Ariaga vs. City of Brea

A cause of action has no merit if either (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c(o).)

“A summary judgment may be granted only where it is shown that the entire ‘action’ ‘has no merit.’ [Citation.]” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 834.)

“ ‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’ [Citation.] ‘[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’ [Citation.]” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 143–144.)

There is a three-step analysis for the court to determine a summary judgment motion. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) “First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.” (Ibid.)

“[A] 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(c).)

The court first reviews the complaint because the pleadings define the issues addressed in a summary judgment motion. (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197, 213 disapproved of on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1101.)

Here, the first cause of action for premises liability alleges that on June 18, 2023, Plaintiff was injured while walking on the sidewalk at or near 274 W. Ash St. in the

City of Brea, California 92821 (the “Subject Sidewalk”), as Plaintiff “unexpectedly tripped on a raised portion of uneven surface of the sidewalk, amounting to a dangerous condition that [Brea] knew or should have known existed when providing ordinary care in maintaining or using the property, causing her to fall and land or her left hip, causing her to suffer substantial injuries, . . . .” (Brea’s Compendium of Evidence (“Brea’s COE”), Ex. 1, Declaration of Justin Spearman, Ex. 2, “Amended Complaint” (“Complaint”), at p. 4, Prem. L-1.)

The first cause of action for premises liability asserts “Count One—Negligence”, “Count Two—Willful Failure to Warn [Civil Code section 846], and “Count Three— Dangerous Condition of Public Property.” (Complaint, at p. 4, Prem. L-2, Prem. L-3, Prem. L-4.) The second cause of action for general negligence is based on the same allegations. (Complaint, at p. 5.)

In opposition, Plaintiff concedes that “Defendant correctly notes that public entity liability for premises defects is governed exclusively by Government Code § 835, precluding common law general negligence and claims under Civil Code § 846.” (Opposition, 6:24-27.)

Therefore, the only claim remaining is Plaintiff’s first cause of action for premises liability for dangerous condition of public property.

Government Code section 835 “. . . ‘expressly authorizes two different forms of dangerous conditions liability: an act or omission by a government actor that created the dangerous condition (§ 835, subd. (a)); or, alternatively, failure “to protect against” dangerous conditions of which the entity had notice (id., subd. (b)).’ [Citation.]” (Kabat v. Department of Transportation (2024) 107 Cal. App. 5th 651, 660.) “The phrase ‘protect against’ includes ‘warning of a dangerous condition.’ § 830, subd. (b).)” (Ibid.)

“To establish liability under section 835, a plaintiff must show: ‘(1) “that the property was in a dangerous condition at the time of the injury”; (2) “that the injury was proximately caused by the dangerous condition”; (3) “that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred”; and (4) either (a) that a public employee negligently or wrongfully “created the dangerous condition” or (b) that “[the] public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” ’ [Citation.]” (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653.)

“A ‘ “[d]angerous condition” means a condition of property that creates a substantial . . . risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.’ [Citation.] The plaintiff is required to establish only ‘that the condition . . . creates substantial risk of harm when used with due care by the public generally . . . .’ [Citation.]” (County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467.)

Trivial Defect “It is well-settled that landowners are ‘not liable for damages caused by a minor, trivial or insignificant defect in property.’ [Citation.] In the context of sidewalk defect cases, landowners ‘do[] not have a duty to protect pedestrians from every sidewalk defect that might pose a tripping hazard—only those defect that create a substantial risk of injury to a pedestrian using reasonable care.’ [Citations.]” (Miller v. Pacific Gas and Electric Company (2023) 97 Cal.App.5th 1161, 1166 (“Miller”).) The trivial defect doctrine is not an affirmative defense but an aspect of duty that a plaintiff must plead and prove, and it applies where liability is alleged against both governmental entities and private landowners. (Ibid.)

Government Code section 830.2 states: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)

A condition is “not dangerous” if “the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property . . . was used with due care . . .’ in a reasonably foreseeable manner. [Citation.]” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103- 1104 (“Huckey”).) The trial court may determine whether a given walkway defect was trivial as a matter of law in appropriate cases. (Huckey, supra, 37 Cal.App.5th at p.

1104.) Where reasonable minds can reach only one conclusion, that there was no substantial risk of injury, the issue is question of law. (Ibid.) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. [Citation.]” (Id. at pp. 1104-1105.)

“The court’s analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. ‘First, the court reviews the evidence regarding type and size of defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. 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 . . . .’ [Citation.]” (Huckey, supra, 37 Cal.App.5th at p. 1105.)

