Judge Lee S. Arian, Case Number: 21STCV33720, Date: 2024-01-23 Tentative Ruling

On November 23, 2022, Defendant City of Los Angeles, Los Angeles World Airports (“City”) filed a Motion for Summary Judgment, or in the Alternative, Summary Adjudication. On January 8, 2024, Plaintiff filed an opposition to Defendant City’s Motion for Summary Judgment. On January 17, 2024, Defendant City filed a Reply, as well as evidentiary objections.

On September 27, 2023, the Court continued the hearing on City’s Motion for Summary Judgment from October 13, 2023, to January 22, 2024. On January 17, 2024, the Court denied Defendant’s Ex Parte Application to Continue the Hearing Date on Defendant’s Motion for Summary Judgment.

On September 13, 2021, Plaintiff Luz Elena Vargas (“Plaintiff”) filed this action against City, County of Los Angeles (“County”) and DOES 1 to 100 alleging negligence and premises liability. Plaintiff alleges she sustained personal injuries when she fell on the ground while walking through customs at Los Angeles International Airport (“LAX”).

The operative complaint is the First Amended Complaint filed on January 6, 2022, against City and County alleging a single cause of action for Negligence/Dangerous Condition of Public Property.

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.)

“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 that 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.” (Gov. Code, § 835.)

A “dangerous condition” is defined under Government Code §830 as “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.” (GC §830(a).)

“Public property is in a dangerous condition within the meaning of section 835 if it is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. 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 or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.)

“Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion. It is for the court to determine whether, as a matter of law, a given defect is not dangerous. This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.

“As 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. A dangerous condition of public property can come in several forms and may be based on an ‘amalgam’ of factors.” (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1069.)

“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.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105.)

“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.” (Id.) “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.” (Id. at 1107.)

In its Reply, City asserts 15 objections to Plaintiff’s evidence. The Court sustains objection 1 and overrules objections 12-15 re authentication. With regard to objections 2-11, the Court declines to rule on City’s objections. (Code Civ. Proc., 473c, subd. (q).) The objections do not affect the Court’s disposition of this motion. In this regard, expert opinions on whether a given condition constitutes a dangerous condition of public property are not determinative: The fact that a witness can be found to opine that such a condition constitutes a significant risk and a dangerous condition does not eliminate this court’s statutory task pursuant to Government Code section 830.2, of independently evaluating the circumstances.” (Thimon v. City of Newark (2020) 44 Cal.5th 745, 755.

Defendant argues the alleged condition that caused Plaintiff to fall was trivial as a matter of law. Specifically, Plaintiff claims she tripped over a hole in the ground and the only identifiable condition matching Plaintiff’s allegations is a pipe access cleanout cover near CPB booth #10. Defendant thus contends the “hole” is 4 5/8 ins. in diameter and the difference in elevation is 3/16 inches at the smallest height differential and 1/8 inches at the greatest height differential. Defendant argues that under the law, defects 1 ½ inches or less are trivial as a matter of law.

Defendant argues the conditions of the area also support a finding of trivial defect. Specifically, there is no evidence that there were broken pieces or jagged edges where Plaintiff fell. Plaintiff admits she knew the area, the fall occurred indoors and she had sufficient lighting. Weather was not a factor nor did City receive any prior reports of a similar accident in that area despite 50 million travelers passing through.

Defendant further argues that Plaintiff cannot establish causation. Plaintiff admitted at the site inspection that she could not identify the area where she fell or the specific condition that caused her fall. The only witness to Plaintiff’s fall testified that there was no hole or debris where she fell. Defendant argues res ipsa loquitur does not apply to these facts.

Finally, Defendant argues it did not create the alleged dangerous condition, nor did it have actual or constructive notice of the alleged dangerous condition. Defendant argues it is only liable under GC §835 if it created the dangerous condition, or it had actual or constructive notice of the dangerous condition.

In opposition, Plaintiff disputes that she fell where Defendant maintains she fell. Plaintiff also disputes that the pipe cover was the dangerous condition alleged in her complaint. Plaintiff argues summary judgment cannot be granted where there is a fundamental dispute over where she fell and what the dangerous condition was that caused her to fall.

