Case Number: BC722187 Hearing Date: February 18, 2020 Dept: 28

Motion for Summary Judgment

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

BACKGROUND

On September 19, 2018, Plaintiff Laurie Morales (“Plaintiff”) filed a complaint against Defendant City of Long Beach (“Defendant”) alleging premises liability and general negligence for a trip-and-fall that occurred on October 13, 2018.

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

Trial is set for June 4, 2020.

PARTY’S REQUEST

Defendant asks the Court to enter summary judgment against Plaintiff and in Defendant’s favor because the condition Plaintiff tripped over is trivial and Plaintiff cannot pursue common law causes of action against Defendant.

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(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.”¿

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, subd. (a).) “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.) “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.)

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.

Defendants undisputed material facts establish the following. Plaintiff alleges she tripped and fell from a sidewalk displacement in front of 111 East Ocean Boulevard, Long Beach, California 90802. (UMF No. 1.) The offset measures one-half an inch. (UMF No. 5.) Plaintiff’s trip-and-fall occurred around 11:00 a.m. and when the weather was clear. (UMF No. 7.)

The Court finds Defendants have met their burden. 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. (See Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389.) Thus, the height differential here shows the condition was trivial. Further, Plaintiff’s injury occurred nearly during the middle of the day with clear weather out. There are no circumstances showing the defect is anything other than a triviality. The burden shifts to Plaintiff.

Plaintiff’s undisputed material facts establish the following. The sidewalk where Plaintiff tripped is comprised of red concrete stamped with squares and white concrete stamped with squares and circles. (PUMF No. 1.) Plaintiff could not see the height discrepancy because (1) the differing stamped patterns, (2) the differential in light reflection between the white and red concrete, (3) the bright sun, and (4) Plaintiff’s unfamiliarity with the area. (PUMF Nos. 2-4.) Plaintiff had never walked down the sidewalk where the incident occurred. (PUMF No. 3.)

The Court finds that Plaintiff’s evidence does not obviate the fact that any defect in the sidewalk was trivial.

Negligence

As stated above, public entities are only liable for statutory violations, not violations of the common law. (Gov. Code § 815.)

Defendant’s undisputed material fact number 16 shows it is a public entity. Plaintiff does not dispute this fact. As such, summary judgment is properly granted against Plaintiff and in Defendant’s favor regarding Plaintiff’s negligence cause of action.

CONCLUSION

The motion for summary judgment is GRANTED.

Defendant is ordered to give notice of this ruling.