Nunez v. City of Redondo Beach
Court of Appeal of California, Second Appellate District, Division Three July 27, 2022, Opinion Filed
B308741
Reporter
81 Cal. App. 5th 749 *; 297 Cal. Rptr. 3d 461 **; 2022 Cal. App. LEXIS 660 ***; 2022 WL 2965453 MONICA NUNEZ, Plaintiff and Appellant, v. CITY OF dismissed her lawsuit after concluding the defect in the REDONDO BEACH, Defendant and Respondent. sidewalk was trivial as a matter of law, with no aggravating factors, and thus [*752] nonactionable
Notice: CERTIFIED FOR PARTIAL PUBLICATION* under Government Code section 830 et seq. ' We agree with the trial court and affirm the judgment.
Subsequent History: Request denied by Nunez v. City
of Redondo Beach, 2022 Cal. LEXIS 6424 (Cal., Oct.
FACTS AND PROCEDURAL BACKGROUND
19, 2022)
1. The parties and underlying incident
Prior History: [***1] APPEAL from a judgment of the
Superior Court of Los Angeles County, No. BC695847, Nunez is the vice-president of finance and accounting at Thomas D. Long, Judge. a restaurant chain, as well as a part-time fitness instructor for a gym. On February 25, 2017, Nunez went
Disposition: Affirmed. for a group run on Redondo Beach. At about 10:45 a.m., Nunez-wearing [***2] her running shoes-
Counsel: Mardirossian Akaragian, Garo Mardirossian, walked back to her car on a public sidewalk along the Armen Akaragian and Adam Feit for Plaintiff and west side of South Catalina Avenue near or in front of Appellant. the residence at 1003 South Catalina Avenue, Michel & Associates, C.D. Michel, Joseph Di Monda and Redondo Beach. As she was walking, her back foot hit Alexander A. Frank for Defendant and Respondent. a raised sidewalk slab causing her to trip and fall forward to the ground. Nunez landed on her left knee
Judges: Opinion by Egerton, J., with Lavin, Acting P. J., and right arm, fracturing her kneecap and elbow.? At the and Kim, J.", concurring. time of the incident, Nunez was in her early 40s. The City is the municipal entity responsible for the sidewalk Opinion by: Egerton, J. where Nunez tripped and fell.
On February 28, 2018, Nunez sued the City,? alleging
Opinion causes of action for dangerous condition of public property under section 835, negligence under section
815.2, and failure to perform a mandatory duty under
[**463] EGERTON, J.-(1) Monica Nunez appeals section 815.6. from the judgment entered against her after the trial
court granted the City of Redondo Beach's (City) 2. The City's motion for summary judgment motion for summary judgment of her personal injury After answering the complaint, the City filed a motion for lawsuit. Nunez suffered injuries after she tripped on an elevated sidewalk slab within the City. The trial court ' Undesignated statutory references are to the Government •Under California Rules of Court, rules 8.1105 and 8.1110, Code. this opinion is certified for publication with the exception of 2Nunez fractured her "radial head" and "coronoid process." parts 1., 3., and 4. of the Discussion. The fractures required surgery. *Judge of the Los Angeles County Superior Court, assigned 3 Nunez also sued the County of Los Angeles and Vazmenka by the Chief Justice pursuant to article VI, section 6 of the Milovic, who allegedly maintained the property adjacent to the California Constitution. sidewalk. They are not parties to this appeal.
81 Cal. App. 5th 749, *752; 297 Cal. Rptr. 3d 461, **463; 2022 Cal. App. LEXIS 660, ***2 summary judgment on the ground the raised sidewalk met the south slabwas raised. slab was a trivial defect as a matter of law, and Nunez
3. Nunez's evidence in opposition to the City's motion
failed "to testify to or adduce any evidence that
aggravating circumstances existed" to raise a triable In opposition to the City's motion, Nunez presented issue as to the trivial nature of the defect. In support of medical records, declarations from two forensic its motion, the City submitted the declaration of Frank engineers, photographs of the incident scene, excerpts Contreras, the City's public works manager- from the deposition of a City employee and her own Streets/Sewer [***3] & Storm Drains Maintenance deposition, as well as her own declaration.
