Judge Michelle C. Kim, Case 19STCV20726 2023-05-09 Tentative Ruling

Plaintiff Barbara McCauley (“Plaintiff”) filed this action against defendants City of Inglewood (the “City”), County of Los Angeles, Theodis Brass, and Glenda A. Brass for damages relating to Plaintiff’s alleged trip and fall over a raised portion of sidewalk that presented a dangerous condition at or near the premises located at 330 Queen Street, Inglewood, California 90301 (the “Queen Street Property”). The complaint alleges causes of action for premises liability/violation of Government Code and negligence/violation of Government Code. The premises liability claim includes a count for dangerous condition of public property against the City. Plaintiff has dismissed the complaint against the County of Los Angeles.

On November 29, 2021, Theodis Brass and Glenda A. Brass (collectively, the “Brasses”) filed a cross-complaint against the City alleging that the Brasses are the owners of the Queen Street Property and alleging causes of action for equitable indemnity, contribution, and declaratory relief. The Brasses deny any negligence or liability for the incident, and they assert that the subject sidewalk is owned, operated, maintained, and controlled by the City.

The City now moves for summary judgment as to each Plaintiff’s complaint and the Brasses’ cross-complaint. Plaintiff and the Brasses filed oppositions to the respective motions, and the City filed replies to the oppositions.

The City’s motions and supporting evidence are largely identical and will be analyzed together.

As an initial matter, the Court notes that the City reserved the hearings for each of the motions as a “Motion for Order.” However, the City should have instead reserved each hearing as one for a “Motion for Summary Judgment.” Failing to properly reserve a hearing for a motion for summary judgment manipulates the Court Reservation System and unfairly jumps ahead of other litigants.

The City’s Counsel is put on notice and should instruct their staff that it is inappropriate to intentionally reserve a hearing date for a different type of motion so that the motion can be heard sooner. The City’s counsel is also put on notice that failure to properly reserve hearings in the future in this and other actions based on the type of motion being heard will result in the matter being taken off calendar.

The City argues it is entitled to summary judgment because any danger posed by the subject sidewalk was trivial and readily apparent to any pedestrian exercising due care. The City asserts that an inspection of the sidewalk where Plaintiff tripped and fell reveals that the greatest height differential in the are was between 1 to 1-1/2 inches, and that there were no aggravating factors present when Plaintiff fell. The City further asserts that it was not required to repair the trivial defect. Additionally, the City contends it is entitled to summary judgment because the City did not have actual or constructive notice of the alleged dangerous condition.

Regarding its motion for summary judgment as to the cross-complaint, the City contends it is entitled to summary judgment as to the Brasses’ cross-complaint because the City is not liable as to Plaintiff’s complaint for the same reasons stated above.

Plaintiff argues there are triable issues of fact regarding whether the subject condition was trivial, whether the City had a duty to repair the defect, and whether the City had notice of the dangerous condition. Plaintiff contends that the City fails to produce evidence that inspections were performed over a reasonable period, and Plaintiff avers that the City created the dangerous condition by applying a temporary repair to the subject defect and not maintaining the repair. Further, Plaintiff asserts that the defect was substantial enough to cause a trip and fall but was not open and obvious due to its size and location of the uplift.

The Brasses, in opposition, contend that the City does not establish that it cannot be liable to Plaintiff as a matter of law. The Brasses assert that the City exercises exclusive ownership and control over the subject sidewalk, so the Brasses have a right of indemnity against the City. Further, the Brasses argue that the City fails to negate the Brasses’ claim for contribution.

The Brasses request judicial notice be taken of (1) Inglewood, California Municipal Code § 10-1.15 (Brasses Opp. Request for Judicial Notice Exh. C); (2) Inglewood, California Municipal Code § 10-1.16 (Id. at Exh. D); (3) Inglewood, California Municipal Code § 10-20 (Id. at Exh. E), and (4) a copy of the City’s Public Services and Repair webpage specifying that the City’s Public Services Division is responsible for the maintenance and repair of sidewalks (Id. at Exh. F.)[1]

The request is granted as to Exhibits C through E. (Evid. Code § 452(b)-(c).) The request is denied as to Exhibit F, as the Brasses do not establish it is proper to take judicial notice of the attached webpage print out. (Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 279 fn. 12 [denied request for judicial notice of internet pages from Department of Health Services website].)