“California does not classify defects as trivial or substantial according to a tape measure test—the mere depth or height of the defect in comparison to the rest of the sidewalk. Instead, courts look to the totality of the circumstances which include: (1) the physical characteristics of the defect (i.e., size, jagged edges, broken pieces, exposed rebar), (2) the setting (lighting, weather, other factors affecting visibility), and (3) history (plaintiff’s familiarity with the area, any previous injuries attributable to the defect) . . . “ (Lechler v. City of San Francisco (1998) 65 Cal.App.4th 523.) To establish a dangerous condition, a plaintiff must allege and prove at least one physical characteristic of the property that is defective and foreseeably endangers users of the property. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148-151.)

“Whether a particular sidewalk defect is trivial and nonactionable may be resolved as a matter of law using a two-step analysis. [Citation.]” (Miller, supra, 97 Cal.App.5th at p. 1167.) “First, we review the evidence of the size and nature of the defect.” (Ibid.) “If that analysis supports a finding of a trivial defect based on its physical characteristics, we then consider whether the defect was likely to pose a significant risk of injury because there was evidence that the conditions of the walkway surrounding the defect or the circumstances of the accident ‘ma[de] the defect more dangerous than its size alone would suggest.’ ” (Ibid.) “If the evidence of additional factors does not indicate the defect was sufficiently dangerous to a reasonably careful person, we deem the defect trivial as matter of law.” (Ibid.)

The Court of Appeal in Miller (First District, Division 3) noted that one Court of Appeal in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102 (Fifth District) “recently rejected this two-step analysis and used ‘a holistic multi-factor framework for assessing triviality’ as a matter of law, holding that ‘the size of the defect is but one of the many circumstances to be considered; however, size remains the ‘most important’ of the dangerous condition factors.’” (Miller, supra 97 Cal.App.5th at p. 1167.)

The Fifth District in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102 acknowledged that Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107 held that “[s]idewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law” and that Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567 noted that “[s]everal decisions have found height differentials of up to one and one-half inches trivial as a matter of law.” (Stack v.

City of Lemoore (2023) 91 Cal.App.5th 102, 113.) The court in City of Lemoore stated, however, that “[t]his dictum in Huckey and Stathoulis exaggerates the generally accepted size range of defects deemed trivial” and “[t]he more accurate encapsulation is that ‘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 minor or trivial.” (Ibid.)

Under either analysis, the height of the uplift in the Subject Sidewalk was a trivial defect as a matter of law.

Here, it is undisputed that Plaintiff alleges that on June 18, 2023, at approximately 11:30 a.m., Plaintiff was walking on the Subject Sidewalk in Brea when she tripped and fell over a raised portion of the Subject Sidewalk; that the Subject Sidewalk is owned and maintained by Brea; and that Brea is a public entity. (Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts (“PSS”), Nos. 1-3.) Nor does Plaintiff dispute that there were no broken pieces or jagged pieces of sidewalk at or around the uplift of the Subject Sidewalk. (PSS, No. 5.)

Brea submits evidence to support the fact that that uplift in the Subject Sidewalk measured less than one inch in height. (PSS, No. 4, Brea’s COE, Ex. 3, Plaintiff’s Deposition, 42:8-43:9; Brea’s COE, Ex. 6, Declaration of Gerardo Mestas (“Mestas Decl.”), ¶¶ 2-5, Ex. 1.) More specifically, Brea provides evidence from Gerardo Mestas, a Public Works Supervisor for Brea who inspected the

Subject Sidewalk on June 20, 2023, after Brea received a claim regarding Plaintiff’s fall, who provides that the uplift of the Subject Sidewalk measures approximately ‰ of an inch to 3⁄4 of an inch, with the highest height of the uplift of the Subject Sidewalk being approximately 3⁄4 of an inch. (Brea’s COE, Ex. 6, Mestas Decl., ¶ 5.) Mestas also states that “[a]t no point was the uplift of the Subject Sidewalk an inch or more in raised elevation between the two adjoining slabs of sidewalk.” (Ibid.)

Plaintiff disputes this fact, asserting that the uplift measures approximately one and one-quarter inches. (PSS, No. 4.) However, the evidence cited does not support this assertion or a dispute as to Brea’s evidence concerning the height of the uplift. Plaintiff cites to the Declaration of Jennifer Carter, and photographs attached thereto. The Declaration of Jennifer Carter, Plaintiff’s “referring” counsel, does not state that the uplift measures approximately one and one-quarter inches. (See Plaintiff’s Compendium of Evidence (“Plaintiff’s COE”), Ex. 1, Declaration of Jennifer Carter.)

