Judge Lee S. Arian, Case Number: 20STCV03225, Date: 2024-02-16 Tentative Ruling

Friday, February 16, 2024

Defendant City of Beverly Hills’ Motion for Summary Judgment is GRANTED.

Anna Nassib (Plaintiff) filed a Complaint on January 27, 2020, followed by a subsequent First Amended Complaint (FAC) against the County of Los Angeles and the City of Beverly Hills (the City). This case stems from a trip and fall incident that occurred on April 25, 2019, at the intersection of North Beverly Drive and Brighton Way, in Beverly Hills, California. (FAC, ¶ 8.) Plaintiff alleges that the location where she tripped and fell was a dangerous condition in violation of Government Code Section 835 (GOV § 835). Accordingly, Plaintiff has alleged one cause of action for violation of GOV § 835, and a second cause of action for violation of GOV § 815.2 for vicarious liability against the City. On February 23, 2023, the City filed the motion before the Court, the City of Beverly Hills’ Motion for Summary Judgment (Motion). Plaintiff opposed the Motion, and the City filed a reply.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.)

“The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

1. Declaration of Carla Smith (Smith Decl.) ¶ 8, pg. 2, line 25 – pg. 3, line 2: Overruled (for purpose of Notice).

2. Declaration of Robert Sahagun (Sahagun Decl.) ¶ 13, pg. 4, lines 4-10: Overruled (same).

With their reply papers, the City submits 12 objections. All objections by the City are Sustained.

Here, the City’s Motion is granted because the City negated the element of a dangerous condition, showing that instead it was only trivial. Additionally, the City demonstrated that there was no actual nor constructive notice. Plaintiff fails to demonstrate a triable issue of material fact exists because (1) they provide no evidence that there was a dangerous condition, (2) the testimony of the expert lacks proper foundation and expertise, and (3) Plaintiff provides no evidence that the City was on notice. Therefore, as explained below, the Motion is granted.

The City carried its initial burden by negating the element of a dangerous condition

Plaintiff’s first cause of action is for violation of GOV § 835 which provides that a public entity is liable for injury caused by a dangerous condition of its property if: (1) plaintiff establishes that the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and either (4)(a) a negligent or wrongful act or omission of an employee of the public entity occurred within the scope of employment or (4)(b) the public entity had constructive notice of the dangerous condition. To constitute a dangerous condition under GOV § 835, public property must possess a physical defect which creates a substantial risk of injury, as distinguished from a minor, trivial or insignificant, risk of injury. (GOV §830(a).) Harmful conduct in and of itself cannot form a basis for recovery without a direct causal connection with the physical defect. (Bartell v. Palos Verdes Peninsula School District (1978) 83 Cal.App.3d 492, 497.)

Here, Defendant provides (1) the plain view of the photograph (Declaration of Alexander Y. Kim, hereinafter, “Kim Decl.”, Exh. C) produced by Plaintiff depicting the alleged condition and (2) the Declaration of Robert Sahagun (Sahagun Decl.). Sahagun is the Street Services Manager for the City, whose responsibilities include the oversight of maintenance of the City’s streets, public right of ways, sidewalks, roadways, and signage. (Sahagun Decl., ¶ 3.) In reviewing the plain view of the photograph, the City points out – and the Court agrees – that the Court is well within its discretion to determine whether the defect is trivial. (Caloroso v. Hathaway, 122 Cal.App.4^th 922, 928 […“there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.”].) The photo presented shows a typical crosswalk with the common white marks designating the crosswalk. The exact spot at issue shows slight paint chipping, and small cracks, nothing outside the typical crosswalk lay persons encounter on a daily basis.

Plaintiff correctly notes, per Murphy v. Lake County 106 Cal.App.2d 61, that although no previous complaints from the public had been received by city maintenance (see Sahagun Decl., ¶ 14), this cannot be used as evidence to show that no dangerous condition existed. (It is, nonetheless, relevant to the issue of notice.) However, Sahagun notes that the City maintains a program where it conducts an inspection of its street network on a three to five year cycle. The most recent inspection of the subject location prior to Plaintiff’s incident occurred in 2016, where the pavement condition received a rating of “Very Good” showing no need for repair or remediation. (Sahagun Decl. ¶ 10.) Two years later, the City responded to an issue with a streetlamp at the same location, and no employee cited the subject location for a defect. (Id. at ¶ 13.) Moreover, a search of the City’s records, reports, and databases show there is nothing to suggest that the City had any notice – actual, constructive or otherwise – of any alleged defect. (Id. at ¶ 15.)

The burden shifts to the Plaintiff to show a triable issue of material fact. Plaintiff presents three primary arguments: (a) Plaintiff begins by arguing that the subject curb height was excessive and dangerous and that Defendant failed to have an adequate inspection system (b) next, Plaintiff argues that the crosswalk constituted a dangerous condition, (c) finally, Plaintiff argues that there are triable issues of fact as to constructive notice. The Court disagrees and will take each argument in turn.

a) The curb height was not excessive nor dangerous, and Plaintiff presents no evidence of an inadequate inspection system.

First, in regard to Plaintiff’s contentions that the curb height was excessive there are three deficiencies: The first deficiency is that the contention is unsupported. Plaintiff relies heavily on the Declaration of Eris Barillas. The City’s objections to parts of this declaration were sustained because the declarant failed to lay a foundation for the assertions made, relied on irrelevant information to support opinions and makes inadmissible conclusions relying on speculation and outside her field of expertise.

The second deficiency is that even if the curb height were excessive, which the Court has no basis to find is the case, Plaintiff herself notes in her deposition that she has walked this route numerous times without incident, and that when this incident occurred it was an alleged “ditch” that she stepped into, not a curb that she tripped over that caused her injuries. (Kim Decl., Exh. B, pg. 30, line 23.)