In Plaintiff’s separate statement submitted with her opposition, and in the City’s response to the additional material facts asserted by Plaintiff and the Brasses in their separate statements, the parties make objections to certain material facts asserted therein. Objections to material facts, as opposed to evidence, and arguments about how the Court should interpret the facts, are improper. (Cal. Rules of Court, Rule 3.1354(b).) Further, the objections in the separate statements do not comply with California Rules of Court, Rule 3.1354’s formatting requirements. The Court, therefore, declines to rule on the purported objections in the separate statements. The parties’ separately filed objections are addressed below.

The Brasses, in their opposition, filed seven objections to the declaration of Flynn Marine (“Marine”) submitted with the City’s motion. Objections 1-7 to Marine’s declaration are overruled.

With its reply to Plaintiff’s opposition, the City submits six objections to declaration Plaintiff’s expert’s, Philip Rosescu (“Rosescu”). Objections 1-4 are sustained. Rosescu does not provide a proper foundation for any of the Exhibits referenced in the relevant paragraphs, and Rosescu asserts improper legal conclusions and relates or relies on case-specific facts he has not established independent knowledge of. (See People v. Sanchez (2016) 63 Cal.4th 665, 685-86 [An expert cannot “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.”]; see also Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743 [An expert opinion that is based on speculation, surmise or “assumptions of fact ... without evidentiary support” does not raise a triable issue of material fact.].)

Objection 5 is overruled. Objection 6 is not material to the disposition of the motion, and thus, the Court declines to rule on it at this time. (CCP § 437c(q).)

Additionally, with its reply to the Brasses’ opposition, the City submits two objections to the Brasses’ evidence. Objections 1-2 are not material to the disposition of the motions; the Court declines to rule on them. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “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” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)

The Act defines a “ ‘[d]angerous condition’ ” as “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.” (§ 830.) Public property is in a dangerous condition within the meaning of section 835 if it “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” [Citation.] 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 or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (§ 830.2.)

“Property owners are required ‘ “to maintain land in their possession and control in a reasonably safe condition’ [citations] and to use due care to eliminate dangerous conditions on their property.’ [Citation.] But ‘ “a property owner is not liable for damages caused by a minor, trivial, or insignificant defect” on its property.’ ” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226.)

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 or trivial defects. The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury 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. “[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 criterion. 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 v. City of Glendale (1977) 71 Cal.App.3d 719, 734; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.)

“ ‘In the sidewalk-walkway context, “[t]he decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.” ’ ” (Fajardo, supra, 85 Cal.App.5th at 227.) “[T]he court also must consider ‘all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest,” including “whether the walkway had any broken pieces or jagged edges.’ ” (Id.)

In Fielder, a pedestrian, who allegedly tripped on the raised edge of segment of sidewalk and suffered a fractured femur as result of her fall, sued the City of Glendale. The appellate court held that: (1) it is for court to determine whether as matter of law a given defect in a sidewalk is not dangerous and (2) where the only facts alleged concerning whether the ‘defect’ was dangerous was evidence as to the depth of the depression and no evidence was presented as to any other surrounding circumstances or to other injuries to other persons on same spot, the approximate three-quarter-inch depression in the sidewalk at issue was not dangerous as matter of law. The Fielder court also disregarded the testimony of the plaintiff's expert that the defect was dangerous, reasoning that “there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Fielder, supra, at p. 732.)

