Judge: Steven A. Ellis, Case: 20STCV21097, Date: 2023-08-04 Tentative Ruling
Case Number: 20STCV21097 Hearing Date: August 7, 2023 Dept: 29
TENTATIVE
Defendant City of Whittier’s motion for summary judgment is DENIED.
Background
Plaintiff
Yvonne Marie Cazares (“Plaintiff”) alleges that on April 13, 2019, at
approximately 4 pm, she was seriously injured when she tripped and fell on a
“poorly applied” patch that had been placed between two panels on a sidewalk
running alongside Greenleaf Avenue in Whittier, California. (Complaint, ¶¶ 6, 9.) Plaintiff alleges that the patch was “jagged,
cracked and uplifted and could not be discerned because of the shadows created
by the adjacent fence that abutted the sidewalk.” (Id., ¶ 6.)
On June 4, 2020,
Plaintiff Yvonne Marie Cazares filed a complaint against Defendant City of
Whittier (“Defendant”), asserting one cause of action for dangerous
condition of public property under Government Code section 835. Defendant filed its answer on July 10, 2020.
On May 18, 2023,
Defendant filed a motion for summary judgment. Plaintiff filed her opposition
on July 20, 2023. Defendant filed its
reply, along with objections to some of Plaintiff’s evidence, on July 28, 2023.
On August 4,
2023, the Court, on its own motion, continued the hearing on the motion to
August 7, 2023.
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 (“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 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.” (CCP
§ 437c(p)(2); see also Aguilar, supra, 25 Cal.4th at 850-51; 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 the cause of action or a
defense thereto.” (CCP § 437c(p)(2); see
also Aguilar, supra, 25 Cal.4th at 850-51.) 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
Defendant
objects to certain portions of Plaintiff’s evidence. Evidence presented in support of, or in
opposition to, a motion for summary judgment must be admissible. (CCP § 437c(d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained.” (CCP § 437c(c).)
The
Court has carefully considered each of Defendant’s objections. Except as set forth below, The Court
OVERRULES Defendant’s objections for a variety of reasons, including, but not
limited to, the following: (a) Plaintiff can provide an estimate regarding the
size of the defect based on her own observations (and the absence of a
measurement goes to the weight of the testimony, not its admissibility); (b) in
general, the experts have appropriate credentials and their testimony relates to a subject that is sufficiently
beyond common experience that the opinion of an expert witness would assist the
trier of act; is based on information of the type on which an expert may
reasonably rely; is based on reasons supported by the information on which the
expert relies; and is not speculative (Evid. Code, §§ 801-02; Sargon
Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.); and (c) overlapping
testimony may properly be addressed at trial but is not a basis, on these
facts, to disregard the testimony on a summary judgment motion.
As to the challenge to expert opinion testimony on
the issue of whether a significant risk or dangerous condition exists, the
Court agrees that such testimony is not binding on the Court. “The fact that a witness can be found to
opine that … a condition constitutes a significant risk and a dangerous
condition does not eliminate this court’s statutory task pursuant to Government
Code section 830.2, of independently evaluating the circumstances.” (Thimon v. City of Newark (2020) 44
Cal.App.5th 745, 755; accord Sun v. City of Oakland (2008) 166
Cal.App.4th 1177, 1189; Davis v. City of Pasadena (1996) 42 Cal.App.4th
701, 705.) But expert opinion may be
admissible, relevant, and helpful to the Court, even if it is not
determinative. The Court will consider all of the
admissible evidence (including expert opinion evidence) in conducting its
independent obligation (in which expert opinion evidence is not determinative) to
evaluate whether the existence of a dangerous condition may be resolved on this
record as a matter of law.
The
Court SUSTAINS Defendant’s Objection No. 7.
For purposes of this motion for summary judgment (only), what Defendant
knew or should have known is not at issue, and therefore this material is not
relevant.
The
Court SUSTAINS Defendant’s Objection No. 28 in part (as to the phrase “a
dangerous condition and”); Objection No. 30 in part (second sentence); Objection
No. 31, and Objection No. 33. These
passages from the expert declarations are not proper subjects of expert
testimony.
The
Court SUSTAINS Objection No. 34. The
expert does not lay adequate foundation for this testimony.
Request for Judicial Notice
Defendant requests judicial notice of Plaintiff’s
Complaint. The request is granted pursuant to California Evidence Code §
452(d).
Discussion
In her Complaint, Plaintiff asserts one cause of action against
Defendant, 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,
supra, 14 Cal.5th at 653; Thimon, supra, 44 Cal.App.5th at 753.)
