SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Kerry Thatcher (“Plaintiff”) filed this action against defendants City of Santa Monica, City of Los Angeles, and County of Los Angeles for damages arising out of a trip and fall on the sidewalk, which occurred on March 11, 2020. The complaint alleges causes of action for premises liability and general negligence.  

Defendant the City of Santa Monica (“City”) now moves for summary judgment. Plaintiff opposes the motion, and the City filed a reply. 

 

A. Moving Argument  

The City contends it is entitled to judgment as a matter of law because there is no dangerous condition of public property at the location where Plaintiff fell due to trivial defect, there is no evidence that any City employee breached a duty of care to Plaintiff, the City was not on notice of any alleged condition where Plaintiff fell, and there was no willful failure to warn against a dangerous condition. The City avers that the sidewalk uplifted where Plaintiff fell is approximately ½ inch high. The City also argues it has no record of any changes to the concrete itself since Plaintiff’s incident. Lastly, the City contends that there is no merit that a height differential between sidewalk slabs violated ADA regulations, and that Plaintiff has supplied no facts to support her contention that the City violated any health and safety codes. 

 

B. Opposing Argument  

Plaintiff argues the area where she tripped and fell was in a high traffic area and there was a utility box with a cover installed by Spectrum, a third party private company. Plaintiff argues Spectrum installed a utility box on the property, which could break and cause damage to the surrounding pavement. Therefore, Plaintiff argues that there are aggravating factors of high traffic volume and that the City issued a permit to a third party to install a utility box with a cover without properly maintaining the utility box, and consequently the subject sidewalk was not ordinary. Plaintiff also argues the City had actual and constructive notice because City employees annually inspected the area and the City permitted Spectrum to install a utility box. 

 

C. Reply Argument  

The City argues Plaintiff has not produced any evidence relating to a utility box, which is absent from the allegations of Plaintiff’s Complaint, and has not presented any evidence that the sidewalk displacement was not a trivial defect. 

 

II. Motion for Summary Judgment 

A. Burdens on Summary Judgment 

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).)  Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

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.4th 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.)  

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103. 

 

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.)  

 

B. Law Governing Trivial Defect Doctrine 

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.)   

 

(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.)  

 

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.  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.)  

The Fielder court, after reviewing various appellate decisions involving defective walkways, concluded that the variance in these decisions as to what size of a depression, break, or nonalignment in a sidewalk constituted a mere trivial defect could be reconciled on the basis of whether there existed aggravating factors, such as lighting, debris, or a history of other similar injuries and thus rejected a rigid application of a “tape measure” test.  

In Fielder, a pedestrian, who allegedly tripped on 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.) 

 

C. Analysis re: Dangerous Condition and Trivial Defect 

On March 11, 2020, during the early afternoon hours, Plaintiff contends she tripped and fell on a raised portion of sidewalk outside of 715 Broadway. (UMF 1.) Plaintiff was walking from her car to a pet food store to buy dog treats. The portion of concrete upon which Plaintiff contends she tripped was identified in a photograph provided as Exhibit 1 and confirmed at Plaintiff’s deposition. (Ibid.) The measurement of the purported uplift in the sidewalk where Plaintiff contends fell is approximately ½ inch. (UMF 2.) There is no record of any claims of injury, including trips or falls, in the location in the five years prior to Plaintiff’s incident. (UMF 3.) The City’s Department of Public Works has no record of complaints pertaining to the stretch of sidewalk. (UMF 4.) Prior to the date of the incident, the sidewalk where Plaintiff contends she fell was subject to routine inspections, in which City inspectors would make note of displacements in the sidewalk. (UMF 5.) On March 8, 2019, the stretch of sidewalk was inspected by a City inspector; the concrete slab where Plaintiff contends she fell was not identified as having a notable displacement. (UMF 6.) The City had no notice of a sidewalk displacement where Plaintiff contends she tripped prior to the incident occurrence. (UMF 7.) After the date of the incident, the area was subject to another routine inspection on January 13, 2022. Again, the specific concrete slab where Plaintiff contends she fell was not identified as having a notable displacement exceeding a threshold of one inch. (UMF 8.) Plaintiff has not identified any act or omission of a City employee creating the alleged sidewalk defect. (UMF 28.) Next to the concrete slab upon which Plaintiff contends she fell, there is a utility box. The cover to the utility box has been replaced, however the City has made no record of any changes to the concrete itself since Plaintiff’s incident. (UMF 42.) 

