Judge: Michael E. Whitaker, Case: 19STCV19970, Date: 2023-06-20 Tentative Ruling

Case Number: 19STCV19970    Hearing Date: June 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts [1]
3. Appendix of Evidence

OPPOSITION PAPERS:

            N/A

REPLY PAPERS:

            N/A

BACKGROUND

Plaintiff Geraldine Easley (Plaintiff) sued Defendant City of Long Beach (City) based on an incident in which Plaintiff allegedly tripped and fell while walking up a gangway when her sandal caught between a gap between two metal plates.  Plaintiff asserts a premises liability claim against City. 

City moves for summary judgment, or in the alternative, summary adjudication, on Plaintiff’s complaint.  Plaintiff has not filed an opposition.

LEGAL STANDARDS –SUMMARY JUDGMENT/SUMMARY ADJUDICATION

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) 

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; 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”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.)  Additionally, in line with Aguilar, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) 

DISCUSSION

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute.  (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

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.  (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)  A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.) 

Per Section 835, “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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  (Gov. Code, § 835, emphasis added.) 

A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”  (Gov. Code, § 835.2, subd. (a).)  A public entity has constructive notice of a dangerous condition only if “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.”  (Gov. Code, § 835.2, subd. (b).) 

1. Trivial Defect Doctrine

City first argues that the gap between sections of the subject gangway was not a dangerous condition of public property, as a matter of law, because the purported defect was  trivial.

In summary, 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.  Although sometimes referred to as the trivial defect defense, the trivial defect doctrine is not an affirmative defense but rather an aspect of duty plaintiff must plead and prove.

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. This doctrine permits a court to determine triviality as a matter of law rather than always submitting the issue to a jury and provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property. The trivial defect doctrine has been expanded to embrace actions against private landowners.

When a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criteria. 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. As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole. The court should also look at other factors such as whether the accident occurred at night in an unlighted area. Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect.

If the court determines sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule the defect is not dangerous as a matter of law. Conversely, where the only evidence available on the issue of dangerousness does not lead to the conclusion reasonable minds may differ, then it is proper for the court to find the defect was trivial as a matter of law.

Moreover, as to what constitutes a dangerous or defective condition no hard and fast rule can be laid down, but each case must depend upon its own facts.

(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-28 [cleaned up].) 

In Huckey v. City of Temecula, the Court of Appeal, in affirming summary judgment for the city, stated in part:  “a condition is not dangerous, 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 reasonably foreseeable manner.”  (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104 [cleaned up].)

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.  The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.

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. 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.

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.

(Huckey, supra, 37 Cal.App.5th at p. 1105 [cleaned up].) [2]

A.    Preliminary Analysis – Type and Size of Defect

City relies on Plaintiff’s response to Special Interrogatory No. 2, propounded by City, in which Plaintiff states the gap between the metal plate and gangway is about 1 inch.  (Appendix of Evidence, Exhibit 3.)  Based upon that evidence, the Court initially finds that the defect is trivial.

B.     Secondary Analysis – Additional Factors

Although the Court in its preliminary analysis has determined the defect is trivial, the Court must determine if there are additional factors that indicate that the defect was “sufficiently dangerous to a reasonably careful person.” 

City proffers the following Undisputed Material Facts with supporting evidence (hereafter UMFs): (a) the incident occurred between 3:00 p.m. and 4:00 p.m. (UMF 3); (b) Plaintiff had used the subject gangway approximately 2 to 3 times in the past (UMF 8); (c) at the time of the accident, it was a sunny day, and the gangway was dry (UMF 9); and (d) there was no debris or shadows cast on the gangway at the time of the accident (UMFs 10 and 11)

            Based on the foregoing, the Court finds City has met its initial burdens of production and persuasion in establishing that the height differential between parts of the gangway where Plaintiff tripped and fell is trivial, and there are no other circumstances that would make the height differential between the sections of the subject gangway non-trivial.  Accordingly,  Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether the purported defect with the subject gangway is non-trivial, creating a dangerous condition.

            But Plaintiff has not opposed the Motion.  As such, Plaintiff has not met her burden of production to make a prima facie showing of the existence of a triable issue of material fact concerning whether the purported defect with the subject gangway is non-trivial, creating a dangerous condition that was sufficiently dangerous to even a reasonably careful person.  Absent that showing, Plaintiff cannot prevail.

CONCLUSION AND ORDER

In considering the competent evidence proffered by City, and viewing said evidence in a light most favorable to Plaintiff, the Court finds that there are no triable issues of material fact regarding City’s Undisputed Material Facts Nos. 1-14, and determines, as a matter of law that the subject defect is trivial as a matter of law and thus does not constitute a dangerous condition for which City would be liable for under Plaintiff’s claim of premises liability. [3]

Therefore, the Court grants City’s motion for summary judgment.  City shall provide notice of the Court’s ruling and file a proof of service regarding the same.