Here, Defendant
moves for summary judgment on the sole ground that the undisputed facts show
that as a matter of law that there was no “dangerous condition” on the sidewalk
at the time of the incident, and therefore Plaintiff cannot establish the first
element of her claim. (Motion, at
5-10.) Defendant does not, for purpose
of this summary judgment motion, argue that it lacked actual or constructive
notice or make any other argument about any of the other elements of Plaintiff’s
claim. (See id. at 10-11.)
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(a); see also Thimon, supra, 44 Cal.App.5th at
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 109-10; Kasparian v. AvalonBay Communities, Inc. (2007)
156 Cal.App.4th 11, 26.) 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 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 1104.)
“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.)
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 111;
see also, e.g., Huckey, supra, 37 Cal.App.5th at 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 1105 [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
v. Hathaway (2004) 122 Cal.App.4th 922, 927].)
The incident in this case occurred on April 13, 2019, at
approximately 4:00 p.m. (SUMF No.
1.) Plaintiff was walking southbound on a
sidewalk that runs parallel to Greenleaf Avenue in the City of Whittier. (Ibid.)
It was a sunny day and the weather was nice. (SUMF No. 2.)
Plaintiff was walking with two other women, and when the sidewalk
narrowed Plaintiff moved into a position in front of her companions as they
continued to walk down the sidewalk.
(SUMF Nos. 6, 11-14.) Plaintiff
was startled by a jogger, stopped briefly, resumed walking, and then a few seconds
later Plaintiff tripped on the sidewalk and fell. (SUMF Nos. 15-18.)
Plaintiff tripped at the junction of an asphalt patch on a panel
of the sidewalk and an adjacent sidewalk.
(SUMF No. 18.) Plaintiff was
walking in a southbound direction; Plaintiff fell as she came to the junction
of the Northern panel and the asphalt patch on the Southern panel. In most of the photographs in the record, the
camera is pointed to the West, and so: the Southern panel (with the asphalt
patch) is on the left; the Northern panel (without the patch) is on the right;
and Plaintiff’s direction of movement is from right to left. (SUMF No. 21.) There is a metal fence visible in the
photographs that runs alongside the sidewalk, on the West side (the far side in
most of the photographs).
The precise location where Plaintiff tripped is marked with a
yellow “X” on one of the photographs.
(SUMF No. 20.) This photograph
was marked as Exhibit 2 at Plaintiff’s deposition. (Ibid.)
The Court will refer to this photograph as “Deposition Exhibit 2.” The other photographs that were shown to
Plaintiff at her deposition, and marked as deposition exhibits, will be
referred to by their exhibit number in the deposition as “Deposition Exhibit
__.”
This brings us to the crux of the dispute: whether there are
factual disputes regarding whether there was a dangerous condition on the sidewalk
at the location of the incident at approximately 4 pm on April 13, 2019.
According to Defendant, years prior to the incident, the
sidewalk panel had lifted and Defendant grinded it and then placed an asphalt
patch to make the area smooth. (Ballard
Decl., Exh. 10, at 35:11-25; SUMF No. 32.)
Defendant asserts Deposition Exhibit 4 shows no differential between the
sidewalk panel and the asphalt patch.
(Ballard Decl., Exh. 6; SUMF No. 25.)
There was a shadow on the sidewalk at the time of the incident, but
Defendant characterizes it as “narrow” and “over a very limited portion of the
asphalt patch” and asserts that the shadow “did not visually obstruct the area.” (Deposition Exhibit 1-3; Ballard Decl., Exh.
1, at 60:23-61:9, 64:1-4; SUMF No. 28-29.)
The asphalt patch was black and the concrete sidewalk was light
grey. (SUMF No. 26.) Defendant’s Street Manager described the area
as “smooth” and stated that, as a result, Defendant has no plans to repair the
area. (Ballard Decl., Exh. 10, at
32:22-34:13, 36:21-24, 42:17-43:1; SUMF Nos. 34-35.) Defendant has received no claims or reports
of other falls at this location. (SUMF
No. 36.)
In response, Plaintiff claims (among other things) that there
is a height differential between the Northern sidewalk panel and the patch on
the Southern panel and that there are aggravating conditions, including that the
patch is jagged and uneven, that there was a shadow obstructing the view of the
juncture between the sidewalk panel and the asphalt patch, and that Plaintiff
was not familiar with the area.
The Court has carefully reviewed the evidence submitted by
both parties. Deposition Exhibits 5 and 9
show, or at the very least support an inference, that there is some height
differential between the sidewalk panel and the patch. The size of the differential is not insignificant,
but the measurement is uncertain.
