Judge: Lee S. Arian, Case: 22STCV07704, Date: 2024-09-19 Tentative Ruling

Case Number: 22STCV07704    Hearing Date: September 19, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION FOR SUMMARY JUDGMENT 

Hearing Date: 9/19/24 

CASE NO./NAME: 22STCV07704 MARILYN GOTTESMAN vs CITY OF LOS ANGELES, et al. 

Moving Party: Defendant City of Los Angeles 

Responding Party: Plaintiff 

Notice: Sufficient 

Ruling: MOTION FOR SUMMARY JUDGMENT IS GRANTED 

Background

On September 27, 2011, at approximately 8:30 a.m., Plaintiff Marilyn Gottesman tripped and fell due to a sidewalk displacement located at 8124 Regis Way in Los Angeles. Defendant City of Los Angeles moves the Court for summary judgment on the basis that the displacement which caused Plaintiff to fall is a trivial defect.

Undisputed Facts

On September 27, 2021, at approximately 8:30 A.M., Plainitff tripped and fell on the sidewalk at/near 8124 Regis Way in Los Angeles. Plaintiff tripped and fell as a result of her right foot hitting an uplift in the sidewalk. The day of her fall was the first time that Plaintiff had walked on the side of the block where she fell. Plaintiff was walking a dog (a Siberian husky) on a 5- to 6-foot-long leash. The leash was in Plaintiff’s left hand and the dog was on Plaintiff’s left side. Prior to the trip-and-fall accident, Plaintiff and her dog stopped about 5 to 6 feet from the uplift.  As Plaintiff and her dog resumed the walk, Plaintiff scanned the area in front of her but did not see the uplift. A red circle on Exhibit 2-3 to the transcript of Plaintiff’s deposition depicts the area where Plaintiff tripped. At the location of the Plaintiff’s accident, the sidewalk comprises concrete and measures approximately 5 feet wide. The sidewalk was firm and did not have any jagged or loose edges.  At the time of the accident, there were no obstructions blocking Plaintiff’s view of the sidewalk. The lighting conditions were sufficient for the uplift to have been seen.

Legal Standard

In reviewing a motion for summary judgment or adjudication, 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.)

¿               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.)¿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”].)¿ 

Evidentiary Objections

The Court overrules Plaintiff’s Objections No. 1 and 2. The parties did not make any other objections to evidence that were material to the Court’s ruling, as per CCP § 437c(q).

Premises Liability 

The Trivial Defect Doctrine 

“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.

1. Size of the Defect

“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].)

The parties provide slightly different measurements of the height of the displacement. Plaintiff’s expert measures it at 1 ¼ inches and Defendant’s expert measures it at slightly over 1 inch.

Upon closer examination of the experts’ declarations, the Court finds that the declarations are not actually in conflict with each other, as they measure different sections of the displacement. Mr. Gsell, Plaintiff’s expert, measured three sections of the displacement on the concrete slab, from the far right side (IMG_7177), to the middle (IMG_7179), and approximately seven inches left of the center slab (IMG_7182). The respective measurements were 1 ¼, ¾, and 5/8 inches (Gsell Decl. ¶ 8, 9). These measurements indicate that the displacement is most pronounced on the right and lessens as one moves to the left of the slab.

  However, Plaintiff's argument that the displacement causing her fall measured 1 ¼ inches is unsupported by her own expert’s findings and Plaintiff’s own testimony.  Mr. Gsell's declaration does not specify whether any of these measurements correspond to the exact location where Plaintiff fell. He did not assert that the location of Plaintiff’s fall was at the 1 ¼ inch displacement; rather, he provided measurements from three disparate locations across the slab. No rationale was provided for choosing these specific locations, other than to demonstrate the change in elevation from right to left. This is further confirmed by an examination of IMG_7177, showing that the measurement hugs the very edge of the concrete slab.

In her deposition, Plaintiff testified that at the time of her trip-and-fall, she was walking "towards the right side… middle to right side" of the sidewalk, and she "circled" the approximate area on which she tripped and fell on a photograph depicting the subject sidewalk condition (City’s Compendium of Evidence, Ex. 3 – Transcript of Plaintiff’s Deposition, at transcript page 44:4-14; Ex. 6 – Blanchette Declaration, ¶ 6 and Ex. B). Plaintiff did not testify that she tripped on the very right edge of the sidewalk where it measures 1 ¼ inches in height.

