Judge Michael E. Whitaker, Case 20STCV46413 2023-01-30 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV46413, Date: 2023-01-30 Tentative Ruling

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.

Plaintiff Debra Cumpston (Plaintiff) sued Defendant City of Claremont (Defendant) based on an incident in which Plaintiff allegedly got her foot caught on an offset in the sidewalk in front of a school, causing her to trip, fall, and injure herself. Plaintiff sole cause of action against Defendant is for dangerous condition of public property. (See Complaint, First Cause of Action.)

Defendant moves for summary judgment on Plaintiff’s Complaint arguing that the purported dangerous condition of public property was minor, trivial or insignificant. (See Notice of Motion & Motion, p. 3.) Plaintiff opposes the motion. Defendant replies to the opposition.

“[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.) “[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.)

“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. 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 [cleaned up].) 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.” (Id. 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”].)

With respect to Defendant’s objections to evidence submitted by Plaintiff in opposition to motion for summary judgment the Court rules as follows:

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.)

Defendant argues that the uplift in the subject sidewalk was not a dangerous condition of public property, as a matter of law, because the subject offset in the sidewalk 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.

“[W]hen 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, “ ‘[a]s 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.’ (Citation.)”

(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-28, citations omitted & emphasis added.)

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 (hereafter Huckey), citation omitted & emphasis added.)

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, citations omitted & emphasis added.)[1]

Defendant relies on the declaration of Ned Wolfe (Wolfe), a professional mechanical engineer to demonstrate the height of the sidewalk uplift at issue. Wolfe personally inspected the subject sidewalk about two and a half years after Plaintiff’s fall. (Declaration of Ned Wolfe, ¶ 10.) Wolfe attests that the uplift measure 1.5625 inches on the left end edge of the sidewalk, and 1.125 inches on the right side of the sidewalk. (Ibid.) Wolfe attests the only accurate photographs taken of the subject uplift are those taken by William Rice of Carl Warren & Company LLC on October 22, 2019, about a half a year after the subject incident. (Declaration of Ned Wolfe, ¶¶ 12-15.) Wolfe explains these photographs are the only ones which record measurement of the uplift using a level to create a right angle with the lower adjacent sidewalk panel. (Ibid.) Wolfe estimates that the uplift of the slab where Plaintiff’s right foot made contact was at the most 1.23 inches at the time of her fall. (Declaration of Ned Wolfe, ¶ 20.) This estimation is based on his personal inspection of the subject sidewalk, the photographs taken by William Rice of Carl Warren & Company LLC, and various other calculations involving the growth of the uplift over the years and how many inches from the side of the sidewalk Plaintiff was walking at the time of the accident. (Declaration of Ned Wolfe, ¶¶ 16-20.)

Plaintiff disputes the height of the defect at the time of the accident. (See Plaintiff’s Response to Undisputed Material Facts (hereafter RUMF), Nos. 14, 15.) Plaintiff attests that the uplift between the slabs measured closer to 1.5” and advances the following evidence in support of her contention:

The Court notes that the photograph taken of the sidewalk uplift on March 10, 2019 by Tennant indicates the first inch of the uplift is steep, stark and easily ascertainable. (See Declaration of Mary Elaine Tennant, Exhibit A.) However, at about the one inch mark the steep gradient of the uplift quickly becomes smooth and rounded, camouflaging its remaining height. (Ibid.)

In addition to assessing the size of the defect to determine triviality, the Court must determine if there are additional factors that indicate that the defect was “sufficiently dangerous to a reasonably careful person.”

Defendant proffers the following undisputed material facts (UMF) that are undisputed by Plaintiff: (a) it was approximately 8:00 am when the incident occurred (UMF, No. 1); and (b) it was sunny and the sidewalk was dry (UMF, No. 4).

Defendant further advances the deposition testimony of Plaintiff which states the following:

Q: On the date of your fall, was there anything obstructing your view of the sidewalk?

Q: Was there any debris, such as leaves, dirt, sand, gravel, anything else on the sidewalk in the location where you fell on the date of your fall?

Q: Are you claiming that you fell on that sidewalk for any reason other than your contention that one panel of the sidewalk was raised higher than the other one?

Q: I just want to make sure and get a clear record. The sole basis for your contention regarding how you fell was that one sidewalk panel was raised and it was higher than the other one, true?

In opposition, Plaintiff proffers the following RUMF in support of her contention that there were other factors which contributed to the danger of the subject sidewalk uplift:

In reviewing the evidence which Defendant and Plaintiff have proffered, the Court finds that the following factors create triable issues of material fact regarding whether the sidewalk differential on which Plaintiff tripped and fell is a dangerous condition: (1) the disputed height differential; (2) the rounded and smooth portion of the uplift which obscures the actual height of the sidewalk discrepancy; and (3) the busy nature of the subject portion of the sidewalk as a school drop off zone.

In other words, the Court cannot find as a matter of law that the sidewalk uplift on which Plaintiff fell is trivial. Reasonable minds could differ about whether the other factors noted above, combined with the disputed height differential, “presented a substantial risk of injury” even to a reasonably careful person. (See, e.g., Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 229-230 [“It all depends on the nature of the defect, which in this case, based on the evidence submitted in connection with the motion for summary judgment, was not trivial as a matter of law. Because reasonable minds could differ about whether the condition of the asphalt patch, combined with the one and one-half inch height differential, ‘presented a substantial risk of injury’ (citation omitted) the trial court erred in granting Dailey's motion for summary judgment”].)

In considering the competent evidence proffered by Defendant and Plaintiff, and viewing said evidence in a light most favorable to Plaintiff, the Court finds that there are triable issues of material fact as to the UMF Nos. 7, 8, 10, 11, 15 and 16.

Accordingly, the Court is unable to determine as a matter of law that the alleged defect is trivial. The Court concludes factors exist in which a fact finder may determine that the sidewalk uplift is sufficiently dangerous to even a reasonably careful person. In particular, those factors include school drop off zone and subject sidewalk area being crowded on the day the incident occurred, as well as the size and nature of the sidewalk deft, including the soft and rounded top edge of the uplift which seems to camouflage its height.

Therefore, the Court denies Defendant’s motion for summary judgment. The Clerk of the Court shall provide notice of the Court’s ruling.

[1] A court must determine if a defect is trivial as a matter of law based on all surrounding circumstances. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.) In determining whether a defect is trivial as a matter of law, the court first “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.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.)

DEPARTMENT	32
HEARING DATE	January 30, 2023
CASE NUMBER	20STCV46413
MOTION	Motion for Summary Judgment
MOVING PART	Defendant City of Claremont
OPPOSING PARTY	Plaintiff Debra Cumpston