Judge: Steven A. Ellis, Case: 21STCV40336, Date: 2024-01-03 Tentative Ruling
Case Number: 21STCV40336 Hearing Date: January 3, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant City of Pasadena.
Tentative Ruling
On November
2, 2021, Plaintiff filed a complaint against Defendants City of Pasadena,
County of Los Angeles, California Department of Transportation, Ameesa
Corporation, and Does 1 through 50, asserting causes of action for premises
liability/dangerous condition of public property (against all defendants) and
general negligence (against Ameesa Corporation and the Doe defendants).
At the
request of Plaintiff, the Court dismissed all claims against California Department
of Transportation on June 15, 2022, and all claims against Ameesa Corporation
on July 28, 2022.
On January
12, 2023, Defendant City of Pasadena (“Defendant”) filed this motion for
summary judgment. Plaintiff filed his opposition on December 20, 2023. Defendant
filed its reply on December 28, 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 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.)
Evidentiary Objections
Both Plaintiff and Defendant object
to certain portions of the evidence submitted by the other party. Evidence presented in support of, or in
opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (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.” (Code Civ. Proc., § 437c, subd. (c).)
All of Plaintiff’s
Objections to Defendant’s evidence are OVERRULED.
Defendant’s
Objections Nos. 1-5 and 8-16 are OVERRULED.
Defendant’s
Objection Nos. 6 and 7 are SUSTAINED.
The issue of duty is not a proper subject of expert opinion testimony.
As to the Defendant’s
objections (all of which relate to the expert opinion testimony of Philip L.
Rosescu, P.E., M.S.), the Court further notes that Mr. Rosescu has appropriate
credentials and his 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, §§ 801-802; Sargon Enterprises
v. USC (2012) 55 Cal.4th 747, 771-21.)
Mr. Rosescu’s opinion testimony is not, of course, 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.
Discussion
In his
Complaint, Plaintiff asserts one cause of action against Defendant, asserting
that he 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, supra, 44
Cal.App.5th at p. 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 only a “trivial defect,” and not a “dangerous
condition” on the sidewalk at the time of the incident. Defendant does not, for purpose of this
summary judgment motion, argue in its Memorandum that it lacked actual or
constructive notice or make any other argument about any of the other elements
of Plaintiff’s claim.
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 on December
27, 2020, between noon and 1 pm, as Plaintiff was walking on a sidewalk that runs
parallel to Madison Avenue in Pasadena, California. (Defendant’s Statement of Undisputed Material
Facts [“DSUMF”], No. 1; Plaintiff’s Statement of Additional Material Facts [“PSAMF”],
No. 1.) It was a sunny day. (PSAMF, No. 2.) Plaintiff tripped on an uplift of the
sidewalk and was injured when he fell.
(PSAMF, No. 1.)
There is some dispute in the evidence in
the record regarding the size of the uplift.
Jeffrey Wong, the Defendant’s Public Works Street Maintenance
Superintendent, went to the location of the incident and identified two uplifts;
according to Mr. Wong’s measurements, one uplift was a maximum of one inch in
size, and the other was a maximum of 1 and 3/16th inches. (DSUMF, Nos. 7-9, 11.) Mr. Wong did not, of course, have any
personal knowledge of the precise circumstances surrounding Plaintiff’s fall. (PSAMF, No. 24.)
Plaintiff (who is himself an engineer)
stated in his deposition that he measured the difference between the “connector
slab” and the “slab that I tripped on” and it was “an inch and a half.” (Hakim Decl., Exh. A [Grays Depo.], at 38:5-22.) Plaintiff also stated that there was an
additional differential of between one-and-a-half and two inches between the
connector slab and the grade, for a total differential of three inches or
perhaps even more. (Id. at 38:5-39:4.)
Plaintiff’s expert measured the size of the
uplift and stated that it was “approximately 1 inch in height.” (Hakim Decl., Exh. C [Rosescu Decl.], ¶ 7.)
As to aggravating conditions, Plaintiff
stated in his deposition that the uplift was “almost invisible” and was
difficult to see. (PSAMF, No. 11.) At his deposition, Plaintiff was shown photos
of the site of the incident and testified about them (see, e.g., Grays Depo.,
at 67:4-13, 72:1-9.), but the photos themselves are not part of the summary
judgment record. Mr. Wong did not
observe any jagged edges on the uplifts.
(DSUMF, 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 above and 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 find that the size of the uplift was approximately 1.5 inches and
that it was, at the time of the incident, difficult to see. On
these facts, reasonable minds could differ as to whether the sidewalk
constituted a dangerous condition under Government Code section 835.
Conclusion
Defendant’s
motion for summary judgment is DENIED.