Judge: William A. Crowfoot, Case: 21STCV12624, Date: 2022-08-03 Tentative Ruling

Case Number: 21STCV12624    Hearing Date: August 3, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On April 2, 2021, plaintiff Margaret Bock (“Plaintiff”) filed this action against defendant City of La Mirada (“Defendant”) alleging a dangerous condition of public property.  Plaintiff alleges that on May 3, 2020, she tripped and fell due to an “uneven, displaced and poorly lit portion of the sidewalk.”  (Compl., Attachment 1 to Second Cause of Action.)

On April 15, 2022, Defendant filed this motion for summary judgment on the grounds that the alleged dangerous condition was trivial as a matter of law. 

II.      FACTUAL BACKGROUND

Plaintiff's incident occurred on May 3, 2020, between 7:45 and 8:00 p.m., when she took her dog [a 65 lbs. greyhound named Tiki], out for a walk.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  She testified that she tripped over an uplift in the sidewalk at or near 14708 Figueras Road in La Mirada, California.  (UMF No. 2.)  Plaintiff was familiar with the area where the incident occurred.  (UMF No. 3.)  Plaintiff's incident occurred at twilight.  (UMF No. 4.)  Plaintiff did not see any obstruction, such as debris, trash, rocks, or leaves on top of the sidewalk surrounding the uplift.  (UMF No. 9.) 

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 facie 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.     EVIDENTIARY OBJECTIONS

Defendant’s Evidentiary Objections

Having considered the evidence considered material to the disposition of this motion, the Court rules on Defendant’s evidentiary objections as follows:

Objection No. 1: Sustained.

Objection Nos. 4-6: Sustained.

Objection No. 11: Overruled.

Objection Nos. 14-15: Overruled.

          Objections not ruled on are preserved for appellate review.  (Code Civ. Proc., § 437c, subd. (q).) 

V.      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.)

To assign liability for a defect, the landowner must have notice not only of the condition of the sidewalk, but also of the dangerous character of such condition.  (Whiting v. National City (1937) 9 Cal.2d 163, 165.)  “If the defect is of such trivial character that it presents no element of conspicuousness or notoriety, its continued existence does not impart constructive notice” to the landowner.  (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73.)  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). 

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.  (Stathoulis, supra, 164 Cal.App.4th at p. 567.)  However, 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.) 

California courts have held established that sidewalk uplifts with a height differentials up to 1.5 inches are minor, trivial defects as a matter of law.  For example, the court in Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367 determined a 1.5-inch differential was a trivial defect as a matter of law.  In Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, the court of appeal reaffirmed the rule that displacements in sidewalks up to 1.5 inches are considered trivial as a matter of law, citing various cases in support of that proposition.  The Huckey court also stated that the analytical framework should be as follows:

First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional facts bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.

Applying this analytical framework, the Court finds that Defendant has met its moving burden to establish there are no triable issues of fact regarding the size of the defect and whether it was trivial.  Photos taken by a claims examiner from Carl Warren & Company, LLC, Glen Raphael (“Raphael”), on June 19, 2020, show that the uplift is around 1.25 inches tall.  (Compendium of Evidence, Raphael Decl., Ex. A.)  Defendant also submits the opinion of its mechanical engineer expert, Ned Wolfe (“Wolfe”), and states that according to Wolfe, the uplift at its highest point measured 1.3 inches in height.  (Compendium of Evidence, Wolfe Decl., ¶ 8.)  Wolfe reviewed photos taken by Raphael as well as Plaintiff’s deposition testimony and exhibits and calculated that Plaintiff’s foot connected with the sidewalk uplift about eight inches inward from the sidewalk edge, and that the height differential between the two sidewalk slabs at that point was 0.9 inches tall.   (Wolfe Decl., ¶¶ 9-10.)  Plaintiff testified at her deposition that there was “nothing visible like an obstruction”, such as debris, trash, rocks, or leaves on top of the sidewalk surrounding the uplift.  (Compendium of Evidence, Stepanyan Decl., Ex. A, Bock Depo., 44:15-20.)  Plaintiff often traveled this sidewalk when she walked her dog in the evening.  (Id., 17:10-18:22.)  It was her custom and practice to take her dog down the sidewalk of Figueras Road and back and she estimated she would walk her Greyhound about ten times in one week.  (Id., 17:10-20:20.)  The incident happened at twilight and it was still light enough that Plaintiff was able to see her hand if she held it in front of her, the colors of the cars parked on the road, and her greyhound.  (Id., 44:15-45:13.)  She did not carry a flashlight and felt comfortable she could navigate and see where she was walking without a flashlight.  (Id., 77:17-78:14.)  Lastly, Anthony Moreno, who is employed by Defendant as a Senior Administrative Analyst at the Department of Public Works and Administrative Services Department Risk Management Division, declares that on June 21, 2020, he has searched the database of Defendant’s cloud-based citizen relationship management service for known prior accidents.  (Compendium of Evidence, Moreno Decl., ¶ 1.)  He based his search on the address location and the general vicinity and found no known prior accidents on record relating to the subject uplift going back as far as October 2016.  (Id., ¶¶ 5-6.) 

In cases “concerned with the difference in elevation between adjoining sections of sidewalk where the rise varied from one-fourth inch to one inch . . . the court held the defect to be minor and trivial as a matter of law [and did not] impose liability upon the owner for injuries thereby sustained by the plaintiff.”  (Graves v. Roman (1952) 113 Cal.App.2d 584, 586.)  “Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”  (Stathoulis, supra, 164 Cal.App.4th at p. 568.)  For example, in Whiting, supra, 9 Cal.2d 163, a sidewalk slab was raised three-fourths of an inch above the adjoining portion and the court deemed the defect to be minor and held that no injury would ordinarily be suffered therefrom when ordinary care was exercised in using the sidewalk.  (Id. at p. 166.)  The Court noted that many thousands of people, including numerous city officials, had passed over this defect during the five years of its existence and no one had suffered from it to the extent of seeking redress against the city.  (Ibid.)

As the Court finds that Defendant has met its moving burden, the burden now shifts to Plaintiff to raise a triable issue of material fact.  Plaintiff attempts to do so by relying on the declaration of her expert, Mark Burns (“Burns”), who states that based on his firm’s inspection, the sidewalk uplift was much greater and 1.83 inches at its highest point.  (Plaintiff’s Index of Declarations and Exhibits, Burns Decl., ¶ 8.) 

Defendant argues that Burns’s opinion should not be considered because the photographs from his consulting firm’s investigation were taken 2 years after the incident when the subject uplift was already patched.  (Reply, 8:18-23.)  The measurements are based on the height of the patched asphalt, which do not reflect the condition of the uplift on the day Plaintiff tripped.  The Court agrees that Burns’s opinion lacks foundation and that no triable issue of material fact has been raised regarding the side of the sidewalk uplift.  (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 [expert opinion worth no more than the reasons upon which it rests].)

Plaintiff advances other arguments which are unavailing.  First, Plaintiff argues that the area was not lit well enough, which increased the risk of injury posed by the uplift.  However, Defendant is immune from allegations of failure to illuminate or insufficiently illuminate city property.  (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 133.)  Second, Plaintiff identifies missing pieces of concrete and claims they are “aggravating factors.”  However, these pieces of concrete are not part of the uplift.  Third, Plaintiff’s reliance on Laurenzi v. Vranizan (1945) 25 Cal.2d 806 is inapposite.  The city inspector in Laurenzi testified that if he had seen a hole in the sidewalk such as the one Plaintiff placed at issue, he would have considered it hazardous and requiring repair.  No such admission exists here.  

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is GRANTED.

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.