Judge Kerry Bensinger, Case Number: 22STCV06910, Date: 2023-10-17 Tentative Ruling

On February 24, 2022, Plaintiff, Dora Anaya, initiated this action against Defendant, Newmark Merrill Companies, Inc., arising from a slip and fall on a speed bump in the parking lot of Defendant’s premises. Plaintiff asserts causes of action for (1) Premises Liability and (2) Negligence.

On August 3, 2023, Defendant filed this motion for summary judgment, or in the alternative, summary adjudication.

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”].)¿

The alleged incident occurred on January 3, 2020, in the parking lot located at 2900 West Imperial Hwy, Inglewood, California (the “Premises”). (Defendant’s Undisputed Material Fact (“UMF”) UMF 4.) Plaintiff claims she tripped on a speed bump in the parking lot. (UMF 5.) The speed bump was yellow. (UMF 6.) The surface surrounding the speed bump was black. (UMF 7.) The incident occurred during the early afternoon. (UMF 8.) It was light out when the incident occurred. (UMF 9.) The height of the speed bump ranges from one to three inches. (UMF 10.) The width of the speed bump is approximately 20 to 24 inches. (UMF 11.) The length of the speed bump is 251 inches. (UMF 12.) Plaintiff was walking toward the speed bump and saw it before the incident occurred. (UMF 13, 14.) Before the incident, Plaintiff saw a lot of other speed bumps in the parking lot. (UMF 15.) Before the incident, Plaintiff’s right foot stepped over the speed bump. (UMF 16.) Plaintiff claims her foot got caught in a crack on the speed bump. (UMF 17.) Plaintiff described the crack as an “opening” on the speed bump. (UMF 27.)

From the date of the incident to present, the speed bump has not been replaced, repaired, or modified. (UMF 24.) As of August 2, 2023, there were no measurable defects on the roadway surface immediately before and after the speed bump. (UMF 19.) As of August 2, 2023, the only depression on the west side of the speed bump had an elevation change of less than 5/8 inch below the plane of the speed bump face. (UMF 20.) As of August 2, 2023, the largest elevation change on the east side of the speed bump was less than 3/8 inch. (UMF 21.) There is no evidence that the speed bump had a jagged edge, debris, grease or water in or around the crack that was allegedly involved in the incident. (UMF 22.) There is no evidence of any obstructions or shadows that concealed any crack that was allegedly involved in the incident. (UMF 23.) From 2019 to the present, other than other than the subject incident, there have been no reports of slips, trips or falls on or around the speed bump. (UMF 25.)

The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Accordingly, the Court considers Plaintiff’s negligence and premises liability causes of action together.

Defendant argues it did not owe a duty of care to Plaintiff for two reasons: (1) the crack in the speed bump was trivial as a matter of law, and (2) the condition was open and obvious. Because the Court concludes the defect was trivial, the Court does not address the second argument.

“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).)[2] “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, [and] the existence of debris or obstructions, .... 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].)

Defendant argues the alleged dangerous condition is “trivial” as a matter of law. In support, Defendant points to the following undisputed facts: the largest elevation change on the east side of the speed bump was less than 3/8 inch and the largest elevation change on the west side was less than 5/8 inch (UMF 20-21); there were no measurable defects on the roadway surface immediately before and after the speed bump (UMF 19); there is no evidence that the speed bump had a jagged edge, debris, grease, or water in or around the crack that allegedly caused Plaintiff to fall (UMF 22); there is no evidence of any obstructions or shadows that concealed the alleged defect (UMF 23); and because the incident occurred during the early afternoon, there was still sunlight (UMF 8-9). Additionally, the speed bump has not been repaired, replaced, or modified since the date of the incident. (UMF 24.)

Whether applying the Huckey two-step approach or the holistic, multi-factor analysis under Stack, Defendant presents sufficient evidence to show the defect is not dangerous as a matter of law. Defendant establishes the elevation change between the speed bump and the crack on the speed bump measured less than an inch. Evidence of any potentially aggravating factors is missing. For example, the crack was not covered with debris or other substances. There was sufficient lighting. In sum, Defendant meets its burden to show there are no triable issue of material fact. The burden shifts. Plaintiff has not filed an opposition. Defendant’s evidence is unrebutted. Defendant is entitled to summary judgment.

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] A failure to oppose a motion may be deemed a consent to the granting of the motion.¿ (Cal. Rules of Court, rule 8.54(c).)

[2] 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.