Case Name: Roxane Ng v. SRI Old Town, LLC, et al.
Case No.: 17CV313995

I. Factual and Procedural Background

This is a trip and fall action filed by plaintiff Roxane Ng (“Plaintiff”) against defendants Town of Los Gatos (the “Town”) and SRI Old Town, LLC, who was erroneously sued as Federal Reality Investment Trust dba Old Town Center (“SRI”).

As alleged in the Complaint, Plaintiff was preparing to enter the Old Town Center in Los Gatos when she tripped over the portion of walkway that borders the curb on University Avenue, seriously injuring herself. (Complaint at ¶ 15.) The dangerous condition of the walkway was due to trees, depressions, holes, and jagged breaks in the pavement, differing heights of various portions of the sidewalk, and crevices which run along the concrete. (Ibid.) The portion of sidewalk at issue is owned, maintained, managed, controlled, and supervised by the Town and SRI. (Id. at ¶¶ 4, 15.)

The Complaint alleges a cause of action for dangerous condition of public property against the Town and a claim for general negligence premises liability against SRI.

Currently before the Court is SRI’s motion for summary judgment.

II. Legal Standard

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) An action has no merit if the defendant can show one or more of the elements of a cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o)(1)-(2).) This is traditionally accomplished by presenting evidence that negates “a necessary element of the plaintiff’s case.” (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334.)

A defendant moving for summary judgment bears the initial burden of showing the action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2)); see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.) “If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 82.) “However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue.” (Ibid.; see also Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted 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, subd. (c).)

III. Merits of the Motion

Plaintiff alleges a single cause of action against SRI for general negligence premises liability and pleads SRI is liable because it had notice of the dangerous condition of the sidewalk and negligently failed to make the sidewalk safe or warn of its condition.

Premises liability is a form of negligence. (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103; Brooks v. Eugene Burger Management. Corp. (1989) 215 Cal.App.3d 1611, 1619.) As such, a premises liability claim requires a plaintiff to prove the elements of duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

SRI challenges the element of duty, arguing the purported dangerous condition was a trivial defect it did not have a duty to repair. It also asserts it had no notice of the defect. The Court will address each of these arguments in turn.

A. Trivial Defect

“It is well established that 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.) Put another way, the law does not impose a duty on a landowner to repair trivial defects or to maintain his or her property in absolutely perfect condition. (Id. at 927; Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 (“Ursino”); Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 (“Stathoulis”).) Courts have referred to this principle as the “trivial defect defense,” although “it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.” (Ibid.) Under this principle, a defendant may move for summary judgment on the basis he or she owed no duty to a plaintiff because a defect in the sidewalk was trivial as a matter of law. (Ibid.) “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.” (Stathoulis, supra, 164 Cal.App.4th at 567.)

In determining if a defect is trivial, the court must first review evidence regarding the size and type of defect. (Stathoulis, supra, 164 Cal.App.4th at 567.) With respect to walkway defects in particular, courts have held a depression of three quarters of an inch, an inch, and an inch and a half constitute a trivial defect as a matter of law. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 725 [three quarters of an inch]; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 531 [an inch]; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367 [an inch and a half].) However, whether a crack or other defect in a walkway is trivial does not depend solely on the size of the defect. (Stathoulis, supra, 164 Cal.App.4th at 567.) Courts must also consider if other circumstances exist which “might make the defect more dangerous than its size.” (Caloroso, supra, 122 Cal.App.4th at 927.) Additional factors to consider include the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, plaintiff’s knowledge of the area, and whether others have been injured by the same defect. (Stathoulis, supra, 164 Cal.App.4th at 567-68; Fielder, supra, 71 Cal.App.3d at 734.) Furthermore, “where the defect goes beyond a mere depression between two adjoining slabs and consists of potholes, jagged breaks and cracks or also contains the presence of foreign substances such as grease and oil, then it cannot be said that the defect is trivial and minor as a matter of law.” (Fielder, supra, 71 Cal.App.3d at 726.)

Here, SRI asserts the walkway deviation was no higher than seven eighths of an inch, no aggravating factors existed at the time of Plaintiff’s fall, and there was no history of others tripping in that area. In support, it provides a declaration by Danny Aulman, the manager of security operations at the shopping center, in which he states the offset was three quarters of an inch. (Declaration of Danny Aulman (“Aulman Decl.”), ¶ 11.) Aulman’s declaration also includes a photograph of a tape measure next to the walkway offset, which indicates the difference in height between the walkway and curb was about an inch. (Id., Exhs. A, B.) SRI also submits deposition testimony by Plaintiff in which she stated that, on the day of the accident, it was sunny, the weather was dry, there were no leaves or debris, there did not appear to be other cracks in the area, and nothing obstructed her view of the walkway. (Declaration of Tracy Trimble (“Trimble Decl.”), Exh. A, p. 27:10-14, 28:4-10.) Plaintiff also stated she was familiar with the area and was distracted by an oncoming car when she fell. (Id. at p. 25:15-26:7, 33:12-34:3.) Finally, SRI observes that, prior to the incident, neither its security office nor its property manager, Rachel Richards, received any complaints about the walkway where Plaintiff fell. (See Aulman Decl., ¶ 7; Declaration of Rachel Richards, ¶ 5.)

SRI’s evidence demonstrates that the offset in the walkway was a trivial defect. The offset is approximately an inch which, in the absence of other aggravating circumstances, is trivial as a matter of law. (See Balmer, supra, 22 Cal.App.2d at 531.) Moreover, with respect to the issue of aggravating factors, SRI presents evidence none existed. Plaintiff’s deposition testimony indicates the lighting, weather and visibility were good on the day of the accident, there were no obstructions or debris, and Plaintiff was familiar with the walkway. There also had not been prior reports of accidents in the area. Based on the evidence presented, SRI meets its initial burden of demonstrating Plaintiff cannot establish a duty of care because the defect was trivial. The burden therefore shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff asserts the defect is not trivial because the offset is over an inch and other factors existed that made it more dangerous than its size.

