Case Number: BC516755    Hearing Date: September 02, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

LAURA GOODMAN,

Plaintiff(s),
v.

CITY OF PARAMOUNT, et al.,

Defendant(s). Case No.: BC516755

Hearing Date: September 2, 2014

[TENTATIVE] ORDER RE:
MOTION FOR SUMMARY JUDGMENT / ADJUDICATION BY DEFENDANT CITY OF PARAMOUNT AND JOINDER BY JHC&D PARAGON, LLC TO MOTION

For the reasons set forth below, the Motion for Summary Judgment /Adjudication filed by Defendant City of Paramount and the Joinder by JHC&D Paragon, LLC are DENIED. Triable issues of fact exist as to whether the defect in the sidewalk at issue in this case was a “trivial defect.”

PROCEDURAL BACKGROUND

Defendant City of Paramount (“Defendant” or “the City”) filed its Motion for Summary Judgment or Adjudication, supporting declarations, Separate Statement and Request for Judicial Notice on May 22, 2014. On June 12, 2014, Defendant JHC&D Paragon filed a Joinder in the Motion for Summary Judgment and filed its own Separate Statement. Plaintiff Laura Goodman (“Plaintiff”) filed her Opposition, supporting declarations and Separate Statement on July 29, 2014. The City timely filed its Reply and Objections, discussed below.

While Plaintiff timely filed her Opposition 14 days before the hearing, she failed to comply with the requirement in Code of Civil Procedure Section 1005 that the Opposition and supporting documents be served by personal delivery, fax, overnight mail, or other means “reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day ….” Service by mail from Beverly Hills to Defendants’ attorneys in Irvine does not meet these requirements and, in fact, the papers were not received by Defendants the next day. Accordingly, the hearing was continued to September 2 to allow Defendants limited additional time in which to file a supplemental reply brief, which they have done, along with additional evidentiary objections to the declaration of Brad Avrit (“Avrit Decl.”).

Request for Judicial Notice (“RJN”)

The City’s request that the Court take judicial notice of the Complaint filed in this action is granted pursuant to Cal. Evid. Code section 452(d).

Evidentiary Objections

The City’s objections to Plaintiff’s evidence in support of her opposition to the motion for summary judgment are ruled on as follows:

City’s Objections Filed August 15, 2014
Objection # 1 to Declaration of Brad P. Avrit (“Avrit Decl.”)

The Court will attempt to address the objections raised to the Avrit declaration. The Court notes, however, that the objections are not in the proper format in that the objections do not separate specific sentences of the declaration and the basis for the objection, instead objecting to multiple sentences and paragraphs at once. However, some of the portions of the Avrit declaration are properly challenged, and as to these portions, the Court will do its best to address the objections.

(1)The City argues that the Avrit declaration is inadmissible as irrelevant, confusing and misleading because Plaintiff fell in a different area of the pavement. Avrit states in his declaration that the accident location has concrete residue, which exacerbated the danger of the accident location. (Arvit Decl., ¶ 8, referencing Ex 3). The City contends that because the photograph of the accident location marked by Plaintiff (Coolidge Decl. Ex. 2) shows that the edge where Plaintiff tripped does not have any concrete residue, Avrit is referring to a location other than where Plaintiff tripped. Notably, Ex. 3 to the Arvit Declaration and Ex. 2 to the Coolidge declaration are the same photograph, with the only difference being the red circle and arrow on the one marked by Plaintiff at her deposition.

A comparison of the photographs does not support the City’s argument. If anything, the portion of the sidewalk with the arrow shows a greater disparity between the two slabs of concrete. Moreover, it is not clear from the photograph that in fact there is only concrete residue near the sandal in the middle of the photograph and not near the edge where Plaintiff testified she tripped. Avrit’s reference to the “substantial amount of concrete [that] had adhered to the edge of the raised slab as a result of substandard (sloppy) workmanship when pouring the new concrete sidewalk slab” (Avrit Decl. ¶ 8) appears from the photograph to apply both to the area where the sandal is located as well as the area where Plaintiff’s circle and arrow are located.

