Judge Lisa R. Jaskol, Case Number: 22STCV11099, Date: 2024-03-21 Tentative Ruling

Having considered the moving, opposition, and reply papers, the Court rules as follows.

On April 1, 2022, Plaintiff Yuriy A. Perelekhov (“Plaintiff”) filed this action against Defendants City of Santa Monica (“Defendant”) and Does 1-100 for general negligence and premises liability.

On June 12, 2023, Defendant filed a motion for summary judgment or, in the alternative, summary adjudication to be heard on January 19, 2024. On January 5, 2024, Plaintiff filed an opposition. On January 11, 2024, Defendant filed a reply. The Court continued the hearing on the motion to March 21, 2024.

Defendant asks the Court to grant summary judgment or, in the alternative, summary adjudication.

The Court grants Plaintiff’s request for judicial notice of Plaintiff’s exhibit 1.

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)

B. Public entity liability for injury caused by dangerous condition of public property

“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.”

“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:

“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

“‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).) “A condition is not a dangerous condition within the meaning of this chapter 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 . . . was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

“(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

“(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The complaint alleges that on April 15, 2021, Plaintiff was walking northbound on the east side of 20th Street, just south of Wilshire Boulevard in Santa Monica, when he tripped and fell on a cracked and broken sidewalk with a height differential of approximately 1 inch, sustaining injuries.

The incident occurred during daylight hours. The sidewalk was dry. No piles of leaves, dirt or debris obscured the spot where Plaintiff tripped. (UMF 2.) Although Plaintiff disputes these and other facts listed in Defendant’s statement of undisputed facts, Plaintiff’s responses fail to controvert Defendant’s facts. (See Def. exhs. 2, 4, 5 & Def. exh. 3 at pp. 23, 39-40.)

The alleged defect was not jagged. Nothing obscured Plaintiff’s view of the alleged defect in the sidewalk. (UMF 3-4; Def. exh. 3, pp. 23, 59.)

On November 4, 2021, Defendant measured the height differential between the sidewalk planks where Plaintiff alleges he fell and found it was one inch at most. (UMF 5.)

Plaintiff’s Claim for Damages stated that the height differential was approximately one inch. However, Plaintiff later estimated that the height differential was approximately 1¾ inches. (Plaintiff’s Additional Disputed Material Facts (“PAMF”) 14-15.)

Before the incident, Defendant’s last inspection of the sidewalk where Plaintiff allegedly fell took place on March 22, 2019. (PAMF 21.) This inspection did not identify the portion of the sidewalk where Plaintiff allegedly fell as having a notable displacement. (UMF 6-7.)

“There has been no act by any City employee identified that would have created the alleged sidewalk condition.” (UMF 8.)

Plaintiff does not know how long the alleged defect existed before his fall or to what degree the displacement existed. (UMF 9.)

Defendant had no notice of any other trip and fall claims involving this portion of sidewalk within three years prior to Plaintiff’s incident. (UMF 10.) Defendant received one claim in October 2017 regarding an incident that occurred on 20th Street between Arizona and Wilshire which did not involve the specific condition involved in this case. (PAMF 23; Plaintiff’s exh. 6, p. 9.)

C. Defendant has carried its initial burden of showing the alleged defect was trivial as a matter of law

Defendant contends that it is entitled to summary judgment because the alleged defect in the sidewalk was trivial as a matter of law.

Government Code section 835 “ ‘sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.’ ” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 108 (Stack), quoting Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) “To recover under section 835, a plaintiff must prove that a “ ‘dangerous condition proximately caused his or her injury; that the condition created a reasonably foreseeable risk of the type of injury that was actually incurred; and that the public entity either created the dangerous condition through a negligent or wrongful act or omission of its employee, or had actual or constructive notice of the dangerous condition sufficiently in advance of the accident as to have had time to remedy it.’ ” (Id. at pp. 108-109, quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 155 (Bonanno).) “ ‘An initial and essential element ... is proof a dangerous condition existed.’ ” (Id. at p. 109, quoting Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)

For purposes of Government Code section 835, “ ‘ “[d]angerous condition” means 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.’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Gov. Code, § 830, subd. (a).) Conversely, “ ‘a condition is not a dangerous condition ... 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.’ ” (Ibid., quoting Gov. Code, § 830.2, footnote omitted.)

“These statutory parameters are meant to ‘ “guarantee that cities do not become insurers against the injuries arising from trivial defects.” ’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755.) “Together with the surrounding case law, they form what is known as the ‘trivial defect doctrine,’ shielding public entities from liability for defects that a court deems trivial as a matter of law.” (Ibid.)

