Judge Lee S. Arian, Case Number: 22STCV08572, Date: 2025-02-18 Tentative Ruling

On March 9, 2022, Plaintiff filed the present suit against the City of Los Angeles regarding an incident that occurred at approximately 9:30 a.m. on May 25, 2021, when Plaintiff tripped over a displaced sidewalk on Pico Boulevard. Defendant now moves for summary judgment, arguing that the displacement is less than one inch and that no aggravating factors are present. Plaintiff filed an opposition. Trial is set for April 30, 2025.

At approximately 9:30 a.m., after walking for 20 -30 minutes, Plaintiff fell when her right foot tripped on an uneven portion of the sidewalk at 5028 Pico Boulevard in Los Angeles. At her deposition, Plaintiff identified a photograph depicting the exact portion of sidewalk on which she tripped

On August 27, 2024, Kelly Byrne, Ph.D., a Human Factors Scientist, conducted an inspection of the location of Plaintiff’s trip-and-fall incident and took measurements and photographs of the sidewalk condition that Plaintiff identified as being the cause of her trip-and-fall incident.

The height differential of sidewalk uplift identified by Plaintiff in her deposition has an elevation change ranging from 3/5 inch to 7/8 inch.

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.)

“[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).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

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.)¿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 court overrules Defendant’s objection to the Declaration of Philip J. Rosescu.

“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, it is undisputed that the height differential of the subject sidewalk uplift ranges from 3/5 inch to 7/8 inch where “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 v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107.)

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.)

There is no debris, foliage, or any other obstruction covering the displacement. The area is well-lit during daylight hours, and at the time of the incident, visibility was not obstructed. Additionally, the uplift has a color contrast against the surrounding sidewalk, making it visually distinct from the rest of the walking surface. (Figure 2 of Bryne Decl.) Defendant has shown that there are no significant aggravating factors. Accordingly, Defendant has met its initial burden.

Plaintiff does not contest that the elevation of the displacement ranges from 3/5 inch to 7/8 inch but instead argues that aggravating factors exist.

First, the Court notes that no expert is needed to determine whether the size, irregular shape of the crack, or any other alleged aggravating factors rendered the displacement dangerous. In Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705, the court stated that regardless of whether an expert witness can be found to opine on the existence of a dangerous condition, the Court must independently evaluate the circumstances.

Plaintiff contends that the more than 3/4-inch deviation is large enough to cause a trip and fall because it is greater than the minimum toe clearance of 0.55 inches. (Decl. Rosescu ¶ 9.) However, exceeding the minimum toe clearance does not, by itself, establish an aggravating factor. Aggravating factors typically involve conditions that increase the risk of tripping beyond the mere presence of an uplift, such as poor lighting, obscured visibility, debris, or excessive irregularity.

Furthermore, courts have consistently held that sidewalk deviations within the range of three-quarters of an inch to one and one-half inches are generally considered trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107.) In reaching this conclusion, courts recognize that while the displacement may create some risk of harm, such as exceeding toe clearance, this alone does not establish liability. Pedestrians are expected to routinely encounter minor elevation changes in urban environments and adjust their gait accordingly. Courts held that sidewalks are not required to be perfectly level, as minor defects are an inherent and unavoidable reality of public walkways. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929.)

Plaintiff asserts that the deviation blended with the color of the concrete and lacked contrasting paint or other indicators to mark its presence. (Decl. Rosescu ¶ 8.) However, Plaintiff has not provided any legal authority establishing that a lack of contrasting paint constitutes an aggravating factor, and the Court is unaware of any such authority. Furthermore, Plaintiff’s own photograph (Ex. 3) shows that the displacement is clearly visible and does not blend into the surrounding concrete. Sidewalk displacements are inherently the same color as the concrete because they are part of the same sidewalk. The fact that the displacement and the surrounding concrete are of similar color is a common characteristic in most sidewalk displacement cases and has never been recognized as an aggravating factor.

Plaintiff states that the sidewalk has foliage growing in it. (Exhibit 3.) However, the photograph provided shows no foliage or any other obstruction that would obscure the visibility of the displacement.

Plaintiff contends that the sidewalk contains broken pieces, jagged edges, and hollowed-out parts. (Decl. Rosescu ¶¶ 6-10; Exhibit 3.) However, these conditions do not constitute an aggravating factor because they are not located on the portion of the sidewalk where Plaintiff fell. Plaintiff’s photograph (Ex. 3) shows four sidewalk blocks, and Plaintiff fell on the third block from the left. The broken pieces are on the second and fourth blocks, not on the displacement where Plaintiff tripped. Similarly, the block where Plaintiff fell does not contain any jagged edges.

Furthermore, the adjacent blocks are level and parallel to the subject displacement, meaning Plaintiff did not have to navigate a hazardous stretch of sidewalk with jagged edges or broken concrete that would have contributed to the fall.

While Plaintiff references hollowed-out parts, the only visible one is between blocks three and four. This is not where Plaintiff fell, and the hollowed-out area is minor in size. It does not constitute a large hole or defect that would significantly increase the risk of tripping.

Plaintiff declares that she rarely walked over that location. (Decl. Gazzola.) However, Plaintiff’s lack of familiarity is a neutral factor. Under Owen v. City of Los Angeles (1947) 82 Cal.App.2d 933, 940, a plaintiff’s knowledge of a hazardous condition increases their duty to exercise caution, meaning a lack of prior knowledge simply serves as a baseline rather than a mitigating factor. Additionally, Plaintiff is not entirely unfamiliar with the area, as she had walked there at least twice before. (Plf’s Depo 12:8-21, 12:25-13:8.) While this does not establish that she had extensive familiarity with the specific displacement, it does indicate some prior exposure to the general condition of the sidewalk. All things considered, Plaintiff’s level of familiarity neither strengthens nor weakens her claim, making it a neutral factor in the analysis.

Plaintiff does not dispute that the displacement is less than one inch. Plaintiff also failed to raise a triable issue of fact as to the existence of aggravating factors. Accordingly, the motion for summary judgment 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’s 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