Plaintiff argues the doctrine of trivial condition has less application to an airport floor, which pedestrians expect to be smooth, as opposed to sidewalks where pedestrians expect defects and uneven surfaces. Plaintiff also argues none of Defendant’s evidence establishes the length of time that the condition was present in the area where Plaitniff fell. Plaintiff argues Defendant therefore fails to negate any allegation of actual or constructive notice, which depends upon the length of time the defect existed. Plaintiff argues the Court cannot deem the condition trivial as a matter of law based on Defendant’s evidence.

According to Defendant, Plaintiff may have fallen in three different locations. Defendant argues Plaintiff may have fallen while walking over a pipe access cleanout cover, approximately 5 feet east of booth #10 in the CBP FIS Area (“Accident Location #1). (Yee Dec., ¶¶3-5; Appendix of Exhibits, Ex. C.) This was one of two incident locations indicated in the police report, and it was based on Officer Yee’s interaction with Horacio Fuentes, the translator for Plaintiff on the day of the accident. (Yee Dec., ¶¶3-4; Appendix of Exhibits, Ex. C.) Yee testifies that Fuentes escorted him to the area where Plaintiff claimed she tripped—the pipe access cover located approximately 5 feet east of booth #10 in the CBP FIS Area. (Id.)

The police report also indicated that another CBP Officer indicated he witnessed Plaintiff fall approximately 5 feet east of CBP booth Nos. 15 and 16 and that the ground there was level with no debris or holes present (“Accident Location No. 2”). (Yee Dec., ¶7; Appendix of Exhibits, Ex. C.) The CBP Officer who purportedly witnessed the fall is not identified in the police report, nor does Defendant identify the CBP Officer who purportedly witnessed the fall.

Accident Location Nos. 1 and 2 are depicted in photos taken by Officer Zenteno on the day of the accident and in the map of the CBP office provided as Defendant’s Exhibit I. (Zenteno Dec., ¶4; Appendix of Exhibits, Exs. E and I.) There is a pipe hole cover in front of Booth No. 10 as depicted in Accident Location No. 1. (Appendix of Exhibits, Ex. E, p. 139/272.) The area depicted in the photos of Accident Location No. 2 show no holes or dips of any kind. (Appendix of Exhibits, Ex. E, p. 146-147/272.)

Plaintiff does not assert any objections to this evidence. As to Accident Location No. 2, there was no hole or dip or any uneven surface in the area where she may have fallen. (Appendix of Exhibits, Ex. E, p. 146-147/272.) Nothing matches Plaintiff’s allegation of the “hole” that caused her to trip.

As to Accident Location No. 1, Defendant submits admissible evidence that the height differential between the surround floor and the pipe access cleanout cover was at most 1/8 inches. (Bonin Dec., ¶7.)

Defendant’s evidence also raises the possibility of a third incident location based on Plaintiff’s deposition testimony. At deposition, Plaintiff denied that she fell at either Accident Location No. 1 or Accident Location No. 2. Instead, Plaintiff claimed at deposition that she fell at a third possible location, when she walked to her left after being cleared by the CBP officer and exiting the CBP booth. Based on Plaintiff’s deposition testimony, she headed away from the pipe cleanout cover and towards the northwest corner of the CBP area, where she fell (“Accident Location No. 3.”)

Defendant argues Plaintiff’s deposition testimony regarding where she fell and the direction she was headed when she fell is not credible for several reasons, including that she had already been cleared and should have been headed towards the baggage claim. (Defendants’ SSUMF Nos. 33-40.) Defendant also submits testimony that there is no area matching Plaintiff’s physical description of where she fell in the northwest corner of the CBP area. (Defendant’s SSUMF No. 32; Bonin Dec., ¶11; RJN; Appendix of Exhibits, Ex. Q; Vigilante Depo., 19:20-21:8, 36:7-20, 43:3-10, 44:18-24,110:14-25, 123:3-6, 123:24-124:14; You Decl. ¶13; Appendix of Exhibits, Ex. S.) While the Court may not assess Plaintiff’s credibility on summary judgment, Defendant’s evidence that there is simply no area objectively matching Plaintiff’s description of where she fell in the northwest corner of the CBP office sufficiently negates any allegation that Plaintiff fell in Accident Location No. 3.

