Judge: Steven A. Ellis, Case: 19STCV36242, Date: 2023-10-11 Tentative Ruling
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Case Number: 19STCV36242 Hearing Date: February 21, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant City of Los
Angeles
Tentative
The motion is DENIED.
Background
Plaintiff
Elizabeth Moran (“Plaintiff”) alleges that she was severely injured on January
3, 2019, when she tripped and fell on uneven pavement in front of the Los
Angeles County Department of Public Social Services at 2615 S. Grand Avenue in
Los Angeles. On October 10, 2019, Plaintiff filed the Complaint in this action against
Defendants State of California (“State”), County of Los Angeles (“County”), City
of Los Angeles (“City”), and Does 1 through 50, asserting a single cause of
action for a dangerous condition of public property pursuant to Government Code
sections 835 and 835.2. In December 2019 and January 2020, State, County, and
City each filed its Answer to the Complaint.
In January and
February 2020, the Court, at the request of Plaintiff, dismissed State and
County. City is the only remaining defendant.
On July 17,
2023, City filed this motion for summary judgment, along with supporting
evidence and a Request for Judicial Notice. On September 27, Plaintiff filed her
opposition and supporting evidence. On October 6, City filed its reply.
The motion
initially came on for hearing on October 11, 2023. The Court continued the
motion for summary judgment to November 2, 2023, to provide Plaintiff with an
opportunity to file a proper separate statement in compliance with the
requirements of California Rules of Court, rule 3.1350. The Court also granted
leave to City to file a reply to Plaintiff’s supplemental filing.
On October
17, 2023, Plaintiff filed an amended separate statement in opposition to the
motion for summary judgment. On October 26, City filed a supplemental reply.
The Court, on
its own motion, then continued the hearing for scheduling reasons.
Legal Standard
“The purpose of the law of summary judgment
is to provide courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision
(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 cause of action as framed by the
complaint, a defendant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that one or
more elements of the cause of action ... cannot be established, or that there
is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar,
supra, 25 Cal.4th at pp. 850-851.)
A plaintiff or cross-complainant moving for
summary judgment or summary adjudication must satisfy the initial burden of
proof by presenting facts to show “that there is no defense to a cause of
action if that party has proved each element of the cause of action entitling
the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(1).) Once the plaintiff or cross-complainant has met that burden, the
burden shift to the defendant or cross-defendant to show that a “triable issue
of one or more material facts exists as to the cause of action or a defense
thereto.” (Ibid.)
The party opposing a motion for summary
judgment or summary adjudication may not simply “rely upon the allegations or
denials of its pleadings” but must instead “set forth the specific facts
showing that a triable issue of material fact exists.” (Code Civ. Proc., §
437c, subds. (p)(1) & (p)(2). 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.)
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.)
Request for Judicial Notice
City requests that the Court take judicial
notice of the Complaint and Plaintiff’s responses to interrogatories in this
case. Plaintiff does not object. The request for judicial notice is GRANTED.
Discussion
In her Complaint,
Plaintiff asserts one cause of action against City, asserting that she was
injured as a result of a dangerous condition on public property under
Government Code section 835. As set forth in the statute, there are four
elements for such a claim:
“[A] public
entity is liable for injury caused by a dangerous condition of its property if
the plaintiff establishes [1] that the property was in a dangerous condition at
the time of the injury, [2] that the injury was proximately caused by the
dangerous condition, [3] that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and [4] 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.”
(Gov’t Code,
§ 835; see also, e.g., Tansavatdi v. City of
Rancho Palos Verdes (2023) 14 Cal.5th 639, 653; Thimon v. City of Newark (2020) 44
Cal.App.5th 745, 753.)
City moves for summary judgment
on the sole ground that the undisputed facts show as a matter of law that there
was only a “trivial defect,” and not a “dangerous condition” on the sidewalk at
the time of the incident.
Dangerous
Condition
The term
“dangerous condition” means 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);
see also Thimon, supra, 44 Cal.App.5th at p. 754.)¿ “The existence of a
dangerous condition ordinarily is a question of fact, but the issue may be
resolved as a matter of law if reasonable minds can come to only one conclusion.”
(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799,
810; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110.)
“A condition
is not dangerous within the meaning of the statute unless it creates a hazard
to those who foreseeably will use the property ... with due care. Thus,
even though it is foreseeable that persons may use public property without due
care, a public entity may not be held liable for failing to take precautions to
protect such persons.”¿¿(Matthews v. City of Cerritos¿(1992) 2
Cal.App.4th 1380, 1384.) “The condition of the property involved should
create a ‘substantial risk’ of injury, for an undue burden would be placed upon
public entities if they were responsible for the repair of all conditions
creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v.
City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)
Government Code section 830.2 provides that a condition is
not a “dangerous condition” under the Government Claims Act “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.” (Gov’t Code, § 830.2.) This statutory principle is
sometimes referred to as “the trivial defect doctrine.”
It is
impossible to maintain public walkways in perfect condition. (Stack, supra, 91
Cal.App.5th at pp. 109-110; Kasparian v. AvalonBay Communities, Inc. (2007)
156 Cal.App.4th 11, 26.) The Government Claims Act is not intended to make
public entities “insurers” against injuries arising from trivial defects. (Stack,
supra, 91 Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p.