The City’s evidence is sufficient to meet the moving burden to show the City is entitled to judgment as a matter of law. Therefore, the burden shifts to Plaintiff to raise a triable issue of material fact regarding triviality.   

Plaintiff, in opposition to the motion, argues the area was a high traffic area and seems to imply that this is an aggravating factor. However, not only does Plaintiff not provide any evidence as to whether the area was indeed high traffic, Plaintiff also fails to demonstrate how a high traffic area would negate any trivial defect. Courts consistently have held that—in the absence of aggravating factors—a sidewalk offset of this size (and higher) is a trivial defect as a matter of law. (Nunez v. City of Redondo Beach (2022) 81 Cal. App. 5th 749, 758.) Plaintiff does not present any admissible evidence to demonstrate how a highly trafficked area would render the otherwise trivial defect in the sidewalk a dangerous condition.  

Plaintiff testified it was a “nice and sunny” day on the date of the incident (Def. Exh 2; Plf. Depo., page 27, lines 20-21), Plaintiff did not see any dirt or debris over the area (Id. at page 33, lines 23-25), and “[t]here wasn’t anything obstructing that view really” (Id. at page 34, lines 2-3.). Plaintiff does not directly dispute Troy’s measurement of the subject height differential where Plaintiff indicated she fell, which measured at approximately ½ inch. (Def. Exh. 7; Decl. Troy, ¶ 10.) Plaintiff’s contention that the measurement was done almost 2 years from the date of the incident does not negate the City’s argument that the height of the defect was approximately ½ of an inch. Reason would infer that, without any changes to the subject concrete since Plaintiff’s fall, the passage of time would only increase the height of an uplift or worsen the alleged defect, not decrease or minimize it. Plaintiff offers no contrary evidence of the purported height of the defect itself, nor any evidence of any building or safety code violations related to the alleged defect. Courts have consistently found height differentials of less than one inch trivial as a matter of law.  (See Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 [ridge of one-half inch]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [crack in sidewalk less than half an inch]; Whiting v. National City (1937) 9 Cal.2d 163, 166 [differential of three-quarters of an inch]; see also Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568 [“[s]everal decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”].) 

Additionally, the Court has reviewed the photograph submitted by the parties, which includes the photograph identified by Plaintiff as the subject uplift during her deposition. The evidence shows the height differential was minor, in plain sight with no obstructions, and did not pose a substantial risk of injury to a pedestrian using due care. “It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel.”].) The trivial defect doctrine exists for that very reason: to “provid[e] a check valve for 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.” (Ursino, supra, 192 Cal.App.3d at p. 399.)  

Furthermore, in terms of the adjacent utility box, Plaintiff has presented no evidence that the installation of the utility box by Spectrum caused or contributed to the uplift in any manner. Plaintiff’s arguments about the utility box installed by a private third party and its relation to the surrounding sidewalk are purely conjectural. Second, this argument raised in Plaintiff’s separate statement does not comply with California Rules of Court, Rule 3.1350. Plaintiff’s separate statement fails to cite to the evidence by reference to the exhibit, title, page, and line number. (California Rules of Court, Rule 3.1350, subd. (f).). Further, Plaintiff’s separate statement cites to non-existent evidence – the Court is unable to locate a “Deposition of Curtis Castle.” Third, this additional claim added in Plaintiff’s separate statement in opposition to this Motion are not predicated on the same fundamental facts such that they can be broadly construed to be encompassed by the allegations of Plaintiff’s complaint.  

In ruling on a motion for summary judgment, the Court is bound by the issues framed the complaint.  “The pleadings play a key role in a summary judgment motion. ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues’ and to frame ‘the outer measure of materiality in a summary judgment proceeding.’”  (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493; Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 [“The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’  [Citations.]”].)  “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.  [Citations.]”  (Hutton, supra, 213 Cal.App.4th at p. 493.). New factual issues presented in opposition to a summary judgment motion should be considered if the pleading, construed broadly, encompasses them.  (Ibid.)  “In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.”  (Ibid.)  In cases that find new factual issues are not encompassed by the original pleadings, “the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint.  Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim.”  (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 226.) Therefore, this improper argument will not be considered in this motion for summary judgment.  

Accordingly, the City met its moving burden to show there was no dangerous condition of public property, because the condition at issue was trivial as a matter of law. Plaintiff failed to raise a triable issue of material fact in this regard.   

 

III. Conclusion 

 

Based on the foregoing, the City’s motion for summary judgment is GRANTED.   

 

Moving Defendant is ordered to give notice.   

 

 

Dated this 3rd day of October 2023