SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Mariam Markarian (“Plaintiff”) filed her First Amended Complaint (FAC) against defendant City of Glendale (“Defendant”) for damages arising out of a trip and fall on uneven pavement on April 29, 2021.  The complaint sets forth a single cause of action for premises liability. 

 

A. Moving Argument 

Defendant argues that the uneven pavement was a trivial defect as a matter of law, because it measured at 7/8 (or 0.875) of one inch at its highest point, and that there were no aggravating factors such as any jagged edges, broken pieces, obstructions, or shadows covering the offset. There have been no prior accidents at this location.  

 

B. Opposing Argument 

Plaintiff contends the defect was not trivial, and argues Defendant measured the lower portion of the concrete and not the portion Plaintiff had tripped over. Plaintiff argues the area where Plaintiff tripped and fell is raised higher than where Defendant had measured. Plaintiff relies primarily on its expert, Gary P. Clemente (“Clemente”), who opines that the sidewalk was a hazard based on Americans with Disabilities Act (“ADA”) standards.  

 

C. Reply Argument 

Defendant argues there is no need for an expert opinion on the issue of triviality, and that Clemente’s reliance on compliance with ADA standards is not relevant since Plaintiff never alleged noncompliance with ADA standards, nor does Plaintiff allege that she is a qualified individual with a disability. Defendant avers it is undisputed that the offset height was seven-eighth of an inch at its highest point and that there were no aggravating factors.  

 

II. Evidentiary Objections 

Defendant submits 17 objections to the Declaration of Clemente. The objections are sustained in its entirety based on lack of foundation.  

 

III. Motion for Summary Judgment 

A. Burdens on Summary Judgment 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)    

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

 

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.) 

 

C. Analysis  

Here, it is undisputed that Plaintiff went for a walk on the sunny and clear day of April 29, 2021, when she tripped and fell at about 9:00 a.m. due to an offset sidewalk at 1243 Stanley Ave. in Glendale. The height of the uplift where Plaintiff tripped is seven-eighth of an inch, as measured by Street Maintenance Supervisor Matthew Binder (“Binder”). The offset had no jagged or broken pieces, no leaves or dirt covering it, no shadows, and nothing obscured Plaintiff’s ability to see the offset. After Plaintiff’s trip and fall, Binder searched the City’s records and found no reported accidents in the subject location that pre-dated Plaintiff’s incident.  

Defendant has thus met its prima facie burden that the sidewalk offset was trivial, and that there existed no aggravating factors for this minor defect to be rendered a dangerous condition. “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]; Beck v. City of Palo Alto (1957) 150 Cal. App. 2d 39 [differential ranging from one and one-eighth of an inch on property side to one-fourth of an inch on street side].)   

Because Defendant has met its moving burden, the burden shifts to Plaintiff to raise a triable issue of material fact regarding triviality. 

In opposition, Plaintiff argues Defendant measured the lowest portion of the uplift, and that Plaintiff tripped over a portion that was higher. However, there is no evidence that Defendant inaccurately measured the uplift. The photograph of the uplift was marked with a red circle at Plaintiff’s deposition to show approximately where she tripped. Plaintiff tripped at the concrete slab portion closest to the tree. Binder measured the uplift at the portion closest to the tree, and declares the place he measured was the highest point, which was seven-eighth of an inch. (Binder Decl. ¶ 7.) Plaintiff presents no other measurement to dispute this calculation, and therefore fails to present a triable issue of material fact in this regard.  

Plaintiff primarily relies on her expert, Clemente, who concludes “to call a one inch raised sidewalk joint a trivial defect is incorrect and negligent.” (Clemente Decl. ¶ 10.) However, there is no basis for the Court to consider Clemente’s unfounded conclusion of the law, nor his conclusions of what he believes the law governing trivial defects should be based on ADA standards. The issue of Plaintiff’s expert lacking foundation for his opinions is similar to that raised in Caloroso v. Hathaway (2004) 122 Cal.App.4th 922. In Caloroso, a pedestrian tripped over a crack in a walkway. The Caloroso court held that the defect at issue should be 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. (Id. at 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.  (Id. at 929.)  

Similarly, Plaintiff’s expert refers to the ADA, but fails to establish its applicability to existing walkways. The Court finds that Clemente’s declaration is neither necessary nor provides any evidentiary weight. Indeed, as Plaintiff contends, “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 other words, aside from the size of the condition, the Court must consider the totality of the circumstances. The Court reviewed the photographs submitted by both parties. The photos demonstrate that the two concrete slabs creating the uplift had even straight edges, and it is not immediately apparent that there is an uplift from a distance due to its triviality. Photographs of the offset at a closer view demonstrate a slight angling of the raised concrete slab, which appears to grow higher as it approaches the section closest to the tree. According to the only actual measurement of this uplift submitted by the parties, Binder measured the highest differential point closer to the tree as seven-eighth of an inch, and includes a picture of the measurement. Plaintiff does not dispute that there were no aggravating conditions on the morning of the incident. The material facts show that the weather was sunny and clear, nothing obscured Plaintiff’s view of the offset, and the City has no history of any prior incidents at that location, nor is there any evidence of any other person tripping and falling over this same defect.  

The Court is unpersuaded by the cases cited by Plaintiff due to the materially different facts and circumstances that are distinguishable from the facts here. In Hook v. City of Sacramento (1931) 118 Cal. App. 547, the plaintiff’s heel was caught in a hole that was between 18 inches and 2 feet long, and had a depth of 1 inch to 1 ½ inch in depth. However, the Hook case did not discuss what constitutes a trivial defect, and has since been distinguished by Barrett v. City of Claremont (1953) 41 Cal. 2d 70 [“If the defect is of such trivial character that it presents no element of conspicuousness or notoriety, its continued existence does not impart constructive notice to the municipality. (Id. at 979)] and Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719 [A line of cases, including Hook, distinguishable because the nature of the defect was not trivial or the courts were never faced with the question of whether the defect was a matter of law. “None of these cases involved the ‘simple’ situation where two adjoining slabs of a sidewalk were unaligned horizontally by a difference of only about 3/4 of an inch.” (Id. at 725).]. Under the same rationale, the two adjoining slabs at issue here is a simple situation, in which they were unaligned by a difference of only 7/8 of an inch at its highest point, and is thus trivial in character.  

Dated this 1st day of March 2024