Case Number: BC620798 Hearing Date: March 13, 2018 Dept: 92

VALIEH SHAMTOUBIAN, an Individual,

Plaintiff,

vs.

RESEDA PARK L.P., et al.

Defendants.

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Case No.: BC620798

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

March 13, 2018

The Motion for Summary Judgment of Defendants Reseda Park, L.P., and G&K Management Co. is GRANTED.

Plaintiff Valieh Shamtoubian filed this action against her landlord and their management company, Defendants Reseda Park, L.P., and G&K Management Co., alleging they were responsible for a dangerous condition in her apartment. Plaintiff allegedly tripped and fell due to a nail sticking out of a transition strip on the floor separating her entryway from her living room. Plaintiff brought suit for premises liability and negligence.

Defendants filed a motion for summary judgment on July 20, 2017, arguing (1) the defective condition was trivial, and (2) the danger was within Plaintiff’s property and Defendants’ had no actual notice of it.

1. Evidentiary Objections

Plaintiff has asserted 15 objections to the evidence submitted in support of Defendants’ motion. Objection Nos. 1-3, 5, 9-12, and 15 are OVERRULED.

Objection Nos. 4 and 6 are OVERRULED as to the first sentences in each objection, and are SUSTAINED as to all language that follows. Objection Nos. 7, and 8 are SUSTAINED. As to the foregoing, the declarant lacks foundation and personal knowledge to make the statements therein.

Objection Nos. 13-14 are SUSTAINED. As opposed to other questions, which appropriately asked whether he was aware of prior complaints, Javidan lacks personal knowledge to answer these questions, as to whether his mother did or did not ever complain.

2. Trivial Defect

Defendants argue liability was inappropriate because the defect was only trivial.

It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990.) Courts have referred to this simple principle as the “trivial defect defense,” although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.

(Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

Defendants analogize to sidewalk defect cases, in which courts frequently hold as a matter of law that a small height differential is merely a trivial defect. (See Id.)

In the sidewalk context, factors beyond the height of the sidewalk must also be considered:

The decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial. A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 734, 139 Cal.Rptr. 876.) Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.

(Id. at 927.)

As an initial matter, Plaintiff’s argument in opposition that Defendants have presented no evidence as to the foregoing factors is well-taken. Defendants provide no evidence as to the height of the transition strip or the nail, other than to cite the deposition testimony of Plaintiff and her son, who stated they did not know what its height was. (Compendium of Evid., Exh. F [Shamtoubian Depo. p. 38]; Exhs. M-N [Javidan Depo. 38-40].) They also provide no discussion of any other factors relating to the fall. The Court is skeptical that this is sufficient to shift the burden to Defendants as to whether this constituted a trivial defect.

Assuming it does shift the burden, however, the Court concludes Plaintiff has raised triable issues of fact as to the dangerousness of the defect. As discussed in greater depth below, the defect at issue here is not the transition strip, but the nail itself. Plaintiff testifies that she stepped on a nail and it entered the sole of her foot. (Compendium of Evid., Exh. B [Shamtoubian Depo. 25:1-3].) This is fundamentally distinct from a sidewalk case, where a person trips based on the height differential between a walkway. Plaintiff did not trip due to the height differential, she fell because she was injured by a nail. Defendants provide no authority supporting the proposition that a protruding nail is a trivial defect, and the Court concludes that there are triable issues of fact as to whether it was trivial.

3. Landowner Liability

Next, Defendants argue it had no duty to protect Plaintiff from a defect within her own apartment, absent a showing that it had actual knowledge of the defect and a responsibility to repair it.

All landowners, including landlords, must use reasonable care to protect people who come onto their property. (Civ.Code, § 1714; CACI 1000, 1001, 1006.) For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later. As the court explained in Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131–1132, 130 Cal.Rptr.2d 141 disapproved in part on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 247–250, 30 Cal.Rptr.3d 145, 113 P.3d 1159.)

“Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.”