757.) Rather, the trivial defect doctrine shields public entities from
liability for “minor, trivial, or insignificant” defects. (Huckey v. City of Temecula (2019)
37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) “The
trivial defect doctrine is not an affirmative defense. It is an aspect of duty
that a plaintiff must plead and prove.” (Huckey, supra, 37
Cal.App.5th at p. 1104.)
“In
appropriate cases, the trial court may determine ... whether a given walkway
defect was trivial as a matter of law.” (Ibid.) “‘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 pp. 1104-1105 (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.” (Huckey, supra, 37 Cal.App.5th at p. 1105.)
Where a
plaintiff alleges a cause of action based upon a dangerous condition in a
sidewalk or other walkway, courts generally begin their analysis by considering
the size of the defect. The size of the height differential, rise, or other
defect is often the “most important” factor. (Stack, supra, 91
Cal.App.5th at p. 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at p.
1105 [stating that size of defect “may be one of the most relevant factors”].)
As the Court of Appeal has explained, however, “[i]n 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.” (Huckey,
supra, 37 Cal.App.5th at p. 1105 [emphasis in original].) “[A] tape measure
alone cannot be used to determine whether the defect was trivial.” (Caloroso,
supra, 122 Cal.App.4th at p. 927.) Rather, a “court should consider other
circumstances which might have rendered the defect a dangerous condition at the
time of the accident.” (Huckey, supra, 37 Cal.App.5th at p. 1105.) “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.” (Ibid.) “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.’” (Ibid. [quoting Caloroso,
supra, 122 Cal.App.4th at p. 927].)
The incident
in this case occurred at approximately 9:30 a.m. on January 3, 2019, as
Plaintiff walked in a generally North direction on the sidewalk adjacent to
2615 South Grand Avenue, toward Adams Boulevard. (Statement of Undisputed
Material Facts [“SUMF”], No. 1.) The purportedly dangerous condition identified
by Plaintiff is a defect in the sidewalk: it has an uneven, raised surface of
the pavement; the sidewalk was broken and fragmented, with various
differentials in height, length, and width. (SUMF, Nos. 3-4.) The condition of
the sidewalk is depicted in the photographs marked as Exhibit 1 in City’s
Compendium of Evidence. (SUMF, No. 5.)
The weather
at the time of the incident was sunny, and the ground was dry. (SUMF, No. 6.)
In her
deposition, Plaintiff testified that she had never previously “walked past the
exact spot where [she] tripped and fell” but she had “been on that part of the
sidewalk … two or three times” before the accident. (City’s Exh. 3 [“Moran
Depo.”], at 33:18-23.) Plaintiff testified that at the time of accident she was
unsure of what she tripped on. (Id., at 38:4-18, 44:15-19.) In her
deposition, however, she testified unequivocally that she did trip on the sidewalk
uplift. (Berman Decl., Exh. 4, at 43:14-24.) She also identified the exact
location where she tripped. (Moran Depo., at 128:9-24, 131:3-17.) That spot,
Plaintiff testified, is where the yellow tape measure appears in Deposition
Exhibit 3 (City Exh. 1:3).
The size of
the vertical uplift at that spot is approximately 1 and 3/16” in height.
(Barillas Decl., ¶ 13 & Exh. D:27, D:36, D:38.) There is also a jagged edge
at the spot. (Id., ¶ 13 & Exh. D:4, D:19, D:26, D:32, D:34, D:36,
D:38, D:64-66; see also City Exh. 1:3.)
The height differential of approximately 1 and 3/16 inches,
although not independently dispositive, weighs against a determination that
this was, as a matter of law, a trivial defect or otherwise not a dangerous
condition. In the recent Stack case, supra, the Court of Appeal stated
that “’when the size of the depression begins to stretch beyond one inch the
courts have been reluctant to find that the defect is not dangerous as a matter
of law,’ i.e., that it is minor or trivial.” (Stack, supra, 91
Cal.App.5th at p. 112, quoting Fielder v. City of Glendale (1977) 71
Cal.App.3d 719, 726.) Of course, a “court should not rely solely upon
the size of the defect.” (Huckey, supra, 37 Cal.App.5th at 1105,
quoting Fielder, supra, 71 Cal.App.3d at p. 734.) But here, the
presence of the jagged edge is a substantial aggravating factor making the defect
“‘more dangerous than its size alone would suggest.’” (Huckey, supra, 37
Cal.App.5th at p. 1105, quoting Caloroso, supra, 122 Cal.App.4th at
p. 927.)
Based on a
consideration of all the evidence in the record, the Court cannot find, as a
matter of law, that the defect in this case was trivial or that the condition
of the sidewalk was not dangerous. There was a height differential of
approximately 1 and 3/16 inches and a significant jagged edge. On these facts, reasonable minds
could differ as to whether the sidewalk constituted a dangerous condition under
Government Code section 835. The Court cannot, and does not, conclude that the
defect was trivial as a matter of law.
Conclusion
The Court DENIES
City’s motion for summary judgment.
Plaintiff is ordered to give notice.