Judge: Lynne M. Hobbs, Case: 21STCV06759, Date: 2023-11-15 Tentative Ruling
PLEASE NOTE:
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Case Number: 21STCV06759 Hearing Date: November 15, 2023 Dept: 30
PATRICIA KIMBALL vs CITY OF WEST HOLLYWOOD, et al.
Motion for Summary Judgment
Tentative: Defendant's Motion for Summary Judgment is denied. Moving party to give notice.
DISCUSSION:
Evidentiary Objections
Defendant’s Objections to Plaintiff’s Evidence are OVERRULED.
Discussion
Defendant moves for summary judgment on the grounds that (1) the sidewalk offset is trivial as a matter of law because the uplift of the sidewalk measured 7/8 inches and there were no other aggravating factors to establish that the area is substantially dangerous; and (2) Defendant had no actual or constructive notice of the sidewalk uplift.
1. Trivial Defect Doctrine
Government Code section 835 states:¿“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 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.”
The term “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 or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.”¿ (Gov. Code § 830(a).)¿ “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)
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 or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Government Code section 830.2.)
“‘The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk ‘of such a minor, trivial or insignificant nature in view of the surrounding circumstances . . . 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.’’” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104 (quoting Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27).) “The trivial defect doctrine is not an affirmative defense.” (Id.) “It is an aspect of duty that a plaintiff must plead and prove.” (Id.)
“In appropriate cases, the trial court may determine . . . whether a given walkway defect was trivial as a matter of law.” (Id.) “‘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.’” (Id. at 1104-05 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (Id. at 1105.) “In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect—in this case, on the depth or height of the walkway depression or elevation—although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.’” (Id. (quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734) (emphasis in original).) “The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.” (Id.) “These other circumstances or factors include 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 accidents.” (Id.) “In sum, ‘[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.’” (Id. (quoting Caloroso, supra, 122 Cal.App.4th at 927) (alteration in original).)
Here, Defendant presents evidence that photographs taken by plaintiff’s son and his partner approximately one month after the incident show that the level of offset/uplift amount was only seven-eighths of an inch (7/8”) where plaintiff contends she fell on the outer edge of the sidewalk. (Defendant’s Undisputed Material Facts (“UMF”) Nos. 3, 9.) Accordingly, Defendant contends, on that measurement alone the uplift was clearly a trivial defect as a matter of law. Further, Defendant also argues that there is no evidence of any aggravating circumstances or factors which might have increased the dangerousness of the trivial uplift/defect to the point where it would pose a substantial risk of injury when used with due care. The seven-eighths inch uplift on the outer edge of the sidewalk was clearly visible, there was nothing obscuring plaintiff’s vision, there were no jagged edges to the uplift, there were no leaves or debris obscuring the uplift, and it is unclear whether the area where plaintiff fell was shaded at the time of the incident. (UMF Nos. 6-7.) Further, plaintiff was not looking at the ground when she was walking on the sidewalk, instead she was looking ahead and did not see the uplift prior to her fall. (UMF No. 8.)
In a recent case, the Court of Appeal considered whether a height differential of one and three-quarters was trivial as a matter of law. (Stack v. City of Lemoore (2023) 91 Cal. App. 5th 102.) The Court of Appeal 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,” i.e., that it is minor or trivial. (Fielder, supra, 71 Cal.App.3d at p. 726, italics added.) However, “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.’ (Beck, supra, 150 Cal.App.2d at p. 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.’” (Huckey, supra, 37 Cal.App.5th at p. 1105, quoting Fielder, supra, 71 Cal.App.3d at p. 734.) “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.” (Fielder, at p. 734.)
Ultimately, the Court in Stack, supra, 91 Cal. App. 5th 102, held that the minimum one- and three-quarter-inch height differential of the defect weighed heavily against finding the sidewalk condition trivial as a matter of law. The height is nearly double the one-inch threshold where courts grow reluctant to take the issue from the jury. (See Fielder, supra, 71 Cal.App.3d at p. 726.)
Here, in opposition, Plaintiff argues uplift where Plaintiff fell as 1 and ¼ of an inch. Plaintiff argues that Defendant’s motion is premised on the assertion that the uplift in the subject sidewalk was 7/8 of an inch. The assertion is not based on the City’s own measurements of the offset—because the City never took any measurements of its own. Instead, the City relies on pictures of measurements taken by Plaintiff’s son Jereme Stark. But the measurements portrayed in those pictures were not taken at the precise location where Plaintiff’s foot struck the uplift. As the evidence confirms, Plaintiff was located at the rightmost edge of the sidewalk at the time of her fall because she was walking side by side with her son and a tall hedge forced her to the right. (Plaintiff’s Additional Disputed Material Facts (“ADMF”) Nos. 1, 2.) Further, she tripped with her right foot, which means Plaintiff tripped at the extreme rightmost edge of the sidewalk. (ADMF 3) Jereme Stark’s photographs relied on by the City, however, depict measurements that were taken to the left of the rightmost edge. Crucially, the pictures show that the uplift at the right edge was higher than where Jerome took his measurement. (ADMF 5.) Plaintiff’s liability expert, Gary M. Gsell, measured the uplift at its rightmost edge at 1 and 1/4 inches tall. (ADMF 6.)
