Case Number: BC664753 Hearing Date: June 18, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ALLYSON MARTIN,

Plaintiff(s),

vs.

WAYPOINTE HOMES, ET AL.,

Defendant(s).

Case No.: BC664753

[TENATATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

June 18, 2019

Initial Note

The hearing on this motion was originally scheduled for 5/06/19. On 5/02/19, Plaintiff-in-Intervention filed an opposition to the motion. The Court continued the hearing on the motion to 6/18/19 to permit review of the late-filed opposition. However, on 5/31/19, Plaintiff-in-Intervention filed a notice of non-opposition to the motion, thus withdrawing its previously-filed opposition to the motion.

Undisputed Facts

Plaintiff, Allyson Martin filed this action against Defendants, Waypointe Homes, et al. for damages arising out of a trip and fall on Defendants’ property. Defendants leased the subject home to Plaintiff’s brother, Albert Hogan, on 8/29/13, and he continued to live in the home at least until the time of Plaintiff’s fall. Plaintiff had been living at the home for an unspecified duration prior to her fall.

Plaintiff’s operative complaint is her Third Amended Complaint, which includes causes of action for general negligence and premises liability.

Motion for Summary Judgment

At this time, Defendants move for summary judgment on the complaint. They contend they are entitled to judgment as a matter of law because (a) the defect at issue was trivial, (b) Plaintiff cannot show Defendants had notice of the dangerous condition, (c) the condition was open and obvious, and (d) the defect was patent.

Initial Notes

Pursuant to the Court’s General Order Re: Mandatory Electronic Filing for Civil, dated 11/05/18, ¶d(4)F, parties must lodge courtesy copies of all documents related to a summary judgment motion directly in the department. The Court received a courtesy copy of most of Plaintiff’s opposition papers, but not of Defendants’ moving papers. The courtesy copy of Plaintiff’s Declaration of Barillas is only three pages, whereas the online scanned version is 59 pages. Additionally, Plaintiff’s exhibits are not tabbed, as required by CRC 3.1110(f).

The Court has reviewed all online documents, but asks for courtesy, tabbed summary judgment papers in the future in connection with this and other actions.

Additionally, Defendants’ reply papers rely at length on Plaintiff’s recent deposition testimony. The Court cannot and will not consider new evidence submitted for the first time on reply. San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316. Defendants were free to depose Plaintiff prior to filing their motion; for whatever reason, they did not do so. The Court has not considered any of the evidence submitted with the reply in ruling on this motion.

Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

Evidentiary Objections

Defendants submitted evidentiary objections with their reply papers. The objections are sustained. The Court has not considered the Declaration of Barillas in ruling on this motion. First and foremost, she fails to establish that the condition of the property was substantially the same when she reviewed the property, four years after the accident, as it was at the time of the accident. Additionally, the Court finds much of the substance of her opinion does not require expert analysis, and can be decided by the Court as a matter of law.

Trivial Defect Doctrine

Defendant’s first argument is that the defects in the driveway, if any, were trivial as a matter of law. A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects. Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.

Persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects. 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. “[W]hen a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. While size may be one of the most relevant factors to the decision, it is not always the sole criterion. 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 Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, 27.

The Fielder court, after reviewing various appellate decisions involving defective walkways, concluded that the variance in these decisions as to what size of a depression, break, or nonalignment in a sidewalk constituted a mere trivial defect could be reconciled on the basis of whether there existed aggravating factors, such as lighting, debris, or a history of other similar injuries and thus rejected a rigid application of a “tape measure” test.

In Fielder, a pedestrian, who allegedly tripped on raised edge of segment of sidewalk and suffered a fractured femur as result of her fall, sued the City of Glendale. The appellate court held that: (1) it is for court to determine whether as matter of law a given defect in a sidewalk is not dangerous and (2) where the only facts alleged concerning whether the ‘defect’ was dangerous was evidence as to the depth of the depression and no evidence was presented as to any other surrounding circumstances or to other injuries to other persons on same spot, the approximate three-quarter-inch depression in the sidewalk at issue was not dangerous as matter of law. The Fielder court also disregarded the testimony of the plaintiff’s expert that the defect was dangerous, reasoning that “there is no need for expert opinion. It is well within the common knowledge of lay judges and jurors just what type of a defect in a sidewalk is dangerous.” Fielder, supra, at p. 732.

In Ursino, the plaintiff was walking on a sidewalk on the defendant’s property and tripped over the raised edge of one of the concrete sections of the sidewalk. The raised edge was no more than three-fourths of an inch, the accident occurred in the morning, the weather was fair and dry, nothing concealed the defect, the plaintiff had frequented the restaurant on an average of once per week over 15 years, the raised edge had been there for between one to five years, neither party knew of any prior similar incidents, the plaintiff’s walking pattern was affected by her age, and 32 photographs of the sidewalk area at issue confirmed, to the trial and appellate courts, that reasonable minds could not differ and that the defect was in fact trivial. Ursino, supra, at pp. 396-397.

