Judge: William A. Crowfoot, Case: 21STCV24639, Date: 2022-12-12 Tentative Ruling

Case Number: 21STCV24639    Hearing Date: December 12, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION AND BACKGROUND

          On July 6, 2021, plaintiff Wendy Lynn Dunster filed this complaint against defendants City of Los Angeles (“City”) and Kaiser Foundation Hospitals (“Kaiser”) for negligence, premises liability, and violation of Government Code section 835 after she fell on May 12, 2020 at approximately 8:30 p.m. 

          On October 28, 2021, Kaiser filed an answer to complaint and a cross-complaint against City for declaratory relief and equitable indemnity. 

          On November 17, 2021, City filed a cross-complaint against Kaiser.

          On September 12, 2022, Kaiser filed this motion for summary judgment on the grounds that it did not owe Plaintiff a duty because the defect which she tripped on was a “trivial defect.” 

II.     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 “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).)  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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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.)

III.    EVIDENTIARY OBJECTIONS

          Plaintiff’s Evidentiary Objections

          Objection Nos. 1-18: Overruled.

          Defendant’s Evidentiary Objections

          Objection Nos. 2-5: Overruled.

Objection No. 9: Overruled.

IV.    DISCUSSION

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.)  This doctrine recognizes that “‘persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.  The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.’”  (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-27.)  In limited circumstances a court may determine a walkway defect is trivial as a matter of law.  (Huckey v. City of Temecula (2019) 37 Cal.App.5th at p. 1104; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567.)  “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.”  (Stathoulis, at p. 567; see Kasparian, supra, 156 Cal.App.4th at p. 28.)  But where “sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous,” summary judgment is inappropriate. (Kasparian, at p. 28.)  “In the sidewalk-walkway context, ‘[t]he decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.’”  (Nunez v. City of Redondo Beach (2002) 81 Cal.App.5th 749, 757; see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)  Although a defect’s size “‘may be one of the most relevant factors’ to the court’s decision,” the court also must consider “all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest,” including “whether the walkway had any broken pieces or jagged edges.”  (Huckey, supra, 37 Cal.App.5th at p. 1105; Caloroso, supra, 122 Cal.App.4th at p. 927.)  Other circumstances include “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).  However, a court may not grant summary judgment “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.) 

Plaintiff’s coworker, Tanya Warhop, states in a declaration that she was walking with Plaintiff on May 12, 2020 around the Kaiser Permanent West Los Angeles Medical Center (“Medical Center”).  (Warhop Decl., ¶ 3.)  It was a frequent activity that co-workers would participate in during their breaks.  It was approximately 8:30 p.m. in the evening.  (Warhop Decl., ¶ 4.)  As they proceeded south-west on the sidewalk, the Medical Center was to their right and Plaintiff was walking next to Warhop on the right, closest to the Medical Center.  (Warhop Decl., ¶ 5.)  Warhop states that the weather was clear, and the area was well lit.  (Ibid.)  Warhop states that she did not experience any difficulties walking on this section of sidewalk and that neither she nor anyone with whom she has worked with on that sidewalk had ever tripped on the sidewalk.  (Id., ¶ 7.)  None of her co-workers had ever mentioned any issues encountered on that sidewalk.  (Ibid.) 

Kaiser’s expert, Ned Wolfe (“Wolfe”), states that he conducted an inspection of the area where Plaintiff fell and reviewed photos that were produced by Plaintiff in discovery.  (Wolfe Decl., ¶¶ 7-8.)  Wolfe describes the sidewalk as uneven with the rise highest on the left edge and gradually decreasing towards the right.  (Id., ¶¶ 13.)  The photos show that the uplift between the sidewalk slab panels that Plaintiff tripped on was a trivial defect because it was less than 1 ¼ inches high on the left edge of the sidewalk and tapered down to approximately less than an inch in the center, and 13/16th inch on the right side.  (Wolfe Decl., Ex. B.) 

Kaiser contends that Plaintiff tripped on a trivial defect because based on Plaintiff’s position next to Warhop, Plaintiff tripped on an offset that could not have been greater than one inch, and there are no aggravating circumstances.  The uplift was not cracked, broken, or jagged.  (Wolfe Decl., ¶ 13.)  Also, Kaiser’s Facilities Director, Nolveris Frometa, declares that if any complaints, concerns or reports of injuries related to the sidewalk they would have been notified of them, but they were unaware of any complaints of any alleged dangerous conditions or injuries caused by the sidewalk prior to Plaintiff’s fall.  (Frometa Decl., ¶¶ 4-5.)  Furthermore, Plaintiff’s coworker declares that the area was well-lit.  (Warhop Decl., ¶ 5.) 

Based on the foregoing, the Court finds that Kaiser has met its moving burden to show that the alleged dangerous condition was a trivial defect. 

In opposition, Plaintiff refers to photos taken by her expert witnesses and contends that the uplift along the sidewalk slab ranged from 1 inch to 1 and 3/16 inches tall.  Plaintiff explains that the photos relied on by Defendant were taken by her attorney, which did not accurately portray the condition of the sidewalk because it was taken at a low angle and did not use the proper tools.  Plaintiff further testified in deposition that her view of the sidewalk defect was obstructed because although she usually looks down and ahead at the ground ahead of her, at the moment she fell, she had raised her head to speak to Warhop.  Additionally, Plaintiff’s expert, Mark J. Burns, states that the risk of tripping is aggravated because there is insufficient illumination and an overhanging lip extending across the entire expansion joint makes it more prone for a pedestrian’s foot to become caught. 

On reply, Kaiser argues that the issue of lighting is a red herring because Plaintiff testified in deposition that she was not claiming that the lighting had something to do with her fall.  (Wolfe Decl., Ex. C, 120:11-22.)  Further, whether there was an “overhanging lip” is irrelevant because she was stepping down on her left foot at the time when it hit the concrete, not pulling her foot up.  (Plaintiff’s Ex. C, 45:9-18.) 

The Court agrees with Kaiser that Plaintiff’s evidence does not show that there were any aggravating circumstances that increased any risk of danger posed by a minor uplift along a typical expansion joint of a sidewalk slab.  Because no aggravating circumstances exist and the evidence shows that the height of the differential could be at most, under 1 ¼ inch, the alleged dangerous condition is, as a matter of law, a trivial defect. 

V.      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.