While Attorney Carter attaches photos taken on Attorney’s Carter’s visit of the scene of the incident on June 24, 2023, including photos where a tape measure was placed against the vertical displacement between the two concrete sidewalk slabs, these photos do not clearly establish that the uplift measures approximately one and one-quarter inches due to the angle of the photograph. (Id., ¶¶ 4-8, Exs. A and B.) Therefore, there is no evidence to support a dispute that the uplift in the Subject Sidewalk was one and one-quarter inches.

In turn, Brea’s asserted material fact that the uplift in the Subject Sidewalk measured less than one inch in height is undisputed.

Plaintiff’s argument that there were aggravating circumstances due to an adjacent tree that cast shadows on the Subject Sidewalk and obscured the uplift and/or made it more difficult to see the uplift, is not alleged in the Complaint. As a result, this issue is not properly before the Court and is not considered. On a motion for summary judgment, the pleadings define the issues. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, reversed on other grounds in Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490.) In the absence of some request for amendment, there is no occasion to inquire about possible issues not raised by the pleadings. (Ibid., internal citations and quotations omitted.)

“ ‘ “The burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint. A ‘moving

party need not “. . . refute liability on some theoretical possibility not included in the pleadings.” [Citation.]’ . . . ‘ “[A] motion for summary judgment must be directed to issues raised by the pleadings. The [papers] filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” ’ ” [Citation.]’ [Citation.]” (Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289, 304.) “Summary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]” (Bostrom v.

County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) Without a request for amendment, the court need not inquire about possible issues not raised by the pleadings. (Id. at p. 1664.) “Declarations in opposition to a motion for summary judgment ‘are no substitute for amended pleadings.’ [Citation.]” (Ibid.)

No request for amendment has been made, and the Court does not consider evidence as to the existence of aggravating factors, including the Declarations of Art Ariaga and Melissa Ariaga, and Declaration of Mark J. Burns, P.E., J.D. (Plaintiff’s COE, Exs. 2-4), as to shadows obscuring the alleged defect, for the purposes of evaluating the trivial defect doctrine.

In addressing the allegations in the Amended Complaint, the evidence before the Court demonstrates that the uplift in the Subject Sidewalk was no more than one inch.

Based on the foregoing, the Court GRANTS Brea’s motion for summary judgment.

Plaintiff also argues that Brea did not adhere to its own safety standards set forth in Municipal Code sections 12.08.010 and 12.20.080, and Standard Plan 103-0, but adherence to safety standards is not pertinent to determine whether the alleged defect is trivial.

Plaintiff additionally provides that on June 21, 2023, Brea dispatched a crew to the site to repair the subject defect, and the Brea’s internal Work Order (#28993) confirms that the crew ground down the defect and explicitly noted the repair was done to “MAKE AREA SAFE,” but a repair done after Plaintiff’s incident is not relevant to determine whether the subject defect was trivial before Plaintiff’s incident. “The fact that action was taken after an injury occurred to protect against a condition of public property is not evidence that the public property was in a dangerous condition at the time of the injury.” (Govt. Code § 830.5(b).)

In light of the Court’s ruling above, the Court declines to address Brea’s separate argument that Plaintiff cannot establish that Brea had actual or constructive notice of the alleged defect.

Brea to prepare and submit proposed judgment.

Brea to give notice.

108 Hernandez vs. Evergreen Royalle, 24-01417052 Defendants Evergreen Royalle, Ltd., and Jose Toro seek an order sustaining their demurrer to the 1st, 8th, 9th, 11th, and 13th causes of action of Plaintiff’s Complaint based on failure to state sufficient facts to constitute a cause of action.

Initially, a Request for Dismissal was filed on 5/18/2026 as to the 8th and 9th causes of action. As such, the demurrer to those causes of action is moot and will not be addressed.

MEET AND CONFER

These motions were originally on calendar for 6/4/2026. On that date, the motions were continued for counsel to engage in a good faith meet and confer as required by code. On 6/11/2026 Defense Counsel, Ross Spector filed a supplemental declaration indicating that Plaintiff’s counsel had not responded to his email addressing the Court’s order. (Supp. Decl. of Sepctor¶¶5,6.) Also, on 6/11/2026 the Clerk gave notice of its 6/4/2026 order.

As Plaintiff’s counsel is now in violation of this Court’s order, the Court would be justified to refer the matter to the State Bar but instead exercises its discretion and offers grace and declines to so refer Attorney Ilan N. Rosen Janfaza (State Bar No. 298078).

As to the Merits of the Motion(s), the Court rules as follows:

First Cause of Action for Battery

The elements of civil battery are: (1) Defendant intentionally performed an act that resulted in a harmful or offensive contact with the Plaintiff’s person; (2) Plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to Plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526–527.)

While it is true that “battery generally is not limited to direct body-to-body contact” and may be shown where one “throws a substance, such as water, upon the