Disposed - Dismissed
Personal Injury - Other Personal Injury
HOLLY E. KENDIG
THOMAS D. LONG
KIM SUK JA
CITY OF TORRANCE
3600 Wilshire Blvd Ste 1920
Los Angeles, CA 90010
PREVIANT LEE W.
11/5/2020: Judgment - ORDER PROPOSED JUDGMENT
11/12/2020: Notice of Ruling
10/30/2020: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF TORRANCE'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF
10/30/2020: Objection - OBJECTION TO PLAINTIFF'S EVIDENCE IN SUPPORT OF OPPOSITION TO DEFENDANT CITY OF TORRANCE'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION; PROPOSED ORDER
10/30/2020: Opposition - OPPOSITION TO PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANT CITY OF TORRANCE'S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION A
11/5/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT; TRIAL SETTING CONFERENCE)
10/21/2020: Declaration - DECLARATION OF JOHN NOLAND IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OF IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF
10/21/2020: Declaration - DECLARATION OF BETH BOWER IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF
10/21/2020: Declaration - DECLARATION OF STEVE LANCASTER IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF
10/21/2020: Objection - OBJECTION TO EVIDENCE SUBMITTED IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT OF IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF; [PROPOSED] ORDER
10/21/2020: Separate Statement
10/21/2020: Memorandum of Points & Authorities
10/21/2020: Declaration - DECLARATION OF MARK J. BURNS, BSME, JD, GC, CCB1, CXLT, CPSI IN OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT OR IN THE ALTERNATIVE FOR SUMMARY ADJUDICATION AGAINST PLAINTIFF
10/21/2020: Request for Judicial Notice
9/29/2020: Association of Attorney
10/15/2020: Association of Attorney
1/9/2020: Declaration - DECLARATION OF KATHERINE WAND IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
1/9/2020: Motion for Summary Judgment
DocketNotice of Ruling; Filed by City of Torrance (Defendant)Read MoreRead Less
Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Held - Motion GrantedRead MoreRead Less
DocketJudgment; Filed by City of Torrance (Defendant)Read MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment; Trial Setting Conference)); Filed by ClerkRead MoreRead Less
DocketOpposition (to Plaintiff's Request for Judicial Notice in Support of Opposition to Defendant City of Torrance's Motion for Summary Judgment or in the Alternative for Summary Adjudication Against Plaintiff); Filed by City of Torrance (Defendant)Read MoreRead Less
DocketObjection (to Plaintiff's Evidence in Support of Opposition to Defendant City of Torrance's Motion for Summary Judgment or in the Alternative for Summary Adjudication; Proposed Order); Filed by City of Torrance (Defendant)Read MoreRead Less
DocketReply (to Plaintiff's Opposition to Defendant City of Torrance's Motion for Summary Judgment or in the Alternative for Summary Adjudication Against Plaintiff); Filed by City of Torrance (Defendant)Read MoreRead Less
DocketObjection (to Evidence Submitted in Support of Motion for Summary Judgement of in the Alternative for Summary Adjudication Against Plaintiff; [Proposed] Order); Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
DocketDeclaration (of Steve Lancaster in Support of Plaintiff's Opposition to Motion for Summary Judgement or in the Alternative for Summary Adjudication Against Plaintiff); Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
Docketat 10:00 AM in Department 3, Holly E. Kendig, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 10:30 AM in Department 3, Holly E. Kendig, Presiding; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
DocketAnswer; Filed by City of Torrance (Defendant)Read MoreRead Less
DocketProof of Personal Service; Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
DocketCertificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketStanding Order re PI Procedures and Hearing Dates; Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Suk Ja Kim (Plaintiff)Read MoreRead Less
Case Number: *******5623 Hearing Date: November 05, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
SUK JA KIM,
CITY OF TORRANCE, ET AL.,
Case No.: *******5623
[TENATATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
November 5, 2020
Plaintiff, Suk Ja Kim (“Plaintiff”) filed this action against Defendant, City of Torrance for damages arising out of a trip and fall on a public sidewalk. The complaint alleges a single cause of action for premises liability with a count of negligence and count of dangerous condition of public property.
Defendant now moves for summary judgment.
Motion for Summary Judgment
Defendant, first, contends it is entitled to judgment as a matter of law to the extent the complaint relies on a theory of general negligence against Defendant because a public entity’s liability for injuries arising from a dangerous condition is based on statute only. Second, Defendant argues Plaintiff cannot establish the existence of a dangerous condition because any defect that existed in the sidewalk was trivial as a matter of law. Third, Defendant contends that Plaintiff cannot show that an act or omission from any of Defendant’s employees caused the dangerous condition. Finally, Defendant avers that Defendant did not have actual or constructive notice of the condition because Defendant was not notified of the condition until after Plaintiff’s incident, and Plaintiff cannot establish how long the sidewalk displacement existed or that it should have been obvious to Defendant.