“ ‘The existence of a dangerous condition is ordinarily a question of fact . . . but it can be decided as a matter of law if reasonable minds can come to only one conclusion.’ ” (Stack, supra, 91 Cal.App.5th at p. 110, quoting Bonanno, supra, 30 Cal.4th at p. 148.) “If the ‘court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule that the defect is not dangerous as a matter of law.’ ” (Ibid., quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 (Fielder).)

The most important factor in determining whether a defect is trivial is the size of the defect. (Stack, supra, 91 Cal.App.5th at p. 111.) In Stack, the Court of Appeal reviewed the case law and concluded 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.” (Id. at p. 112, quoting Fielder, supra, 71 Cal.App.3d at p. 726.)

“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.’ ” (Stack, supra, 91 Cal.App.5th at p. 113, quoting Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43.) “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.’ ” (Ibid., quoting Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105.) “ ‘Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.’ ” (Ibid., quoting Fielder, 71 Cal.App.3d at p. 734.)

In Stack, “the minimum one-and three-quarter-inch height differential of the first defect weigh[ed] heavily against finding the sidewalk condition trivial as a matter of law” because the height was nearly double the one-inch threshold where courts grow reluctant to take the issue from the jury. (Stack, supra, 91 Cal.App.5th at p. 114.)

“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. [Citations.]” (Stack, supra, 91 Cal.App.5th at p. 115.)

Here, Defendant has presented evidence that the height differential was no more than one inch. The evidence includes good quality photographs of the location where Plaintiff tripped and fell and the declaration of Defendant’s Liability Claims Adjuster Michael Mack. Defendant also presented evidence that nothing obstructed Plaintiff’s view of the height differential, the defect was not jagged, and the incident occurred during daylight hours. Defendant has carried its initial burden on summary judgment of showing no triable issue exists regarding whether the alleged defect was trivial.

Plaintiff argues that triable issues of fact exist concerning (1) whether the height differential was 1¾ inch and (2) whether aggravating factors prevented the defect from being trivial.

To support these assertions, Plaintiff cites his own estimate that the height differential was 1¾ inch and photographs which he asserts show “depressions, cracks, breaks, holes and/or chasms located at this location” as well as “loose concrete, gravel or dirt, and . . . leaves on the sidewalk . . . .” (Opposition pp. 8-9.)

Plaintiff does not explain the basis for his estimate that the height differential was 1¾ inches or explain why his estimate is different from the assertions, in Plaintiff’s complaint and Claim for Damages, that the height differential was one inch.

Plaintiff also does not explain why his estimate differs from the opinion of his own expert forensic engineer, Phil Rosescu (“Rosescu”), who states that the height differential was one inch. (Rosescu Dec. ¶ 7.) Rosescu states: “Due to a defect present in the sidewalk surface, a height differential of approximately 1 inch existed in the control joint between slabs, as depicted in Figure 1 [a photograph]. Figure 1 was captured by Defendant employee Michael Mack on or about November 1, 2021.” ^{^[1]} (Rosescu Dec. ¶ 7.)

In addition, the Court has reviewed the photographs on which Plaintiff relies. At most, the photographs show a small area of rough concrete where the sidewalk slabs meet. However, this rough concrete does not conceal the defect from view. The small number of leaves in the photographs similarly do not affect one’s ability to see the defect in the sidewalk. The only “depressions, cracks, breaks, holes, and/or chasms” in the photographs are the height differential or uplift itself, which created a gap in the sidewalk.

As in Huckey, “the entire record, construed in the light most favorable to plaintiff, shows that the height differential would have been in plain sight and, therefore, would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care’ at the time plaintiff fell. [Citations.] To be sure, the height differential posed some risk of injury. Construed in the light most favorable to plaintiff, the record supports a reasonable inference that height differentials higher than one-half inch pose a trip hazard to pedestrians. But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed ‘a substantial (as distinguished from a minor, trivial or insignificant) risk of injury’ when “used with due care in a manner in which it is reasonably foreseeable that it will be used.’ [Citations].” (Huckey, supra, 122 Cal.App.5th at pp. 1109-1110, fn. omitted.)

Because the Court concludes the alleged defect was trivial as a matter of law, the Court does not address Defendant’s argument that it lacked actual and constructive notice of the defect.

The Court grants Defendant City of Santa Monica’s motion for summary judgment.

Moving party is ordered to file the proof of service of this ruling with the Court within five days.

[1] Rosescu concluded the sidewalk was in a hazardous condition based on a measurement called the Minimum Toe Clearance but this conclusion does not raise a triable issue of fact because it is inconsistent with the governing caselaw discussed above.