In Ursino, the plaintiff was walking on a sidewalk on the defendant’s property and tripped over the raised edge of one of the concrete sections of the sidewalk. The raised edge was no more than three-fourths of an inch, the accident occurred in the morning, the weather was fair and dry, nothing concealed the defect, the plaintiff had frequented the restaurant on an average of once per week over 15 years, the raised edge had been there for between one to five years, neither party knew of any prior similar incidents, the plaintiff’s walking pattern was affected by her age, and 32 photographs of the sidewalk area at issue confirmed, to the trial and appellate courts, that reasonable minds could not differ and that the defect was in fact trivial. (Ursino, supra, at pp. 396-397.)

In Kasparian, the plaintiff, an elderly tenant, had sustained serious injuries when she tripped over a recessed drain in the ground in an apartment complex. In overruling the trial court’s grant of summary judgment in favor of the defendant based on the trivial defect doctrine, the appellate court held that the trial court only focused on the depth of the recession and ignored the recessed nature of the drain when viewed in the context of the surrounding circumstances. Kasparian’s expert stated that the hole created for the drain grate was uneven, with heights ranging from 1/32 inch to 5/16 inch. He opined that the size and profile of the depression created for the grate varied from one end to the other which posed a safety hazard to pedestrians who did not have any expectation that any drain was not flush with the surrounding brick pavers. The survey of the other drains in the immediate vicinity of the drain in question confirmed that those drain covers were flush with the brick/paver surface, and the slope to the drain was nearly level unlike the drain in question. The slope to the drain in question was dramatically more severe than that found in customary drains. Moreover, there were no warnings or color distinctions to warn pedestrians that the drain was recessed. The expert opined that the surrounding circumstances of the location of the accident made the area very hazardous given the drains from a distance appeared similar in color to the bricks/pavers, the drains were not distinguishable by color and texture from the surrounding pavers, and in the totality of the circumstances they could not be easily detected even in daylight. (Kasparian, supra, at pp. 28-29.)

In Caloroso, a pedestrian, who tripped over a crack in a walkway, and her husband sued the defendant property owner for personal injury and consortium damages. It was undisputed that the difference in elevation created by the crack in the walkway was less than half an inch at the highest point. Elevations ranging from three-fourths inch to one and one-half inches were found minor and trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74.) Following this line of cases, the Caloroso court held that the defect at issue should also have been deemed trivial as a matter of law, unless there was disputed evidence that other conditions made the walkway dangerous. In an attempt to raise a triable issue of material fact, the plaintiff submitted an expert declaration on the issue of triviality. Citing Evidence Code §801(a), the appellate court held that no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous. The photographs of the crack submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal. Regardless of whether a witness can be found to opine on the subject of a dangerous condition, the court must independently evaluate the circumstances. (Caloroso, supra, at p. 928, citing Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) The appellate court also found no foundation for the plaintiff’s expert’s opinion that noncompliance with certain building codes and standards made the crack dangerous. The expert failed to indicate that the codes and standards cited had been accepted as the proper standard in California for safe sidewalks. Moreover, there was no indication regarding whether such codes applied to existing walkways as opposed to new construction. Thus, the trial court properly concluded that the defect was trivial as a matter of law, and summary judgment was appropriate. (Caloroso, supra, at p. 929.)

Here, Plaintiff’s claim for damages received by the City stated that on or about July 13, 2018, at 3:00 p.m., Plaintiff “was walking near 330 W. Queen Street, Inglewood, CA 90301 when she tripped on uneven concrete protruding above the sidewalk,” causing her to “fall forward and become injured.” (Mot. Undisputed Material Facts (“UMF”) 1.)[2] Plaintiff’s complaint similarly alleges that on June 13, 2018, she tripped and fell over a raised portion of sidewalk pavement located at or near the Queen Street Property. (Id. at 5.) The sidewalk located in front of the Queen Street Property is the City’s property. (Id. at 2.) On February 2, 2019, Marine, the manager of the City’s Department of Public Works, participated in a scene investigation at the location described in Plaintiff’s claim for damages. (Id. at 3.) Marine observed a slight separation of two concrete slabs of sidewalks and measured the height difference between the two slabs. (Id.) The highest measurement was between 1 and 1-1/2 inches. (Id.) Plaintiff confirmed the location of the incident in her responses to the City’s written discovery. (Id. at 7.) Defendant submits photographs of the subject sidewalk height differential, which depicts the offset between the two slabs ranging from approximately 1 to 1-1/2 inches high. (Mot. Exh. 3.)

