On 02/15/2018 MARIA DIDIT DIAZ filed a Personal Injury - Other Personal Injury lawsuit against LA COUNTY METROPOLITAN TRANSPORTATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
HOLLY E. KENDIG
THOMAS D. LONG
DIAZ MARIA DIDIT
LOS ANGELES CITY OF
DOES 1-50 INCLUSIVE
LOS ANGELES COUNTY OF
LOS ANGELES COUNTY METROPOLITAN TRANSPORT
ARTIS TAB L. ESQ.
KIZZIE ANTONIO K
9/16/2020: Notice of Ruling
9/3/2020: Order - ORDER (KRISTY HICKS #13634)
8/14/2020: Separate Statement
8/14/2020: Declaration - DECLARATION IN SUPPORT OF OPPOSITION TO SUMMARY JUDGEMENT MOTION
9/1/2020: Objection - OBJECTION OBJECTION TO REPLY BRIEF
6/12/2020: Minute Order - MINUTE ORDER (COURT ORDER RE SETTING OF MOTION AND OTHER HEARINGS PURSUANT ...)
6/12/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE SETTING OF MOTION AND OTHER HEARINGS PURSUANT ...) OF 06/12/2020
1/22/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO CONTINUE THE ...)
7/30/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITHOUT MOTION TO STRIKE)
6/19/2019: Order - ORDER GRANTING JOINT STIPULATION AND REQUEST TO CONTINUE TRIAL, FINAL STATUS CONFERENCE, AND ALL RELATED DATES
7/18/2019: Proof of Service (not Summons and Complaint)
7/23/2019: Reply - REPLY DEF- REPLY TO PLTF OPPOSITION TO DEMURRER
1/9/2019: Substitution of Attorney
4/9/2019: Proof of Personal Service
5/2/2019: Request for Dismissal
5/20/2019: Request for Dismissal
6/10/2019: Declaration - DECLARATION DECLARATION OF DEMURRING OR MOVING PARTY REGARDING MEET AND CONFER
Hearing02/16/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
DocketNotice of Ruling; Filed by Los Angeles County Metropolitan Transport (Defendant)Read MoreRead Less
DocketOrder (Granting Defendant's Motion for Summary Judgment); Filed by ClerkRead MoreRead Less
Docketat 3:48 PM in Department 31, Thomas D. Long, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 09/09/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under SubmissionRead MoreRead Less
DocketOrder ((Kristy Hicks #13634))Read MoreRead Less
DocketRequest for Dismissal; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketSubstitution of Attorney; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketNotice of Rejection - Fax Filing; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketSummons; Filed by Maria Didit Diaz (Plaintiff)Read MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
DocketComplaintRead MoreRead Less
Case Number: BC695132 Hearing Date: September 03, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
MARIA DIDIT DIAZ,
LOS ANGELES COUNTY METRO TRANSIT AUTHORITY, ET AL.,
CASE NO: BC695132
[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
September 3, 2020
Plaintiff, Maria Didit Diaz (“Plaintiff”) filed this action against Defendant, LACMTA (“Defendant”) for damages arising out of a trip and fall on Defendant’s platform. The fall occurred on 2/13/17. The complaint alleges causes of action for (1) dangerous condition of public property and (2) negligence against Defendant.
Defendant now moves for summary judgment arguing it is entitled to judgment as a matter of law.
Motion for Summary Judgment
As to the first cause of action for dangerous condition of public property, Defendant contends the defect was trivial as a matter of law. Defendant asserts that it is undisputed that the defect, which Plaintiff claims was a dark gray line the concrete, consisted of a height differential of 1/2 inch or less. Further, Defendant contends that Plaintiff lacks evidence that any of Defendant’s employees created the condition, or that Defendant had actual or constructive notice of the purported dangerous condition. Defendant asserts that as a result, there is no evidence Defendant was negligent, breached any duty to Plaintiff or that Plaintiff was harmed by said breach. Defendant contends it had no duty to repair a trivial defect, and thus, it owed and breached, and that Plaintiff has admitted that she did not see what caused her to trip and fall, nor that she felt anything come into contact with her body that caused the fall.
