Judge: Serena R. Murillo, Case: 21STCV42527, Date: 2023-02-15 Tentative Ruling
Case Number: 21STCV42527 Hearing Date: February 15, 2023 Dept: 29
Defendant City of Los Angeles’ motion for summary judgment is DENIED.
Legal Standard
The function of a motion for summary judgment or adjudication is to
allow a determination as to whether an opposing party cannot show evidentiary
support for a pleading or claim and to enable an order of summary dismissal
without the need for trial. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c)
“requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.) “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal. App. 3d 367, 381-382.)
As to each claim as framed by the complaint, the defendant moving for
summary judgment must satisfy the initial burden of proof by presenting facts
to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. ) Courts
“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.)
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 that cause of action or a defense thereto.
To establish a triable issue of material fact, the party opposing the
motion must produce substantial responsive evidence. (Sangster v. Paetkau
(1998) 68 Cal.App.4th 151, 166.)
Evidentiary
Objections
Plaintiff’s Objections
to Defendant’s Evidence are OVERRULED.
Discussion
Trivial Defect
Defendant moves
for summary judgment on grounds that the height differential where
Plaintiff fell is a trivial defect.
Government Code section 835 states:¿“Except as
provided by statute, a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes that the property was in
a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which was incurred,
and either:
(a) A negligent or wrongful act or omission
of an employee of the public entity within the scope of his employment created
the dangerous condition; or¿
(b) The public entity had actual or
constructive notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition.”
“‘The trivial defect doctrine originated to shield
public entities from liability where conditions on public property create
a risk ‘of such a minor, trivial or insignificant nature in view of the
surrounding circumstances . . . 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.’’” (Huckey v. City of Temecula (2019)
37 Cal.App.5th 1092, 1104 (quoting Kasparian v. AvalonBay Communities,
Inc. (2007) 156 Cal.App.4th 11, 27).) “The trivial defect
doctrine is not an affirmative defense.” (Id.) “It is an
aspect of duty that a plaintiff must plead and prove.” (Id.)
“In appropriate cases, the trial court may determine . . .
whether a given walkway defect was trivial as a matter of law.” (Id.)
“‘Where reasonable minds can reach only one conclusion—that there was no
substantial risk of injury—the issue is a question of law, properly resolved by
way of summary judgment.’” (Id. at 1104-05 (quoting Caloroso v.
Hathaway (2004) 122 Cal.App.4th 922, 929).) “If, however,
the court determines that sufficient evidence has been presented so that reasonable
minds may differ as to whether the defect presents a substantial risk of
injury, the court may not conclude that the defect is trivial as a matter of
law.” (Id. at 1105.) “In determining whether a
given walkway defect is trivial as a matter of law, the court should not rely
solely upon the size of the defect—in this case, on the depth or height of the
walkway depression or elevation—although the defect’s size ‘may be one of the
most relevant factors’ to the court’s decision.’” (Id. (quoting Fielder
v. City of Glendale (1977) 71 Cal.App.3d 719, 734) (emphasis in
original).) “The court should consider other circumstances which
might have rendered the defect a dangerous condition at the time of the
accident.” (Id.) “These other circumstances or factors
include whether there were any broken pieces or jagged edges in the area of the
defect, whether any dirt, debris or other material obscured a pedestrian’s view
of the defect, the plaintiff’s knowledge of the area, whether the accident
occurred at night or in an unlighted area, the weather at the time of the
accident, and whether the defect has caused any other accidents.” (Id.)
“In sum, ‘[a] court should decide whether a defect may be dangerous only after
considering all of the circumstances surrounding the accident that might make
the defect more dangerous than its size alone would suggest.’” (Id. (quoting Caloroso,
supra, 122 Cal.App.4th at 927) (alteration in original).)
Here, the parties dispute the height
of the height differential where Plaintiff tripped and fell.
