Judge Michael E. Whitaker, Case 21STCV08556 2023-04-05 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV08556, Date: 2023-04-05 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 Juana Gladys Cruz Acosta (Plaintiff) sued Defendant City of Burbank (City) based on an incident in which Plaintiff allegedly tripped and fell on an uplift on a sidewalk while Plaintiff was walking her dogs. Plaintiff is alleging a premises liability claim based on a dangerous condition of public property against City.

City moves for summary judgment on Plaintiff’s complaint. Plaintiff opposes the motion. City replies.

“[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 Plaintiff’s evidentiary objections to City’s evidence submitted in support of motion for summary judgment, the Court rules as follows:

With respect to City’s evidentiary objections to Plaintiff’s evidence submitted in support of the opposition to motion for summary judgment, the Court overrules said objections except for the following:

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).)

City argues that it did not have actual or constructive knowledge of the alleged dangerous condition of the subject sidewalk. To support its arguments, City advances the following Undisputed Material Facts (hereinafter UMFs):

In addition, City advances UMFs 17, 18, and 22 which are reliant upon the declarations of Omar Moheize and John Molinar. However, based upon the Court’s rulings on Plaintiff’s evidentiary objections, the portions of Omar Moheize and John Molinar’s declarations which these UMFs rely upon have (in part) no evidentiary value. (See the Court’s rulings on Plaintiff’s Evidentiary Objections above.) As such, City’s Undisputed Material Fact Nos. 17, 18, and in part, 22 are without evidentiary support. [2]

Without evidentiary support for those UMFs, the Court is not persuaded that there are no triable issues of material fact concerning whether City had either actual or constructive notice of the purportedly dangerous condition of the subject sidewalk. Consequently, the Court determines that the burden of production does not shift to Plaintiff to produce evidence that raises triable issues of material fact on the issue of notice.

City argues that the subject sidewalk was not a dangerous condition of public property, as a matter of law, because any 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.

City relies on the declaration of John Molinar (Molinar), the Assistant Public Works Director over the Street and Sanitation Division of the City’s Public Works Department. Molinar avers, per his department’s records, on September 23, 2020, a few weeks after the incident took place on September 7, 2020, an employee from the Street Repair Section of his department inspected the subject location and observed that there was a sidewalk uplift measuring approximately one inch in height. (See City’s UMF 33.)

Plaintiff disputes the height of the defect. (See Plaintiff’s Separate Statement in Opposition to Motion for Summary Judgment (hereafter RUMFs) 20, 33.) Plaintiff advances the declaration of Eris J. Barillas (Barillas), a forensic expert. In part, Barillas declares:

· Figure 2 below is a Plaintiff provided photograph depicting the change in elevation and subject incident area. Figure 3 is a photograph taken by the City that depicts the subject change in elevation on the day Defendant conducted asphalt repairs.

· Plaintiff testified that she estimated the change in elevation was 1½ - 2” (Plaintiff, p. 100-101) Figure 5 below depicts a measurement of the subject height differential at the point where it meets the adjacent depression. The measurement depicted in Figure 5 shows the change in elevation to be somewhere between 1 ¼” and 1 ½”, confirming Plaintiff’s belief that the change in elevation was approximately 1 ½ - 2”.

· Additionally, during my site inspection, I measured the area where the depression had been at the time of the incident. The subject depression measured approximately 5” wide and, as can be seen in the image above, sloped downward toward the subject change in elevation. The size of the depression in combination with the slope toward the change in elevation increased the likelihood that the toe of a pedestrian would catch on the subject change in elevation, causing the pedestrian to trip and fall.

· Furthermore, after the City received Plaintiff’s claim, a Defendant employee went out to inspect the subject location and located an approximately 1” change in elevation at the site and promptly repaired the height differential in the sidewalk (SSUMF 19 and 20). Figure 3 above shows the change in elevation measured 1”. However, it is my opinion that the measurement depicted is inaccurate. Plaintiff’s testimony and Figure 2 indicate that the depression at the edge of the change in elevation in the sidewalk created a height differential greater than the 1” measured 2 by the City employee.

· Defendant City argues that the defect Plaintiff tripped on was trivial as a matter of law because it was only about 1” high and there were no other circumstances that would have caused the defect to be dangerous to a pedestrian using due care. (MSJ, p. 7) However, as mentioned above, the change in elevation was adjacent to a depression, which was an additional circumstance contributing to the subject tripping hazard and increased the likelihood of a trip and fall incident occurring.

(Declaration of Eris J. Barillas, ¶¶ 9 (in part); 11 (in part); 12; 13 (in part); 15 (in part).)

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.”

City proffers the following UMFs that are undisputed by Plaintiff: (a) Plaintiff was not looking at the ground in front of her at the time of her accident because she was focused on an oncoming large dog (UMF 29); (b) the weather was cool and sunny (UMF 3); and (c) the subject sidewalk area was dry and free of debris (UMF 31).

Moreover, Defendant advances UMFs 24, 25, 26, stating Plaintiff was familiar with the subject sidewalk condition based on her regular walks through the area with her dogs, and had never noticed or tripped on subject sidewalk in the past.

In opposition, Plaintiff proffers Plaintiff’s Material Facts (hereafter PMF) 5 and 9, as well as several photographs of the sidewalk uplift at issue. In reviewing the PMFs and photographs, the Court notes the approximately five inch width of the indented and eroded area leading up to the uplift in sidewalk, the jagged and irregular edges lining the large eroded sidewalk area, as well as the accumulation of debris and dirt in the eroded sidewalk area, as well as the surrounding cracks. (PMFs 5, 9; see also Declaration of Eris J. Barillas, ¶ 12, Figure 5.)

Plaintiff further contends she was acting in a reasonable matter at the time of her trip and fall incident. (PMF 10.) The Court notes Plaintiff testified to the following during her deposition:

In reviewing the evidence which City and Plaintiff have proffered, the Court finds that there are triable issues of material fact regarding whether the sidewalk on which Plaintiff tripped and fell is a dangerous condition. In other words, the Court cannot find as a matter of law that the sidewalk uplift and depression 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 City and Plaintiff, and viewing said evidence in a light most favorable to Plaintiff, the Court finds that finds that there are triable issues of material fact as to UMFs 20 and 33. Accordingly, the Court is unable to determine as a matter of law that the alleged defect with the subject sidewalk is trivial as a matter of law.

Further, the Court finds that City failed to meet its burden of production and persuasion that as a matter of law it did not have notice, actual or constructive, of the purported dangerous condition of the subject sidewalk.

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

[1] Defendant advances additional evidence in connection with its reply papers. The Court declines to consider that evidence (see Supplemental Declaration of Rodolfo Aguado, III), as Plaintiff has not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

[2] “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)

Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

[3] 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	April 5, 2023
CASE NUMBER	21STCV08556
MOTION	Motion for Summary Judgment
MOVING PARTY	Defendant City of Burbank
OPPOSING PARTY	Plaintiff Juana Gladys Cruz Acosta