Christopher Newman vs City of San Jose California et al

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). “[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519). If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468). Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 849-50).

Therefore, summary judgment or adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741). “A party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. ‘A motion for summary adjudication...shall proceed in all procedural respects as a motion for summary 10

judgment.’” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations omitted]). Code of Civil Procedure section 437c(t): “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t).

Pursuant to Code of Civil Procedure section 437c(p)(1), the plaintiff moving for summary judgment must satisfy the initial burden of proof by presenting proving each element of a cause of action. In reviewing the motion, courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99). Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Code Civ. Proc. § 437c(p)(1)). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166).

A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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)). To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854)(emphasis added).

It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891). The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id). The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855). “Once the 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.” (Code Civ.

Proc., § 437c, subd. (p)(2)). The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Id). “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467).

Code of Civil Procedure section 457c(c): “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119). “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v.

County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-82). If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544).

III. ANALYSIS Defendants Dudock and Freeman move for summary judgment by relying upon the “trivial defect” defense.2 This defense is explained in Ursino v. Big Boy Restaurants of America (1987) 192 Cal.App.3d 394, 398 (Ursino), where

2 In Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927, the court explained, “Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of 11

the court concluded, “persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition. The duty of care imposed on a property owner, even one with actual notice, does not require the repair of minor defects.” In Ursino, a 72-year old woman tripped on a raised edge of a section of defendant’s sidewalk and fell. The parties stipulated to a number of facts, one of which was that “the edge of the cement section in question was raised no higher than three-fourths of an inch.” (Ursino, supra, 192 Cal.App.3d at p. 396).

The trial court granted summary judgment in defendant’s favor on the basis that the affirmative defense of “trivial defect” applied as a matter of law. The appellate court affirmed. The appellate court first determined that the “trivial defect” defense, which historically applied in actions against public entities, also applied to nongovernmental defendants. Next, the Ursino court explained what a trial court should consider in determining whether the defect is, in fact, “trivial.”

When a court determines whether a given defect is trivial, as a matter of law, the court should not rely merely upon the size of the depression. 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. (Id. at p. 397; punctuation omitted).

Some of those other circumstances would include, “lighting, debris, or a history of other similar injuries.” (Id).

Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.(Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927).

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. [Citation.](Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567–568 (Stathoulis); emphasis added).3

In moving for summary judgment, defendants Dudock and Freeman proffer the following facts: According to Plaintiff, the incident occurred sometime after 12:00 – 12:15pm in the daytime, while Plaintiff was on his second loop running around the neighborhood.4 On the day of the incident, the weather conditions were sunny and clear.5

duty that plaintiff must plead and prove.” In either case, it is defendants Dudock and Freeman’s initial burden of either negating the element of duty or establishing the trivial defect defense. 3 The court declines to follow the Fifth Appellate District Court of Appeal’s decision in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 114 and 119 – 120 which departs from the two-step approach taken by the Second Appellate District Court of Appeal in Stathoulis and also “part ways with the Court of Appeal precedent weighing a particular plaintiff's familiarity with the defect as part of the dangerous condition analysis.” “[W]here there is more than one appellate court decision, and such appellate decisions are in conflict ..., the court exercising inferior jurisdiction can and must make a choice between the conflicting decisions.” (Auto Equity Sales, Inc. v.

Superior Court (1962) 57 Cal.2d 450, 456). 4 See Amended Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“Defendants’ UMF”), Fact No. 5. 5 See Defendants’ UMF, Fact No. 6. 12

Plaintiff had lived in the vicinity where the incident occurred since August of 2022.6 Prior to the incident, Plaintiff had walked and jogged on the sidewalk where the incident happened approximately four times before.7

On the day of the incident, Plaintiff was doing his circuit loop around the neighborhood and passed over the sidewalk area one time on his jog before the incident occurred.8 When Plaintiff passed over the sidewalk area during his first loop, he had no difficulty doing so, and crossed over the portion of the sidewalk without incident.9 Before the date of the incident, while running the loop in the neighborhood, Plaintiff never noticed any uplift in the sidewalk where the incident occurred.10 Before the date of the incident, Plaintiff never fell on the sidewalk area while doing his circuit loop where the accident happened.11

The green and purple bush referenced by Plaintiff in his deposition was not covering the sidewalk where the incident occurred.12 The measurements taken by Plaintiff of the sidewalk area reflect the uplift or a height differential in the sidewalk where Plaintiff fell were all under an inch, and most were 3/4 of an inch.13

In opposition, Plaintiff proffers his own testimony to dispute defendants’ assertion that the uplift or height differential of the defect where Plaintiff fell was at most 3/4 of an inch, but concedes the defect was under one inch.14 Under the two-step analysis identified in Stathoulis, above, the preliminary analysis reveals a trivial defect.

