On 10/04/2017 DIANA MOYORGA PENA filed a Personal Injury - Other Personal Injury lawsuit against CITY OF SANTA MONICA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
PENA DIANA MAYORGA
DOES 1 TO 50
SANTA MONICA CITY OF
LEMLE ROBERT L. ESQ.
NAGAKAWA Y. CHRISTOPHER DEP. ATTY. GEN.
NAGAKAWA Y. CHRISTOPHER DEP. ATT GEN.
3/19/2019: Minute Order
3/20/2019: Notice of Ruling
11/16/2017: DEFENDANT CITY OF SANTA MONICA'S ANSWER TO COMPLAINT
10/23/2017: PROOF OF SERVICE SUMMONS
at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Party's MotionRead MoreRead Less
at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Party's MotionRead MoreRead Less
Notice of Ruling; Filed by Santa Monica, City of (Defendant)Read MoreRead Less
at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (to continue final status conference and trial dates) - Held - Motion GrantedRead MoreRead Less
Minute Order ( (Hearing on Ex Parte Application to continue final status conf...)); Filed by ClerkRead MoreRead Less
Ex Parte Application (EX PARTE APPLICATION TO CONTINUE FINAL STATUS CONFERENCE AND TRIAL DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LANCE S. GAMS); Filed by Santa Monica, City of (Defendant)Read MoreRead Less
at 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary JudgmentRead MoreRead Less
DEFENDANT CITY OF SANTA MONICA'S ANSWER TO COMPLAINTRead MoreRead Less
Answer; Filed by Santa Monica, City of (Defendant)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Diana Mayorga Pena (Plaintiff)Read MoreRead Less
Summons; Filed by Diana Mayorga Pena (Plaintiff)Read MoreRead Less
Complaint; Filed by Diana Mayorga Pena (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC677659 Hearing Date: February 10, 2020 Dept: 32
diana mayorga pena
city of santa monica,
Case No.: BC677659
Hearing Date: February 4, 2020
[TENTATIVE] order RE:
MOTION FOR SUMMARY JUDGMENT
Plaintiff Diana Mayorga Pena (“Plaintiff”) filed this action against Defendant City of Santa Monica (“Defendant”) after she tripped and fell on a sidewalk uplift. Plaintiff asserts causes of action for premises liability predicated upon negligence and premises liability predicated upon dangerous condition of public property. Now, Defendant moves for summary judgment or, in the alternative, summary adjudication of each cause of action. The Court grants the motion.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)
Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) Per Government Code section 835, “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that 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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.) A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).)
A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.) A court must determine if a defect is trivial as a matter of law based on all surrounding circumstances. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.) In determining whether a defect is trivial as a matter of law, the court first “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 factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.)
As an initial matter, the Court grants summary adjudication of Plaintiff’s claim for premises liability predicated upon negligence. This is a common law claim which cannot be asserted against Defendant, a municipality. Plaintiff does not oppose the motion on this basis. Therefore, the Court grants summary adjudication of this cause of action.
With respect to the cause of action under Government Code section 835, Defendant has proffered evidence that the height differential on which Plaintiff tripped is slightly less than one inch. Specifically, Defendant relies on Plaintiff’s claim under the Government Tort Claims Act. (Declaration of Michael Mack, Exh. A.) “A municipality cannot be expected to maintain the surface of its sidewalks free from all inequities and from every possible obstruction to travel.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 723 (citation omitted).) The Second District has held that uplifts less than one-half inch in height are trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929.) Courts have also found that uplifts greater than ½ inch in height may be trivial as a matter of law absent any aggravating conditions. (Whiting v. City of National City (1937) 9 Cal.2d 163; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50). “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1097, citations omitted.)
Defendant also proffers evidence that no aggravating conditions existed. Plaintiff represents in her claim that that the sidewalk was uneven and that there was an uplift, and not that the sidewalk was jagged or cracked. (See Declaration of Michael Mack, Exhibit A.) Further, Plaintiff testified during her deposition that the accident occurred midday and not at night. (Declaration of Holly M. Brett, Exh. F, p. 53.)
Finally, Defendant proffers evidence that it has not received reports of other accidents at the location where Plaintiff tripped. (Declaration of Michael Mack, ¶¶ 7-8; Declaration of Kori Jones, ¶ 4.) This suggests that the risk of injury from the uneven sidewalk was minimal. (Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 482.)
Defendant’s evidence satisfies its burden on summary judgment, shifting the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue whether the defect was trivial. Plaintiff fails to do so. Plaintiff relies on her own declaration, in which she states: “The area where I fell is a very highly trafficked area, both on the streets and sidewalks. Accordingly, when on the sidewalk, I have to negotiate around many other pedest[r]ians, panhandlers, tourists and shoppers.” (Declaration of Diana Mayorga Pena, ¶ 6.) There are several problems with this evidence. First, Plaintiff’s declaration does not state that the sidewalk was crowded on the date of the incident. She states only that, as a general matter, she has to negotiate around other people on the sidewalk. Second, Plaintiff’s declaration provides no detail concerning how many people were on the sidewalk, so the Court cannot determine whether the number of people constitutes a sufficient aggravating circumstance to give rise to a triable issue. Third, the photos proffered with Plaintiff’s claim show virtually no one on the sidewalk, undermining her representation. Finally, Plaintiff cites no authority that other people on a sidewalk constitutes an aggravating condition for purposes of trivial defect.
Plaintiff likewise argues that Plaintiff fell on a “jagged depression adjacent to the rise in the concrete slab . . . .” (Opposition to Motion for Summary Judgment, p. 10.) Again, there are several problems with this argument. First, Plaintiff cites no evidence in support of this argument. The photos accompanying Plaintiff’s claim show an uplift and a depression in front of the uplift but there are no jagged pieces or cracks. (Declaration of Michael Mack, Exh. A.) Second, Plaintiff’s claim is that she fell because the sidewalk was “uneven,” and it does not reference jagged or cracked pieces of sidewalk. Plaintiff’s is bound by the parameters of her government claim. Finally, even if the Court interprets the depression in front of the uplift as the “jagged depression” referenced by Plaintiff, that is considered as part of the height of the uplift. As discussed, the height of the uplift is slightly less than one inch.
Plaintiff relies on Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49. That case is distinguishable. In that case, the plaintiff tripped “[a]t the spot where the appellant caught her toe, the angular return of the corner sidewalk meets the 28th Avenue sidewalk and the angular return of the corner curbing meets the 28th Avenue curbing. There are four different levels, one between the contiguous sections of sidewalk, one between the contiguous sections of curbing, one between the 28th Avenue sidewalk elevation and curb elevation and a difference in elevations between the angular curb and the 28th Avenue curb.” (Aitkenhead v. City and County of San Francisco (1957) 150 Cal.App.2d 49, 50.) Thus, the condition of the sidewalk in that case involved numerous variances in elevation rather than just one, as in the instant case.
The Court has considered Plaintiff’s remaining arguments and rejects them on the merits. Among other issues, Plaintiff argues that Defendant had actual or constructive notice of the defect, but Defendant has not argued that it lacked notice. Defendant moves for summary judgment on the argument that the defect was trivial, and the Court grants that motion.
CONCLUSION AND ORDER
Defendant’s motion for summary judgment is granted. Defendant is ordered to provide notice of this order and file proof of service of such.
DATED: February 4, 2020 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
Case Number: BC677659 Hearing Date: February 04, 2020 Dept: 32
Diana Moyorga Pena v. City of Santa Monica
Case No. BC677659
Motion for Summary Judgment
The hearing on this matter is continued to February 10, 2020, at 1:30 p.m.
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