The Court cannot conclude that Avrit was only referring to the area where the sandal is located, and thus that his testimony is not relevant here. Rather, this is an issue that Defendant can address at trial as a question of fact – whether there was any concrete residue in the area where Plaintiff tripped. Therefore, this objection is overruled.

(2) Next, the City objects that Avrit fails to provide a foundation for his opinion that the height differential was greater than one inch at the time of the accident because he never inspected or measured the concrete or the height of the concrete residue on the concrete. The Court sustains the City’s objection with respect to this statement by Avrit, on page 2 at lines 23 to 24 that: “This concrete residue would have increased the overall abrupt height differential to above 1 inch in magnitude.” Arvit’s reliance only on photographs of the accident location to calculate the height differential in light of the concrete residue lack foundation.

(3) Third, the City objects that Avrit provides no foundation for his conclusion that the concrete residue “would have rendered the differential uneven and jagged, substantially exacerbating the danger of the incident location.” However, in the declaration Avrit also states that “a substantial amount of concrete had adhered to the edge of the raised slab as a result of substandard (sloppy) workmanship,” based on his review of the photographs taken by Mark Burns. The Court finds sufficient foundation for these statements. While there can be a dispute as to whether in fact the edge is jagged, the Court finds that this is a proper expert opinion in terms of the effect of the extra concrete on the surface of the sidewalk edge.

Therefore, the objection as to this sentence is overruled.

(4) The City’s objection that Avrit’s expert declaration is “improper expert opinion” with respect to his opinion that “[g]iven that the average toe clearance of a typical pedestrian is only ½ an inch (reference biomechanical studies attached hereto as Exhibit 4), the subject jagged and uneven height differential with a magnitude in excess of 1 inch would have presented a substantial trip hazard and therefore constituted an unsafe and dangerous condition” (Avrit Dec l. p. 2:26-3:1), is sustained for lack of foundation..

(5) As to the City’s objection to the declaration generally and the opinion that “[t]he subject sidewalk was defective and presented a substantial trip and fall hazard at the time of the incident” (Avridt Decl p. 2:15-16), on the basis that this is not the proper subject of an expert opinion, this objection is overruled. The City argues that whether the sidewalk defect was trivial is not an issue “that is outside an ordinary person’s common knowledge.” (People v. McDonald (1984) 37 Cal.3d 351, 366-67, overruled on other grounds, People v. Mendoza (2000) 23 Cal.4th 896)(noting that Evidence Code Section 801 limits expert testimony to subjects “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.”) The court in McDonald held further that expert testimony “will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when “the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.” (Id. at 367.)

Further, the City relies on Caloroso v. Hathaway ((2004) 122 Cal.App.4th 922), in which the Court upheld the trial court’s decision to disregard the declaration by the same expert used here, Brad Avrit, holding that the trial court did not abuse its discretion in finding that, “in this case, 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 demonstrate that the crack is minor and any irregularity in shape is minimal.” (Id. at 928 (emphasis added).) The Court went on to find that “the inescapable fact is the crack at its greatest was less than one-half inch, and the disputed issues about light and shadow in the circumstances of this case are immaterial.” (Id. at 929.)

Caloroso is distinguishable from the instant case, however, in several respects. Significantly, in this case the defect was altered between the time Plaintiff had her accident and the time the experts examined the location for purposes of this motion. An expert opinion is necessary to calculate the size of the sidewalk differential in light of the change of the sidewalk condition since the accident – it is difficult for the Court to determine from the one photograph prior to the accident with the sandal (Coolidge, Ex. 2.) how large or hazardous the defect was before it was altered. In addition, while the photographs submitted by the parties of the defect at the time of the accident show that something was adhered to the top of the raised sidewalk slab, it is difficult for the Court to determine the effect of that residue, and this is an issue on which Avrit as a civil engineer opines. The material on top of the raised sidewalk slab and its physical characteristics cannot be determined by the Court simply by examining the photographs. Therefore, this objection is overruled.

