Motion for summary judgment or summary adjudication
2 Lopez v. City of Before the Court is a motion for summary judgment or summary Orange adjudication in the alternative filed by defendant Charter Communications (Defendant) on the complaint filed by plaintiff Refugio Lopez (Plaintiff). For the reasons set forth below the motion for summary judgment is GRANTED.
A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) In ruling on a motion for summary judgment, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
Plaintiff’s evidentiary objections are OVERRULED. Nos. 1-4, 10-12 do not identify any specific evidence, and is thus procedurally improper. (Cal. Rules of Court, rule 3.1354(b).) With regard to nos. 5-9, declarants have sufficient personal knowledge of the facts stated in their declaration and/or are not hearsay.
It is well-settled that a property owner is not liable for damages caused by a minor, trivial or insignificant defect on his property. (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388.) This principle is sometimes referred to as the “trivial defect defense,” although it is not an affirmative defense but an aspect of duty that a plaintiff must plead and prove. (Ibid.) Persons who maintain walkways – whether public or private – are not required to maintain them in absolutely perfect condition. (Ibid.) What constitutes a trivial defect may be a question of law where reasonable minds can reach but one conclusion. (Id. at 388-389;
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In determining whether a defect is trivial as a matter of law, the court considers the size of the depression as well as all of the facts surrounding the accident which may have rendered the defect more dangerous than it appears, including the “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. The court should also look at other factors such as whether the accident occurred at night in an unlighted area. Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27 [internal quotes and citations omitted]; see also Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)
Although size is just one of the relevant factors, generally, differentials ranging from three-quarters of an inch to one and one- half inches have been held trivial as a matter of law. (Huckey, 37 Cal.App.5th at 1107 [finding trivial, height differential ranging from
9/16 of an inch to one inch]; see also Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [citing cases where height differentials were one inch and under “were minor and trivial as a matter of law”].) But “when the size of the depression begins to stretch beyond one inch, the courts have been reluctant to find that the defect is not dangerous as a matter of law,” i.e., that it is not minor or trivial. (Fielder v. City of Glendale, supra, 71 Cal.App.3d at 726.) There is no firmly fixed “arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous.” (Beck v.
City of Palo Alto (1957) 150 Cal.App.2d 39, 43.) This is because a “court should not rely solely upon the size of the defect ... although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.” (Huckey, 37 Cal.App.5th at 1105, quoting (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.) “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, 71 Cal.App.3d at 734.)
Here, Defendant produced evidence the raised utility access panel cover on which Plaintiff tripped was lifted approximately 1 1⁄4 inches. (Defendant’s Separate Statement of Undisputed Material Fact (“DSS”) 5.) The photos taken by Plaintiff shortly after the accident show it was sunny at the time of the accident and do not show any visual obstructions, debris, or lighting coverage or obscuring the subject condition. (DSS 4.) Defendant also produced Plaintiff’s discovery responses, which do not identify any obstructions to her vision or debris or other objects covering the subject utility access panel cover. (DSS 3.)
Defendant also produced evidence it has never received any notice of any issues reported with the utility access panel cover prior to the incident. (DSS 12, 13.) Based on circumstances of the incident and the description of the alleged defect, Defendant met its initial burden that the defect is trivial as a matter of law, and the burden shifted to Plaintiff.
However, Plaintiff failed to produce sufficient evidence showing a triable issue of fact. Plaintiff concedes the incident occurred near 1611 E. Katella Avenue in Orange on April 14, 2024 in “the middle of the day,” with the weather “clear” with “mid-day sunlight.” (Lopez Decl. ¶¶ 3, 5.) In her declaration, Plaintiff asserts aggravating factors include metal-on-concrete transition, multiple adjacent covers, visible separation between cover frame and concrete, location at a busy commercial intersection and absence of warnings or markings. (Response to DSS 3; see also Lopez Decl. ¶¶ 4, 7.)
By contrast to Plaintiff’s new facts stated in her declaration, Plaintiff described the dangerous condition in her discovery responses as simply: “The opening of the electrical box was slightly raised” without any aggravating factors. (Defendant’s Appendix of Evidence, Ex. 3 - responses to interrogatory nos. 20-22.) A plaintiff may not create a triable issue contradicting prior discovery responses. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 592-593; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613
[“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment”].)
But even if the new facts in Plaintiff’s declaration do not contradict prior discovery responses, summary judgment based on an inspection of photographs of the alleged defect is proper only where the reviewing court concludes that reasonable minds cannot differ regarding the depiction of the alleged defect and the surrounding environs. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at 15.)
The photographs produced by Plaintiff show there are no broken pieces or jagged edges on or near the utility box, only that there is a height differential of 1 1⁄4 inches between the two lids covering the utility box. This is no different than a height differential of two slabs of concrete on a sidewalk. The fact there is a metal-on-concrete transition appears to be a distinction without a difference. Without no aggravating factors as can be seen in the photos, the alleged defect is trivial as a matter of law. (See e.g., Beck v.
City of Palo Alto (1957) 150 Cal.App.2d 39 [holding that defect in sidewalk caused by one slab of concrete being pushed higher than contiguous slab with a difference in elevation up to one- and seven-eighths- inch, without any aggravating factors, is trivial as a matter of law].) Plaintiff failed to meet her burden showing a triable issue of fact on the trivial defect defense. The motion for summary judgment is therefore GRANTED.
Counsel for Defendant shall give notice of this ruling. 3 Dotts v. O/C Hyundai Motor America 4 McCormick v. The unopposed motion to be relieved as counsel of record for Panacea defendant Panacea Aesthetics & Wellness, Inc. filed by Kerri N. Aesthetics & Kramer, Esq. of Kring & Associates, APC is GRANTED. Wellness, Inc. Moving counsel has complied with the procedural requirements of C.R.C. 3.1362. The court finds good cause to grant the relief requested on the merits. The motion is thus GRANTED.
The order granting relief is effective upon filing of a proof of service of the signed order on the client.
A corporation must be represented in court by an attorney. (Gutierrez v. G & M Oil Co., Inc. (2010) 184 Cal.App.4th 551, 564.) As such, in order to proceed with this matter, defendant Panacea Aesthetics & Wellness, Inc. is ordered to obtain new counsel within a reasonable time. (CLD Constr., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1150.)
An Order to Show Cause re: Retention of Counsel is scheduled for September 11, 2026, at 9:30 a.m..
Moving counsel shall give notice of this ruling.