Judge Kerry Bensinger, Case Number: 21STCV38266, Date: 2023-09-11 Tentative Ruling

On October 18, 2021, Plaintiff, Noyemik Rostamlou, initiated this premises liability action against Defendant, City of Glendale (“City”), for injuries and damages arising from a trip and fall on an uneven portion of a sidewalk in front of 809 East Broadway in Glendale, California.

On January 12, 2022, Plaintiff filed the First Amended Complaint (“FAC”) on a Judicial Council form. In the FAC, Plaintiff asserts causes of action for Negligence and Dangerous Condition of Public Property.

On June 26, 2023, City filed this motion for summary judgment. Plaintiff opposes and City replies.

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”].)¿

In its Reply, City asserts five objections to Plaintiff’s evidence. The objections do not affect the Court’s disposition of this motion. Consequently, the Court declines to rule on City’s objections. (Code Civ. Proc., 473c, subd. (q).)

On June 25, 2021, at approximately 6:00 p.m., Plaintiff was walking in front of 809 East Broadway in Glendale, California when she tripped and fell on an offset sidewalk. (City’s Undisputed Material Fact (“UMF”) UMF 1.) The offset sidewalk is composed of shifted concrete slabs that are the same light gray color. (Plaintiff’s Response to UMF 3.) There was still daylight at the time of the incident. The weather was “good” and the ground was clear of debris. (Deposition of Noyemik Rostamlou, pp. 22:1-15, 29:9-10.) Nothing obstructed Plaintiff’s view of the sidewalk where she fell, and nothing distracted her immediately before the accident. (Rostamlou Depo., pp. 28:18-29:10.) Plaintiff had never walked down this portion of East Broadway before the incident. (Rostamlou Depo., p. 22:16-21.) City has no records of complaints, accidents, or requests for service at the subject location going back approximately 23 years. (UMF 6.) Plaintiff had never reported any sidewalk offsets to City, nor was she aware of anyone reporting the offset where she fell prior to the accident. (UMF 7.)

“Under the Government Claims Act (Gov. Code, § 810 et seq.), there is no common law tort liability for public entities in California; instead, such liability must be based on statute. (Guzman v. County of Monterey¿(2009) 46 Cal.4th 887, 897.)

Here, City argues summary judgment should be granted as to the First Cause of Action for Negligence because this claim is based on common law. As such, City, as a public entity, cannot be held liable. The Court agrees. The First Cause of Action for Negligence is a common law cause of action. Plaintiff does not offer any argument in opposition. Accordingly, the motion is granted as to negligence claim.

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 whether the offset or “uplift” is a dangerous condition or a trivial defect.

“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.)

California Courts have developed two substantially similar tests to determine whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law. In Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68, the Court of Appeal set out a two part test. “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 ....” (See also 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].)

More recently, in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 308, the Court of Appeal read Government Code section 830.2 to require a more “holistic” approach, stating, “[a]lthough we agree with the premise that the size of the defect is the primary determinant of triviality, as discussed below, we modify the prevailing two-step framework into a holistic, multi-factor analysis.” The Court will follow Stack’s holistic approach, although the result would be the same under either test.

“We begin with the most important factor: the defect’s size.” (Stack, 91 Cal.App.5th at p. 110 [cleaned up].) “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107; see Stathoulis, supra, 164 Cal.App.4th at p. 568 [“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”]) A more “accurate encapsulation” of the law, according to Stack, is 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, i.e., that it is minor or trivial.” (Stack, supra, 91 Cal.App.5th at p. 112.) “That said, there is no firmly fixed arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous. This is because a court should not rely solely upon the size of the defect ... although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.” (Id. at pp. 112–113 [cleaned up].)

Here, City argues the size of the uplift is 15/16 of an inch. In support, City submits the Declaration of Public Works Street Crew Supervisor, Matthew Binder. On August 10, 2021 (47 days after the incident), Binder visited the scene of the incident and measured the subject differentials at their highest points. City presents several clear pictures of three measurements taken at various points across the span of the uplift, which accurately record the displacement at 15/16 of an inch. (Declaration of Matthew Binder, ¶ 5, Ex. 6.) Plaintiff does not challenge the accuracy of the City’s measurements. Nor can it.

