Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV04842, Date: 2025-05-15 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV04842, Date: 2025-05-15 Tentative Ruling

Defendant City of Santa Monica (“the City”) moves for summary judgment or adjudication as to the claims alleged against it by Plaintiffs Mary Gonzales and John Gonzales (“Plaintiffs”). Plaintiff Mary Gonzales alleges a claim for dangerous condition of public property against the City, while Plaintiff John Gonzales alleges claims for negligent infliction of emotional distress and loss of consortium against the City.

The Court has not considered the City’s “Response to Plaintiff’s Separate Statement” in support of its motion, as this document is a reply separate statement not authorized by statute, and the City failed to seek leave of court to file such a document. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [“There is no provision in the statute for” including a reply separate statement].)

The City first contends that the subject accident was not caused by any dangerous condition of public property. Government Code section 835 provides that “[e]xcept 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.” To prevail on a claim for injuries based on a dangerous condition of public property, Plaintiffs must establish (1) the existence of dangerous condition; (2) proximate cause; (3) foreseeability of type of harm; and (4) negligence in the creation of, or notice of, the dangerous condition. (Frazier v. County of Sonoma (1990) 218 Cal.App.3d 454, 458.)

Government Code section 830, subdivision (a), provides that a “dangerous condition” is “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.” A condition is not considered to be a dangerous condition if the 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.” (Gov. Code, § 830.2.)

The City provides evidence that Plaintiff tripped on a misaligned concrete slab, without jagged edges, that was not camouflaged by debris, the City has no records of any other claims or injury or complaints regarding the displacement, and Plaintiff Mary Gonzales was familiar with the area. (City’s UMF Nos. 1, 2, 9, 11-13.) On September 22, 2022, Plaintiff Mary Gonzales encountered the sidewalk displacement, which was just under an inch in height, and there is no evidence that anything obscured Plaintiff’s view of the defects. (City’s UMF Nos. 9-12.) The incident occurred at night, but there is no evidence that any of the lighting on Wilshire Boulevard was out or malfunctioning. (City’s UMF No. 25.) The City provides photographs showing that the displacement was less than an inch at its highest, which was measured by the City’s Claims Adjuster, and Plaintiff Mary Gonzales testified that the location she identified was the accurate location of the subject incident. (City’s UMF Nos. 9, 10, 23.)

The City argues that sidewalk displacements with an elevation of less than one inch constitute minor defects as a matter of law. Case law provides that “[s]idewalk 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’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. at p. 1105, brackets omitted.) The Court may also consider “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 accident.” (Ibid.) Size of the defect is “the most important of these factors for determining whether a given defect may be deemed trivial as a matter of law.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568, brackets and dash omitted.) “[I]t is also true that as 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.” (Ibid.)

The Court finds that the City has met its burden of showing that the defect was trivial, such that it cannot be held liable for a dangerous condition of public property, because the displacement was less than one inch in height, the defect was not camouflaged, Plaintiff was familiar with the area, and there were no prior complaints. In opposition, Plaintiff provides evidence that the displacement was actually one and one-eighths inches in height, the side of the raised portion of the sidewalk where Plaintiff’s left foot made contact is not smooth concrete, the rise in the sidewalk was parallel to the direction Plaintiff was walking, making it hard to see, the defect falls on a joint line on the walkway, there was no chromatic contrast for Plaintiff to see the defect. (Pl.’s UMF Nos. 6, 8-11, 18, 19, 21.) The Court finds that this evidence allows Plaintiff to establish a dispute of material fact as to whether the sidewalk was a dangerous condition of public property. While the height difference is minimal, i.e., the displacement does not exceed one and one-half inches in height, the displacement is accompanied by other factors that could allow the trier of fact to conclude the defect was not trivial. Moreover, even though the displacement is just above one inch, “[i]t is to be noted 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.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.) Thus, the City’s motion for summary adjudication on this basis is DENIED.

As another basis for summary adjudication, the City argues that Plaintiffs have alleged a common law negligence claim, and such a claim is not actionable against a public entity, and the City also takes issue with Plaintiffs’ claim for vicarious liability. It is not clear that the claim for vicarious liability is alleged against the City, and Plaintiffs have alleged more than common law negligence by alleging a dangerous condition of public property. Thus, the City’s motion for summary adjudication on these grounds is DENIED.

The City further contends that the facts do not support a claim for negligent infliction of emotional distress. “The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.)

“Bystander cases,” as is alleged here, “are cases in which the plaintiff was not physically impacted or injured, but instead witnessed someone else being injured due to defendant's negligence. Because in bystander cases the class of potential plaintiffs could be limitless, resulting in the imposition of liability out of all proportion to the culpability of the defendant, [the Supreme Court] has circumscribed the class of bystanders to whom a defendant owes a duty to avoid negligently inflicting emotional distress. These limits are . . . as follows: In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073, citations and quotation marks omitted.)

Notably, the City provides no evidence as to this issue, and the claim has been sufficiently alleged. Thus, it is for the trier of fact to determine whether Plaintiff John Gonzales suffered severe emotional distress. Insofar as the City takes issue with this claim and the claim for loss of consortium based on a failure to show negligence conduct by the City, the Court has found that a triable issue exists as to that issue. Accordingly, Defendant City of Santa Monica’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues is DENIED.