Defendant denies that there is any differential at all, and so did not present
any evidence regarding its size. Plaintiff
did not herself measure the differential.
Plaintiff estimated that it was approximately 1.5 inches, but the Court
notes that the photographs show there is a divot or defect of greater size a
few inches to the West of where Plaintiff states that she tripped. (See., e.g., Deposition Exhibit 2.) It is unclear whether Plaintiff was estimating
the size of the differential at its greatest (where Plaintiff did not trip) or
where it is not as great (where Plaintiff states that she did trip.)
Plaintiff’s expert witness Mr. Burns provided some
measurements, but the Court finds his testimony to be unclear and not
particularly helpful. It appears Mr.
Burns is stating that the Northern panel (or at least the Northern panel where
it had not been grinded down years before) is higher than the patch. Plaintiff’s overall theory, however, is based
on the opposite contention: that the Northern panel (at least the Southern end
of the Northern panel) is lower than the patch, which caused Plaintiff to trip.
As to aggravating conditions, Deposition Exhibit 2 clearly
shows a thick dark shadow that supports the inference that a pedestrian’s view of
the boundary between the sidewalk panel and the patch would be obstructed at
the very time and the very spot that Plaintiff states that she tripped. The boundary appears to be jagged and uneven in
Deposition Exhibits 2, 4, 5, 6, 8, 9, and 10, or at the least these photographs
support that inference. It is also
undisputed that Plaintiff was unfamiliar with the area and had never walked
along the sidewalk before. (Plaintiff’s SAMF,
No. 13.)
The Court has considered all of the evidence submitted by the
parties (except the evidence as to which an objection was sustained) and has
evaluated that evidence based upon the extensive case law (including, but not
limited to, that cited by the parties) regarding dangerous conditions and trivial
defects. Based on a consideration of the
evidence, the law, and the applicable factors, the Court does not find that the defect in this case
was trivial as a matter of law. Drawing
all reasonable inferences in favor of the non-moving party, as is required, the
Court concludes that the trier of fact could draw an inference that the defect
at the boundary between the Northern sidewalk panel and the patch on the
Southern panel was great enough in size, jagged and uneven, obstructed by
shadow, and on a sidewalk that was unfamiliar to Plaintiff sufficient to
constitute a dangerous condition. On these facts, reasonable minds
could differ as to whether the sidewalk constituted a dangerous condition under
Government Code section 835.
The Court has two additional observations.
First, in her Opposition, one of the arguments that Plaintiff
makes is that “the fact of the incident supports the conclusion that the uneven
sidewalk presented a dangerous condition.”
(Opp. at 2:12-13.) That is not a
correct statement of the law, and no part of the Court’s ruling reflects or is
based on any acceptance of this argument.
Second, Plaintiff’s expert witnesses provided substantial testimony
regarding the slopes of the panels and the patch and what they stated was a
lack of compliance with various codes and industry standards. For purposes of this motion for summary
judgment, the Court finds this testimony to be generally unhelpful. Plaintiff’s testimony is and has always been
that she tripped on the uneven boundary between the Northern sidewalk panel and
the patch on the Southern panel. (Complaint,
¶ 6; Ballard Decl., Exh. 2, at Response to Special Interrogatory No. 28; SUMF
No. 18.) Plaintiff may not respond to Defendant’s
motion for summary by asserting a new theory – in contradiction to the
allegations of the Complaint, Plaintiff’s deposition testimony, and her acknowledgement
that Defendant’s Statement of Undisputed Material Fact No. 18 was in fact undisputed
– regarding an allegedly dangerous slope on the Northern panel and/or the patch
on the Southern panel.
Finally, Defendant seeks a
determination that it is entitled to recovery of Attorney Fees pursuant to Code
of Civil Procedure section 1038. Alternatively, Defendant reserves the right to
seek such relief in the future.
Considering Defendant’s motion for
summary judgment is denied, the Court DENIES Defendant’s request for an award
of costs under Code of Civil Procedure section 1038 at this time. The Court expresses no view on whether
Defendant could recover these costs if it prevails at a later stage of the
litigation and, to that extent, the denial is without prejudice.
Conclusion
Accordingly,
Defendant’s motion for summary judgment is DENIED.
Moving party is ordered to give notice.
Note:
once the Court has posted/issued a tentative ruling, the Court has the inherent
authority to deny a party’s request to withdraw the motion and to adopt the
tentative ruling as the order of the Court.