According to Plaintiff, it was sunny at the time of the incident, and Plaintiff testified that there was nothing obstructing her view of the sidewalk. (Id. at 9-10.) Plaintiff’s visibility at the time of the incident was clear. (Mot. UMF 11.) At her deposition, Plaintiff confirmed that the three photographs she produced in response to the City’s request for production of documents, set one, depicted the portion of sidewalk she alleges caused her trip and fall incident. (Id. at 13-14.) Marine reviewed the photographs and confirmed the portion of sidewalk he inspected and measured is the same portion that Plaintiff alleges caused the incident. (Id. at 16.) To date, Plaintiff has produced no other information regarding the weather conditions, the existence of any obstructions or debris at the location of the incident which may have concealed the alleged dangerous condition, or any other information regarding the alleged dangerous condition as it existed on the date and time of the incident. (Id. at 20.)

Additionally, Plaintiff is not aware of anyone that contacted the City to report the condition of the sidewalk before the subject incident. (Id. at 18.) Except for Plaintiff’s claim for damages, the City has no record of any repair requests, repair records, complaints, claims, and/or reports of trip and fall incidents related to the sidewalk at or near the Queen Street Property that were made prior to July 13, 2018. (Id. at 22.)

The foregoing is sufficient under the standards discussed above, to meet the moving burden to show City is entitled to summary judgment under the trivial defect doctrine. Because the City meets its moving burden, the burden shifts to Plaintiff and the Brasses to raise a triable issue of material fact regarding triviality.

Plaintiff, in opposition, argues that the defect is substantial enough to cause a trip but is not open and obvious due to its size and location. Plaintiff avers that trip hazards that are not apparent are likely to go unnoticed and can cause trip and fall incidents.

Regarding the size of the offset, “[s]everal decisions have found height differentials of up to one and one-half inches trivial as a matter of law.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568; see also, e.g. Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43-44 [no liability for sidewalk elevation differential up to one and seven-eighths inch]; Ness v. City of San Diego (1956) 144 Cal.App.2d 668, 673 [seven-eighths inch difference between sidewalk slabs trivial as a matter of law]; accord. Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363 [one and one-half inch differential].) However, “size alone is not determinative of whether a rut presents a dangerous condition. It is just one of several factors—albeit ‘[t]he most important of these factors’—for determining whether a given defect may be deemed trivial as a matter of law. [Citation.] We must also consider the nature and quality of the defect, the time of day and lighting conditions when the accident occurred, and whether there is evidence anyone else has been injured by the same defect.” (Stathoulis, 164 Cal.App.4th at 568.)

In turning to other factors, Plaintiff described the weather conditions on the day of the incident as sunny, described her view as unobstructed at the time of the incident, and described her visibility as clear at the time of the incident. (Mot. UMF 9-11.) Plaintiff, thus, does not identify any other aggravating factors that rendered the defect dangerous. Moreover, the Court has reviewed the photographs submitted by the City and does not find that the up to 1-1/2 inch offset alone rendered the defect dangerous. The photos show the height differential was in plain sight on the sidewalk. (Mot. Exh. 3.)

Plaintiff further asserts that the City disregarded its own policies and guidelines regarding repairing uplifts of more than one inch. Plaintiff, however, fails to cite any authority for the position that the City’s internal policy for its sidewalks overrides the trivial defect doctrine or is used to determine whether a condition poses a substantial risk of injury. The fact that a city endeavors to cure defects, upon notice, even when those defects are trivial under the law, does not support imposition of judgment against that city when the law finds those defects to be trivial. (See Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758-59 [“We cannot agree the City's policy that sidewalk height differentials between a half-inch and one-and-a-half inches should be repaired—in part because they are tripping hazards—renders the nonalignment of the sidewalk slabs here a dangerous condition…”].) Rather, Plaintiff must show that the defect was a tripping hazard, and the surrounding area posed a substantial risk of injury when used with due care. (Id. at 759 [“the City does not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard—only those defects that create a substantial risk of injury to a pedestrian using reasonable care.”]; Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-10.)

