Filed 10/18/19 Mollins v. EQR-SOMBRA 2008 CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

DANA MOLLINS,

Plaintiff and Appellant,

v.

EQR-SOMBRA 2008 et al.,

Defendants and Respondents.

H046172

(Santa Clara County

Super. Ct. No. 114CV269592)

Appellant Dana Mollins tripped and fell on a raised section of sidewalk adjacent to property owned by respondents EQR-SOMBRA 2008 Limited Partnership and Equity Residential Management, LLC, breaking her elbow. Mollins sued respondents, asserting premises liability and negligence causes of action. Respondents successfully moved for summary judgment on the ground that the sidewalk defect was trivial as a matter of law, such that they had no duty to repair it. On appeal, Mollins contends the trial court erred in granting summary judgment because a triable issue of material fact exists as to the dangerousness of the defect. We agree and reverse.

I. BACKGROUND

A. Factual Summary

On September 26, 2013, Mollins, her husband, and her son ate lunch at a Thai restaurant in Sunnyvale. It was a clear, sunny day and after lunch, they decided to walk to a nearby grocery store. Mollins and her husband were visiting from New York and were unfamiliar with the route. As they walked north along El Camino Real, between Fair Oaks and Cezanne Drive, Mollins’s foot hit into an uplifted portion of the sidewalk. She fell, breaking her elbow. Immediately following the fall, Mollins’s son flagged down a Sunnyvale Public Safety Officer. That officer’s report indicated that she responded at 12:49 p.m.

Mollins had not noticed any defect in the sidewalk before she tripped. Her husband and son likewise had not noticed that one slab of concrete was raised above the adjoining slab of concrete. The height differential between the slabs was greatest at the far-right edge of the sidewalk, where the parties agree it measured less than one and one half inches. Dirt and dead leaves were present at the base of the uplift. In a photograph taken 15 to 20 minutes after Mollins’s fall, a nearby tree casts a shadow near, but not over, the defect. Neither Mollins nor her son could recall whether there were shadows on the sidewalk at the time of her fall. Mollins’s husband did not believe the raised portion of the sidewalk was in shadows at the time of the fall. In a photograph taken at 12:48 p.m. on September 26, 2016—three years to the day after the incident—a shadow falls over the area of the sidewalk where the uplift had been located.

The defect in the sidewalk was adjacent to respondents’ property. Mollins’s expert, an arborist, opined that it was caused by the root of a sweetgum tree growing on that property.

B. Procedural History

Mollins sued respondents and the City of Sunnyvale, asserting claims for negligence and premises liability, on August 18, 2014. Mollins filed the operative first amended complaint on May 5, 2017. Respondents moved for summary judgment on the ground that they owed no duty to Mollins because the defect in the sidewalk was trivial as a matter of law.

On October 18, 2017, the trial court granted respondents’ motion. The trial court entered judgment in favor of respondents and against Mollins on July 18, 2018. This timely appeal followed. (Judgment also was entered in favor of the City, which is not a part of this appeal.)

II. DISCUSSION

A. Summary Judgment Principles and Standard of Review

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) A defendant moving for summary judgment “has the burden of persuasion that one or more elements of the cause of action at issue ‘cannot be established’ or that ‘there is a complete defense to that cause of action.’ [Citations.] In attempting to meet this burden, the defendant has the initial burden of production to make prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. [Citation.]” (Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 168.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850.)

“In reviewing a grant of summary judgment, we independently evaluate the record, liberally construing the evidence supporting the party opposing the motion, and resolving any doubts in his or her favor.” (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499-500.)

B. The Trivial Defect Defense

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Generally, landowners have a duty to maintain property in their possession and control in a reasonably safe condition. (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) That duty of care “ ‘does not require the repair of minor defects.’ ” (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26-27 (Kasparian), fn. omitted.) Thus, “persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398 (Ursino).) Courts may “determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury . . . .” (Id. at p. 399.) “[W]hether a condition is dangerous may ‘ “be resolved as a question of law if reasonable minds can come to but one conclusion.” ’ ” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) The foregoing principle, “sometimes referred to as the trivial defect defense, . . . is ‘not an affirmative defense but rather an aspect of duty . . . plaintiff must plead and prove.’ ” (Kasparian, supra, at p. 27, fn. omitted.)

The size of a defect “is a pivotal factor” in determining whether it is trivial as a matter of law. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567 (Stathoulis).) But size alone is not determinative. (Ibid. [“ ‘a tape measure alone cannot be used to determine whether the defect was trivial.’ ”]) Courts also consider “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 (Fielder).) One factor courts consider is “the intrinsic nature and quality of the defect,” with “the mere nonalignment of two horizontal slabs” being considered less dangerous than a defect with “jagged” edges or a “deep hole.” (Ibid.) Other relevant circumstances include lighting conditions, whether a pedestrian’s view of the defect was obstructed (e.g., by debris or water), and whether the defect has caused other accidents. (Ursino, supra, 192 Cal.App.3d at p. 397.)