Plaintiff argues Defendant was negligent in failing to maintain a safe walkway between platforms 5 and 6 at Union Station because there was a raised seam between concrete sections with a height differential of 1/2 inch to one inch that caused Plaintiff trip and fall. Plaintiff claims the platform was in shadows, illuminated only by overhead lights, and she could not see the walkway because the platform was crowded with passengers and she was looking for directions as to where to go next. Plaintiff argues Defendant knew or should have known that pedestrians in these circumstances would not look in front of them and would trip over a raised beam. Plaintiff argues that as a result, the defect on the platform constitutes a dangerous condition. In addition, Plaintiff argues the injury is itself evidence that the walkway was a dangerous condition, and Plaintiff has evidence Defendant knew of the defect. Alternatively, Plaintiff requests the court continue the hearing because Defendant has failed to adequately respond to any written discovery, and the facts that show liability are peculiarly within the knowledge of Defendant.
In reply to Plaintiff’s separate statement of undisputed facts, Defendant filed objections to Plaintiff’s additional facts. However, the objections to a separate statement are not proper. (Cal. Rules of Court, rule 3.1354(b).) The Court thus declines to rule on the purported objections. (Ibid.)
Burdens on Summary Judgment
The Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)
The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)
Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
Request to Continue Motion for Summary Judgment
CCP § 437c(h) states: “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].)
In this case, Plaintiff requests the court deny or continue Defendant’s motion because Defendant has failed to respond to Plaintiff’s written discovery or provide verifications for the discovery, and because the facts concerning liability are peculiarly with Defendant’s knowledge.
Defendant, in reply, contends Plaintiff has not been reasonably diligent in prosecuting this action or conducting discovery. Defendant contends that despite filing this action on 2/15/18, Plaintiff did not serve any discovery on Defendant until 4/28/20, which was also almost two weeks after Defendant met and conferred with Plaintiff regarding the substance of Defendant’s instant motion. Defendant further argues Plaintiff does not provide an explanation of what evidence she expects to develop through discovery. Moreover, Defendant contends that it served discovery responses on or about 7/1/20, but Plaintiff did not meet and confer regarding any deficiencies with the responses until 8/13/20, one day before Plaintiff filed its opposition to the summary judgment motion. Defendant argues this evidence establishes Plaintiff did not serve any written discovery until after Defendant filed the instant motion, and that Plaintiff fails to explain why it did not serve any discovery at an earlier time. Finally, Defendant provides it has served verifications on Plaintiff and attaches the subject discovery to its reply papers.
Plaintiff provides no reason why it did not serve any discovery on Defendant for more than two years after filing this action, or why Plaintiff did not meet and confer with Defendant prior to 8/13/20 despite responses being served on 7/1/20. Further, Plaintiff fails to identify what facts she seeks to obtain through the discovery that are essential to opposing Defendant’s motion, or why there is reason to believe such facts exist. (Combs, 159 Cal.App.4th at 1270.) In addition, Plaintiff does not specify why additional time is needed. For example, Plaintiff does not state whether she seeks to file a motion to compel further responses or how she would seek to cure the alleged deficiencies with more time. What is more, the court has reviewed the discovery requests and Defendant’s responses and does not find on their face that any responses by Defendant tend to prove its liability, or that any objections were asserted in bad faith. (See Reply Exhs. J-N.) The evidence, thus, establishes Plaintiff has not been reasonably diligent in seeking discovery in this matter, and that Plaintiff does not identify what discovery, if any, additional time is needed to obtain.
Plaintiff’s request to deny or continue the motion for summary judgment for Plaintiff to conduct further discovery is denied.