Objection to Avrit Declaration # 2

Defendants object to paragraph 9 of the Avrit declaration on multiple grounds. The Objection is sustained as to the entire paragraph on the basis of lack of foundation. Avrit did not visit the site and does not provide a foundation as to what was within Plaintiff’s “normal line of sight,” or what visual cues were there.

Objection to Avrit Declaration # 3

The objection to paragraph 10 of the Avrit declaration is sustained on relevance grounds.
Objection 2 to Declaration of Mark Burns (contained in Defendant City’s August 7 Objections)
This objection is overruled. The City objects to the declaration of Plaintiff’s expert Mark Burns on the basis that it lacks foundation and assumes facts not in evidence because he fails to indicate the actual accident location and relies on information obtained after the incident. Contrary to this assertion, however, Burns provides a foundation by stating that Plaintiff was present at the time of Burns’ inspection and showed him where the incident occurred. (Burns Decl. ¶ 4.) Similarly, the City’s contention that his declaration is more prejudicial than probative under Evidence Code section 352 because it fails to take into account the changes to the location that could have occurred over two years’ time is without support. Burns addresses this issue and explains the basis for his opinion why the differential would have been 15/16ths of an inch at the time of the incident. (Id. ¶ ¶5, 6.) Moreover, the City’s own expert Stephen White similarly inspected the location on March 21, 2013, 10 months after the incident, and after the sidewalk had been repaired by “grinding.” (White Decl. ¶¶3-5.)

FACTUAL BACKGROUND

Plaintiff alleges claims for negligence and premises liability arising from a trip and fall on a public sidewalk in the City of Paramount on August 31, 2012, adjacent to the property located at 16130 Gundry Avenue. (Deposition transcript of Laura Goodman, Rowen Decl., Exh. A (“Goodman Depo.”), at 29:4-25; RJN, Exh. A (“Complaint”), ¶¶ GN-1 and Prem. L-1.) The asserted defect was a height differential between two sidewalk slabs. (Goodman Depo., at 56:9-25, 62:16-19, 81:15-82:10; Rowen Decl., Exhs. B and E.) The Complaint alleges causes of action for negligence (count one) and premises liability (count three). The City moves for summary judgment and/or adjudication on the basis that the defect was trivial as a matter of law, so it owed Plaintiff no duty of care.

Counts 1 and 3: Trivial Defect Doctrine

A dangerous condition on public property is 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. Govt. Code § 830(a).) “The status of a condition as “dangerous” for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care.” (Morris v. State of California (1979) 89 Cal.App.3d 962, 966.) Further, “[t]he existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.’” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347 (citations omitted).)

As the Court held in Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68:

The [trivial defect] doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury. “Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment . . . . 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…. [A] landowner is not an insurer of the safety of its users.”

The legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.

(citations omitted.)

Although cases have held that defects ranging from three-fourths of an inch to one and one half inches are trivial as a matter of law (See Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 (finding edge of cement 3/4 of inch trivial as a matter of law where no circumstances made defect more dangerous); Whiting v. City of National City (1937) 9 Cal.2d 163, 166 (3/4 of inch rise in sidewalk trivial as matter of law where defect plainly visible and known to plaintiff); Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 531)(one inch rise in sidewalk trivial as matter of law relying on Whiting), the above analysis regarding the size of the defect and its attendant factors is necessary to make such a determination. (See Stathoulis, 164 Cal.App.4th at 567-68; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 729.)

Indeed, in Fielder, the court held that a 3/4 inch difference in the height of the cement slabs of the sidewalk was not dangerous as a matter of law where there were no aggravating circumstances. (71 Cal.App.3d at 732.) As the court held:

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. As such, the court should view the intrinsic nature and quality of the defect to see if, for example, it consists of the mere nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole.

(Id. at 734 (emphasis added).)

