Judge Kerry Bensinger, Case 19STCV24562 2023-02-07 Tentative Ruling

On July 15, 2019, plaintiff Emma Chisholm (“Plaintiff”) filed this action against defendants Paramount Unified School District (“Defendant”) and Does 1 through 50, asserting a single cause of action for premises liability. This is a trip and fall case where Plaintiff alleges that she sustained injuries on August 31, 2018, due to a damaged portion of the sidewalk at Howard Tanner Elementary school.

On January 25, 2023, the Court issued a tentative ruling. At the hearing, counsel for Defendant asked the Court to reconsider its tentative, and, emphasized its argument regarding constructive knowledge. The Court agreed to revisit the issues and continued the hearing to February 6, 2023.

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, subdivision (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.” (Id.) “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, subd. (c).)

“The first step is to determine the purpose for which the evidence is being offered. The purpose of the evidence will determine what must be shown for authentication, which may vary from case to case. [Citation.] The foundation requires that there be sufficient evidence for a trier of fact to find that the writing is what it purports to be, i.e., that it is genuine for the purpose offered. [Citation.] Essentially, what is necessary is a prima facie case. ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.’ [Citation.]” (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)

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:¿

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿¿

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

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.) While those who own, possess, or control property are not insurers of the safety of their patrons, they generally have a duty to exercise reasonable and ordinary care in keeping the premises reasonably safe and in managing the property¿to¿avoid exposing others to an unreasonable risk of harm. (Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1205 (Ortega); Annocki¿v. Peterson Enterprises, LLC¿(2014) 232¿Cal.App.4th 32, 37 (Annocki).) The existence and scope of duty are legal questions for the court. (Annocki, 232¿Cal.App.4th.¿at¿36.) 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.) Once duty is established, the plaintiff must prove that the defendant breached this duty by failing to exercise ordinary care and the breach was a substantial factor in causing plaintiff’s harm. (Id. at 1205.)

“To establish ‘actual notice,’ it is not enough to show that the state employees had a general knowledge [of the dangerous condition]. There must be some evidence that the employees had knowledge of the particular dangerous condition in question.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 399.)

“[C]onstructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection…The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident [Citation.].” (Id. at p. 400.)

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.)¿

Plaintiff’s Objections to Declaration of Pancy Lin: The Court OVERRULES the entirety of Plaintiff’s objections.

Plaintiff’s Objection to Defendant’s Notice of Errata and Request for Sanctions: The Court OVERRULES Plaintiff’s objection to Notice of Errata and DENIES Plaintiff’s requests for sanctions.

Defendant’s Objections and Request to strike Plaintiff’s Objection to Defendant’s Notice of Errata: The Court OVERRULES Defendant’s objections and DENIES Defendant’s requests for sanctions.

Defendant’s Objections to Plaintiff’s Compendium of Evidence: The Court OVERRULES Defendant’s objections Nos. 1-3.

Defendant moves the Court for an order granting summary judgment, or summary adjudication, as to Plaintiff’s premises liability on the grounds that the claim fails as matter of law because Plaintiff does not have and cannot present competent evidence (1) that an actionable dangerous condition of public property caused her alleged trip-and-fall and injuries; and (2) that Defendant had actual or constructive notice of any alleged dangerous condition. Defendant makes its argument in three parts: 1) Plaintiff’s identification of where she fell is based upon speculation; 2) application of the trivial defect doctrine precludes relief; and 3) Defendant did not have actual or constructive knowledge of the dangerous condition.

1. Plaintiff Presents Sufficient Admissible Evidence Regarding the Location of the Fall

Here, Plaintiff properly authenticated the lodged video in Exhibit E. (Notice of Lodging, Exhib. E.) The video was shown to Plaintiff during her deposition. In her deposition, Plaintiff set forth in sworn testimony that she was familiar with the video and that she understood her son took the video. Plaintiff also testified that once she saw the video, she saw that the concrete was uneven, that she did not trip over her own feet on the day of her fall, that upon seeing the video, she knew that was the area that she fell. (Plaintiff Depo: 32:12-17; 49:2-6.) This is sufficient to establish the location of the fall. Circumstantial evidence from Ms. Leal similarly places the fall near the uneven pavement, near the trees. Plaintiff has presented sufficient evidence to establish a triable issue of material fact.

Defendant’s cited cases are distinguishable from the instant case. Defendant’s cases show what courts have deemed as “speculative” evidence, where the plaintiffs could not point to a specific defective condition but only surmised that there was a “water-or-wax like substance,” or a “slippery substance.” (Mot. p. 14:1-25.) However, unlike those slip and fall cases, here, Plaintiff points to a specific condition on the sidewalk, as referenced in Exhibit E. and identifies with specificity the location of the fall, as depicted in the video.

