On 02/28/2018 MONICA NUNEZ filed a Personal Injury - Other Personal Injury lawsuit against CITY OF REDONDO BEACH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
MARC D. GROSS
JON R. TAKASUGI
HOLLY E. KENDIG
THOMAS D. LONG
CITY OF REDONDO BEACH
COUNTY OF LOS ANGELES
DOES 1 TO 50
CATALINA PLAZA HOMEOWNERS ASSOCIATION
MARDIROSSIAN GARO ESQ.
MICHEL CARL DAWSON ESQ.
ENGELIEN KEVIN COUNTY COUNSEL
ENGELIEN KEVIN JOHN DEPUTY COUNTY COUNSEL
DIMONDA JOSEPH DAWSON ESQ.
FRANK ALEXANDER ASCH
Court documents are not available for this case.
Hearing03/01/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing09/04/2020 at 13:30 PM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Trial Setting ConferenceRead MoreRead Less
Hearing09/04/2020 at 13:30 PM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 12:20 PM in Department 31, Thomas D. Long, Presiding; Court OrderRead MoreRead Less
DocketMinute Order ( (Court Order Re Continuance of Motion Pursuant to Emergency Or...)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Court Order Re Continuance of Motion Pursuant to Emergency Or...) of 04/29/2020); Filed by ClerkRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketNotice (of Continued Hearing Date for Defendant City of Redondo Beach's Motion for Summary Judgment, or Alternatively Summary Adjudication); Filed by City of Redondo Beach (Defendant)Read MoreRead Less
Docketat 4:04 PM in Department 31, Thomas D. Long, Presiding; Court OrderRead MoreRead Less
DocketMotion to Compel (Motion to Compel Further Responses to Form Interrogatories Set One); Filed by City of Redondo Beach (Defendant)Read MoreRead Less
DocketMotion to Compel (Motion to Compel Further Responses to Request for Production of Documents Set One); Filed by City of Redondo Beach (Defendant)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by Monica Nunez (Plaintiff)Read MoreRead Less
DocketAnswer; Filed by County of Los Angeles (Defendant)Read MoreRead Less
DocketANSWER OF DEFENDANT COUNTY OF LOS ANGELES TO COMPLAINTRead MoreRead Less
DocketAnswer CITY OF REDONDO BEACHRead MoreRead Less
DocketAnswer; Filed by City of Redondo Beach (Defendant)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY [GOVERNMENT CODE SECTION 835 ET SEQ.];ETCRead MoreRead Less
DocketComplaint; Filed by Monica Nunez (Plaintiff)Read MoreRead Less
Case Number: BC695847 Hearing Date: September 04, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
CITY OF REDONDO BEACH, ET AL.,
Case No.: BC695847
[TENATATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
September 4, 2020
Plaintiff, Monica Nunez filed this action against Defendant, City of Redondo Beach for damages arising out of a trip and fall on the public sidewalk.
Motion for Summary Judgment
Defendant moves for summary judgment on the complaint. It contends it is entitled to judgment as a matter of law because the defect at issue was trivial.
Plaintiff opposes, arguing (a) the City itself concedes the defect was not trivial, (b) Plaintiff’s expert testimony establishes the defect was not trivial, and (c) aggravating factors, including shadows and the fact that there was no change in color at the place of the defect, render the defect non-trivial.
Burdens on Summary Judgment
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.)
Plaintiff submitted evidentiary objections with her opposition papers. Objections to points and authorities are not evidentiary objections because points and authorities are not evidence. The Court therefore declines to rule on objections 1-4. Objections to facts in a separate statement are also not evidentiary in nature. Objections must be directed at evidence, not facts. The Court looks to the evidence cited in support of the facts to determine if the facts are established or not. The Court therefore also declines to rule on objection 5.
Defendant submitted evidentiary objections with its reply papers. Objections 1 and 2 are overruled, as a proper foundation is laid for the evidence. Objections 3-7 are improper for the reasons discussed above and the Court will not rule on them. Objection 8 is sustained, as it is an improper opinion. (Fielder, 71 Cal.App.3d at 734.) Objection 9 is overruled. Objection 10 is improper as an objection to Plaintiff’s memorandum. Objection 11 is sustained as an improper opinion. (Fielder, 71 Cal.App.3d at 734.) Objections 12-19 again are improperly asserted to Plaintiff’s additional material fact and the Court will not rule on them.