The third deficiency is the “obvious danger rule”. In their opposition papers, Plaintiff argues that the excessive curb height “was of an obvious nature. It was not hidden or otherwise disguised. It was in plain view of anyone inspecting the area. Anyone walking or driving by the intersection could see it.” (Opposition Papers, 20:16-19.) “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.4^th 387, 393. Also see 6 Witkin, Summary of Cal.Law (11th ed. 2023) Torts, § 1268.) If the alleged dangerous condition was in fact obvious, then the City is released of any liability.

Finally, Plaintiff argues that the inspection system is inadequate because the City inspects sidewalks, not crosswalks. (Opposition Papers, 7:25-28. Also see the Declaration of Raymond Ghermezian, Exh. C, pg. 8, lines 1-3.) However, Plaintiff never demonstrates how this is related to the dangerous condition that is alleged to have been present, nor how it contradicts the photographic evidence that Plaintiff themselves took and submitted. (Declaration of Alexander Y. Kim, hereinafter, “Kim Decl.”, Exh. C.) Assuming the inspection system is inadequate, failure to inspect does not equate to a dangerous condition being present.

To constitute a dangerous condition under GOV § 835, public property must possess a physical defect which creates a substantial risk of injury. (GOV §830(a).) Plaintiff emphasizes the curb height as the primary issue upon opposition to summary judgement; however, Plaintiff’s presented deposition testimony makes no mention of the curb height being the issue.

Plaintiff relies on two cases in arguing that the crosswalk was dangerous condition: Kasparian v. AvalonBay Communities, Inc. 156 Cal.App.4^th 11 (“Kasparian”) and Huckey v. City of Temecula 37 Cal.App. 5^th 1092 (“Huckey”). In Kasparian an elderly tenant sustained injuries when she tripped over a recessed drain on the ground in the apartment complex where she resided. The plaintiff in Kasparian brought suit against her landlord, the landlord was granted summary judgment, but the ruling was reversed upon appeal because the lower court did not apply the “Trivial Defect Doctrine” properly, only considering one element of the defect, its depth. (Kasparian, supra, at 28.) The Kasparian Court articulated the doctrine as follows:

“[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.” (Kasparian, supra, at 27-28.)

In Kasparian, the Court considered the other elements the trivial defect doctrine note above. For example, the court cited that plaintiff’s expert stated the following as to the drain in question: “the hole created for the drain grate is uneven…” and that nearby drains were flush with the surface. Moreover, the expert added “[t]he slope to the drain ... is dramatically more severe than that found in customary drains. (Kasparian, supra, at 29.) Moreover, there are no warnings or color distinctions to warn pedestrians of the fact that the drain is recessed.” He opined “[t]he surrounding circumstances of the location of the accident make the area very hazardous given ... the drains from a distance appear similar in color to the bricks/pavers”; “the drains are not distinguishable by color and texture [from] the surrounding pavers”; and “in the totality of the circumstances [they] cannot be easily detected even in daylight.” (Id.)

However, the Court here can distinguish Kasparian from the instant case. In the instant case, the relevant photo in addition to Plaintiff’s own testimony, show that it was a bright sunlit day, and that the color difference between the curb and cross walk are clear. To the eye, even with the cracks in the crosswalk, there is no noticeable difference in height in the subject location between the crosswalk where pedestrians walk, the asphalt where vehicles traverse, and where the two meet. Moreover, as Plaintiff continually emphasizes the excessive height of the curb, Plaintiff also notes that she is well-acquainted with this intersection, as she has walked nearly 250 times per year for 25 years. (Kim Decl., Exh. B, pg. 49.)

Additionally, the Court can analogize to Huckey. In Huckey, the pedestrian brought a case against the City of Temecula for injuries sustained after falling on a defective city sidewalk. The Huckey Court ruled that the defect was trivial, and the Court of Appeal affirmed. In affirming the lower court, the Court of Appeal pointed to the fact that the subject location had no broken concrete pieces nor jagged concrete edges. (Huckey, supra, at 1108.) Moreover, the Huckey Court pointed out that there was no evidence that the City of Temecula had ever been notified of any trip and fall accidents other than the pedestrian’s claim. Here, the Court sees similar circumstances with the case at bar. At no point does plaintiff allege any jagged or uneven pieces on the sidewalk, curb, nor the crosswalk. Although Plaintiff argues that the curb height was 1 and ¼ inch higher than the allowed maximum, no code nor caselaw is cited to support that contention.

Contrary to Plaintiff’s assertions, the trivial defect doctrine counsels that the defect at issue was trivial as a matter of law. Specifically, the defect, meaning, in this instance, the alleged “ditch” was small, with virtually no depth to it, and, as discussed above, the lighting and weather were good, the defect had caused no other accidents and plaintiff was very familiar with the area. (See Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110, 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.”)

Finally, Plaintiff fails to demonstrate any triable issue of fact as to notice. Per GOV § 835.2: “A public entity had actual notice of a dangerous condition…if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” “A public entity had constructive notice of a dangerous condition…only if the plaintiff establishes that the condition had 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 § 835.2(a) - § 835.2(b).) As aforementioned, the City noted two separate inspections where no defect was detected. Plaintiff fails to provide evidence that a defect should have been detected.

Accordingly, Defendant City of Beverly Hills’ Motion for Summary Judgment is GRANTED.[1]

[1] For the reasons stated in the Reply, the Court is unpersuaded that alleged procedural defects in the Motion prevent the Court from granting summary judgment based on the vicarious liability claim.