SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Aram Keledjian (“Plaintiff”) filed this action against Defendant City of Burbank (“Defendant”) for damages arising out of a trip and fall on the street on December 15, 2020.  Plaintiff brings a cause of action for dangerous condition of public property pursuant to Gov. Code section 835. Plaintiff alleges injuries arising from stepping on an uneven, scarred and deformed portion of asphalt on the street. (Compl. ¶ 13.) 

Defendant now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.  

On September 13, 2023, the Court, on its own motion, continued the hearing to October 9, 2023 to provide Defendant the opportunity to lodge the referenced video surveillance footage of the incident. (Min. Order, Sept. 14, 2023.) On September 13, 2023, Defendant lodged the subject video.  

On October 9, 2023, the Court granted Plaintiff’s request to continue the hearing to November 16, 2023 so that a sur-reply and objections may be filed, due by November 1, 2023. (Min. Order, Oct. 9, 2023.)  

On November 1, 2023, Plaintiff filed a sur-reply and evidentiary objections.  

 

A. Defendant’s Moving Argument  

Defendant contends they are entitled to judgment as a matter of law because Defendant had no actual or constructive notice of any dangerous condition, that no employee of Defendant caused or created any dangerous condition, and the alleged condition was a trivial defect as a matter of law. Defendant refers to a video of the incident to demonstrate clear weather and that nothing impeded Plaintiff’s view of the alleged defect.  

Defendant asserts that no work was performed in the gutter area adjoining the sidewalk at the time because assessment at that location did not reveal any issue or defect that warranted repair. Prior to Plaintiff’s complaint, Defendant received no other complaints and has no record of any prior trip and falls at the subject location. After Plaintiff’s claim, Defendant repaired the condition. Defendant’s Asphalt Repair Crew took photographs and measured the defect as approximately 1 inch deep prior to the asphalt patch. Lastly, Defendant argues that it’s third-party vendor in 2012 and 2017 conducted surveys to establish Pavement Condition Index (“PCI”) ratings for each street, and the last surveyor’s report in 2017 did not indicate or observe any alleged defect at or near 2815 Magnolia Boulevard.  

 

B. Plaintiff’s Opposing Argument  

Plaintiff argues that Defendant’s Pavement Management Program Reports, which include PCI Index Reports (“PCI”) indicate that the pavement of the subjection location was scored at 58/100 in 2017, and 39/100 in 2021. Plaintiff contends that the PCI rating in 2021 was given approximately 8 days following the incident, and that Defendant’s City Engineer Daniel Rynn (“Rynn”) testified that a reasonable PCI score was above 70. Therefore, Plaintiff argues Defendant had constructive notice of a dangerous condition due to the PCI score. Plaintiff also argues that Defendant had no policies and procedures to inspect and maintain the property in safe condition, and that Defendant has provided no evidence that the defect was trivial.  

Plaintiff further contests that Defendant performed work at the subject location, and argues the photographs in Defendant’s exhibit are not of the same location and same defect depicted in Plaintiff’s photographs. As such, Plaintiff contends Defendant therefore has not established the defect was approximately 1 inch deep. Additionally, Plaintiff argues the defect was obscured by overgrown plants, debris, and trash.  

 

C. Defendant’s Reply Argument  

Defendant argues the PCI score does not reflect the safety of the street to create the presumption of constructive notice or that a PCI rating demonstrates a dangerous condition of public property. Defendant also contends that the video evidence confirms there was no obstruction of the defect on the date of the incident. Further, Defendant avers Plaintiff confirmed the photographs taken of the area a week after the incident demonstrated that the area was as is on the date of the incident, without obstruction. Defendant argues the photographs taken by Plaintiff a few days after the incident demonstrate that the defect was not deep, jagged, deteriorated, or in poor quality.   

 

D. Plaintiff’s Sur-Reply Argument  

Aside from reiterating arguments in the opposition, Plaintiff contends the additional evidence Defendant submitted on reply, namely Exhibit N (additional excerpts from Plaintiff’s deposition), Exhibit O (additional excerpts from Molinar’s deposition), and Exhibit P (Plaintiff’s Third Notice of Deposition of the City’s PMQ), attached to Ashlee P. Clark’s Declaration to rebut Plaintiff’s arguments should not be considered, because the reply evidence was not mentioned in Defendant’s initial moving papers or included in the initial separate statement. Plaintiff also contends it is contradictory for Defendant to argue both that the defect measured approximately 1 inch deep and also that it was, at most, one inch deep, and therefore there was no depth analysis of the defect prior to its repair. 