In opposition, Plaintiff argues the sidewalk was in a dangerous condition and posed a tripping hazard to pedestrians. Plaintiff asserts the uneven sidewalk Plaintiff tripped on ranged from 2 centimeters at the low point to 5 centimeters at the highest point (approximately 0.78 inches to 2 inches), and that according to Defendant’s own repair program, the sidewalk displacement should have been addressed. Plaintiff argues there is conflicting evidence as to where exactly on the sidewalk Plaintiff tripped and as to the late afternoon lighting condition that may have affected the defect’s visibility. Moreover, Plaintiff argues constructive notice may be imputed to Defendant because the last time Defendant had a crew work near the subject sidewalk was in 2008. Plaintiff contends it is not an adequate inspection system for Defendant to merely rely on staff reporting and citizen complaints to address defects in sidewalks, and that Defendant’s sidewalk inspections were inherently deficient because Defendant did not inspect sidewalk regularly such that a sidewalk displacement could easily form without Defendant’s knowledge. Plaintiff contends a practical and inexpensive inspection of performed on a regularly basis would have informed Defendant of the subject defect.
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 submits 30 objections to Defendant’s opposition. Objection 1 is overruled, as Defendant’s counsel provides a sufficient foundation for the statement asserted. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) Objections 2-21 are overruled; each declarant establishes personal knowledge and lays a foundation for the statements asserted. Objections 28-30 are overruled as each exhibit is properly authenticated. (See Mot. Robinson Decl. ; ; 7-8, Amacker Decl. ; ; 8-9.) Objections 22-27 are made to Defendant’s Separate Statement of Undisputed Material Facts; however, objections to facts are not evidentiary in nature. Objections must be directed at evidence, not facts. The court, thus, declines to rule on objections 22-27.
Defendant submitted 14 evidentiary objections with its reply papers. The objections appear numbered as 37-40, 42-49, 52 and 54. To avoid confusion, the court will address the objections as they appeared numbered with Defendant’s reply. Objections 37-40, 42, 44, 52, and 54 are overruled, as a proper foundation is provided for the evidence. Objections 43 and 47 are sustained, as they are improper legal conclusions. The court does not rule on objections 45 and 48-49 because they are not material to the disposition of the motion. (CCP ; 437c(q).)
Request for Judicial Notice
Plaintiff requests the court take judicial notice of Exhibits 1, 3, 4- 5, and 9-14 attached to John Noland’s declaration submitted with Plaintiff’s opposition. Defendant filed an opposition to the requests. Exhibits 9-11 and 13 pertain to reports and information available on Defendant’s government website, and Exhibit 12 relates to information available on the City of Sacramento’s government website. The requests are granted as to Exhibits 9-13. (Shaw v. People ex rel. Chiang (2009) 175 Cal.App.4th 577, 606, n. 10 [material on Dept. of Transportation's website, which shows the structure of the Dept. and provides its' definition of a term, may be judicially noticed as official acts and public records, under Evid. Code, ; 452(c) & (h)]; Moehring v. Thomas (2005) 126 Cal.App.4th 1515, 1524, fn. 5 [granting requests for judicial notice of a Resource Plan and other information found on government website, under Evid. Code ; 452(b), (h)].)
As to the request concerning Exhibits 1, 3, 4-5, and 14, which copies of Google street photos, Plaintiff provides both parties rely on the same photos and do not dispute they are photos of the subject location. The request as to Exhibit 14 is granted pursuant to. (Evid. Code ; 452(h); see also U.S. v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1182 & n.1 [relying on Google map and satellite image as a “source[ ] whose accuracy cannot reasonably be questioned”].)
General Negligence Liability
Defendant argues it cannot be held liable on a theory of general negligence as a public entity as a matter of law. 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 a public employee or any other person.” (Gov. Code ; 815(a).) “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)
Plaintiff, in her opposition, agrees the count one for negligence should be dismissed. Therefore, Defendant is entitled to judgement as to count one alleging negligence against it under the premises liability cause of action.
Law Governing Trivial Defect Doctrine
Defendant contends 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 an 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.
Analysis re: Trivial Defect
Defendant introduces evidence that the deviation between the sidewalk slabs where Plaintiff fell measures between 1 inch to 1 ½ inches, and that Plaintiff has testified the displacement where she fell measured about one inch. (UMF 29, 33.) Further, no debris was obscuring the displacement, (UMF 35), and according to Plaintiff, the weather was clear and sunny on the day of the incident. (UMF 7.) 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 the size of the defect rendered it a dangerous defect. Plaintiff asserts the section of the sidewalk where Plaintiff fell ranged from 2 centimeters to 5 centimeters (approximately 0.78 inches to 2 inches). Further, Plaintiff asserts that according to Defendant’s own sidewalk and ramping program, vertical displacements between 3/8 inches and 1 ½ inches are to be ground with a vacuum grinder, and vertical displacements over 1 ½ inches are to have a concrete ramp constructed. Plaintiff avers there is thus a triable issue of fact concerning the height of the displacement. Additionally, Plaintiff argues photos of the subject sidewalk show leaves near the displacement and a jagged edge of concrete.
