Judge Lee S. Arian, Case Number: 22STCV17883, Date: 2024-10-25 Tentative Ruling

On June 1, 2022, Plaintiff filed the present case against Defendant City of Covina, alleging injury after tripping over a sidewalk displacement measuring approximately 2 inches while taking a walk around her neighborhood in the City of Covina. Defendant now moves the Court for summary judgment on the basis that the alleged dangerous condition is either trivial or open and obvious.

· The subject incident happened on 2/22/21 at approximately 2:00 p.m. to 2:30 p.m. in the afternoon at 535 W. San Bernardino Road in Covina California.

· Plaintiff has lived at the same address in Covina for approximately 10 years.

· Plaintiff was not walking for any particular reason; she just decided that she needed to start walking.

· Plaintiff was walking and then felt herself falling forward; she thinks she felt her right toe hit something and she tripped.

· Plaintiff had traversed this area of sidewalk on previous occasions, coming from the other direction, and had never had a problem with it

· Plaintiff does not remember noticing anything about the sidewalk such as deviations or height differentials before she fell, either on the day of the incident or on the prior occasions when she walked on this sidewalk in years past.

· Plaintiff typically looks down at the sidewalk for any obstructions or problems when she is walking, but she does not remember if she was doing that at the time of the incident.

· Plaintiff does not recall anything blocking her view of the sidewalk before she fell.

· Plaintiff does not recall seeing anything on the ground that would have caused her to fall before she fell.

· Plaintiff went back with her son and took pictures and measurements of the area of the sidewalk where she fell a day or so later.

· Plaintiff does not know if anyone else has fallen in the same area where she fell.

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”].)

“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.)

Defendant cites to Fielder, Caloroso, Ursino, and Stathoulis, all of which have been considered by a recent case on trivial defect, Stack v. City of Lemoore (2023) 91 Cal.App.5th 102. In synthesizing the rulings from these prior cases, Stack found that sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have been held trivial as a matter of law. However, Stack noted that a more "accurate encapsulation" of the law 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 112.)

The displacement in question here is approximately 2 inches (Def’s Ex. A), which is double the size at which courts have been reluctant to find the defect trivial as a matter of law and exceeds the range typically considered trivial. Accordingly, the motion for summary judgment is denied on the basis of the trivial defect theory.

A property owner owes no further duty to make a condition reasonably safe or give an adequate warning of a condition when the danger of the condition is so obvious that the condition itself serves as a warning. (Kinsman v. Unocal Corp (2005) 37 Cal.4th 659, 673.) “[I]f the 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 unless harm was foreseeable despite the obvious nature of the danger.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 122.) Whether a condition is obvious and whether the obviousness negates a property owner’s duty of care are legal questions for the court. (See Jacobs v. Coldwell Banker Brokerage Co. (2017) 14 Cal.App.5th 438, 446-450 (affirming a trial court’s granting of summary judgment based on a finding that a dangerous condition was obvious.) The obvious character of the condition does not negate a property owner’s duty of care to remedy a conspicuous danger when it is foreseeable that a person will encounter the danger despite the danger’s obviousness. (Martinez v. Chippeqa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185 (indicating a dangerous condition encountered on a sole access way from the street to the defendant’s building would not negate the defendant’s duty of care owed to the plaintiff; see also Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123 (finding an employee did not assume the risk of an obvious danger when the employee’s employment required him to encounter a dangerous condition).)

The court may determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.¿ (Martinez, supra, 121 Cal.App.4th at p. 1184.)¿ In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer).¿(Kasparian v. Avalonbay, (2007) 156 Cal.App.4th 11, 25.)

The defect in question is approximately 2 inches. (Def. Ex. A.) Plaintiff testified that she was walking in the middle of the sidewalk when she tripped over the displacement. (Plaintiff’s Depo. 31:5-8.) A photograph of the displacement, taken by Plaintiff after the fall, shows a large hole in the middle portion of the sidewalk where Plaintiff allegedly fell. Additionally, there is black tar patching next to the displacement, creating a color contrast between the black tar and the white sidewalk, further highlighting the defect. The photograph shows there was nothing obstructing Plaintiff’s view of the displacement. (Exhibit 1 to Plaintiff’s Deposition.) The incident occurred at approximately 2:00 p.m. to 2:30 p.m., during broad daylight. (Plaintiff’s Depo., 14:20-15:1.) Plaintiff has lived in the neighborhood for over 10 years and has walked this sidewalk numerous times. (Plaintiff’s Depo., 15:16-19; 72:13-24; 11:14-18.)

There was no necessity for Plaintiff to encounter the displacement. At the time of the incident, Plaintiff was on a leisure walk around the block, with no urgency, emergency, or job-related obligation compelling her to traverse the area where the defect was located. (Plaintiff’s Depo., 15:3-6; 15:11-16:1.) Plaintiff had several alternative options to avoid the hazard. Her route was not the only one available for her walk. She could have easily sidestepped the displacement by walking around it on the adjacent grass or road, or simply stopped her walk altogether if she felt it was unsafe to proceed.

This scenario is different from Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123, where the employee was required to confront a dangerous condition as part of his job duties, leaving him with no reasonable alternative. Similarly, in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185, the plaintiff had no choice but to traverse a dangerous condition because it was the sole access route from the street to the defendant’s building. No such necessity exists here, and alternative routes were available.

Based on the foregoing, Defendant met its burden to establish that the defect was open and obvious. Although Plaintiff’s opposition heavily discussed Defendant’s trivial defect argument, it does not address Defendant's open and obvious defense at all.[1] As a result, Plaintiff failed to raise a triable issue of fact regarding Defendant’s open and obvious defense. Accordingly, summary judgment is granted.

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 without leave.

[1] Plaintiff’s separate statement contains undisputed material facts related to a slip-and-fall incident at the Los Angeles Convention Center, which is unrelated to the present case.