“In summary, 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.” Although sometimes referred to as the trivial defect defense, the trivial defect doctrine is “not an affirmative defense but rather an aspect of duty ... plaintiff must plead and prove.”

The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances ... no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” This doctrine “permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury [and] provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.” The trivial defect doctrine has been expanded to embrace actions against private landowners.

“[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criteria. Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate. As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole. The court should also look at other factors such as whether the accident occurred at night in an unlighted area. Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.”

If the “court determines ... sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule ... the defect is not dangerous as a matter of law.” Conversely, where “the only evidence available on the issue of dangerousness does not lead to the conclusion ... reasonable minds may differ, then it is proper for the court to find ... the defect was trivial as a matter of law.”

Moreover, “ ‘[a]s to what constitutes a dangerous or defective condition no hard and fast rule can be laid down, but each case must depend upon its own facts.’ (Citation.)”

(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-28, citations omitted & emphasis added.)

In Huckey v. City of Temecula, the Court of Appeal, in affirming summary judgment for the city, stated in part: “[a] condition is ‘not dangerous,’ if ‘the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property ... was used with due care ...’ in a reasonably foreseeable manner.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104, citation omitted & emphasis added.)

In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect—in this case, on the depth or height of the walkway depression or elevation—although the defect's size “may be one of the most relevant factors” to the court's decision. The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.

These other circumstances or factors 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. In sum, “[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.”

The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. “First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. 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 ....”

Here, Defendant claims the “uneven concrete” where Plaintiff tripped is a trivial defect. The problem for the Defendant is that it did not present evidence as to the height, width, depth, of the crack.[2] Indeed, the best evidence presented is the video. The Court has reviewed the video. The uneven cement rises up in the walkway leading to the playground. The cement walkway is bordered by two dirt areas which have shrubbery and tall trees. In the dirt area adjacent to the uneven walkway stands a large tree. A reasonable inference to be drawn from the evidence presented is that the pathway was displaced over time by the roots of the tree. The uneven displacement runs between the two patches of dirt, and the slope of the crack decreases as it approaches one side of the pathway, leaving the other side of the pathway elevated. The height of the elevation is unknown, but upon visual depiction in the video, the displacement is sufficient to raise a triable issue of material fact concerning the application of the trivial defect doctrine. Based upon the height and shape of the uneven pathway, as depicted in the video, Defendant has not met its burden to demonstrate that the uneven pavement is a trivial defect as a matter of law. In reaching this conclusion the court considered the additional evidence that Plaintiff was familiar with the area as she had been to Tanner Elementary several times (5 to 6 times) to pick up her granddaughter and the incident occurred during the day at 11:45 am.

Given the foregoing the court need not reach the analysis of the secondary factors. Nonetheless, the video shows leaves and sticks within the uneven cement.

There is no evidence Defendant had actual notice of the alleged defective condition. However, there is sufficient circumstantial evidence to raise a triable issue of material fact on the issue of constructive notice. As stated above, constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.

Here, the circumstantial evidence provides a sufficient basis to reasonably infer that the dangerous condition was in place prior to Plaintiff’s injury and was in place for a sufficient period of time to place the Defendant on notice. As Plaintiff argues and the video depicts, the uneven pathway appears to be displaced by the nearby tree roots. This displacement would happen over a sufficiently long period of time to alert Defendant of the condition, so the Plaintiff’s argument goes.

The question of the notoriety of the condition and the length of time it must have existed are generally facts that must be resolved by the jury. Defendant has not presented any evidence or law that removes this case from this general rule. “The questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventive measures are properly left to the jury.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 843.)
Defendant has not presented any evidence to rebut the inference presented by the direct and circumstantial evidence presented in the video. Defendant did not submit expert testimony on this issue or any evidence to suggest the pathway erupted suddenly, such that Defendant could not have noticed it before Plaintiff fell. The video presents sufficient evidence to the contrary, at least sufficient to raise a triable issue of material fact. Defendant did not present any evidence that it maintained a system for finding and repairing defects and that during these inspections the pathway defect was not noticed. Nor did Defendant provide case law that forecloses Plaintiff’s constructive knowledge theory as a matter of law. As discussed previously, the Court rejected the contention that the displaced cement was trivial, at least for purposes of this motion. Accordingly, there is a triable issue of material fact whether Defendant had constructive notice of the defective condition.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] A court must determine if a defect is trivial as a matter of law based on all surrounding circumstances. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.) In determining whether a defect is trivial as a matter of law, the court first “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.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.)

[2] This may be because shortly after Plaintiff’s fall, Defendant repaired the pathway.