Plaintiff also presents evidence that beyond the size of the uplift itself, there existed the additional factors that make the uplift more dangerous. These include the adjacent hedge encroaching on the sidewalk, which made it impossible for two pedestrians to walk side-by-side without one of them stepping onto the very edge of the sidewalk, or partially on the parking strip, where the uplift is highest and most dangerous. (ADMF 2.) In Plaintiff’s words, she was walking “right at the edge because [the sidewalk is] barely big enough for two people to walk side by side with those—with those bushes.” (ADMF 2, Kimball depo. at 35:8-16.) There was also the additional fact that the uplift was more likely than not obscured by the shadow of an adjacent tree. (ADMF 7, 8, and 9.)
Based on a consideration of all the applicable factors, the Court cannot find that the defect was trivial as a matter of law. Weighing the evidence in a light most favorable to Plaintiff, the height differential of 1 and 1/4 is over the height where courts are reluctant to take the issue from the jury, and there is evidence the hedge on the opposite side of the walkway effectively narrows the sidewalk, forcing pedestrians toward the uplifted part of the walkway; that the uplift is not uniform across the path, but, rather, slanted running from flush on the hedge side to 1 and 1/4 inches tall on the rightmost edge; and that overhanging tree branches may have cast a shadow over the uplift. As such, reasonable minds could differ as to its dangerousness based on the evidence of aggravating conditions.
2. Creation of Dangerous Condition and Notice
Defendant also contends it had no actual or constructive notice of the alleged dangerous condition.
Government Code section 835 provides that “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) [t]he 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.” (Govt. Code, § 835.)
Notice, in the context of Section 835 liability, is defined in Government Code § 835.2 as follows:
“(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.”
(Gov. Code, § 835.2(a)-(b).)
“Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident, and the secondary element is the method of inspection. (Ibid.)
In Strongman v. Kern County (1967) 255 Cal.App.2d 308, the court held that the critical test for constructive notice is whether “the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence.” (Id. at p. 313.) A plaintiff can meet this burden with circumstantial evidence. (Id.)
Here, Defendant argues that it had no actual or constructive notice of the condition. Defendant submits the declaration of Mila Sologub, the Assistant City Engineer for the City, establishes that the City has a formal sidewalk inspection protocol in place for inspecting, discovering, and remedying significant sidewalk defects which are performed every 12-18 months. (UMF No. 10.) The sidewalks on Huntley Drive were inspected prior to the incident in 2014, 2015, 2016, 2017, 2018, 2019, and 2020. (UMF No. 11.) A defect was noted at 525 Huntley Drive on December 26, 2017 and was repaired by grinding, but that repair was not the same uplift that plaintiff alleges caused her to fall. (UMF No. 12.) Other than the above, there were no other defects observed in the inspections of this location. (UMF No. 13.) There were no complaints from the public between the inspection of June 26, 2018, and May 4, 2020, regarding the uplift where plaintiff fell. (UMF No. 14.) Therefore, the City argues, it maintained a reasonable inspection system for the subject sidewalk in the location where plaintiff claims that she fell and did not discover the condition prior to the alleged incident with the sidewalk uplift. (See Gov. Code, § 835.2(b)(2).)
Plaintiff contends that more than ample evidence demonstrates that the City knew of the existence of the dangerous condition over two years before Plaintiff tripped, and, in fact, had ordered it to be repaired. As noted above, around December 26, 2017, the City ordered a repair for the uplift. This was evidenced by an inspection summary report produced by the City, which purports to show that the uplift was ground by the City’s contractor, BPR. This repair, however, was never actually done. A Google Maps image captured in April of 2019 shows that the uplift was still present in the period between December 2017 and prior to Plaintiff’s fall. (ADMF 16) And Assistant City Engineer Mila Sologub admitted at a deposition taken after the City filed its motion that the repair was never done. (ADMF 11)
Nevertheless, in its motion, the City claims that the defect reflected in the produced report “was not the same uplift that plaintiff alleges caused her fall.” The City based that assertion on a declaration submitted by Sologub. (UMF 12.) In her declaration, Sologub stated that the subject uplift was not the one referenced in the City report because the subject uplift had never been subjected to a grinding repair. (Sologub Decl., ¶ 5.) In other words, Sologub’s declaration assumed that a grinding repair was in fact completed by BPR in December 2017, and thus the unrepaired uplift at issue could not have been the one referenced in the report. However, at Sologub’s deposition, which was taken after she submitted her declaration, she admitted she assumed that BPR had actually performed the repair as indicated in the City report. (Sologub depo at 16:9-15; 49:5 to 50:1; 67:1-12; 102:12-16.) But she has since discovered that the repair referenced in the report was never actually performed. (Id., at 49:5-50:1; 67:1-12.)
The Court finds that Defendant has not met its initial burden on summary judgment to show that there are no triable issues of fact as to whether it had actual or constructive notice of the alleged dangerous condition. As the City admits, it had actual notice of an alleged condition at 525 Huntley Drive, which it argues was not the same condition as the one in this case, but based upon Sologub’s subsequent deposition testimony, the evidence supporting the argument that it was not the same condition that caused Plaintiff’s fall has been refuted. In reply Defendant argues that Plaintiff assumes that was the same location where Plaintiff fell, but neither party presents evidence as to whether it was or was not.
In any event, based on Plaintiff’s evidence showing the condition was present in 2017 and 2019, a finder of fact might reasonably conclude that this was a sufficient period of time for Defendant, in the exercise of due care, to discover the dangerous condition of the sidewalk. As such, there are triable issues of fact as to whether the City had constructive notice of the condition. Thus, Defendant’s motion for summary judgment must be denied.