MCKINLEY CONGER JOLLEY & GALARNEAU LLP vs LEMOS, ANNETTE RENE

defect in Stack was larger.) Here, the declaration of Bong Walsh asserts - with some degree of boilerplate - that the specific defects here combined to make for a hazard. Further, I lack full measurements of all defects and it is unclear whether this defect is trivial.

In some cases, triviality of the risk cannot be established as a matter of law because under the particular facts reasonable minds may differ about whether the risk was trivial. (Stathoulis v City of Montebello (2008) 164 Cal.App.4th 559, 569 (triable issue of fact if competing and conflicting evidence regarding size, nature, and quality of defect to surface presented danger to pedestrians exercising ordinary care).) In this case, it is not entirely clear what the net change between the crack defect and the raised asphalt creates.

Plaintiff's familiarity with the area is a factor to consider, although the Stack court entirely disregarded it under the theory that the issue was the danger to the general public. In this case, there had likely been thousands of safe traversals of the area by Plaintiff. The Court adopts the Stack court's views on Plaintiff's familiarity with the area for the purposes of this motion only.

Walsh's expert opinion on the dangerousness of the condition is not so unsupported from the facts that it is insufficient to find a reasonable basis for the conclusion. Defendant observes accurately that this Court can disregard expert declarations where they are unsupported, but here there are references to the subject defects and a rationale for the dangerousness of that defect.

Notice Richard Mendoza declared under penalty of perjury "A review of the City of Modesto's records reveals that the City had received no complaints about an offset or trip hazard on the sidewalk in front of [the address] at any time prior to August 9, 2024. Based on this review, I can confidently state that the City of Modesto had no notice of an obviously dangerous condition invoving the sidewalk where Plaintiff claims to have tripped and fallen prior to August 9, 2024."

At his deposition, his confidence had abated. He acknowledged that prior repairs had apparently been done by the City, and that was likely in response to a citizen call and a review of the sidewalk status. Whether the City had other notice or not is sufficiently disputed by the Robyn Mills declaration. Further, the Court must consider the countervailing declaration in the context of what appear to be inaccurate assertions