Instead, Plaintiff offers its own semblance of a measurement and argues the offset measured 1 inch and 3/4. Of course, the offset cannot be 15/16th of an inch and 1 and 3/4 of an inch at the same place on the uplift. One measurement is accurate, the other inaccurate. Plaintiff’s is inaccurate. Plaintiff submits photographs taken of the offset on June 26, 2021 (the day after the incident). (Plaintiff’s Appendix of Evidence, Ex. B.) In two photographs, Plaintiff’s daughter holds a car key near the separation of the slabs to create a visual reference point of the vertical lift against the metal portion of the car key. The key is not flush against the uplift. There is no demarcation on the key to use as a reference point to measure the rise of the uplift. Moreover, the key is separated a short distance from the vertical slab and tilted somewhat away from the vertical slab. The key is a poor measuring tool, made all the worse by the downward angle of the photograph (in the second of the two photographs or the fourth photograph included in Exhibit B.) Plaintiff then uses a second photograph as the “control” photograph to demonstrate the length of the metal part of the car key by placing the key alongside a tape measurer against the metal portion of the key. (This is the seventh photograph in Exhibit B.) The metal portion of the key from tip to base is approximately one and three-quarter inches. The flaw in Plaintiff’s 1 and 3/4 inch argument is that the first picture does not demonstrate accurately where the lift begins and ends on the metal portion of the key. The picture is taken from an angle that distorts what might have made a visual cross-comparison to measuring tape possible.

Given the foregoing, the uplift measures less than an inch. The first factor, which is the most important factor, weighs heavily in favor of finding the uplift to be 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.) With respect to the various foregoing factors, Stack held that “individual familiarity is not a proper factor for consideration within the trivial defect doctrine.” (Id. at p. 120.)[2] The Court will address each factor in turn.

The defect here consists of one straight, non-jagged differential between two horizontal concrete slabs or panels in the sidewalk. The top slab is fairly level across the top without jagged edges, cracks, or disruptions, as is the bottom panel. (See Declaration of Matthew Binder, ¶ 5, Ex. 6; Plaintiff’s Appendix of Evidence, Ex. B.) In other words, there is simply one uneven uplift.[3]

Plaintiff contends the edges of the slabs were chipped. The Court infers from this contention that the purportedly chipped edges constitute jagged edges. Jagged edges are aggravating factors to be considered. (Huckey, supra, 37 Cal.App.5th at p. 1105.) However, the photographs submitted by both parties do not depict “jagged” or chipped edges along the horizontal planes of the slabs. [4] They are not perfect, 90 degree angles, but that is not the test. (Cf. Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 291 [finding photographic evidence (albeit “imprecise in quality and susceptible to various interpretations”) as revealing an “irregular and jagged break” sufficient to show the defect was not trivial as a matter of law].) Indeed, Plaintiff baldly asserts the edges of the panels are chipped without identifying or supplying photographs that show the presence of chipped edges. Unlike Barone, the parties’ photographs of the defect consistently show a regular and level uplift without jagged breaks. Moreover, assuming there are chipped edges in the concrete slabs here, there is no evidence Plaintiff tripped on the portion of the defect with the chipped edges.

Plaintiff contends next that the height differential was difficult to discern because the concrete slabs were the same color. Plaintiff fails to support its argument with any authority that stands for the proposition that continuity of color of an uneven walking surface renders the condition dangerous as a matter of law. Moreover, Plaintiff has not submitted any expert testimony to support that contention or that shows how the continuity of color of the subject sidewalk affected Plaintiff’s ability to perceive the uplift.[5] As discussed below, there is evidence the subject sidewalk was adequately lit and Plaintiff’s view of the uplift was unobstructed at the time of the incident. The photographic evidence presented demonstrates that the uplift, rather than continue the monochromatic visual effect of the sidewalk, disrupts the very effect about which Plaintiff complains.

In sum, this factor weighs in favor of deeming the condition trivial as a matter of law.

Another factor to consider is whether any dirt, debris, or other material obscured a pedestrian’s view of the defect. (Stack, supra, at p. 115; Huckey, supra, at p. 1105.)

Here, City submits Plaintiff’s discovery responses and testimony to show the defect was clear of debris. (Motion, Response to Request for Admission No. 3, Exs. 4 and 5; Rostamlou Depo., p. 29:9-10.) Plaintiff contends the defect was covered in debris. Plaintiff’s argument lacks factual support. First, in her responses to City’s discovery requests, Plaintiff identified only two conditions rendering the defect dangerous: the height differential itself and the color continuity of the uneven concrete slabs. (Motion, Response to Special Interrogatories, No. 4, Exs. 2 and 3.) In her deposition, Plaintiff testified the ground was clear. No dirt or leaves were covering the ground. (Deposition of Noyemik Rostamlou, pp. 22:1-15, 29:9-10.) Nothing obstructed Plaintiff’s view of the sidewalk where she fell, and nothing distracted her immediately before the accident. (Rostamlou Depo., pp. 28:18-29:10.) Second, Plaintiff offers photographs taken the day after the incident. These photographs depict some leaves in the crack between the slabs but are far from covering or obstructing the defect from view. The pictures are not from the date of the incident and, just as in Huckey, Plaintiff “neither alleged in [her] complaint nor stated in [her] declaration or deposition, that [she] had a difficult time seeing the height differential because dirt, debris, or a shadow obscured it from view.” (Huckey, supra, at p. 1109.)