Limiting a landlord’s obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.

(Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 611.)

Defendants argue they had no actual notice of the dangerous nail, and therefore no duty to repair the hazard or otherwise protect Plaintiff from the hazard. In support of this argument, Defendants cite to testimony from both Plaintiff and her son to the effect that they had not noticed the nail before Plaintiff stepped on it. (Compendium of Evid., Exh. F [Shamtoubian Depo. p. 38]; Exhs. M-N [Javidan Depo. 38-40].) Plaintiff’s testimony further supports the inference that Defendants had no notice, because in addition to never telling them about the nail, she testified that, until she stepped on the nail, “I couldn’t see it. It was small.” (Compendium of Evid., Exh. B [Shamtoubian Depo 25:6].) It may thus be inferred that an observer of the room would not be likely to see the nail.

Additionally, one of Defendants’ employees, Maria Ortiz, who maintains records of complaints, declared “we had no notice of any condition with the wood floor or the transition strip before plaintiff Valieh Shamtoubian allegedly fell on the transition strip on February 27, 2015. (Ortiz Decl. ¶ 10.) However, Ortiz lacks foundation and personal knowledge to make this statement, and for this reason, the Court sustained Plaintiff’s objection to this testimony above.

The Court concludes the foregoing—namely, citation to Plaintiff’s testimony that they never noticed the nail and that the nail was small—is sufficient to shift the burden to Plaintiff to raise triable issues of fact regarding Defendants’ notice of the nail. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [“All that the defendant need do is to “show[ ] that one or more elements of the cause of action … cannot be established” by the plaintiff. (Code Civ. Proc., § 437c, subd. (o)(2).) In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X.”].)

In responding to Defendants’ argument, Plaintiff focuses on the fact she had previously complained to Defendants about the transition strip from which the nail was protruding, and had requested that the strip be removed. (Appx. of Exhs., Exh. 1 [Shamtoubian Depo. p. 39-41].) Moreover, Defendants’ former maintenance manager, Robert Garcia, testified that whenever a vacancy occurred, Defendants would redo the flooring to use a single faux hardwood throughout the building, and that for those rooms where he was responsible for changing the floor, he would get rid of the transition strips because “that’s just a safety hazard. It’s a trip hazard. . . [I]t’s never going to be flush with the flooring. It’s always going to be raised up a little bit.” (Appx. of Exhs., Exh. 3 [Garcia Depo. p. 27-29.].) This decision was based in part on the recommendation of the company that installed the floors. (Id.)

The Court concludes the foregoing is insufficient to raise triable issues of fact as to whether Defendants had notice of the defective condition, because the defective condition was not the transition strip, but the nail protruding therefrom. Plaintiff specifically testified that the cause of the fall was that “[t]he nail went into my sole of my foot. And when the nail went into the sole of my foot, I lost my balance and I fell.” (Compendium of Evid., Exh. B [Shamtoubian Depo. 25:1-3].) She therefore did not ‘trip’ on the transition strip, and any prior complaints regarding the transition strip are irrelevant.

As to the actual defect—the nail—as already noted, neither Plaintiff nor her son ever noticed the nail, and by extension, they never complained about the nail. (Compendium of Evid., Exh. F [Shamtoubian Depo. p. 38]; Exhs. M-N [Javidan Depo. 38-40].) Additionally, Plaintiff submits copies of all of the annual inspection reports conducted by Defendants, all of which indicate the floor was checked, and none of which indicate anyone noticed a nail. (Appx. Of Exhs., Exh. 7.) Plaintiffs therefore have submitted no evidence suggesting Defendants had actual notice of the nail.

Accordingly, because Plaintiff has failed to raise triable issues of material fact as to the issue of Defendants’ actual notice regarding the nail, Plaintiff cannot show that Defendants breached any duty to Plaintiff arising from their failure to repair the nail.

Defendants’ motion for summary judgment is therefore GRANTED.

Moving Party to provide notice.

Dated this 13th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court