Defendant contends the height differential is an inch in height. (Defendant’s
Undisputed Material Fact (“UMF”) No. 10.) “Sidewalk elevations ranging from
three-quarters of an inch to one and one-half inches have generally been held
trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th 1092,
1107.) Plaintiff argues it is 1.5 inches. However, even if the
differential is 1 inch, Plaintiff has submitted sufficient evidence of
aggravating conditions to raise the existence of triable issues
of material fact as to whether the defect was dangerous in this case.
Plaintiff presents evidence that other people
have also tripped over the portion of sidewalk where Plaintiff fell. Saul and Esther Ohnona’s apartment is right
next to the portion of sidewalk where this incident occurred. (Plaintiff’s
Additional Material Fact “AMF” No. 22.) Esther Ohnona, who is 54 years old, has
tripped over the sidewalk at issue multiple times. (AMF No. 24.) She first
tripped about 4 years ago. (AMF No. 25.) She tripped on the section
of sidewalk marked with an X on Exhibit 1 of the City of Los Angeles’
Motion. (AMF No. 25.) Esther injured her hands and knees, and had a broken
middle toe on her right foot. (AMF No. 27.) She had to go to the emergency
room at Cedars-Sinai. (AMF No. 27.) She had difficulty walking for several
weeks. (AMF No. 27.) Esther then tripped again about 2 years ago in the same
section of sidewalk. (AMF No. 28.) She again injured her hands and
knees, and had a severely black and blue eye. (AMF No. 29.) Esther
witnessed another woman fall at the same location. (AMF No. 30.) She stayed
with the woman until her husband came to assist her. (AMF No. 30.) This
was during the day and it was sunny outside. (AMF No. 30.) Over the years,
Saul has seen well over a dozen people trip and stumble on the
sidewalk depicted in Exhibit 1 of the City of Los Angeles’ Motion. (AMF
No. 31.) About 5 years ago, Saul was in his apartment when he heard screaming
and moaning outside his front door. (AMF No. 32.) When he opened the door, he
found his neighbor Ron lying face down on the sidewalk. (AMF No. 32.) Ron lives
in Apartment 7 and Saul estimates he is 90 years old. (AMF No. 32.) Ron
appeared to be quite injured, with blood streaming down his face and his shirt
stained in blood. (AMF No. 32.) Saul told him that he would call 911, but Ron
asked him not to. (AMF No. 32.) After some time, Saul helped Ron get up and
walk to his apartment. (AMF No. 32.) This was during the day and it was sunny
outside. (AMF No. 32.)
Therefore,
Plaintiff has provided sufficient evidence of aggravating
conditions to raise the existence of triable issues of material
fact as to whether the defect was trivial in this case, as there is evidence
that multiple other people have fallen and sustained injuries due to the same alleged
defect in this case.
Notice
Defendant also moves for summary judgment on
the ground that it did not create the alleged dangerous condition of public
property and had no actual or constructive notice of the alleged dangerous
condition.
Government Code section 835 provides that “a public
entity is liable for injury caused by a dangerous condition of its property if
the plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk
of the kind of injury which was incurred, and that either: (a) [a] negligent or
wrongful act or omission of an employee of the public entity within the scope
of his employment created the dangerous condition; or (b) [t]he public entity
had actual or constructive notice of the dangerous condition under Section
835.2 a sufficient time prior to the injury to have taken measures to protect
against the dangerous condition.” (Govt. Code, § 835.)
Notice, in the context of Section 835
liability, is defined in Government Code § 835.2 as follows:
“(a) A public entity had actual notice of a
dangerous condition within the meaning of subdivision (b) of Section 835 if it
had actual knowledge of the existence of the condition and knew or should have
known of its dangerous character.
