Case Name: Kellie Bennett v. The Sobrato Organization, LLC, et al.
Case No: 17CV311112

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the Court makes the following rulings:

I. Background

Plaintiff Kellie Bennett (“Plaintiff”) brings this action against the Sobrato Organization, LLC and SI 30, LLC (“Defendants”) for damages associated with a trip and fall.

According to the allegations of the complaint, Plaintiff is employed by Santa Clara County Counsel’s office. (Complaint, ¶ 3.) Her office is in a building owned, managed, maintained and controlled by Defendants. (Id. at ¶ 3.) The sidewalk between the building and vacant lot on the premises was dangerous and unsafe due to depressions and holes in the sidewalk, jagged breaks in the sidewalk, differing heights at portions of the sidewalk, and crevices which run across the concrete. (Ibid.) As a result of these conditions, Plaintiff tripped and fell, causing serious injuries including a fractured left shoulder which ultimately required surgery. (Ibid.) She has suffered physical and emotional injury, pain and suffering, and her injuries will result in permanent disability. (Id. at ¶¶ 5, 6, 7.)

As a result of the foregoing, Plaintiff filed a complaint for damages on May 31, 2017. Defendants filed an answer on July 10, 2017.

Presently before the Court is Defendants’ motion for summary judgment.

II. Judicial Notice

In support of their motion, Defendants seek judicial notice of the complaint and answer in this matter. They do not refer to the complaint in argument or otherwise describe its relevance in their request. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [any matter judicially noticed must be relevant to a material issue].) Nonetheless, a court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) The Court finds the complaint relevant to the underlying factual contentions and cause of action asserted.

Consequently, the request for judicial notice is GRANTED.

III. Motion for Summary Judgment

Defendants move for summary judgment on the basis that the cause of action has no merit, pursuant to Code of Civil Procedure section 437c.

A. Defendants’ Burden on Summary Judgment

A defendant moving for summary judgment must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Otherwise the defendant is not entitled to judgment as a matter of law. (Ibid.)

1. Defendants Meet Their Initial Burden

Defendants contend that the sidewalk condition alleged by Plaintiff amounted to a trivial defect as a matter of law, entitling them to summary judgment.

A property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Courts have referred to this principle as the ‘trivial defect defense.’ (Ibid.) It is not an affirmative defense but an aspect of duty that plaintiff must plead and prove. (Ibid.) It permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury, and thereby “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.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 399.)

To determine whether an alleged defect is trivial, the court reviews the evidence regarding the type and size of the defect. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.) Absent any aggravating factors, a defect in a walkway less than one and one-half inches is considered trivial as a matter of law. (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367.)

Here, Defendants submit photographs taken by Plaintiff showing a ruler next to the sidewalk depression on which she tripped. No evidentiary objections were lodged against the photographs, and the Declaration of Defendants’ counsel states they were authenticated by Plaintiff in deposition. (Dec. of D. Rosenbaum, ¶ 5(b).) The pictures show the height differential of the sidewalk segments to be one inch at most. (Def. Evid., Exhibit C.) Consequently, the defect appears trivial as a matter of law.

The next question, then is whether there is evidence of aggravating factors. Defendants provide other photographs taken by Plaintiff which show the sidewalk is straight and unobstructed, and the crack at issue visible. (Def. Evid., Exhibit B.) Likewise, Plaintiff’s deposition testimony states the sidewalk defect as shown in the photograph is identical to the defect condition on the day of her accident. (Dep. Of K. Bennett, 38:6-10.) Plaintiff also stated the day of her accident was “fairly sunny” and her accident happened around noon. (Id. at 30:12; 23:14.) She does not wear glasses or contacts and she was not wearing sunglasses. (Id. at 33:17-24.)

Based on the evidence produced by Defendants, it appears that the size of the sidewalk crack and the surrounding circumstances do not make it more likely than not that the defect was more than trivial. Consequently, the Court finds that Defendants have produced sufficient evidence to show that the defect was trivial as a matter of law.