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.” (§§ 830, 830.2.)

(37 Cal.App.5th at 1109-10 (emphasis in original).) The evidence shows that the offset was in plain sight and “would have been avoidable to a pedestrian walking on the sidewalk and approaching the height differential ‘with due care’ at the time plaintiff fell.” (Id. at 1109.)

In evaluating the totality of the surrounding circumstances and the evidence presented, including the photographs of the condition, the size of the height differential, and the lack of any aggravating factors, there are no triable issues of material fact concerning triviality. (Stathoulis, 164 Cal.App.4th at 568-69.)

Lastly, Plaintiff’s submits the expert declaration of Philp Rosescu, who opines that the sidewalk was in a dangerous condition and constituted a trip and fall hazard. (Opp. Rosescu Dec. ¶ 13.) Although Plaintiff’s expert opines the sidewalk was in a dangerous condition, courts have rejected expert testimony in the area of interpretation of the trivial defect doctrine. (See Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-1110; see also Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389 [“It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.”]; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 763 [“the proffer of an expert declaration opining that a condition is dangerous does not preclude summary judgment.”].)

Based on the foregoing, the City meets its moving burden of showing it is entitled to summary judgment under the trivial defect doctrine. Plaintiff fails to raise a triable issue of material fact as to the triviality of the defect.

The Brasses in their opposition do not otherwise dispute that the subject sidewalk offset constituted a trivial defect. Given this ruling, the Court does not reach the notice issues.

As to a cross-complaint alleging another is responsible for the plaintiff’s injuries, to state a claim for equitable indemnity, the defendant must allege the same harm for which the defendant may be held liable is properly attributable wholly or partly to the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445 n. 7.) “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177 [“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”].)

Furthermore, the elements of contribution are: (1) money judgment; (2) rendered jointly against defendants; (3) in tort action; (4) application of equity principles; (5) payment by tortfeasor of more than pro rata share; and (6) no intentional injury by the tortfeasor. (CCP §875; General Elec. Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.) Additionally, there are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Cross-Complainant's] rights or obligations.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

“[I]f the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff's injuries, another defendant may not pursue a claim for indemnity against that defendant.” (Frank v. State of California (1988) 205 Cal.App.3d 488, 494.) “ ‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ” (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1099.)

In this case, as analyzed above, the City’s evidence establishes that it is not liable for Plaintiff’s injuries under the trivial defect doctrine. Because the City establishes it is not liable as a matter of law for Plaintiff’s injuries, the City is also entitled to summary judgment on the Brasses’ cross-complaint for equitable indemnity, contribution, and declaratory relief. In the absence of any liability to Plaintiff, the City has no obligation to indemnify the Brasses. (See Frank, 205 Cal.App.3d at 494.) Moreover, because Defendant has no liability, there is no actual controversy to support a cause of action for declaratory relief, and there is no money judgment that can be rendered jointly against the City in this case. (CCP §§ 875 and 1060.)

The City, therefore, is entitled to judgment against the Brasses’ cross-complaint as a matter of law.

Defendant the City’s motion for summary judgment as to Plaintiff’s complaint is granted.

The City’s motion for summary judgment as to the Brasses’ cross-complaint is granted.

Hon. Michelle C. Kim

Judge of the Superior Court

[1] The Brasses Request for Judicial Notice also contains an attached Exhibit G. However, the Brasses only request that judicial notice be taken of Exhibits C through F. They do not request judicial notice be taken of Exhibit G, so the Court does not take judicial notice of such.

[2] The City’s Separate Statements filed with each of its motions, including the numbering of the material facts, are identical.