In Kasparian, the plaintiff, an elderly tenant, had sustained serious injuries when she tripped over a recessed drain in the ground in an apartment complex. In overruling the trial court’s grant of summary judgment in favor of the defendant based on the trivial defect doctrine, the appellate court held that the trial court only focused on the depth of the recession and ignored the recessed nature of the drain when viewed in the context of the surrounding circumstances. Kasparian’s expert stated that the hole created for the drain grate was uneven, with heights ranging from 1/32 inch to 5/16 inch. He opined that the size and profile of the depression created for the grate varied from one end to the other which posed a safety hazard to pedestrians who did not have any expectation that any drain was not flush with the surrounding brick pavers. The survey of the other drains in the immediate vicinity of the drain in question confirmed that those drain covers were flush with the brick/paver surface, and the slope to the drain was nearly level unlike the drain in question. The slope to the drain in question was dramatically more severe than that found in customary drains. Moreover, there were no warnings or color distinctions to warn pedestrians that the drain was recessed. The expert opined that the surrounding circumstances of the location of the accident made the area very hazardous given the drains from a distance appeared similar in color to the bricks/pavers, the drains were not distinguishable by color and texture from the surrounding pavers, and in the totality of the circumstances they could not be easily detected even in daylight. Kasparian, supra, at pp. 28-29.

In Caloroso, a pedestrian, who tripped over a crack in a walkway, and her husband sued the defendant property owner for personal injury and consortium damages. It was undisputed that the difference in elevation created by the crack in the walkway was less than half an inch at the highest point. Elevations ranging from three-fourths inch to one and one-half inches were found minor and trivial as a matter of law. Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, citing Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74. Following this line of cases, the Caloroso court held that the defect at issue should also have been deemed trivial as a matter of law, unless there was disputed evidence that other conditions made the walkway dangerous. In an attempt to raise a triable issue of material fact, the plaintiff submitted an expert declaration on the issue of triviality. Citing Evidence Code §801(a), the appellate court held that no expert was needed to decide whether the size or irregular shape of the crack rendered it dangerous. The photographs of the crack submitted by both sides demonstrated that the crack was minor and any irregularity in shape was minimal. Regardless of whether a witness can be found to opine on the subject of a dangerous condition, the court must independently evaluate the circumstances. Caloroso, supra, at p. 928, citing Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705. The appellate court also found no foundation for the plaintiff’s expert’s opinion that noncompliance with certain building codes and standards made the crack dangerous. The expert failed to indicate that the codes and standards cited had been accepted as the proper standard in California for safe sidewalks. Moreover, there was no indication regarding whether such codes applied to existing walkways as opposed to new construction. Thus, the trial court properly concluded that the defect was trivial as a matter of law, and summary judgment was appropriate. Caloroso, supra, at p. 929.

Defendants contend the offset between the asphalt and concrete is no more than one inch, and in many places is only ¾ of an inch. Defendants rely on the Declaration of Steve Hill, ¶¶5 and 6, to support this conclusion. He declares he inspected the subject property, and the defects at issue are no more than an inch. Defendants also establish that there was no debris, grease, or water concealing the defect, and the fall did not occur at night, in an unlit area, or with any obstruction of the defect. Defendants rely on Plaintiff’s complaint to support these contentions.

Plaintiff concedes there were no aggravating factors, such as grease, debris, or poor lighting, in her opposing separate statement. Plaintiff argues, however, that the depth of the defect is disputed per the Accomazzo deposition and the Barillas declaration. As noted above, the Court is not considering the Barillas declaration. The Court has reviewed the deposition testimony of Accomazzo, Defendants’ PMK concerning the fall. Accomazzo did not testify that the defect was 1.5 to two inches. Instead, he testified repeatedly that he could not determine much about the defect without viewing it personally. Plaintiff’s attorney posited that the defect was 1.5 to two inches, and Accomazzo indicated he saw where Plaintiff’s attorney was pointing; there is nothing, when the testimony is read in context, to support a conclusion that Accomazzo was agreeing that the defect was 1.5 to two inches in nature.

Finally, in an abundance of caution, the Court notes that the Barillas Declaration, even if considered, only supports a showing that there was a height differential of 1 7/32 inches. Pursuant to Calorosa, supra, height differentials of up to 1.5 inches are trivial as a matter of law if there are no exacerbating factors.

Defendants met their moving burden to show the defect at issue was trivial as a matter of law. Plaintiff failed to raise a triable issue of material fact. The motion for summary judgment is granted. The Court declines to rule on the other issues presented, as doing so is not necessary to a resolution of the merits of the motion.

Conclusion

The motion for summary judgment is granted on the ground that the trivial defect doctrine bars the complaint. The Court declines to rule on the remaining arguments advanced. Defendants are ordered to give notice.