Law Governing Trivial Defect
A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. Govt. Code §830(a). The Government Claims Act's definition of the “substantial risk of injury” requirement for a dangerous condition on public property means that a condition is dangerous when the risk that an injury will result from the condition is substantial; a condition that creates only a remote possibility of injury is not dangerous even if the extent of injury that may occur is substantial. (Cordova v. City of Los Angeles (2015) 212 Cal.App.4th 243.) Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects. (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)
A plaintiff seeking to hold a public entity liable for injuries caused by a dangerous condition on public property has the burden to establish that the condition is one which creates a hazard to persons who foreseeably would use the property with due care. (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554.) Moreover, a public entity is only liable for a dangerous condition of property if it either creates the condition or has actual or constructive notice of the condition. (Gov Code §835(b).)
The Fielder court, after reviewing various appellate decisions involving defective walkways, concluded that the variance in these decisions as to what size of a depression, break, or nonalignment in a sidewalk constituted a mere trivial defect could be reconciled on the basis of whether there existed aggravating factors, such as lighting, debris, or a history of other similar injuries and thus rejected a rigid application of a “tape measure” test.
In Fielder, a pedestrian, who allegedly tripped on raised edge of segment of sidewalk and suffered a fractured femur as result of her fall, sued the City of Glendale. The appellate court held that: (1) it is for court to determine whether as matter of law a given defect in a sidewalk is not dangerous and (2) where the only facts alleged concerning whether the ‘defect’ was dangerous was evidence as to the depth of the depression and no evidence was presented as to any other surrounding circumstances or to other injuries to other persons on same spot, the approximate three-quarter-inch depression in the sidewalk at issue was not dangerous as matter of law. The Fielder court also disregarded the testimony of the plaintiff's expert that the defect was dangerous, reasoning that “there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” (Fielder, supra, at 732.)
In Ursino, the plaintiff was walking on a sidewalk on the defendant’s property and tripped over the raised edge of one of the concrete sections of the sidewalk. The raised edge was no more than three-fourths of an inch, the accident occurred in the morning, the weather was fair and dry, nothing concealed the defect, the plaintiff had frequented the restaurant on an average of once per week over 15 years, the raised edge had been there for between one to five years, neither party knew of any prior similar incidents, the plaintiff’s walking pattern was affected by her age, and 32 photographs of the sidewalk area at issue confirmed, to the trial and appellate courts, that reasonable minds could not differ and that the defect was in fact trivial. (Ursino, supra, at 396-97.)
In Kasparian, the plaintiff, an elderly tenant, had sustained serious injuries when she tripped over a recessed drain in the ground in an apartment complex. In overruling the trial court’s grant of summary judgment in favor of the defendant based on the trivial defect doctrine, the appellate court held that the trial court only focused on the depth of the recession and ignored the recessed nature of the drain when viewed in the context of the surrounding circumstances. Kasparian’s expert stated that the hole created for the drain grate was uneven, with heights ranging from 1/32 inch to 5/16 inch. He opined that the size and profile of the depression created for the grate varied from one end to the other which posed a safety hazard to pedestrians who did not have any expectation that any drain was not flush with the surrounding brick pavers. The survey of the other drains in the immediate vicinity of the drain in question confirmed that those drain covers were flush with the brick/paver surface, and the slope to the drain was nearly level unlike the drain in question. The slope to the drain in question was dramatically more severe than that found in customary drains. Moreover, there were no warnings or color distinctions to warn pedestrians that the drain was recessed. The expert opined that the surrounding circumstances of the location of the accident made the area very hazardous given the drains from a distance appeared similar in color to the bricks/pavers, the drains were not distinguishable by color and texture from the surrounding pavers, and in the totality of the circumstances they could not be easily detected even in daylight. (Kasparian, supra, at 28-29.)
