Judge: Richard S. Whitney, Case: 37-2021-00030081-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/15/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00030081-CU-PO-CTL POWERS VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT CITY OF SAN DIEGO'S MOTION FOR SUMMARY JUDGMENT is DENIED.

Defendant City of San Diego ('City') asserts there are no issues of fact as to its liability to Plaintiff SHERI POWERS ('Plaintiff') because the allege condition was not a dangerous condition and the City did not have constructive and/or actual notice of the condition.

In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 'A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property.' (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.) To prove a cause of action against a public entity under section 835, a plaintiff must prove: '(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.' (Id. at 439.) The City first argues the crack in the sidewalk was a minor, trivial or insignificant danger. ''Dangerous condition' is statutorily defined 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.' (Gov. Code, § 830, subd.

(a).)' (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130.) Section 830.2 provides a qualification to the definition of a dangerous condition of public property, by stating: 'A condition is not a dangerous condition within the meaning of this chapter if the trial or Calendar No.: Event ID:  TENTATIVE RULINGS

3024408  67 CASE NUMBER: CASE TITLE:  POWERS VS CITY OF SAN DIEGO [IMAGED]  37-2021-00030081-CU-PO-CTL 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.' (Italics added.) (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 233–234.) The lack of similar prior incidents is relevant to a finding of whether the condition meets 'the definition of a dangerous condition under section 830.' (Id. at 243.) The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps.

'First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law ....' (Stathoulis, supra, 164 Cal.App.4th at pp. 567-568, 78 Cal.Rptr.3d 910.) (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105.) The City cites, inter alia, Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39 for support. In Beck the court found that a difference in elevation of one and 7/8th inches, in the circumstances of the case, was trivial.

The size of the defect is only one circumstance to be considered, as no court has fixed an arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or or [sic] not the defect is dangerous. All of the circumstances surrounding the condition must be considered in the light of the facts of the particular case. In the instant case the difference in elevations of the sidewalk was in a residential area at the edge of the city. There was nothing to hide the defect or obstruct the view of one approaching it. The respondent tripped over it in broad daylight. She testified nothing distracted her attention as she approached the point where she tripped and fell.

(Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43–44.) City provides evidence that the sidewalk differential where Plaintiff tripped was one-fourth inch. (City's Separate Statement of Undisputed Facts [SSUF] No. 14.) Under appropriate circumstances a court may determine, as a matter of law, that a given walkway defect is trivial. (§ 830.2.) However, it cannot make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff's injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.

(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 569.) Plaintiff provides the declaration of Plaintiff's expert, Carl Beels, to explain why the City's measurement is inaccurate. (Plaintiff's Additional Material Facts [AMF] Nos. 40-44.) Carl Beels asserts the subject height differential is actually one and seven-sixteenths inches. (AMF No. 44.) Plaintiff also disputes the measurement, explaining her foot stepped where the measuring tape was not placed (the dirt is slopped away from the sidewalk). (Plaintiff Decl., ¶¶ 8-9.) The Court finds these are sufficient to raise triable issues of fact as to the existence of a dangerous condition. Further, Plaintiff provides more evidence of the environmental circumstances not addressed by the City – the existence of palm trees growing immediately adjacent to the sidewalk such that palm fronds stuck out into the sidewalk path. (AMF Nos.

31-33.) Calendar No.: Event ID:  TENTATIVE RULINGS

3024408  67 CASE NUMBER: CASE TITLE:  POWERS VS CITY OF SAN DIEGO [IMAGED]  37-2021-00030081-CU-PO-CTL After conceding the error in the ¼ inch measurement, the City asks this Court to ignore the above, and other evidence, in favor of deciding the matter based on photographs of the area where Plaintiff tripped. 'Summary judgment cannot be based on photographs where the reviewing court concludes either reasonable minds might differ regarding whether the photographs correctly depict the alleged defect and the surrounding environs or whether the photographs conclusively establish the defect was open and obvious.' (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 15.) The Court believes that reasonable minds could differ that the photographs accurately depict the condition and the relevant surrounding circumstances (such as palm fronds). Given the disputes regarding the type and size of the height differential and the surrounding circumstances, the Court find it cannot determine as a matter of law whether the defect was trivial.

The City also disputes it had actual and/or constructive notice. 'A claim for constructive notice has two threshold elements. [Citation] A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious.' (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320 [Citation omitted].) Significantly, the City caused to be performed a Sidewalk Assessment on October 4, 2014, at the area where Plaintiff fell ('2014 Sidewalk Assessment').

(AMF Nos. 46-47.) The 2014 Sidewalk Assessment gave an assessment of '55' out of 100 which was a 'Fair' rating of its condition. (AMF Nos. 46-47.) Plaintiff's expert, Carl Beels, declares: the Survey Form Guidelines indicate that an assessment of 55 is in the 'Poor' category, described as follows: 'These are sidewalks that have some severe distresses. Faulting, subsidence, and uplift distresses are severe and occur often, or minor severities occurring very often. Cracking is continuous along the entire segment. This should be the most common range.' (Survey Form Guidelines, page 18).

(Decl. Beels, ¶ 10.) Further, '[o]n the subject sidewalk segment there were 5 Severity Level 2 (0.5' to 1.5') Trip Hazards identified. It may be noteworthy that Survey Form Guidelines indicate to 'note whether it is a trip hazard (major tripping hazard only).' (Survey Form Guidelines, page 20.).' (Decl. Beels, ¶ 11.) Finally, Carl Beels provide evidence that there was 'substantial damage to the public sidewalk and curb along the south side of Landis Street and adjacent to the Peeler Property as far back as February 2009 (Exhibit D), over 10 years before the subject incident.' (AMF No. 53; Decl. Beels, ¶ 12.) 'It is well settled that constructive notice can be shown by the long continued existence of the dangerous or defective condition, and it is a question of fact for the jury to determine whether the condition complained of has existed for a sufficient time to give the public agency constructive notice.' (Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844–845 [Citation omitted].) The Court finds, without needing to consider Plaintiff's evidence of the City's likely awareness of the defect based on a required ADA inspection at the adjacent property, Plaintiff has raised triable issues of fact as to whether the City had actual and/or constructive notice of the defect based on the evidence cited above.

The motion is denied.

Plaintiff's Objections to Evidence: Objections 1-12: Overruled Calendar No.: Event ID:  TENTATIVE RULINGS

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