Division, who oversees the maintenance and repair of
sidewalks in the City, including where Nunez fell. 4 On March 30, 2017, Benjamin Molnar, a forensic engineer at the safety and liability consulting firm
After the City received notice about Nunez's lawsuit, Nunez's counsel retained, inspected the sidewalk where Contreras visited the area where Nunez fell. He "quickly Nunez fell "under substantially similar lighting conditions noticed" one segment of the sidewalk appeared to that which [***5] existed at the time of the incident." defective. He measured "the displacement," which he He took photographs and measurements of the declared ranged from zero "to 5/8ths of an inch, perhaps sidewalk and attached photocopies of the photographs a millimeter more," and took a photograph. Contreras to his declaration. Molnar did not declare at what time of saw no other defects in the sidewalk, "such as [*753] day he took the photographs, and there is no time cracks, jagged edges, holes, loose concrete, or anything stamp on the copies he attached. other than the height displacement." Based on
Contreras's review of the City's records, there had been The photographs Molnar took show the sun is shining no earlier complaints, notices, or lawsuits involving the and shadows—from a tree are falling across the left same sidewalk defect. side of the sidewalk, where it is raised. [*754] Photographs of a ruler next to different points along the [**464] The City also submitted Nunez's deposition offset measure the height differential at just under three- establishing that when she fell it was sunny, not dark or quarters of an inch, about 9/16ths of an inch, and about gloomy, she had nothing in her hands and was "normal a half-inch. A shadow from the tree appears to cover the walking, ... looking ahead," and she did not see the three points measured. sidewalk defect while she was walking. Nunez also
testified she exercised at the beach every Saturday but Mark J. Burns—a senior forensic engineer at the same had never walked through the area where she tripped firm and Nunez's retained safety and liability expert— because she usually parked on a different street. reviewed the March 2017 photographs and measurements Molnar took.? Burns also personally
After Nunez fell and "a while of lyling there," she looked visited the site on February 14, 2020. Based on the to see what ***4] caused her to trip and fall and saw photographs Molnar took, which Burns grouped and that the corner of the sidewalk was raised. There was labeled as an exhibit to his declaration, Burns opined no liquid or sand on the sidewalk. She remembered that the sidewalk uplift that caused Nunez's fall there was a tree near the defect but did not recall seeing "presented an abrupt height differential of approximately any branches or mulch or whether there were a lot of 11/16 inches." Burns cited human ambulation studies leaves in the area. Nor did she recall seeing any holes that have shown [***6] "the minimum toe clearance of a or chasms. pedestrian ... during normal walking stride is approximately 0.50 to 0.60 inches." He explained one
The City also submitted a black-and-white photograph,
study also "relatled] an unseen one-inch ... height
produced by Nunez's counsel during discovery, of the
differential [**465] to a trip occurring on almost every sidewalk with a circle drawn around two adjacent slabs
in the row of slabs farthest from the street. Nunez stride. Therefore, any abrupt height differential in excess of this magnitude has the substantial possibility of
confirmed the circle encompassed the general area
causing a pedestrian to trip and fall or misstep if the where she fell and that the corner-where the north slab height differential is not conspicuous and readily
4 Contreras held that same position when Nunez tripped in February 2017. 6 From our view, the ruler appears to measure the lift at 22/32ds of an inch high, or 11/16ths of an inch.
5 The sidewalk consisted of two rows of slabs—one adjacent to the street and the other adjacent to property. 7 Molnar no longer worked at the firm.
81 Cal. App. 5th 749, *754; 297 Cal. Rptr. 3d 461, **465; 2022 Cal. App. LEXIS 660, ***6 observable in advance." system" would have fixed it. Klein confirmed the City's sidewalk maintenance grinding crew had since ground
Burns opined the "subject height differential presents a down the offset on March 2, 2018, after receiving notice substantial risk of injury because it would have been about Nunez's claim. difficult to perceive at the time of the incident." Burns noted (1) "the subject height differential was high In a declaration signed February 25, 2020, Nunez enough to cause a trip event, but low enough that it attested she "tripped on a defect on the left side of the would not be in plain sight"; (2) "there was no color or sidewalk that was obscured from my view, including as texture differentiation between the concrete slabs a result of shadows, and fell." She also declared that, forming the height differential," further concealing its when she fell, "l had occasion to observe the area existence; and (3) astronomical data, in conjunction with where I fell, including the light conditions, shadows, and the scene photographs from March 2017, "indicates that general condition of the area." She attached two shadows cast on and around the subject defect from the photographs that she declared fairly and accurately adjacent tree(s), obscure the hazard." Burns thus depict the conditions [***9] observed at the location and concluded that "s]ince there is a height differential time of my fall." The photographs appear to be copies of higher than [***7] the average minimum toe clearance two of the photographs Molnar took on March 30, 2017. of pedestrians during normal ambulation, and an