 

II. Evidentiary Objections 

A. Plaintiff’s Objections  

Plaintiff submits with his opposition 7 objections to the Declaration of Michael Smith (“Smith”), 12 objections to the Declaration of John Molinar (“Molinar”), and 8 objections to the Declaration of Daniel Rynn (“Rynn”). 

Plaintiff’s objections to Smith’s Declaration are overruled in its entirety. 

Plaintiff’s objections to Molinar’s Declaration is sustained as to objection 10 only. The remaining objections to Molinar’s Declaration are overruled. 

Plaintiff’s objections to Rynn’s Declaration are overruled in its entirety.  

 

B. Plaintiff’s Additional Objections 

Plaintiff submits with his sur-reply 6 objections to Defendant’s evidence submitted on reply. Objection 1 is overruled. Objections 2-6 are not material to the disposition of the motion, and the Court therefore declines to rule on these objections.  

 

C. Defendant’s Objections 

Defendant submits 10 objections to the Declaration of Plaintiff’s counsel, Adam H. Donabedian. Objections 1-3 are sustained, objection 4-5 are overruled, and objections 6-10 are sustained. 

 

III. Motion for 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.)  

 

A.  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.) 

 

B.  Analysis  

Plaintiff alleges that he was injured on December 15, 2020, when he stepped from the sidewalk onto the asphalt street in front of his business at 2815 Magnolia Boulevard. (UMF 3.) Plaintiff also never called the City to report any issues about the street in front of 2815 Magnolia before his fall. (UMF 5.) Video of the incident demonstrates that before the fall, Plaintiff parked his car in front of the business, opened the trunk, and walked to the back of the car, where he sat on the bumper of the car and changed his shoes. (UMF 7.) The asphalt condition Plaintiff alleges caused his fall was within five feet from the rear of his vehicle. (UMF 8.) After changing his shoes, Plaintiff stepped up onto the sidewalk, walked along the passenger side of the car, around the front of the car, and then back to the trunk. (UMF 9.) He retrieved a box from the trunk and then stepped up onto the sidewalk a second time, before walking to the front door of his business at 2815 Magnolia. (UMF 10.) A few minutes later, Plaintiff exited the business, walked toward his car and stepped off the curb and fell to the ground. (UMF 11.)  

The location where Plaintiff allegedly fell was assessed in approximately 2006 as part of a paving project called Bid Schedule No. 1144 (Magnolia Boulevard Improvement Project), which is a paving project that simultaneously implemented/executed the Sidewalk Repair and Maintenance Program and a paving project. (UMF 21.) As part of Bid Schedule No. 1144, each sidewalk within the project zone, including the sidewalk, sidewalk-adjacent area in front of 2815 Magnolia, where Plaintiff allegedly fell, was assessed in 2006. (UMF 22.) Only locations where repairs were needed were logged. The extent of the concrete work or repairs performed at these locations (in addition to general paving) were also logged. (Ibid.) The log of any reported issues and repairs prepared for Bid Schedule 1144 and it appears that there was sidewalk concrete removal and replacement performed at 2815 W. Magnolia; however, no work was performed in the gutter area adjoining the sidewalk. (Ibid.) In other words, the assessment for that sidewalk-adjacent location did not reveal any issue or defect with the sidewalk-adjacent location that warranted repair at that time. (Ibid.) 

The City’s Public Works Department’s Street Repair Section crews promptly respond to all complaints or notifications regarding sidewalks and sidewalk-adjacent areas anywhere in the City. (UMF 23.) Any calls of complaints or claims or lawsuits relating to a sidewalk and sidewalk-adjacent injury are referred to the Street Repairs Section crews for prompt inspection and repair if necessary. (UMF 24.) Prior to receiving Plaintiff’s claim in January 2021, the City received no complaints about the location where Plaintiff allegedly fell, nor does the Public Works Department have any record of any reported prior trips and falls at that location. (UMF 27.) Upon receiving Plaintiff’s claim concerning the condition of the asphalt in front of 2815 Magnolia Boulevard, the City went to the location, documented the condition, and made repairs to address Plaintiff’s allegations. (UMF 28.) Photos taken by the Asphalt Repair Crew of the street condition confirm that the alleged defect was approximately 1 inch deep prior to the placement of an asphalt patch. (UMF 29.) 