Cases involving upraised or misaligned walkway slabs are not uncommon. Absent evidence of “aggravating circumstances,” courts have held such defects to be trivial as a matter of law where the height differential between slabs was as much as 1 and 7/32 inches (1.21875 inches). (See Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1108, 1109 [height differential between concrete sidewalk slabs of up to one and 7/32 inches held trivial where “[t]here were no broken concrete pieces or jagged concrete edges,” no evidence of other accidents, and plaintiff failed to show that “dirt and debris, including leaves, and the shadow from a light pole . . . obstructed a pedestrian’s view of the sidewalk and height differential at the time plaintiff fell”]; Ursino, supra, 192 Cal.App.3d at p. 396 [height differential between concrete walkway slabs of three-fourths of an inch held trivial]; Fielder, supra, 71 Cal.App.3d at pp. 725, 734 [sidewalk slab upraise of about three-fourths of an inch held trivial where “[n]o evidence was presented as to any other surrounding circumstances or to the fact that any other persons had been injured on the same spot”]; Ness v. City of San Diego (1956) 144 Cal.App.2d 668, 673 [“an even break between two adjoining slabs of a concrete walk of seven-eighths of an inch elevation along the expansion joint is but a trivial defect and without danger to pedestrians walking thereabouts with due care”]; Dunn v. Wagner (1937) 22 Cal.App.2d 51, 53-54 [sidewalk defect with height differential of one inch held to be trivial as a matter of law].)

By contrast, courts generally decline to find sidewalk misalignment defects to be trivial as a matter of law where there is evidence of an aggravating circumstance. (See Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463, 468 [sidewalk slab misalignment of up to one inch not held to be trivial as a matter of law where “there had been at least four prior accidents at the particular location where plaintiff tripped and fell”]; Sheldon v. City of Los Angeles (1942) 55 Cal.App.2d 690, 692 [misalignment of sidewalk slabs with maximum elevation difference of one and one-half inches held not trivial where a bench obscured the plaintiff’s view of the defect].)

C. The 2016 Photographs Were Admissible

In opposition to respondents’ summary judgment motion, Mollins submitted photographs taken three years to the day after her fall. One of those photographs, taken at approximately the time of day that she fell, shows a shadow over the location where the sidewalk defect had been located. On appeal, respondents renew their objections to the admission of those photographs, objections on which the trial court declined to rule. We consider those objections de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 [where trial court did not rule on evidentiary objections in granting summary judgment and respondent renewed objections on appeal, the court of appeal properly reviewed de novo].)

Respondents object on grounds the photographs are irrelevant, misleading, and without foundation because the tree casting the shadow in question would have grown—meaning its shadow would have changed—in the intervening three years. For the reasons discussed below, we conclude that any tree growth goes to the weight of the photographic evidence, not its admissibility.

The Evidence Code defines “relevant evidence” broadly as “evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210, italics added.) Here, the parties dispute whether a shadow fell over the sidewalk defect at the time of Mollins’s fall. The 2016 photographs show the position of the tree’s shadow before, during, and after the time of day when Mollins tripped. As such, they are probative of whether that shadow was over the defect at the time of the accident. While respondents certainly can argue that the size of the shadow was different in 2013, that argument goes to the photographs’ weight, rather than their admissibility.

Evidence may be excluded “if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of . . . misleading the jury.” (Evid. Code, § 352.) We have no doubt that, with proper instructions, a jury would not be misled to believe the 2016 photographs were taken in 2013 or depict the shadow precisely as it would have appeared in 2013.

Finally, the photographs do not lack foundation. “A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267-268.) Here, the photographs were submitted with the declaration of someone present when they were taken. And there is no dispute as to what they depict—the location of the accident as it appeared three years later.

D. A Triable Issue of Material Fact Exists

The sole issue before us is whether there is a triable issue of material fact as to whether the defect, given the surrounding circumstances, “presented a danger to pedestrians exercising ordinary care.” (Stathoulis, supra, 164 Cal.App.4th at p. 569.)

A number of factors favor a finding that the defect was trivial as a matter of law. The defect “consist[ed] of the mere nonalignment of two horizontal slabs” without jagged edges. (Kasparian, supra, 156 Cal.App.4th at p. 27.) Contemporaneous pictures indicate that the defect was not obscured by the debris that was present. And there is no evidence that the defect had caused other accidents.

However, other factors lead us to conclude that reasonable minds could differ as to whether the defect was dangerous. The defect was relatively large as compared to those that have been deemed trivial. And Mollins submitted photographic evidence—including photographs taken the day of the incident and those taken exactly three years later—from which a finder of fact reasonably could infer that the defect was shadowed at the time of the accident. Liberally construing that photographic evidence supporting Mollins, as we must, we cannot say that any shadow that may have covered the defect would not have materially obscured it.

III. DISPOSITION

The judgment is reversed and the matter is remanded to the trial court. On remand, the trial court is directed to vacate its order granting summary judgment to respondents and to enter a new order denying summary judgment. Mollins shall recover her costs on appeal.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Mollins v. EQR-Sombra 2008 et al.

H046172