In Caloroso, a pedestrian, who tripped over a crack in a walkway, and her husband sued the defendant property owner for personal injury and consortium damages. It was undisputed that the difference in elevation created by the crack in the walkway was less than half an inch at the highest point. Elevations ranging from three-fourths inch to one and one-half inches were found minor and trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74.) Following this line of cases, the Caloroso court held that the defect at issue should also have been deemed trivial as a matter of law, unless there was disputed evidence that other conditions made the walkway dangerous. In an attempt to raise a triable issue of material fact, the plaintiff submitted an expert declaration on the issue of triviality. Citing Evidence Code §801(a), the appellate court held that no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous. The photographs of the crack submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal. Regardless of whether a witness can be found to opine on the subject of a dangerous condition, the court must independently evaluate the circumstances. (Caloroso, supra, at 928, citing Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) The appellate court also found no foundation for the plaintiff’s expert’s opinion that noncompliance with certain building codes and standards made the crack dangerous. The expert failed to indicate that the codes and standards cited had been accepted as the proper standard in California for safe sidewalks. Moreover, there was no indication regarding whether such codes applied to existing walkways as opposed to new construction. Thus, the trial court properly concluded that the defect was trivial as a matter of law, and summary judgment was appropriate. (Caloroso, supra, at 929.)
Here, Defendant introduces evidence showing the defect Plaintiff contends caused her to fall on the subject passenger platform was a height differential in the concrete of 1/2 inch or less, or at most, 1/2 inch to just less than one inch. (UMF 30.) Further, Plaintiff never noticed the alleged defect prior to the incident, and Plaintiff did not see what actually caused her to fall or know what caused her fall. (UMF 7-14.) When Plaintiff was walking on the platform prior to her fall, there was nothing about the lighting conditions out of the ordinary, the platform was dry, and no other passenger fell because of the defect. (UMF 15-16, 20-22.) Moreover, prior to the incident, Plaintiff never heard any staff or signs warn against the defect, and Plaintiff never made any complaints concerning the defect, nor heard any others make complaints. (UMF 23-27.) The forgoing is sufficient, under the standards discussed above, to meet the moving burden to show Defendant is entitled to summary judgment.
Because Defendant met its moving burden, the burden shifts to Plaintiff to raise a triable issue of fact.
Plaintiff, in opposition, correctly notes that the trivial defect doctrine does not involve a strict ruler test and must be decided in connection with all the circumstances surrounding the defect.
First, as to Plaintiff’s contention that the case law concerning sidewalk is not applicable to the platform at issue, it is undisputed that the subject platform was a walkway used by passengers at Union Station. (See Pl.’s UMF 53.) Further, Plaintiff does not cite any authority holding that platforms are held to a higher standard of triviality as walkways than sidewalks.
Second, while Plaintiff contends her evidence shows Defendant knew or should have known about the defect, Plaintiff’s evidence consists of a Wikipedia article about Union Station, a Union Station Fact Sheet purportedly available on Defendant’s website, and a news article dated 4/14/11 regarding Defendant obtaining ownership of Union Station. (Opp. Frandsen Decl. at pp. 1-2: 25-8, Exhs. A-C.) This evidence merely suggests Defendant is the owner of Union Station, which is where the subject platform was located. However, Plaintiff does not cite any authority holding mere ownership is sufficient to establish that a landowner, including a public entity, had actual or constructive notice of a dangerous condition. Plaintiff does not otherwise provide one scintilla of evidence suggesting Defendant had notice of the defect on the subject platform.
Third, while Plaintiff argues the defect caused her to trip and fall, Plaintiff does not dispute the height differential was 1/2 inch to 1 inch and does not suggest there were any aggravating factors that made the defect dangerous. Plaintiff provided only at her deposition that there were people in front of her and she was looking for where she needed to go to catch her next train. Nevertheless, Plaintiff does not cite any authority showing these circumstances constitute aggravating factors under the law. As discussed above, the case law contemplates aggravating factors more serious than other people walking on the same walkway or a pedestrian not looking at the walkway in front of him or her while walking. Additionally, the court has reviewed the photos of the platform and does not find the purported height differential rendered the walkway dangerous. (Mot. Exhs. C1-D9.) The evidence shows the height differential was in plain sight and did not pose a substantial risk of injury to pedestrians using due care.
Defendant met its moving burden to show the defect at issue was trivial as a matter of law, and that Defendant did not have actual or constructive knowledge of the condition. Plaintiff failed to raise a triable issue of fact.
Defendant’s motion for summary judgment is granted.
Moving Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 3rd day of September, 2020
Hon. Thomas D. Long
Judge of the Superior Court