“Several 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. Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396-398 [three-fourths inch difference between sidewalk slabs trivial as a matter of law]; 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].)   

Defendant’s evidence is sufficient to meet the moving burden to show Defendant is entitled to judgment as a matter of law. Because Defendant met its moving burden, the burden shifts to Plaintiff to raise a triable issue of material fact. 

First, Plaintiff argues Defendant had constructive notice of a dangerous condition because the PCI of the subject location scored 98/100 in 2012, 58/100 in 2017, and 39/100 in 2021. Plaintiff contends the drop in quality demonstrates that the pavement on the subject location was a dangerous condition at the time of the incident. Plaintiff cites to Bonanno v. Central Contra Costa Transit Auth. (2003) 30 Cal. 4th 139 and Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70 in support thereof. However, these cases do not support Plaintiff’s wide sweeping arguments.  

Plaintiff cites specifically to Bonanno, supra, 30 Cal. 4th at p. 148, arguing that a dangerous condition of property has been defined as a public improvement that has become physically damaged, deteriorated, or defective to a degree that makes it potentially dangerous to reasonably foreseeable users, even when used with due care. The Court reviewed the Bonanno case. The only portion of Bonanno, aside from the dissent, pertaining to public improvement is in direct reference to Warden v. City of Los Angeles (1975) 13 Cal. 3d 297, which involved a sewage outfall pipe in Santa Monica Bay, wherein the pipe was not damaged or defective, but the Warden court agreed that its location near the water’s surface in an area frequented by ships constituted a dangerous condition because the pipe could have been submerged for safety reasons. (Id. at 149.) Furthermore, Bonanno’s recitation that a dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself referred to specific examples, such as a street intersection with malfunctioning traffic signals (Mathews v. State of California ex rel. Dep't of Transportation (1978) 82 Cal. App. 3d 116) or a stop sign obscured by roadside plantings (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739). These facts are not applicable here regarding the street segment score rating.  

Plaintiff also relies on Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70, arguing it stands for the notion that an inadequately maintained road crumbling away was determined to be a dangerous “condition of property.” In Elias, the plaintiff was injured when his truck overturned on a dirt road leading to a county dump, because the road was allegedly crumbling away. The Elias case did not make any determination of the dirt road and whether it was a dangerous condition. In fact, the Elias case pertained to the issue of whether the plaintiff substantially complied with the claim filing requirement.  

The Court is not persuaded by the argument that a public entity may be charged with actual or constructive notice of a dangerous condition based on the PCI index of a street segment alone, or that the index rating of a street constitutes a dangerous condition as a matter of law. If this was true, then all a plaintiff would have to show to charge a public entity with constructive notice of a dangerous condition is to provide the PCI index. The intent of the Government Claims Act is not to expand the rights of plaintiffs against governmental entities; rather, the intent of the Act is to confine potential governmental tort liability to rigidly delineated circumstances. (Hernandez v. City of Stockton (2023) 90 Cal. App. 5th 1222, 1229.)  

Rynn explained at his deposition that the purpose of the pavement management program reports is to know what the pavement inventory and condition is, and that it is used as a budgeting tool. (Def. Appendix, Exh. G; Rynn Depo., p. 29, lines 3-23.) Rynn testified that the assessments assessment boil down to a final scorecard or grade. (Id. at p. 30, lines 1-18.) He further testified that the assessment is a broad overview of the status of the pavement conditions rated to a specific scale so that the City of Burbank could determine whether work needed to be done, and it assists the City to prioritize areas based on actual street needs. (Id. at p. 30, lines 21-25 and p. 31, lines 1-9.) The assessments are done every three to five years, which is industry standard. (Id. at p. 31, lines 19-23.) The reports refer to street segments and defined by cross streets; Magnolia with Catalina and Florence would be one of the sections identified in the report. (Id. at p. 38, lines 1-4.) A scorecard of a street segment, alone, does not necessarily mean that it created a substantial risk of injury, or that Defendant had notice of the particular defect that Plaintiff tripped and fell over. In conjunction with this, Defendant provides that prior to Plaintiff’s claim, Defendant has no record of any complaints or notice of defects or injuries due to a pothole, defect, or crack in the asphalt in front of 2815 W. Magnolia Blvd., and that it had no reported prior trips and falls about the street or location of Plaintiff’s incident as far back as the City’s records are maintained. (Def. Appendix, Exh. H; Molinar Decl. ¶12.) Plaintiff has not provided any evidence demonstrating otherwise. 