obscured hazard that is not readily apparent, ... the Nunez argued the offset constituted a dangerous height differential and surrounding area pose a condition under the City's policy that offsets half of an substantial risk of injury for pedestrians acting in a inch or greater were tripping hazards needing repair, reasonable manner, and thus constituted a dangerous and [**466] aggravating circumstances existed here- condition of public property at the time [of the] incident." the existence of shadows, "with the continuity of the walking surface colori,] shrouded the defect," and
Michael Klein, the deputy director of the City's public Nunez was unfamiliar with the area-that substantially works department, testified as the City's person most increased the risk that Nunez would fall. knowledgeable on designated topics. The City's public
4. The trial court's ruling
works department is responsible for sidewalk
- 76 including ring upite or id In advance of the September 4, 2020 hearing on the shifts in sidewalk concrete. A "lift" or an "offset" is where City's motion, the court issued a tentative ruling granting "one panel is lifting higher than the adjacent panel next the motion. Both the City and Nunez had filed several to it." evidentiary objections. The court sustained the City's [*756] objection to Burns's declaration, as an
The City ground down sidewalk offsets as part of its improper opinion, to the extent Burns opined that the sidewalk maintenance and repair work. In December sidewalk defect posed "a substantial risk of injury for 2019, however, it contracted with a company to grind pedestrians acting in a reasonable manner," and that it sidewalk areas the City identified as needing repair.
constituted "a dangerous condition." The court found
That contract provides the contractor will "eliminate]
Burns's other statements were appropriate factual
sidewalk tripping hazards by grinding or saw cutting conclusions for it to consider. The court also overruled concrete sidewalk panel offsets between the heights of
the City's lack of foundation objection to
1/2 inch and 1-1/2 inches." Klein confirmed the City
Molnar's [***10] declaration, and the photographs
engineer set the criteria.
attached to it, finding a proper foundation had been
Before the incident, [***8] City employees inspecting established. sidewalks were instructed to note, in essentially a repair The City also objected to Nunez's declaration that the
log, any offsets a "half inch or more." Klein explained sidewalk defect "was obscured from my view, including that repair standard "could be" in part to eliminate a
as a result of shadows," on the ground it contradicted
tripping hazard, but also because the City "like[d] to her deposition testimony and must be disregarded have even sidewalks around here, whether it's a tripping hazard or not." He did not know if the City ever had under D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 [112 Cal. Rptr. 786, 520 P.2d 10] and
inspected the subject sidewalk before Nunez fell. But, if Villanueva v. City of Colton (2008) 160 Cal.App.4th
the three-quarter inch offset on the sidewalk where
Nunez fell had been seen or reported, Klein "would
expect that someone through [the City's] work order 8 Nunez does not challenge this, nor any, of the trial court's evidentiary rulings.
81 Cal. App. 5th 749, *756; 297 Cal. Rptr. 3d 461, **466; 2022 Cal. App. LEXIS 660, ***10 1188 [73 Cal. Rptr. 3d 343]. The City argued Nunez had Cal.App.5th 1092, 1104-1105 [250 Cal. Rptr. 3d 336] never mentioned—in her deposition or written discovery (Huckey) [summary judgment proper where responses-that shadows obscured her view of the reasonable [***12] minds could only conclude there defect. In overruling the City's objection, the court was no substantial risk of injury, but court may not find explained the deposition testimony the City cited did not defect trivial as a matter of law where evidence directly contradict Nunez's declaration. She did not, for presented shows reasonable minds could differ as to example, testify "there were no shadows at all." The whether defect presents a substantial risk of injury].) court noted Burns's testimony that-based on his review
of the astronomical data-"shadows would have been (3) Thus, "a property owner is not liable for damages cast over the area of this alleged defect at the time that caused by a minor, trivial, or insignificant defect" on its the plaintiff indicated she was walking there," was "a fact property. (Cadam v. Somerset Gardens Townhouse I have to consider." HOA (2011) 200 Cal.App.4th 383, 388 [132 Cal. Rptr. 3d 617]) This principle, referred to as the "trivial defect After hearing counsel's arguments, the court took the doctrine" or the "trivial defect defense," is not an matter under submission. On September 15, 2020, the affirmative defense, but "an aspect of duty that a plaintiff court filed its written order granting the City's motion for must plead and prove." (Huckey, supra, 37 Cal.App.5th summary judgment, finding the City established the at p. 1104; Cadam, at p. 388.) That is so because a sidewalk offset was trivial as a matter of law, and Nunez property owner's duty of care "does not require the failed [***11] to present evidence raising a triable issue repair of minor or trivial defects." (Cadam, at p. 389; see of material fact. The court entered judgment in favor of also Ursino v. Big Boy Restaurants (1987) the City on October 30, 2020, and Nunez appealed. Cal.App.3d 394, 398 [237 Cal. Rptr. 413] ['persons who maintain walkways, whether public or private, are not
required to maintain them in an absolutely perfect
DISCUSSION condition"].)