On the other hand, Defendant’s expert, Blanchette, accounted for Plaintiff's testimony that she was walking from the middle to the right side of the sidewalk and measured the displacement at the approximate location where Plaintiff's foot caught the displacement (Blanchette Decl. ¶ 8). It shows a measurement slightly above one inch, specifically 1.03125 inches, as Defendant clarified in their reply.

Although Plaintiff argues that her expert measured the displacement in 2021 whereas Defendant’s expert measured it in 2023, Blanchette has declared that the conditions are substantially similar (Blanchette Decl. ¶ 6). Upon examination of both experts' investigations, the Court finds that the conditions were substantially similar; no work appears to have been performed on the displacement, nor has there been any change. Furthermore, Plaintiff has not provided any evidence to suggest that the displacement has shrunk, contrary to the common experience that displacements typically grow over time.

Here, there is really no contradictory testimony from the two experts. The measurements were taken at different locations, with Plaintiff’s expert measuring the farthest right of the slab while Defendant's expert took measurements to the left of that point. Given the nature of the displacement, which is highest on the far right and decreases as you move left, it is unsurprising that the two measurements differ. Because Plaintiff’s expert did not state that the right edge is where Plaintiff fell, and this is not supported by Plaintiff’s own testimony, the Court finds that Defendant’s expert’s measurement, which takes into account Plaintiff’s testimony, reflects the height of the displacement where Plaintiff fell.

It is undisputed that the sidewalk pavement displacement in question here was 1and 1/4 inch at its highest point, tapering off in height towards the right. (City’s Exh. H, I, J.) Considering the size of the defect alone, without any aggravating factors, the displacement is trivial even at its highest point and is even less of an issue at the place where Plaintiff tripped.  The Court finds the size of the displacement to be about 1 inch. 

2.  Aggravating Factors 

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.)   

At the time of the accident, there were no obstructions blocking Plaintiff’s view of the sidewalk (Def's Ex. 3 - Gottesman Dep., at 35:13-16, 35:20-36:5). At the time of Plaintiff’s fall, the lighting conditions were more than sufficient for the uplift to have been seen and avoided (Def's Ex. 6 - Blanchette Dec ¶ 7). The subject sidewalk condition is firm, stable, and does not have any jagged, loose edges (Def's Ex. 6 - Blanchette Dec ¶ 8). The City did not receive any notifications, complaints, or requests for sidewalk repair at/near 8124 Regis Way, Los Angeles prior to Plaintiff’s alleged September 27, 2021 accident (Def's Ex. 7 – Declaration of Glenn Lacoure ¶ 4; see also, Def's Ex. 4 – City’s Special Interrogatories to Plaintiff, Set One, at Interrogatory Nos. 7-9; Def's Ex. 5 – Plaintiff’s Responses to City’s Special Interrogatories, Set One, at Responses to Interrogatory Nos. 7-9).

Although Plaintiff argues that the displacement must be assessed holistically, she either does not dispute the presence of aggravating factors or has failed to present substantial evidence of such factors. First, Plaintiff does not dispute that there were no obstructions blocking her view of the sidewalk at the time of the accident (Plf’s Response to UMF 12). Plaintiff also does not contend that lighting or visibility was an issue (Plf’s Response to UMF 13). Both Mr. Blanchette’s and Mr. Gsell’s photographs from their inspections show that there is no debris, plants, or roots covering the sidewalk; there are no jagged or loose edges, and the sidewalk appears to be stable. No contrary evidence has been provided, nor is there any evidence that another individual fell at the same spot.

As for Plaintiff’s familiarity with the sidewalk, she had walked in the neighborhood where she fell twice a day since 2017, but she had not previously walked on the side of the street where the incident occurred. This information is supported by evidence in Defendant’s Compendium, Ex. 3 – Gottesman Dep., at 25:13-15; 26:2-9; 25:16-19. This factor is considered neutral.

Overall, the court finds the displacement is question measures at just very slightly above 1 inch, and there were no aggravating factors. Thus, the motion for summary judgment is granted, as the Court finds the sidewalk displacement to be trivial.

PLEASE TAKE NOTICE: 

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.