerous condition sufficiently in advance of the accident as to have had time to remedy it.” (Bonnano v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 156.) A public entity has constructive notice of a dangerous condition only if the plaintiff proves that the condition has existed “for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code §835.2(b).)

Even if the condition is deemed not to be a trivial defect as a matter of law, City argues it did not have actual notice of the defect because there is an absence of other reported accidents involving the subject sidewalk. (See UMF 24.) City further argues it lacked constructive notice of the condition because the condition was trivial and because a reasonable inspection system would not have discovered the condition. Putting aside the issue of actual notice, City’s constructive notice argument fails for three reasons. First, the defect is not trivial as a matter of law. Second, City concedes that it utilizes a reactive system. (UMF 27.) “Inspection” connotes proactive behavior. A reactive system is, by definition, not proactive. Third, Plaintiff submits evidence to show the City received at least fifteen service requests for areas on or near the subject sidewalk. (Moreno Decl., Ex. A.) Of those fifteen service requests, two are requests to repair sidewalk defects on the 5700 block of West La Mirada Avenue. Both service requests preceded the alleged incident (January 2016 and January 2018). Further, Plaintiff also submits Google Maps images of the subject sidewalk which show the condition existed since at least August of 2014. (Upton Decl., ¶ 5, Ex. 2.) Plaintiff shows the condition existed for a sufficient period of time to establish constructive notice, or sufficient to raise a triable issue of material fact regarding constructive notice. While this evidence does not establish City had actual notice of the subject condition, the evidence is sufficient to raise triable issues of material fact regarding constructive notice of the subject condition. (Weiss, supra, 9 Cal.5th at p. 864.)

There are triable issues of material fact regarding the quality and nature of the sidewalk condition and City’s notice of the same which must be decided by a jury. Accordingly, the motion for summary judgment is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Dismissed with prejudice on January 26, 2021.

[2] Dismissed with prejudice on July 27, 2022.

[3] Neither counsel cite Stack, which is the most recent appellate court opinion on the trivial defect doctrine. Stack departs somewhat from the more familiar two-step approach and adopts a “holistic, multi-factor analysis.” (Stack, supra, 91 Cal.App.5^th at p. 110.) Either way, whether the Court applies a two-step or holistic approach, the result here is the same.