1. Summary judgment and standard of review* [NOT (4) In the sidewalk-walkway context, "It]he decision CERTIFIED FOR PUBLICATION] whether the defect is dangerous as a matter of law does
2. The doctrine of trivial defect not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to
(2) Under the Government Claims Act (§ 810 et seq.) a determine whether the defect was trivial." (Caloroso v. public entity may be held liable for injuries caused by a Hathaway (2004) 122 Cal.App.4th 922, 927 [19 Cal. dangerous condition on public property. (§§ 830, 835.) A Rptr. 3d 254] (Caloroso); see also Huckey, supra, 37 condition is "dangerous" if it "creates a substantial Cal.App.5th at p. 1105 ["court should not rely solely (as [*757] distinguished from a minor, trivial or upon the size of the defect ... although the defect's size insignificant) risk of injury when such property or 'may be one of the [***13] most relevant factors' to the adjacent property is used with due care in a manner in court's decision"].) Rather, "[a] court should decide which it is reasonably foreseeable that it will be used." whether a defect may be dangerous only after (§ 830, subd. (a).) Although generally a question of fact, considering all of the circumstances surrounding the a property defect is not a dangerous condition as a accident that might make the defect more dangerous matter of law if the court determines, "viewing the than its size alone would suggest. [Citation.] Aside from evidence most favorably to the plaintiff, ... that the risk the size of the defect, the court should consider whether created by the condition was of such a minor, trivial or the walkway had any broken pieces or jagged edges insignificant nature in view of the surrounding and other conditions of the walkway surrounding the circumstances that no reasonable person would defect, such as whether there was debris, grease or conclude that the condition created a substantial water concealing the defect, as well as whether the [**467] risk of injury ... ." (§ 830.2; see Cal. Law accident occurred at night in an unlighted area or some Revision Com. com., 32 West's Ann. Gov. Code (2012 other condition obstructed a pedestrian's view of the ed.) foll. § 830.2, p. 28, Fielder v. City of Glendale defect." (Caloroso, at p. 927.) "[The [*758] plaintiff's (1977) 71 Cal.App.3d 719, 726-727 [139 Cal. Rptr. knowledge of the area, ... the weather at the time of the 876]; see also Huckey v. City of Temecula (2019) 37 accident, and whether the defect has caused any other accidents," are also factors courts have considered.
(Huckey, at p. 1105.)
*See footnote, ante, page 749,
81 Cal. App. 5th 749, *758; 297 Cal. Rptr. 3d 461, **467; 2022 Cal. App. LEXIS 660, ***13 (5) Thus, our analysis of whether the sidewalk defect Nunez nevertheless relies on Laurenzi V. Vranizan here is trivial as a matter of law involves two steps. First, (1945) 25 Cal.2d 806 [155 P.2d 633] for the proposition we review evidence of the "'type and size of the defect." that a public entity's determination that a sidewalk defect (Huckey, supra, 37 Cal.App.5th at p. 1105.) If that is hazardous and in need of repair precludes finding the analysis reveals a trivial defect, we then consider defect trivial as a matter of law. Laurenzi is ''evidence of any additional factors [bearing on whether distinguishable. There, the California Supreme Court the defect presented a substantial risk of [***14] injury]. found substantial evidence supported the jury's verdict If these additional factors do not indicate the defect was that the sidewalk defect in that case was a dangerous sufficiently dangerous to a reasonably careful person,' condition of which the City had constructive notice. (Id. then we will "deem the defect trivial as a matter of law." at pp. 810-812.) The plaintiff in Laurenzi fell when he (Ibid., quoting Stathoulis v. City of Montebello (2008) slipped, and his foot became wedged in a [***16] hole 164 Cal.App.4th 559, 567-568 [78 Cal. Rptr. 3d 910].) in the sidewalk. (Id. at pp. 807-808.) The hole was significantly larger than the offset here-up to two and a half inches deep, two inches wide at one end and up to
[**468] 3., 4." [NOT CERTIFIED FOR PUBLICATION] six inches wide at the other end, and a foot long. (Id. at p. 811.) Moreover, contrary to the conditions here, at the
5. The City's policy to repair sidewalk tripping hazards time the plaintiff in Laurenzi fell, it was dark and only greater than a half-inch does not create a triable issue one light lit the area; the sidewalk was wet with carrot as to the triviality of the offset
top debris scattered over it; and vegetable crates were stacked on either side of the hole. (Id. at p. 808) The Nunez also contends the City undertook a duty to repair sidewalk offsets greater than a half-inch, like this one, city inspector, who did not notice the hole during his which the City considered a tripping hazard. She argues inspection, testified that, if he had seen a condition like that because the City admitted the offset here met the the one described and photographed, he would have criteria for repair under the City's policy, it cannot be considered it hazardous and repaired it. (Id. at pp. 811- said that no reasonable person could find the offset 812.) Based on that evidence, the court concluded, "it cannot be said as a matter of law that the defect was
created a substantial risk of injury. It is undisputed that, had the City seen the offset on the sidewalk before such a minor defect to be insufficient to impose liability Nunez fell, it would have repaired it. The City in fact upon the city." (Id. at p. 812.) repaired the sidewalk in March 2018 after receiving The Laurenzi court did not hold, however, that the city's notice of Nunez's lawsuit.
