NIEVES MARTINEZ VS CITY OF BEVERLY HILLS

Motion for Summary Judgment

Having considered the moving and opposing papers, the Court rules as follows.  No reply papers were filed.

BACKGROUND

On June 30, 2017, Plaintiff Nieves Martinez (“Plaintiff”) filed a complaint against Defendant City of Beverly Hills (“Defendant”) alleging premises liability and negligence for a trip-and-fall that occurred on July 8, 2016.

On April 5, 2019, Defendant filed a motion for summary judgment pursuant to California Code of Civil Procedure section 473c.

On May 28, 2019 Defendant refiled its motion for summary judgment.

On August 6, 2019, Defendant filed a notice of continuance indicating its motion for summary judgment was continued to December 2, 2019.

On October 10, 2019, the Court continued Defendant’s motion for summary judgment to February 19, 2020.

Trial is set for January 24, 2020.

PARTY’S REQUESTS

Defendant asks the Court to grant summary judgment in Defendant’s favor and against Plaintiff because: (1) the divot that Plaintiff tripped over is a trivial condition and (2) Defendant did not have notice of the dangerous character of the divot.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the 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 “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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Dangerous Condition of Public Property

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code § 815.)

Government Code section 835 states:¿“Except as provided by statute, 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 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 under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿

Defendant argues summary judgment must be granted for two reasons.  First, the divot that Plaintiff’ tripped over was not a dangerous condition.  Second, Defendant did not have notice of the divot’s dangerous character.

Existence of a Dangerous Condition

The term “dangerous condition” means a “condition of property that creates 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 is reasonably foreseeable that it¿will be used.”¿ (Gov. Code § 830(a).)¿ “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)  “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)

As to whether a condition is¿trivial¿as a matter of law, “[t]he legal analysis involves several steps. 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 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. 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. . . .”¿¿(Stathoulis¿v. City of Montebello¿(2008) 164 Cal.App.4th 559, 567-568.

Defendant’s undisputed material facts establish the following.  Plaintiff’s alleges she tripped from a divot in asphalt while walking in an alley in Beverly Hills.  (UMF Nos. 1-2.)  Plaintiff tripped around 11:00 a.m.  (UMF No. 3.)  There was no glare from sunlight.  (Ibid.)  There were no obstacles or debris on the ground.  (Ibid.)  There were no obstructions to Plaintiff’s visibility.  (Ibid.)  There were no distractions.  (Ibid.)

The Court finds Defendant has not met its burden.  Defendant does not submit evidence of the character of the divot.  For example, the Court is unsure as to whether the divot is a foot wide and a foot deep or if it is a centimeter wide and a centimeter deep.  As such, Defendant has not met its burden in establishing the divot is trivial.

The Court notes that Plaintiff has submitted evidence showing the divot is one and three-fourths of an inch deep.  (PUMF No. 1.)  The largest height differential in a sidewalk trip-and-fall case the Court knows of where it was affirmed to be a trivial condition was seven-eighths of an inch. Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389.)  As such, the Court cannot find that a preliminary analysis reveals the divot is a trivial defect.

Even if the divot could be initially determined to be a trivial condition, Plaintiff’s additional evidence shows there is a triable issue of fact as to whether the condition is dangerous. Plaintiff presents evidence that the divot is exacerbated by jagged and irregular characteristics of dilapidated asphalt and concrete.  (PUMF No. 4.)  Further, there was loose debris and aggregate in the area.  (Ibid.)  As such, summary judgment cannot be granted on the ground that the divot is trivial.

Notice

Government Code section 835.2 states: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (consideration the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

Defendant undisputed material facts further establish the following.  There were no claims made to Defendant related to the divot specifically or the alley generally between January 1, 2001 and the date of the incident.  (UMF No. 7.)  There were no complaints or work orders made in relation to the divot or the portion of the alley where Plaintiff fell from January 1, 2001 to the date of the incident.  (UMF No. 9.)  No lawsuit has been filed against Defendant at any time, other than this lawsuit, alleging the divot constituted a dangerous condition.  (UMF No. 8.)

The Court finds Defendant has met its burden.  Defendant’s evidence shows that it did not have actual or constructive notice of the dangerous condition.  Namely, no facts have been presented to Defendant from at least January 1, 2001 that the divot had a dangerous character.  The burden shifts to Plaintiff.

Plaintiff’s undisputed material facts establishes the following.  On October 27, 2015, Defendant had a crew make three hot patched repairs to the alley near the location where Plaintiff fell.  (PUMF No. 7.)  No employee of Defendant’s performed an inspection of the alley where Plaintiff tripped and fell for potholes or other tripping hazards from 2009 until Plaintiff’s incident on July 8, 2016.  (UMF No. 9.)

The Court finds Plaintiff has not met her burden.  The above facts do not show that Defendant actually knew of the dangerous condition.  The above facts do not show that Defendant had constructive notice of the dangerous condition.  Rather, the above facts show Defendant fixed a few other defects in the same alley as the divot.  There is no evidence submitted showing that Defendant’s employees either saw or should have seen the divot on October 27, 2015 when they were repairing the other defects in the alley.

Additionally, the Court finds Defendant’s inspection system to be sufficient.  This inspection system relied on individuals to request defects in the asphalt to be fixed.  The evidence shows it worked for at least three other defects near the divot that Plaintiff tripped on.  Despite the operation of the inspection system, the divot was not reported to Defendant.  As such, the Court finds the motion is properly granted because Defendant did not have notice of the 

CONCLUSION

The motion for summary judgment is GRANTED.

Defendant is ordered to give notice of this ruling.