Judge: William A. Crowfoot, Case: 18STCV07302, Date: 2022-12-13 Tentative Ruling

Case Number: 18STCV07302    Hearing Date: December 13, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On December 5, 2018, plaintiff Jean Mondejar (“Plaintiff”) filed this action against defendants Kelly Hwang and Kathy Hwang (collectively, “Defendants”), as well as the City of Pomona (“Pomona”).  Plaintiff alleges that on December 5, 2017, she tripped and fell over a raised sidewalk.  On July 13, 2022, Defendants filed this motion for summary judgment on the grounds that the raised portion of the sidewalk was a trivial defect.  On November 28, 2022, Plaintiff filed an opposition brief.  On December 6, 2022, Defendants filed a reply brief.

II.      FACTUAL BACKGROUND

          Plaintiff was walking on a walkway next to 2369 Angela Street in Pomona, CA (the “Property”) on December 5, 2017, when she allegedly tripped and fell.  (Defendants’ Undisputed Material Fact (“UMF”) No. 1.)  Defendants owned the Property at the time of Plaintiff’s fall.  (UMF No. 2.) 

III.     LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)  “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  “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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.     DISCUSSION

          “An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)  The law imposes no duty on a landowner to repair trivial defects or to maintain his or her property in an absolutely perfectly condition.  (Ibid.)  “A property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.”  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)  The “trivial defect defense” is an aspect of duty that a plaintiff must plead and prove and allows a court to determine whether a defect is trivial as a matter of law.  (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.)  “The rule which permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.”  (Id. at p. 399.)

Whether a crack or other defect in a walkway is dangerous does not rest entirely on its size, although the size of a crack is a pivotal factor in the determination.  (Stathoulis, supra, 164 Cal.App.4th at pp. 566-567.)  In addition to size, the court must determine “whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734), such as the “weather at the time of the incident, plaintiff’s knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury.  [Citations.]”  (Stathoulis, supra, 164 Cal.App.4th at p. 567). 

Plaintiff claims that she either fell on a crack in the sidewalk or a joint between two slabs of concrete.  Defendants introduce photos of both the crack and the joint, as well as their measurements taken by their expert, Caroline Crump, to establish that the height of any displacement in the crack was less than a quarter inch and that there is no measurable displacement of concrete at the joint.  (Crump Decl., ¶¶ 3-8, Ex. B.)  Plaintiff also testified in her deposition that it was dry that day and not raining.  (Defs.’ Ex. D, 20:9.)  Based on this evidence, Defendants have met their moving burden to show that the “raised sidewalk” that Plaintiff tripped over is a trivial defect. 

In opposition, Plaintiff argues that a triable issue of material fact exists because Defendants’ own property manager, Priscilla Reyes, considered the crack in the sidewalk to be dangerous and had previously reported the crack to Pomona for repair.  (Gibson Decl., Ex. 1, 53:9-16.)  She stated in deposition that she told the City that “too many people were tripping on it” and said that she was one of the people who had tripped.  (Id., 54:8, 54:21.)  Also, she testified that workers from Pomona came out to look at the sidewalk and told her that it needed to be fixed.  (Id., 55:2-6.) 

Where reasonable minds would reach only one conclusion, courts may determine “triviality” as a matter of law and the issue may be properly resolved by way of summary judgment.  (Ibid.)  A court may not “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.”  (Id. at p. 569.) 

          Defendants do not address Ms. Reyes’s testimony in their reply brief and only argue that the case that Plaintiff cites to (referred to only as “Gentekos”) is inapposite and therefore submits no law in support of her opposition brief.  However, Ms. Reyes’s deposition testimony raises questions about whether the crack was actually a dangerous condition due to the number of people that she claims have tripped over it and the City’s own assessment that a repair was needed.  

VI.     CONCLUSION

          In light of the foregoing, the motion for summary judgment is DENIED.

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.