admission that a particular defect may be dangerous
creates a triable issue of fact as to whether an otherwise (6) We cannot agree the City's policy that ***15]
sidewalk height differentials between a half-inch and trivial defect constitutes a dangerous condition. There, one and a half inches should be repaired-in part the evidence supported finding the defect was likely to because they are tripping hazards-renders the cause substantial (**469] injury: it was a large hole, nonalignment of the sidewalk slabs here a dangerous obstructed from view. In ***17] contrast to two inches, condition as contemplated by sections 830 and 830.2. the height differential here was at most three-quarters of "It is impossible to maintain heavily traveled surfaces in an inch. And, none of the aggravating factors present in perfect condition. Minor defects such Laurenzi were present here: Nunez fell in midmorning, [nonalignment] in [the City's sidewalk] inevitably occur, on a sunny day; the sidewalk was dry with no debris and the continued existence of such [nonalignments] covering the defect; and the defect was not obscured without warning or repair is not unreasonable." from view as Nunez approached it. (Caloroso, supra, 122 Cal.App.4th at p. 929.) Moreover, The height differential here posed some risk of injury:
in the absence of a constitutional requirement, only the despite her athleticism, Nunez suffered significant
Legislature can create public entity liability. (Cochran v. injuries when she tripped on it. And, the evidence, Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409 viewed in the light most favorable to Nunez, supports a [205 Cal. Rptr. 1] ["public entities may be liable only if a reasonable inference that height differentials greater statute declares them to be liable"].)
than a half-inch pose a tripping hazard to walkers. But, [*759] the City does not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping
hazard—only those defects that create a substantial risk of injury to a pedestrian using reasonable care. (See
*See footnote, ante, page 749.
81 Cal. App. 5th 749, *759; 297 Cal. Rptr. 3d 461, **469; 2022 Cal. App. LEXIS 660, ***17 Huckey, supra, 37 Cal.App.5th at pp. 1109-1110 [height
differential "posed some risk of injury" and evidence
supported inference that height differentials like the one at issue posed a tripping hazard, but "to constitute a
dangerous condition, the height differential, and the
area surrounding it, must have posed 'a substantial...
risk of injury'"].) Indeed, in the cases [***18] we have cited where the court concluded a defect was trivial as a matter of law, the [*760] complaining plaintiff was
injured. Accordingly, although the City may have
thought offsets of the size here posed a tripping hazard, the evidence does not support finding the defect posed
a substantial risk of injury.
The trial court did not err in finding the sidewalk offset was trivial as a matter of law and no aggravating factors reated a triable issue as to whether the offset created ubstantial risk of injury at the time Nunez fell 12
DISPOSITION
The judgment is affirmed. Respondent the City of
Redondo Beach is to recover its costs on appeal.
Lavin, Acting P. J., and Kim, J.," concurred.
End of Document
12 We thus need not address the City's contentions that the trial court should have sustained its objection to Nunez's declaration about shadows, and that, because Nunez did not amend her complaint to allege shadows, color differentiation, or her unfamiliarity with the area were aggravating factors in her fall, we should disregard her argument about those
factors. We also need not consider Nunez's contention that a material dispute exists as to whether the City had notice of the defect.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.