Case Number: BC634769 Hearing Date: March 28, 2018 Dept: J

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNTATIVE, SUMMARY ADJUDICATION

Moving Party: Defendant City of Pomona

Respondent: Plaintiff Elvira Sosa Re: Elvira Sosa v. 14225 Ellsworth Street, LLC, etc., et al. (BC634769)

POS: Moving OK; Opposing OK; Reply OK

Plaintiff alleges that on 11/5/15, she tripped on uneven pavement and fell, sustaining serious injuries. The complaint, filed 9/21/16, asserts causes of action against Defendants 14255 Ellsworth Street, LLC (“14255 Ellsworth”), City of Pomona, County of Los Angeles (“County”), State of California and Does 1-100 for:

1. Premises Liability

2. Negligence (v. 14255 Ellsworth only)

On 1/19/17, 14255 Ellsworth filed its cross-complaint, asserting causes of action against “Unnamed Roes” for:

1. Total or Comparative Equitable Indemnity

2. Contribution

3. Express Indemnity

4. Declaratory Relief

On 3/17/17, plaintiff dismissed County, without prejudice. On 2/20/18, the case was transferred to from Department 92 (personal injury hub) to this instant department. A Status Hearing is set for 3/28/18.

Defendant City of Pomona (“City”) now moves the court for an order, per CCP § 437c, adjudicating the following issue:

Issue No. 1: Plaintiff Elvia Sosa (“plaintiff”) claim for premises liability fails as a matter of law because City is exempt from liability for conditions that create a mere trivial risk of harm.

CALIFORNIA RULES OF COURT (“CRC”) RULE 3.1116 NON-COMPLIANCE:

At the outset, the court admonishes counsel for the City and counsel for plaintiff for failing to comply with CRC Rule 3.1116(c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony”).

EVIDENTIARY OBJECTIONS:

The objections contained in plaintiff’s response to City’s separate statement are disregarded and not ruled on. “[A] separate statement is not evidence; it refers to evidence submitted in support of or opposition to a summary judgment motion.” Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4 (emphasis theirs). The only proper response to an Undisputed Fact is to “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” CRC Rule 3.1350(f)(2).

Plaintiff’s Objections to the Declaration of David Trautz:

1-3. Overruled

Plaintiff’s Objections to the Declaration of Jerry Perez:

4. Overruled

City’s objections to plaintiff’s responsive separate statement are moot, based on the above.

City’s Objections to the Declaration of Kay Greeley:

3-4. Overruled

5-13. Sustained

In moving for summary judgment, “[a] defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “The evidence of the moving party is strictly construed and that of the opponent liberally construed, and any doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189).” Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 277. Plaintiff’s complaint asserts a cause of action for premises liability against City. Plaintiff alleges that “[o]n or about 9:30 p.m. of [sic] November 5, 2015, Plaintiff was walking in a reasonably foreseeable manner on the sidewalk of Indian Hill Boulevard in the City of Pomona, California, 91767, adjacent to the El Super located at 1575 E. Holt Avenue, Pomona, California 91767. Plaintiff’s foot hit the raised, uneven pavement causing her to trip and fall forward onto her knees and face.” (Complaint, ¶¶ 20 and 21). Plaintiff claims that the sidewalk was maintained, owned and/or controlled by City and was in a dangerous condition. (Id., ¶¶ 23 and 25).

Public entity liability is statutory in nature. See Gov’t Code § 815. A public entity’s liability for a dangerous condition of its property is governed by Government Code § 835, which provides that “[e]xcept 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 that 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.”

A “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 which it is reasonably foreseeable that it will be used.” Gov’t Code § 830(a). “A condition is not a dangerous condition…if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” Gov’t Code § 830.2.

“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed. (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 72-73), citing Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 363). The law imposes no duty on a landowner — including a public entity — to repair trivial defects, or ‘to maintain [its property] in an absolutely perfect condition.’ (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399). ‘[A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.’ (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927). Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents. (Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148, 151), superseded on other grounds by statute as stated in Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831).” Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.

“’A condition is not dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent 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.’ (Cal. Law Revision Com. com., 32 West’s Ann. Gov. Code (1995 ed.) foll. § 830, p. 299.) ‘[A]ny property can be dangerous if used in a sufficiently abnormal manner.’ (4 Cal. Law Revision Com. Rep. (Jan. 1963) p. 822.) A public entity is required only to make its property safe for ‘reasonably foreseeable careful use.’ (§ 830; 4 Cal. Law Revision Com. Rep., supra, p. 822.).” Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466.

“The decision whether a crack or other defect in a walkway is dangerous does not rest entirely on the size of the depression. Although the size of a crack or pothole is a pivotal factor in the determination, ‘a tape measure alone cannot be used to determine whether the defect was trivial.’ (Caloroso, supra, 122 Cal.App.4th at p. 927). ‘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 Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 268 [same].) ‘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.’ (Caloroso, supra, 122 Cal.App.4th at p. 927). The court should also consider the weather at the time of the accident, plaintiff’s knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury. (Ursino, supra, 192 Cal.App.3d at p. 397; Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290-291; Fielder, supra, 71 Cal.App.3d at p. 734; Johnson, supra, 71 Cal.App.3d at p. 734; Johnson, supra, 199 Cal.App.2d at p. 152).” Stathoulis, supra, 164 Cal.App.4th at 566-567.

