Case Number: BC638286 Hearing Date: August 22, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT COUNTY OF LOS ANGELES’S MOTION FOR SUMMARY JUDGMENT; MOTION DENIED

I. INTRODUCTION

On October 21, 2016, Plaintiff Pat Kalaj (“Plaintiff”) filed this action against Defendants David Gambill, Saundra Gambill (collectively, “the Gambills”), and County of Los Angeles (“County”) for premises liability, general negligence, and dangerous condition of public property relating to February 16, 2016 trip and fall. County moves for summary judgment.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on 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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. EVIDENTIARY OBJECTIONS

Plaintiff’s Objections Nos. 1 and 3 are SUSTAINED.

All other objections are OVERRULED.

IV. DISCUSSION

On February 16, 2016, Plaintiff was walking on the sidewalk in front of the Gambills’ property when he tripped and fell, sustaining injuries. (Undisputed Material Fact “UMF” No. 1.) As framed by the Complaint, Plaintiff alleges that County negligently, carelessly, recklessly, and unlawfully owned operated and maintained the premises in a dangerous and defective condition relating to the cement panels or sections of the sidewalk. (UMF No. 5.) Plaintiff alleges this condition created a foreseeable risk of injury of the type Plaintiff suffered and that County knew or should have known of its dangerous character. (UMF No. 6.)

Plaintiff was walking with his wife at the subject area of sidewalk when his left foot caught the edge of the raised edge of the sidewalk, which was approximately 2 inches in variance, causing him to fall. (UMF Nos. 18-21.)

County moves for summary judgment on grounds there was no dangerous condition of public property, it did not have any actual or constructive notice of any dangerous condition, the alleged dangerous condition was trivial, and County employees conducted reasonable inspections and repairs.

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.)

Dangerous Condition

A condition is not a dangerous condition if, viewing the evidence most favorably to the plaintiff, 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 used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)

Whether a crack or other defect in a walkway is dangerous does not rest entirely on its size, although the size of a crack is a pivotal factor in the determination. (Stathoulis, supra, 164 Cal.App.4th at pp. 566-567.) In addition to size, the court must 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), such as the “weather at the time of the incident, 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. [Citations.]” (Stathoulis, supra, 164 Cal.App.4th at p. 567).

Where reasonable minds would reach only one conclusion, courts may determine “triviality” as a matter of law and the issue may be properly resolved by way of summary judgment. (Stathoulis, supra, 164 Cal.App.4th at p. 567.) However, a court may not “make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.” (Id. at p. 569.)

It is undisputed that the sidewalk panels where Plaintiff tripped were uneven. It appears undisputed that one slab of concrete was raised more than ¾ inches creating a variance of approximately 2 inches. (Exh. 2.) Absent aggravating circumstances, height differentials between ½ inch to 1½ inches can be determined trivial as a matter of law. (See e.g., Whiting v. National City (1937) 9 Cal.2d 163, 164-165 [trivial defect where square of cement was raised about three-quarters of an inch above the adjoining square]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47 [tree root caused concrete panel of sidewalk to break, and one side of the break tilted five-eighths of an inch above the edge of the other side, but did not constitute a dangerous condition]; Dunn v. Wagner (1937) 22 Cal.App.2d 51, 54 [sidewalk that was one-half an inch above grade was trivial defect].)

“Where a sidewalk slab is raised in elevation by only about three-fourths of an inch, such a ‘defect’ is not dangerous as a matter of law. This is because it is impossible for a city to maintain its sidewalks in perfect condition. Minor defects nearly always have to exist.” (Fielder, supra, 71 Cal.App.3d at pp. 725-726; Graves v. Roman (1952) 113 Cal.App.2d 584, 586 [in cases “concerned with the difference in elevation between adjoining sections of sidewalk where the rise varied from one-fourth inch to one inch . . . the court held the defect to be minor and trivial and as a matter of law not such as to impose liability upon the owner for injuries thereby sustained by the plaintiff”].) Height differentials of up to one and one-half inches have been found to be trivial as a matter of law. (Stathoulis, supra, 164 Cal.App.4th at p. 568.)

Here, County submits photographs of the subject area, taken by Plaintiff the day after the incident. (Exh. 2.) However, it is undisputed that the photographs depict the condition after County had already placed an asphalt slab on the sidewalk after Plaintiff’s fall apparently to attempt to correct the variance. There are no photographs depicting the sidewalk condition at the time of Plaintiff’s fall.

Viewing the evidence in the light most favorable to Plaintiff, the Court cannot conclude this defect is trivial as a matter of law. Plaintiff argues that aggravating factors creating a dangerous condition include: (1) the edge of the variance consisted of coarse/jagged edges of asphalt which would not decrease the likelihood of preventing a trip accident when contacted by a leather shoe; (2) the subject variance extended the width of the sidewalk and would be encountered by people walking on that side of the sidewalk; (3) the variance was not readily visible to pedestrians because of the low lighting in the area; (4) the condition was not readily visible; (5) there was reported debris including dropped leaves that would potentially conceal the offset condition of the sidewalk; and (6) the variance and resulting offset was located in a residential area on a pedestrian walkway. (Declaration of Peter J. Zande, C.S.P., ¶ 10(H).)

Given that the pictures submitted as evidence do not depict the condition at the time of Plaintiff’s fall, that 2 inches is a more significant variance such that a person, even in the exercise of reasonable care, could trip on it, and that the incident occurred at approximately 8:00 p.m. when there was very little light from nearby lamps, there is a triable issue of fact whether the raise sidewalk constitutes a dangerous condition.

Actual or Constructive Notice

County argues it has a reasonable inspection and repair policy in place. Over the time the Gambills have lived at their residence, County has placed asphalt patches on the sidewalk at least five times. There were also monthly roadway inspections and an inspection was made on January 27, 2016, prior to the incident date, and again on February 22, 2016, after the incident date. (UMF Nos. 82, 83.)

However, the reasonableness of a public entity’s action or inaction is typically a question of fact. (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 810.) David Gambill testified at his deposition that he called County’s Public Works prior to February 16, 2016 regarding the condition of the sidewalk. (Gambill Depo., 30:3-12.) Gambill testified that he called Public Works, told them the “sidewalk was bubbling” and was told it might take two years to fix. (Gambill Depo., 31:10-23.)

It is a triable issue of fact whether County’s action or inaction, after receiving David Gambill’s call, was reasonable, and whether County’s inspection of the area in January 2016 was sufficient or whether a reasonable inspection would have revealed the alleged defect.

The Court finds that County has not met its burden of showing no triable issue of fact exists as to the triviality of the defect or as to actual or constructive notice. Even if it did, Plaintiff has presented evidence sufficient to show a triable issue of material fact exists.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.