Case Name:   Hamilton v. Smythe European, Inc., et al.

Case No.:       1-12-CV-237298

Defendant Smythe European, Inc. dba Smythe European (“Smythe European”) and defendant Smythe Properties, LLC (“Smythe Properties”) (collectively, “Defendants”) move for summary judgment and, in the alternative, summary adjudication of each of plaintiff Elizabeth Hamilton’s (“Plaintiff”) causes of action.

Defendants’ request for judicial notice is GRANTED.

Plaintiff’s request for judicial notice is GRANTED.

Generally, injury resulting from a defect in public property is actionable only when the condition of the property creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury.  (Ursino v. Big Boy Rests. (1987) 192 Cal. App. 3d 394, 396, citing Gov. Code, § 830, subd. (a).)  In addition to governmental defendants, nongovernmental defendants can assert the trivial defect defense of Government Code section 830.  (Id. at p. 397.)

Defendants argue that this Court already determined that the alleged defect in this action (the raised sidewalk) was a trivial defect and that Plaintiff is therefore barred by collateral estoppel from asserting otherwise.  In making this argument, Defendants rely on the case of McClain v. Rush (1989) 216 Cal. App. 3d 18.  In McClain, the court held that, notwithstanding the fact that the collateral estoppel doctrine is generally applied to a successive action (i.e. after a judgment has been entered in the first action), a “judgment” on one party’s summary judgment motion may become final as to other parties for purposes of the application of collateral estoppel even though no formal final judgment has yet been entered.  (Id. at pp. 28-29.)  However, “due process requires that before an issue can be held established as to a party based on a previous determination in the action as to other parties, the party to be bound must have been afforded notice and an opportunity to contest the previous determination and an incentive to do so.”  (Long Beach Grand Prix Assn. v. Hunt (1994) 25 Cal. App. 4th 1195, 1203.)  Plaintiff was not  a party to the prior summary judgment motion in this action and did not have the opportunity to be heard in connection with the motion.  Further, “[i]n the context of collateral estoppel, due process requires that the party to be estopped must have had an identity or community of interest with, and adequate representation by, the losing party in the first action.”  (Id. at p. 1200.)  Plaintiff and Defendants are opposing parties.  This fact, as well as a review of the papers submitted in connection with the prior summary judgment motion, shows that Plaintiff and Defendants do not share an identity or community of interest and that Plaintiff’s interests in this action were not adequately represented by Defendants in connection with the prior motion for summary judgment.  Therefore, the issue of whether the defect is trivial is not established by collateral estoppel.

Defendants argue that the facts show that the defect in the sidewalk was trivial.  Defendants present evidence that the raised portion of the sidewalk measured one and one-quarter inches.  (Separate Statement of Undisputed Material Facts in Support of Smythe European, Inc.’s and Smythe Properties, LLC’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“UMF”), No. 4.)  Nothing was blocking Plaintiff’s ability to view the sidewalk in front of her.  (UMF, No. 5.)  There was no debris covering the area where Plaintiff fell.  (UMF, No. 6.)  In opposition, Plaintiff provides evidence that the area where she fell was covered by shadows and moss and that she could not see the raised portion of the sidewalk.  (Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts in Support of Opposition to Smythe European, Inc.’s and Smythe Properties, LLC’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Opp. UMF”), Nos. 5-6.)

[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.)

In this case, Plaintiff has presented evidence that shows aggravating circumstances regarding the defect.  Plaintiff’s evidence raises a triable issue of material fact as to whether the defect in the sidewalk was “trivial.”  (See Fielder v. City of Glendale, supra, 71 Cal. App. 3d at p. 734 [“[W]hen a court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule that the defect is not dangerous as a matter of law.”].)

Defendants’ final argument is that Smythe European cannot be held liable because it does not own the property adjacent to the sidewalk.  Generally, only a property owner is responsible for maintaining adjacent sidewalk areas.  (See San Jose Mun. Code, §§ 14.16.2200, 14.16.2205 and Sts. & Hy. Code, § 5610.)  Defendants provide evidence that Smythe European does not own the property located at 4500 Stevens Creek Boulevard, in front of the subject raised portion of the sidewalk, but that the property is owned by Smythe Properties.  (UMF, Nos. 1, 15.)  In response, Plaintiff submits evidence that Smythe European answered in discovery that it owns 4500 Stevens Creek Boulevard.  (Opp. UMF, No. 15.)  Defendants point out that the subject discovery responses actually state that the property is owned by Smythe European Holding, LLC, not Smythe European, Inc.  (See Declaration of Paul D. Van Der Walde in Support of Opposition to Smythe European, Inc.’s and Smythe Properties, LLC’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication, Exhibit 5, pp. 2:20-3:9.)  While this is true, the discovery responses nevertheless raise a triable issue as to who owned the subject property because the discovery responses do not match Defendants’ contention in the instant motion that Smythe Properties owns the property.

In sum, for the reasons discussed above, the motion for summary judgment and, in the alternative, summary adjudication is DENIED.