This factor also weighs in favor of deeming the condition trivial as a matter of law.

City argues the lighting and weather conditions did not contribute to rendering the defect more dangerous than its mere height differential would indicate. (Stack, supra, at p. 113.) In support, City submits Plaintiff’s discovery responses and testimony to establish the alleged incident occurred when the sidewalk was dry, (Response to Special Interrogatory No. 17, Exs. 2 and 3), and when it was not dark/there was still daylight, (Rostamlou Depo., p. 22:1-15). Nor were there any shadows on the sidewalk at the time of the incident. (Response to Request for Admission No. 4, Exs. 4 and 5.) Plaintiff does not offer evidence to the contrary.

City offers the Declaration of Matthew Binder to show the City has not received any complaints or reports concerning the subject sidewalk in the 23 years prior to the incident. (Binder Decl., ¶¶ 2-4). Plaintiff does not offer evidence to the contrary.

In sum, the Court finds the height differential of the uplift (less than an inch), adequate lighting, dry conditions, lack of debris, the overall evenness of the offset, and the absence of prior incidents bring this case well within the parameters of the trivial defect doctrine. As the court concluded in Huckey:

Thus, the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and, therefore, would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential “with due care” at the time plaintiff fell. (§§ 830, 830.2.) To be sure, the height differential posed some risk of injury. Construed in the light most favorable to plaintiff, the record supports a reasonable inference that height differentials higher than one-half inch pose a trip hazard to pedestrians. But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830; see § 830.2.) On this record, this standard was not met.

(Huckey, supra, at pp. 1109-1110.) The same is true here. As such, City is entitled to summary judgment.

City is ordered to prepare and submit a proposed judgment within 10 days of this order.

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] Plaintiff tries to avoid entirely the application of the trivial defect doctrine by arguing the City conceded the uplift constituted a dangerous condition. To make this argument, Plaintiff points to Mr. Binder’s statement that he assigned workers to “grind the displacement flush.” (Plaintiff’s Appendix of Evidence, Ex. E.) From this work order, Plaintiff extrapolates a concession. Plaintiff reaches too far. First, the work order is not a concession. To so conclude is a mischaracterization of the work order. Second, any such inference runs afoul of the subsequent remedial measure rule. (Evid. Code, § 1151.) Finally, Plaintiff’s reliance upon Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812, to support such a conclusion is misplaced. In Laurenzi, the Court held that a testimonial concession that the condition was dangerous, when considered along with other factors, provided substantial evidence to uphold a jury verdict finding that a hole two and half inches deep on the defendant city’s sidewalk was a dangerous condition. Here, by contrast, Mr. Binder’s work order is neither testimonial nor a concession. Laurenzi is inapposite. (See Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 759 (partially published opinion finding Laurenzi distinguishable).

[2] Even if the Court were to consider Plaintiff’s lack of familiarity with the area, that factor would not change the ultimate outcome. Indeed, Plaintiff’s lack of familiarity with the area does not increase the dangerousness of the uplift. This is, after all, a city sidewalk, not a wooded, cross-country trail.

[3] Compare with Stack, where two sets of abutting sidewalks (the first defect and the second defect), separated by about 20 feet, formed a slight valley with downward- and upward-sloping panels in between. (Stack at p. 115.)

[4] There is a divot in the lower right corner of the bottom slab. There is no evidence Plaintiff tripped on this corner portion of the lower slab. (Plaintiff’s Appendix of Evidence, Ex. B, picture 2; Declaration of Matthew Binder, ¶ 5, Ex. 6.)

[5] Nor is the Court persuaded, that standing alone, the lack of color differentiation between sidewalk panels creates a dangerous condition. If the color continuity could turn an otherwise trivial defect into a dangerous condition, City would start with one strike against it. In a situation where no other aggravating factor exists, finding the existence of a monochromatic color scheme to constitute a dangerous condition as a matter of law would violate the “well-established principle that public entities are not insurers against injuries arising from minor or trivial defects.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 240.) Given the size of the defect here (less than inch), and the absence of other aggravating circumstances, Plaintiff’s color continuity argument, without more, fails to overcome the trivial defect doctrine.