In further opposition, Plaintiff contends there are additional factors that contribute to the dangerousness of the defect. While Plaintiff acknowledges green and purple bushes were not covering the sidewalk precisely where the defect existed, Plaintiff nevertheless puts forth evidence and contends the bushes extended over approximately half the sidewalk and posed a visual obstruction of the defect.15 Additionally, Plaintiff proffers evidence that a City inspector identified three separate locations at defendant Dudock and Freeman’s property requiring grinding.16 Plaintiff contends such “back-to-back” defects are an aggravating factor when determining whether a defect is trivial. (See Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 123—“reasonable minds could still differ as to its dangerousness based on the evidence of . . . the presence of back-to-back defects.”)

Here, the court is presented with competing evidence of factors weighing in favor of (defect obscured by vegetation; back-to-back defects) and against (sunny and clear; Plaintiff’s familiarity of the area) a finding that the defect at issue was sufficiently dangerous to a reasonably careful person. Under these circumstances, the court declines to reach a conclusion that the alleged defect is trivial as a matter of law. As a separate basis for summary judgment, defendants Dudock and Freeman contend they owe no duty to Plaintiff because they did not create the alleged dangerous condition nor did they have knowledge of the alleged dangerous condition. “Recovery for negligence depends as a threshold matter on the existence of a legal duty of care.” (Brown

6 See Defendants’ UMF, Fact No. 7. 7 See Defendants’ UMF, Fact No. 7. 8 See Defendants’ UMF, Fact No. 8. 9 See Defendants’ UMF, Fact No. 9. 10 See Defendants’ UMF, Fact No. 10. 11 See Defendants’ UMF, Fact No. 11. 12 See Defendants’ UMF, Fact No. 14. 13 See Defendants’ UMF, Fact No. 15. 14 See Plaintiff’s Response to Defendants’ Amended Separate Statement of Undisputed Material Facts (“Plaintiff’s Response UMF”), Fact No.

15. The Request for Judicial Notice filed by defendants Dudock and Freeman in reply is DENIED as unnecessary. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant). 15 See Plaintiff’s Response UMF, Fact No.

14. See also Plaintiff’s Additional Material Facts (“Plaintiff’s AMF”), Fact No. 28. 16 See Exhibit 2 (Bate Stamp SJ0058) to Plaintiff’s Documentary Evidence in Support of Opposition to Defendants’ Motion for Summary Judgment. 13

v. USA Taekwondo (2021) 11 Cal.5th 204, 213). “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819). “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175). “Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court, not the jury.” (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 754). “The existence and scope of duty are legal questions for the court.” (Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 163.”

Defendants proffer the following facts to support their assertion that they did not owe a duty under these circumstances: Before the date of the alleged incident, defendants did not alter of modify the sidewalk where the alleged incident happened in order to benefit their property.17 Defendants did not at any time make any improvements to their property such as landscaping or placing underground sprinklers that could have affected the sidewalk where the alleged incident happened.18 Before the date of the alleged incident, Defendants had no knowledge of any reports, complaints, or notice of any injuries or trip and fall incidents related to the sidewalk where the incident happened because the height differential between the two concrete slabs were so minimal.19 Prior to the alleged incident, defendants had not observed any alleged dangerous condition or defect in the sidewalk area in front of the property prior to December 8, 2023 in the area where plaintiff allegedly fell.20

However, the court agrees with Plaintiff, in opposition, who contends a factual dispute lies with regard to whether defendants observed the defect in the sidewalk area in front of the property prior to December 8, 2023 in the area where plaintiff allegedly fell. Plaintiff points to defendant Dudock’s deposition testimony acknowledging his observation of defects (elevation differences) in the sidewalk when he purchased the property in 2008.21 The court disregards defendants’ attempt to limit their observation to “dangerous” conditions since that involves, as discussed above, a factual determination. In light of the factual dispute(s), the court cannot yet reach a conclusion with regard to whether defendants owed Plaintiff a duty.

IV. CONCLUSION Based on the foregoing, defendants Dudock and Freeman’s motion for summary judgment is DENIED.

The Court will prepare the formal Order.

Calendar Lines # 4 Case Name Christopher Love vs Ford Motor Company et al