Second, Plaintiff argues that the defect was not approximately 1 inch deep because Defendant did not perform or document work at the same location of Plaintiff’s fall. The Court reviewed Plaintiff’s photographs produced in response to Defendant’s Request for Production (“RPDs”) and the Declaration of Smith, with the attached photograph exhibits. It appears to the Court that the subject area in both Plaintiff’s photographs and Defendant’s photographs are of the same location. Plaintiff’s contention that Defendant’s measured the wrong area to create a dispute of material fact is without basis. Plaintiff offers no evidence of the size or depth of the defect himself, nor has Plaintiff presented any evidence to negate Defendant’s contention and its employee’s declaration that the defect was measured at approximately 1 inch in depth to be considered trivial as a matter of law. 

Third, Plaintiff argues that the location of the defect had a high amount of traffic and played a large role in Plaintiff not identifying the defect prior to the incident. However, Plaintiff provides no authority on how the speed of traffic or how Plaintiff having to step off the curb to walk onto the street would negate a trivial defect. Plaintiff also argues that the defect was obscured by debris, trash, and overgrown plants in the area. However, Plaintiff testified that he does not recall any obstructions covering the area where he fell: 

 

Q. Understood. Okay. Are there any leaves or debris covering the area where you fell? 

A. I don’t recall. 

Q. On the date of the incident, do you remember if there was any debris covering the area where you fell? 

A.  No. 

Q. You don’t recall, or there wasn’t? 

A. I don’t recall. 

(Reply, Exh. N; Plaintiff’s Depo. p. 68, lines 21-25 and p. 69, lines 1-4.)  

 

Fourth, Plaintiff argues Defendant’s motion should be denied in its entirety because Defendant submitted additional evidence on reply. In terms of the additional evidence, the Court need not reach Plaintiff’s contention in full, because the Court did not consider Defendant’s Exhibit O and Exhibit P submitted on reply in ruling on the motion. Further, as to the portion of Exhibit N containing a portion of Plaintiff’s deposition excerpt, cited above, the relevant portion was also contained as part of Plaintiff’s supporting evidence submitted in opposition to the motion: 

 

Q. Understood. Okay. Are there any leaves or debris covering the area where you fell? 

A. I don’t recall. 

(Opp. Donabedian Decl., Exh. A; Plf’s Depo, p. 68, lines 21-25.) 

 

Further, the Court reviewed the surveillance video submitted by Defendant, which shows a clear day and no apparent debris on the street. Although there does appear to be a piece of trash on the sidewalk, it is near the planter area, and not near the location of the fall. The surveillance video demonstrates Plaintiff walking through the subject area twice without incident prior to his fall. Plaintiff also testified to the same: 

 

Q. As of the time of this fall on this morning, you had walked by this location on two different separate occasions before you fell; is that correct? 

A. Yes. 

Q. And you didn’t have any issue? 

A. No.  

(Mot. Exh. B; Plf’s Depo, p. 123, lines 1-6.) 

Indeed, “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.)   

Here, it is undisputed that Plaintiff on the date of the incident, the weather was clear. There is no evidence of any obstructions of the defect at the time of the incident based on Plaintiff’s testimony and the video surveillance. There is also no evidence that anyone else had been injured by the same defect. On sur-reply, Plaintiff contends Defendant never performed a depth analysis of the defect because Defendant avers the defect was at most one inch deep, and also provides that it was approximately 1 inch deep. However, the Court is unpersuaded by Plaintiff’s argument that the descriptions are contradictory, when in sum the approximated depth was 1 inch. California courts have established that sidewalk uplifts with a height differentials up to 1.5 inches are minor, trivial defects as a matter of law.  For example, the court in Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367 determined a 1.5-inch differential was a trivial defect as a matter of law.  In Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, the court of appeal reaffirmed the rule that displacements in sidewalks up to 1.5 inches are considered trivial as a matter of law, citing various cases in support of that proposition. Plaintiff has presented no conflicting evidence of the size, nature, and quality of the defect to raise a triable factual question as to its depth.  

Existence of a defect, without more, is insufficient as a matter of law to charge the city with constructive notice. [See Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361; Whiting v. City of National City (1937) 9 Cal.2d 163.] “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.)  

Therefore, Defendant met its moving burden to show the condition at issue was trivial as a matter of law. Plaintiff failed to raise a triable issue of material fact in this regard.   

 

IV. Conclusion 

Defendant’s motion for summary judgment is GRANTED.