Law Governing Trivial Defect Doctrine
Defendant’s contention is that the defects in the sidewalk, if any, were trivial as a matter of law. 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. 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.
Persons who maintain walkways, whether public or private, are not required to maintain them in a perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. 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. “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. Instead, the court should 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; see also Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.
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 p. 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 pp. 396-397.
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 pp. 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 p. 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 p. 929.
Defendant provides evidence that (a) the defect at issue was no more than ¾” (fact 10), (b) the weather was sunny at the time of the fall (fact 11), (c) there was no debris in the area of the fall (fact 12), (d) there was no wetness in the area of the fall (fact 13), (e) there was no sand in the area of the fall (fact 14), and (f) there was no hole or chasm in the area of the fall (fact 15). The foregoing is sufficient, under the standards discussed above, to meet the moving burden to show Defendant is entitled to judgment as a matter of law.
Because Defendant met its moving burden to show it is entitled to judgment as a matter of law, the burden shifts to Plaintiff to raise a triable issue of material fact regarding triviality. Plaintiff, in opposition to the motion, 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. She argues the motion must be denied because (a) the City itself concedes defects in excess of ½” should be remedied per its own policies, (b) Plaintiff’s expert testifies that the defect at issue poses a risk to persons using ordinary care, and (c) aggravating factors render the defect not trivial.
Plaintiff’s first argument is that the City has internal policies pursuant to which they fix any defect in excess of ½”. Plaintiff fails to cite any authority for the position that such an internal policy overrides the trivial defect doctrine. Courts have consistently held that defects under 1”, absent aggravating circumstances, are trivial as a matter of law. The fact that a city endeavors to cure defects, upon notice, even when those defects are trivial under the law, does not support imposition of judgment against that city when the law finds those defects to be trivial.
Plaintiff’s second argument is that her expert, Mark Burns, opines that defects such as the defect at issue in this case pose a substantial risk that will often cause a person using due care to fall. Courts have rejected expert testimony in the area of interpretation of the trivial defect doctrine, and Defendant’s objection to Burns’s testimony is sustained (see above). See, for example, Colorosa at 928. See also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-1110, expressly rejecting Burns’s similar testimony in this regard.
Plaintiff’s third argument is that aggravating factors existed that rendered the defect non-trivial as a matter of law. Plaintiff raises two potential aggravating factors for consideration. First, she contends there was a shadow over the area of the defect. Second, she contends the sidewalk was all the same color, with no change in color to highlight the defect.
The second argument, as Defendant notes in reply, would literally eviscerate the trivial defect doctrine. These defects, by their very nature, exist on surfaces that otherwise have no color differential. If public entities were going around spray painting defects, they would likely simply cure the defects in the first instance. The point of the doctrine is that these defects are so small that they cannot be reasonably detected and cured by landowners.
The first argument, concerning the shadow, is slightly more difficult. As Defendant points out in reply, Plaintiff was asked questions at length in deposition about aggravating factors, and she did not mention any shadow. It is only now, in opposition to a summary judgment motion, that she mentions the shadow. The Court is inclined, in an abundance of caution, to overrule the evidentiary objection to this declaration. Regardless, the Court finds a shadow is not the type of aggravating factor contemplated by the case law above, especially if it is the ONLY aggravating factor. While there is no substantial authority concerning whether or not a shadow can constitute an aggravating factor under the law, the case law, discussed above, contemplates aggravating factors more serious than a shadow, standing alone, when finding a defect is non-trivial as a matter of law.
Plaintiff also briefly mentions her lack of familiarity with the area where she fell. She cites no authority for the position that lack of familiarity can render a defect non-trivial if it is otherwise trivial.
Defendant met its moving burden to show the defect at issue was trivial as a matter of law. Plaintiff failed to raise a triable issue of material fact. The motion for summary judgment is granted. Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com 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 4th day of September, 2020
Hon. Thomas D. Long
Judge of the Superior Court
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