In response, Plaintiff simply denies that she fell in Accident Location Nos. 1 and 2. (Vargas Dec., ¶3.) Plaintiff also submits an expert declaration that the height differential of the pipe cleanout access cover was actually 3/8 inch at its highest, which Plaintiff’s expert contends is not trivial as a matter of law. (Plaintiff’s Evidence, Burns Dec., ¶9.) Plaintiff’s expert testimony regarding whether a 3/8 inch differential is trivial as a matter of law is not determinative. “It is for the court to determine whether, as a matter of law, a given defect is not dangerous.” (Thimon v. City of Newark (2020) 44 Cal.5th at 755.)

Plaintiff fails to address Defendant’s arguments regarding Accident Location No. 3. She fails to present evidence that an area of the northwest corner of the CBP office exists that would fit her description of the area where she fell.

Moreover, Plaintiff and her attorney were given full access to the entire CBP FIS Area and every doorway/hallway that leads into the room, including the doorway and hallways at the northwest and northeast corners of the CBP FIS Area. (Defendant’s SSUMF No. 42, You Dec., ¶¶3, 9; Defendant’s Appendix of Exhibits, Ex. B, Plaintiff’s Depo., 111:1-120:6.) In response, Plaintiff disputes that she was given such full access. However, Plaintiff’s evidence does not refute Defendant’s assertion that she and her attorney were given full access. Plaintiff’s deposition testimony cited in response to SSUMF No. 42 merely indicates that she went down hallways and that she did not remember “having gone beyond the doors.” (Plaintiff’s Evidence in Opposition, Ex. 13, 112:18-20 and 115:12-17.) Plaintiff’s evidence does not rebut Defendant’s unambiguous evidence that she and her attorney were given full access to inspect the CBP FIS Area on June 15, 2022. (Yee Dec., ¶9.) (Plaintiff’s counsel chose not to attend himself on that date and instead hired a contract attorney to attend on his behalf. (Id.))

“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, 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.” 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, Defendant’s expert declares the elevation variation to be less than ¼ inch, which is actually within the allowance for ADA Standards for Accessible Design. Plaintiff’s expert measured the defect to be 3/8 of an inch, but that measurement fails to account for the slope of the floor. Further, in any event, even this this measurement is within the range that has been deemed to be a trivial defect as a matter of law (Huckey, supra, 37 Cal.App.5^th at 1107 (sidewalk elevations of ¾ inch to 1 ½ inches have generally been held to be trivial as a matter of law).)

The first factor relating to the size of the defect, which is the most important factor, weighs heavily in favor of finding the height variation at Accident Location No. 1 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.)

The defect here appears to be non-jagged, without cracks or disruptions. No evidence of an obstruction exists. It is undisputed that the alleged dangerous condition was indoors in an adequately lit area. Over half million travelers pass through the CBP FIS Area in Terminal 7 every year. Airport personnel in charge of receiving and recording complaints of injuries has reviewed available records and have not discovered any incidents of a similar fall in the apparent vicinity of Plaintiff’s alleged fall. Thus, these other factors weigh in favor of finding a trivial defect, and the Court finds that to be the case, at least as to Accident Location No. 1.

VI. CONCLUSION
In summary, based on the undisputed evidence, no triable issues of fact remain as to whether a dangerous condition existed. Defendant negates the existence of a dangerous condition based on all three possible accident locations raised by Plaintiff’s deposition testimony and the police report completed by Officer Yee. Plaintiff fails to submit admissible evidence raising a triable issue of fact as to whether Accident Location Nos. 1 and 2 were dangerous conditions and the evidence establishes that Accident Location No. 3 was not where Plaintiff fell. Further, Plaintiff’s failure to provide with any degree of certainty the specific location of her injury works against her, not, as she appears to argue, in her favor. That failure makes her overall contention that there was a dangerous condition that caused her fal speculative. Accordingly, Defendant City’s Motion for Summary Judgment of Plaintiff’s cause of action for negligence/dangerous condition under Government Code §835 is GRANTED.

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.

Hon. Lee S. Arian

Judge of the Superior Court