Case Number: BC508928    Hearing Date: September 03, 2014    Dept: 91

The Motion for Summary Judgment by Defendant, City of Montebello, filed on 6/20/14 is DENIED. Defendant has not established it is entitled to judgment as a matter of law based on the material facts proffered, some of which remain in dispute. Cal Code Civ Procedure § 437c(p)(2).

The motion to adjudicate the 2nd cause of action for negligence claim is DENIED. Plaintiff does not have to allege liability based on statute since the claim is asserted against Does 1-10, not a public entity. Complaint page 4, Gov Code § 815.

Public entities are liable for dangerous conditions, defined as “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.” Cal Gov Code § 830(a).

However, the height or depth of the condition alone is not determinative of whether the condition is dangerous as a matter of law. The location of the defect and condition of the sidewalk are also relevant factors.

“It is obvious that a tape measure cannot be used to determine . . . [whether the defect was trivial as a matter of law]. The question is not solely one of height or depth. The nature of the defect, that is, whether it is a constructional one, one caused by natural causes such as normal wear or tear, the elements, or tree roots, etc., or whether it is an artificial break in the sidewalk, and how long it has existed are all important. The condition of the sidewalk surrounding the defect is important, as is its location on the sidewalk.” Fielder v. City of Glendale, 71 Cal. App. 3d 719, 731 (Cal. App. 2d Dist. 1977).

Height is only one factor. Fielder at 731. Evidence of “aggravating factors” is also relevant to determine whether the defect was dangerous. Fielder at 730.

The court takes into account various factors where evidence of the defect is based on photographs taken of the area. If reasonable minds could differ as to the dangerous character of the defect, the motion should be denied as the issue remains a triable issue of fact. Kasparian v. AvalonBay Communities, Inc., 156 Cal. App. 4th 11, 24-25 (Cal. App. 2d Dist. 2007).

The motion is DENIED as the evidence proffered by Defendant is not sufficient to establish that the defect at issue was trivial as a matter of law.

The height of the defect where Plaintiff fell remains in dispute. The photograph provided by Defendant is blurry, and does not reveal a precise measure. Motion, Ex. B, page 5. Defendant’s separate statement of facts does not represent the height of the elevation, but Defendant maintains in its motion that the raised portion of the sidewalk is “less than ¾ of an inch.” Motion 6:22-24.

However, Plaintiff’s AF 11 maintains that the height of the raised portion is ¾’s to a full inch in displacement. AF 11. Defendant does not dispute this in its Reply separate statement.

Defendant does not dispute that Plaintiff fell on the right hand portion of the sidewalk. Plaintiff’s AF 10. A different photograph provided by Defendant in Reply shows that the displacement on the right hand side of the sidewalk is 1 inch. Plaintiff’s Ex. C and Defendant’s Reply, Ex. G.

The only other relevant facts that are not in dispute are that the weather conditions were “sunny and dry” and nothing was obstructing Plaintiff’s view. UF 4-6.

Here, the photograph submitted with the moving papers showing the defect from a distance is not clear. Motion, Ex. B. The defect is in the shade and is not clearly visible on approach. There is a horizontal shadow, but the photograph does not clearly indicate that there is a height differential or how high that differential is. Reasonable minds could differ as to whether the defect’s existence in a heavily shaded area, obscuring it from a distance is an “aggravating factor” sufficient to create a dangerous condition as opposed to a trivial defect.

Fact 7 does not dispute that City did not receive actual notice, as there were no prior reports of injury at that location. However, liability also attaches where Defendant had constructive notice of the dangerous condition. Gov Code § 835.

Constructive notice is imputed where “the condition existed for such a period of time, and was of such an obvious nature that that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” Cal Gov Code § 835.2. Defendant has not proffered any material facts to establish the absence of constructive notice.