B. Plaintiff meets her burden to show triable issues of material fact

Once the defendant meets its initial burden, the burden shifts to the plaintiff opposing the motion for summary judgment to show there is a triable issue as to any material fact. (§ 437c, subd. (c); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 855.) To avert summary judgment, the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

1. Defect alone was trivial

Plaintiff argues first that the defect in the sidewalk was uneven and raised in several portions, of differing heights, “some… were higher and some were lower than shown in the photos.” (Dec. of K. Bennett, ¶ 5.) However, none of the photographic evidence she submits shows a measurement greater than one inch in the rise between the two slabs, so this is not persuasive. (Id. at Exhibit “A”.) Likewise, her declaration does not state how much greater than one inch the defect was at those locations, and instead states that she took the measurements to get a “representative sampling of the height of the rise.” (Ibid.) Thus by her own declaration, the photographs depict a representative sample of the height differential, which as previously mentioned show a difference of one inch at most. This does not provide evidence of a triable issue of material fact that the defect was not trivial.

Plaintiff also argues that there was a separation between the slabs of “varying degrees.” (Dec. of K. Bennett, ¶ 4.) While the photographic evidence shows this to be the case, no corresponding measurements are provided of the visible holes and gaps. Likewise, Plaintiff does not state in her declaration the size of the irregularities and depressions. As depicted in the photographs, the gaps appear no larger than the height of the rise differential, which is about an inch at most. (Id., Exhibit “A”.) Consequently, Plaintiff has not provided substantial responsive evidence to show there is a triable issue of material fact that he gaps between the slabs were more likely than not more than trivial, based on their size alone.

2. Circumstances rendered the defect dangerous

Plaintiff raises a triable issue in that the circumstances surrounding the defect made it more dangerous to Plaintiff than would be expected.

Where a defect is found to be trivial as a matter of law, the court may not rely only on the size of the depression. (Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d 394, 397 “Ursino”.) It must also consider the surrounding circumstances which might have rendered the defect “more dangerous than its mere abstract depth would indicate.” (Ibid, citations omitted.) In Ursino, the court considered the fair weather, the absence of debris concealing the defect, the fact that plaintiff visited the restaurant once a week during the past 15-year period, that neither party was aware of other accidents at the location, and the fact that the defect had been present for five years, among other factors in granting summary judgment for the defendant. (Id. at 396.) None of the surrounding circumstances in Ursino showed that the trivial defect was more dangerous than would be expected. (Id. at 397.)

Here, by contrast, Plaintiff’s evidence regarding the surrounding circumstances creates a triable issue of material fact. Plaintiff states that leaves were partially covering the defect when she tripped, and the submitted photographic evidence was not contemporaneous to the accident. (Dec. of K. Bennett, ¶ ¶ 3, 5.) Her declaration also contradicts Defendants’ evidence that it was “sunny” as the defect was in the shade, at least at the time that Plaintiff was walking there. (Id. at ¶ 3.) Plaintiff also provided evidence that she was unfamiliar with the walkway and the possible defect, as she had only used the sidewalk three to four times in the seven or eight years she worked at the property. (Id. at ¶ 6.). Finally, Plaintiff produced evidence of one other incident of someone tripping at the same spot. (Dec. of R. Hecht, Exhibit A, SI No. 10.) All of this presents substantial responsive evidence to show that it is more likely than not that the defect was not trivial when Plaintiff tripped.

The Court also notes that Defendants’ reliance on Plaintiff’s answer in deposition regarding the “condition” of the sidewalk as depicted in the photographs imputes too wide of an inference as to what Plaintiff encountered on the day she tripped. Specifically, Plaintiff was asked: “when you took the pictures approximately one month later… the condition of the sidewalk was the same as when you had fallen?” Plaintiff answered: “Correct.” The next question asks, “nothing had been done… to make repairs in that area?” After a few clarifications, Plaintiff answers “Correct. It was over a year before they repaired it.” (Dep. Of K. Bennett 38: 6-16.) Defendants rely on these responses as evidence that the sidewalk was unobstructed by debris, and it was sunny and clear as depicted in the photographs. However, the question did not specifically ask about surrounding conditions, but only the “condition of the sidewalk” and Plaintiff answered regarding the defect. Likewise, the follow up question related to the defect, and not the surrounding conditions. Therefore, the deposition testimony does not dispute or contradict the triable issue raised by Plaintiff regarding obstructions and shade as questions about these topics were not specifically asked.

Thus, there is a triable issue of material fact such that summary judgment should not be granted.

Consequently, Defendants’ motion for summary judgment is DENIED.