(b) A public entity had constructive notice
of a dangerous condition within the meaning of subdivision (b) of Section 835
only if the plaintiff establishes that the condition had existed for such a
period of time and was of such an obvious nature that the public entity, in the
exercise of due care, should have discovered the condition and its dangerous
character.” On the issue of due care, admissible evidence includes but is not
limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character
would have been discovered by an inspection system that was reasonably adequate
(considering the practicability and cost of inspection weighed against the
likelihood and magnitude of the potential danger to which failure to inspect
would give rise) to inform the public entity whether the property was safe for
the use or uses for which the public entity used or intended others to use the
public property and for uses that the public entity actually knew others were
making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection
system with due care and did not discover the condition.”
(Gov. Code, §
835.2(a)-(b).)
“Constructive
notice may be imputed if it can be shown that an obvious danger existed for an
adequate period of time before the accident to have permitted the state
employees, in the exercise of due care, to discover and remedy the situation
had they been operating under a reasonable plan of inspection.” (State v.
Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) The
primary and indispensable element of constructive notice is a showing that the
obvious condition existed a sufficient period of time before the accident, and
the secondary element is the method of inspection. (Ibid.)
In Strongman
v. Kern County (1967) 255 Cal.App.2d 308, the court held that the critical
test for constructive notice is whether “the condition has existed long enough
that it may be inferred that a reasonable inspection would have ascertained its
existence.” (Id. at p. 313.) A plaintiff can meet this burden with
circumstantial evidence. (Id.)
Defendant argues as to notice, the
City received a complaint regarding a condition at the subject address on
October 19, 2015 and inspected the scene in response to the complaint but did
not see a condition that was in need of repair. (UMF No. 15.) There is no
evidence of other accidents on the sidewalk. (UMF No. 16.) Thus, City argues it
had no prior notice of any conditions or complaints associated with this
imperfection.
Defendant has not met its initial
burden on summary judgment to show no triable issues of fact exist because it
has not put forth any evidence that it did not create the condition. The first
amended complaint alleges that Defendant City created the condition. (FAC, pg.
4, l. 19.) This allegation has not been refuted as it has not been addressed,
even if Defendant argues and presents evidence that it had no notice.
Nevertheless, even if Defendant did meet its initial burden to show there are
no triable issues of fact, Plaintiff has presented evidence to show that
triable issues do exist.
Plaintiff argues in opposition
that images taken by Google show the incident location back on August 22, 2014
and January 14, 2015. (AMF No. 35.) Exhibit 2 contains the images taken by
Google and a Certificate of Authenticity. (AMF No. 35.) Plaintiff argues that
it is clear that the incident location has been in the same poor condition
since at least August 2014, with the sidewalk misaligned. (AMF No.
37.) The City admits that it received a complaint regarding a cracked and
broken sidewalk at this location on October 19, 2015 and went to inspect. (AMF
Nos. 38, 39.) Thus, this City inspection took place after the Google images
were taken in August 2014 and January 2015. (AMF Nos. 35, 38, 39.) As a
result, the dangerous condition existed and the City thus had notice. Plaintiff
argues the City’s statement that it did not find any condition in need of
repair during its inspection is not tenable, seeing as the Google images show
the condition existed. Further, Saul and Esther Ohnona state the sidewalk has
been in that poor condition for 15 years. (AMF No. 23.) Lastly, the City
admits that it does not have any system to inspect the sidewalks for dangerous
conditions. (AMF No. 41.)
As
such, Plaintiff has met her burden on summary judgment to show triable issues
of fact exist as to notice. Constructive notice may be imputed if it can be
shown that an obvious danger existed for an adequate period of time before the
accident to have permitted the City, in the exercise of due care, to discover
and remedy the situation had it been operating under a reasonable plan of
inspection. Plaintiff has presented evidence that the condition has existed for
15 years, the condition was obvious enough to show in the images, and that the
City did not have a reasonable inspection system in place. Accordingly, Defendant’s motion must be
denied.
Conclusion
Accordingly,
Defendants’ motion for summary judgment is DENIED.
Moving party is ordered to give notice.