Based on these factors, other courts have held that a determination of whether a one to 1 and 1/2 inch defect is trivial is a question of fact for the jury. (See e.g., Stathoulis, supra, 164 Cal.App.4th at 568-69 (three irregularly shaped one-inch potholes raised triable issue of fact as to degree of dangerousness); Barone v City of San Jose (1978) 79 Cal.App.3d 284, 291 (one inch gap where photographs show “jagged break” raises questions of fact); Gentekos v. City and County of San Francisco (1958) 163 Cal.App.2d 691, 700, superceded by statute on other grounds (1 and 1/2 inch gap in sidewalk raised question of fact where sidewalk had broken and jagged pieces).

In this case, there is a triable issue of fact both as to the size of the differential and as to whether there are additional circumstances that made the differential in the sidewalk more dangerous. Plaintiff asserts that the defect in this case that caused the fall was a height differential between two sidewalk slabs. (Goodman Depo., at 56:9-25, 62:16-19, 81:15-82:10; Exhs. B and E.) According to the City’s expert, Stephen White, the height differential was between half an inch to two-thirds of an inch. (White Decl. ¶ 6 and Exh. D.) The City has presented evidence that the weather on the day of Plaintiff’s accident was sunny and clear, which appears to be undisputed. (Goodman Depo., at 41:19-42:4.) Plaintiff further testified that she was looking at the sidewalk as she walked and tripped because her “right foot hit what seemed like a raised portion” of the sidewalk. (Id., at 61:6-10, 63:1-6.) Plaintiff did not notice anything else that caused her to fall. (Id. at 61:6-62:19.) Finally, in examining a photograph of the accident location, Plaintiff could not point to anything of significance other than the raised sidewalk. (Id. at 81:15-82:10, 86:1-4, 87:23-24.)

This evidence meets the City’s initial burden of proof to demonstrate that the defect over which Plaintiff tripped was trivial as a matter of law. The burden now shifts to Plaintiff to create a triable issue of fact regarding the triviality of the defect. Notably, Plaintiff’s expert, Mark Burns states that the sidewalk slabs were off-set by 15/16ths of an inch at the time he measured the defect. (Burns Decl. ¶6 and Exh. 2.) This measurement was taken after the defect had been ground down to create a smoother transition between the sidewalk slabs. (Burns Decl. ¶5.) Although the cases above refer to a height differential of less than one inch as creating a “trivial defect” as a matter of law, absent other factors making the defect hazardous, the Court notes that a differential of 15/16ths of an inch is closer to one inch than to those cases finding defects trivial of one half or even 3/4 of an inch.

The Court therefore must look at whether there were any additional factors that made the condition of the sidewalk more dangerous. While this Court has stricken the portions of the Avrit declaration as to the height of the sidewalk slab with the additional residue, as to visual cues, and the lack of visibility of the sidewalk condition given Plaintiff’s path, the Court has not stricken the opinion of Brad Avrit that the photographs show “a substantial amount of concrete had adhered to the edge of the raised slab,” and that the residue “would have rendered the differential uneven and jagged, substantially exacerbating the danger of the incident location.” (Avrit Decl. ¶ 8.) This evidence – of the differential being close to one inch and the additional hazard created by the cement residue on the edge of the sidewalk slab — creates a triable question of material fact regarding whether the defect was trivial or substantial.

The City in response argues that there is no evidence of a jagged edge because Avrit refers to the wrong location. As discussed above with respect to the evidentiary objections, the City has not made a sufficient showing that Avrit’s declaration is based on the wrong location. To the extent the City wants to make this argument, it only raises a question of fact as to the opinion. The photograph of the accident location shows concrete residue that extends along most of the length of the raised sidewalk slab, including the part of the sidewalk where Plaintiff testified she tripped. (Coolidge Decl., Exh. 2.)

Therefore, the City has not overcome Plaintiff’s showing that triable issues of fact exist as to whether the defect was trivial as a matter of law.

For the foregoing reasons, the Motion for Summary Judgment /Adjudication is DENIED.

Plaintiff is ordered to give notice.

DATED: September 2, 2013
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court