“The trivial defect doctrine is not an affirmative defense. It is an aspect of a landowner’s duty which a plaintiff must plead and prove. (Caloroso, supra, 122 Cal.App.4th at p. 927). The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. (Ursino, supra, 192 Cal.App.3d at p. 399). ‘Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.’ (Caloroso, supra, 122 Cal.App.4th at p. 929; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704). ‘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…. [A] landowner is not an insurer of the safety of its users.’ (Ursino, supra, 192 Cal.App.3d at p. 399).” Id. at 567. “The 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 and grant judgment for the landowner. (Fielder, supra, 71 Cal.App.3d at p. 729).” Id. at 567-568 (emphasis theirs).

“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law. (See, e.g., Barrett, supra, 41 Cal.2d at p. 74 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; Caloroso, supra, 122 Cal.App.4th at p. 927 [elevation difference of under half an inch]; Fielder, supra, 71 Cal.App.3d at p. 724, fn. 4 [same]; Nicholson, supra, 5 Cal.2d at p. 367 [one and one-half inch elevation difference]; Whiting v. City of National City (1937) 9 Cal.2d 163, 165-166 [elevation difference of a maximum of three-fourths of an inch].) However, it is also true that as ‘the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.’ (Fielder, supra, 71 Cal.App.3d at p. 726).” Id. at 568.

The subject incident occurred on 11/5/15. (Complaint, ¶ 20). On 3/10/16, plaintiff’s counsel emailed Trautz[1] a photograph of the location of plaintiff’s alleged fall, which included handwritten arrows pointing to the specific location of the lift in the sidewalk over which she allegedly tripped. (UMF No. 1). On 3/14/16, Trautz visited the location of plaintiff’s fall depicted in the photograph provided by plaintiff’s counsel to conduct a field investigation. (UMF No. 2). No maintenance, repairs, or alterations were performed to the sidewalk at the location of the incident at issue between November 2015 and April 2016. (Perez Declaration, ¶ 5). Trautz attests that the on 3/14/16, he “measured the lift at the location marked by Plaintiff’s counsel with arrows on the photograph he provided to me, and took photographs of its measurement. The lift in the sidewalk measured 0.4 inches at its highest point.” (Trautz Decl., ¶ 7). Trautz authenticates photographs he took on 3/14/16, which are attached as Exhibit “4.” (Id.). Plaintiff’s expert Greeley’s declaration in rebuttal is largely objectionable. Regardless, Greeley does not claim to have personally visited the site to conduct her own measurements.

Plaintiff does not have any evidence, in fact, that the lift was more than 0.4 inches at its highest point. Plaintiff testified that she did not know the height of the lift in the sidewalk over which she allegedly tripped. (UMF No. 15). She testified that she never measured the lift in the sidewalk over which she allegedly tripped. (UMF No. 14). In response to City’s Special Interrogatory No. 25 (i.e., “[s]tate the dimensions of the allegedly dangerous condition of public property involved in the INCIDENT”) propounded on 7/24/17, plaintiff responded, “[p]laintiff is not aware of exact dimensions of the dangerous condition.” (UMF Nos. 16-18). Additionally, in response to City’s Requests for Production of Documents No. 18 (i.e., requesting “[a]ll DOCUMENTS that RELATE TO measurements/size of the allegedly dangerous condition involved in the INCIDENT”) propounded on 7/24/17, plaintiff responded, “[a]fter a diligent search and a reasonable inquiry has been made in an effort to comply with this Request, there are no documents within Plaintiff’s possession, custody, or control.” (UMF Nos. 19-21).

Additionally, there are no aggravating factors present that would have made the alleged defect more dangerous than its mere height would have indicated to plaintiff. Plaintiff testified that there was no dampness or moisture on the sidewalk at the time of her fall, there were no leaves of other debris at the location, that the surface of the sidewalk was flat and “[w]ithout the crack it could have been straight,” and that there was only one crack/lift at the location. (Declaration of Sharon Medellin [“Medellin”], ¶ 4, Exhibit “B,” 79:24-80:15). She admitted that she saw the lift ten minutes before she fell. (Id., 36:11-21). Plaintiff also testified that she had seen the same crack/lift on two prior occasions, never tripped over it before, and had never seen anyone else trip over it. (UMF No. 25). There is evidence, then, that plaintiff did not exercise due care at the time of the accident.

Based on the foregoing circumstances, this court concludes that the uplift is trivial as a matter of law. The motion for summary judgment is granted.

[1] Trautz is a Liability Administrator with AdminSure, Inc., which “serves as the third party claims administrator for the City of Pomona.” (Trautz Decl., ¶ 1).