In support, Plaintiff points to purported inconsistencies in the declaration by Aulman, asserting he states the defect was three quarters of an inch while the attached photograph indicates the offset is more than one inch. She also presents a declaration by an expert, W. Charles Perry, who stated the vertical offset of the defect was approximately one inch. (Declaration of W. Charles Perry (“Perry Decl.”), ¶ 3.)

As for the existence of aggravating factors, Plaintiff references her own deposition testimony to support the contention she infrequently walked in that area and needed to be mindful of oncoming traffic in that walkway. (Declaration of Roger D. Hecht (“Hecht Decl.”), Exh. A at p. 61:14-62:3.) She also contends there were uneven, jagged breaks in the sidewalk, as demonstrated by Perry’s declaration in which he opines the “uneven, raised portions” of the walkway were a safety hazard. (Perry Decl., ¶ 3.) Finally, Plaintiff references Perry’s observation that the opposite side of the walkway had been repaired to remedy a quarter inch offset, and asserts the walkway was part of a route designed to be in compliance with ADA regulations. (Ibid.) She concludes the totality of these circumstances indicates the defect at issue was not trivial.

The Court finds Plaintiff’s evidence fails to create a triable issue of material fact as to whether the walkway offset was a trivial defect. Though it is true there are some minor discrepancies between Aulman’s declaration that the offset was three quarters of an inch, the photographs, which indicate the offset was around an inch, and SRI’s own memorandum, which states the defect was no more than seven eighths of an inch, all the evidence presented consistently demonstrates the offset was around an inch. Plaintiff asserts the height differential was greater than an inch but this position is not supported by the expert declaration she presents in which Perry states the “vertical offset of the defect is approximately one (1) inch.” (Perry Decl., ¶ 3.) As stated, in the absence of other aggravating factors, a defect of this size is trivial as a matter of law. (See Balmer, supra, 22 Cal.App.2d at 531.)

Plaintiff also does not present evidence any other circumstances existed which would render the subject defect more dangerous. Though she asserts there were uneven, jagged breaks in the sidewalk, she presents no evidence supporting this fact. Plaintiff cites to Perry’s declaration but Perry merely states there were “uneven, raised portions” of the walkway; this is not the same as jagged breaks. (See Perry Decl., ¶ 3.) Moreover, a review of the photographs provided by the parties indicates no jagged breaks exist. (See Aulman Decl., Exhs. A, B; Perry Decl., Exh. B, C, D, E.) Plaintiff’s assertion she did not frequent the area often is also inconsistent with her testimony she went to that shopping center twice a month, often used the entrance at issue, and was familiar with the area. (Hecht Dec., Exh. A at p. 61:6-62:3.) Further, to the extent Plaintiff relies on evidence of repairs made on the other side of the walkway or the ADA accessibility of the route to demonstrate an aggravating factor, such reliance is misplaced. The fact a neighboring walkway was repaired has no bearing on whether the offset at issue was dangerous and not a trivial defect. (See, e.g., Fielder, supra, 71 Cal.App.3d at 726 [finding that evidence of a defect located 125 feet away did not bear on the issue of the danger of the subject defect].) Nor is it clear how the purported ADA accessibility of the route rendered the offset more dangerous. The only remaining factor asserted is the fact the walkway requires pedestrians to be aware of oncoming traffic. However, in the absence of any other evidence the defect was obstructed or made more dangerous by other conditions, the Court finds that this fact, standing alone, does not demonstrate the walkway offset was not a trivial defect.

In sum, Plaintiff fails to raise a triable issue of material fact as to the issue of a trivial defect and, therefore, as to the element of duty. SRI’s motion for summary judgment may be granted on this basis alone. Nonetheless, the Court will briefly address the remaining issue of notice.

B. Notice

SRI raises the issue of its lack of notice of the defect. It does not frame this argument relative to the elements of a premises liability claim but this assertion most appropriately relates to the element of breach as SRI would not have breached any duty to keep the premises safe if they lacked notice of it in the first instance. (See Howard v. Omni Hotels Mgmt. Corp. (2012) 203 Cal.App.4th 403, 434.)

Generally, a landlord must have either actual or constructive knowledge of the dangerous condition to be liable for premises liability. (Ortega, supra, 26 Cal.4th at p. 1206.) Where the condition at issue, however, is minor or trivial, even a property owner who has actual notice of the defect owes no duty to repair it. (Ursino, supra, 192 Cal.App.3d at 398 [“The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.”]; Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389, [“Minor defects such as the crack in [the plaintiff’s] walkway inevitably occur, and the continued existence of such cracks without warning or repair is not unreasonable. Thus, [the defendant] is not liable for this accident irrespective of the question whether he had notice of the condition.”]; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27 [same].)

Here, SRI asserts the trivial nature of the walkway offset means it cannot be liable for Plaintiff’s injury, regardless of whether it had actual notice of the defect. In any event, it argues, it had no notice of the walkway deviation.

The Court finds it is unnecessary to discuss whether there is a triable issue of material fact as to SRI’s knowledge of the walkway offset. As stated above, it is well-established that a property owner is not liable for failing to repair a trivial defect, even if he or she had actual notice of it. Because the Court finds no triable issue of material fact as to whether the walkway offset was a trivial defect, it is inconsequential whether SRI had notice of it.

C. Conclusion

Accordingly, SRI’s motion for summary judgment is GRANTED.