First, as to Plaintiff’s contention that the sidewalk displacement between 0.78 inches to 2 inches tall, Plaintiff does not cite any authority establishing that even a two inch raise alone constitutes a dangerous condition. As the Court in Huckey v. City of Temecula stated,
To be sure, the height differential posed some risk of injury. Construed in the light most favorable to plaintiff, the record supports a reasonable inference that height differentials higher than one-half inch pose a trip hazard to pedestrians. But to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury” when “used with due care in a manner in which it is reasonably foreseeable that it will be used.” (;; 830, 830.2.)
(37 Cal.App.5th 1092, 1109-10 (emphasis in original).) Consequently, while the defect may have posed a tripping hazard, this evidence does not establish the displacement posed a substantial risk of injury.
Second, as to Plaintiff’s argument Defendant was required to fix sidewalks with displacements from 3/8 inches to over 1 ½ inches, Plaintiff fails to cite any authority holding that a City’s policy regarding sidewalk repairs overrides the trivial defect doctrine or is used to determine whether a condition posed a substantial risk of injury. The fact that a city endeavors to cure defects, upon notice, even when those defects that are trivial under the law, does not support imposition of judgment against that city when the law finds those defects to be trivial.
Third, Plaintiff argues photos of the location near the sidewalk show leaves and shadows near the path. The court has reviewed the photos attached to the moving papers and opposition and while some of the photos appear to show a few leaves near the displacement, the photos do not show the defect is covered in leaves such that the displacement is not clearly visible. As to Plaintiff’s contention there may have been shadows present, although 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. However, Plaintiff admits the weather on the day of the incident was clear and sunny, and nowhere does Plaintiff suggest that there were leaves or shadows actually obscuring her vision of the subject defect. Plaintiff merely suggests there were likely shadows present or around the defect on the relevant date. The photographic evidence shows that the height differential was in plain sight and did not pose a substantial risk of injury to a pedestrian using due care.
Lastly, as to Plaintiff’s argument that her expert, Mark Burns, opines that the subject defect presented a substantial fall hazard for pedestrians acting in due care, courts have rejected expert testimony in the area of interpretation of the trivial defect doctrine, and Defendant’s objection to Burns’s testimony is in this regard is sustained (see above). (See e.g. Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109-10 [expressly rejecting Burns’s similar testimony in this regard].)
Accordingly, although Plaintiff suggests the displacement was up to 2 inches tall, Plaintiff fails to show that this alone is enough to create a triable issue of fact as to whether the defect constituted a dangerous condition. Plaintiff was required to show that the defect and the surrounding area posed a substantial risk of injury when used with due care but failed to do so. (Huckey, 37 Cal.App.5th 1092, 1109-10.)
Actual or Constructive Notice
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).) To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either 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 the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code ; 835.) Consequently, 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).)
A public entity had actual or constructive 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(a).) A public entity had constructive notice of a dangerous condition only if the plaintiff establishes that 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. (Gov. Code ; 835.2 (b).) On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition. (Gov. Code ; 835.2 (b)(1)-(2).)
“Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.” (Ibid.)
Here, Defendant’s evidence shows that it never received any prior complaints or claims regarding the subject sidewalk such that it did not have actual notice of the condition. (UMF 1, 22, 26, 28.) Moreover, Defendant argues Plaintiff does not have any evidence as to how long the defect existed before the incident, and the defect itself was not obvious given the absence of prior complaints and its small size.
In opposition, Plaintiff argues Defendant’s inspection system was inadequate, and a different adequate inspection system would have revealed the defect. Defendant argues it was not reasonable for Defendant to rely on staff reporting or citizen complaints to discovery defects, that other municipalities have better inspection systems, and that it is not reasonable that Defendant’s last inspection of the sidewalk occurred in 2008. Nevertheless, while Plaintiff argues that Defendant’s inspection system was inadequate, Plaintiff does not offer any evidence explaining why or how the inspection system was actually inadequate. Plaintiff does not provide that the evidence concerning the other municipalities cited is relevant to determining whether this Defendant’s inspection system was inadequate. Plaintiff’s contention that Defendant should have had a better inspection system without any actual evidence that Defendant’s system caused Plaintiff’s harm amounts to mere abstract negligence. (See Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1352, 1373 [Expert's speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation (citing Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 430-31 (“The present case is a classic example of a plaintiff establishing what could be described as abstract negligence, in the context that the Dodgers' security didn't comport with plaintiffs' expert's or the jury's notion of ‘adequacy,’ but failing to prove any causal connection between that negligence and the injury.”))].)
Therefore, although Plaintiff argues a factfinder may determine that Defendant’s maintenance program was not adequate or operated with due care, Plaintiff fails to submit any evidence showing or explaining why Defendant’s repair program was inadequate. Plaintiff does not explain why Defendant’s program was not operated with due care, or how it was inadequate to discover the condition before the incident occurred. Plaintiff fails to raise a triable issue of fact as to whether Defendant had notice of the condition before the incident.
Defendant met its moving burden to show the defect at issue was trivial as a matter of law and that it did not have notice of the condition. 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 5th day of November, 2020
Hon. Thomas D. Long
Judge of the Superior Court
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