BAUMAN VS. CITY OF LAGUNA NIGUEL

need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 356, fn. 3 [emphasis added].)

Here, the parties telephonically met and conferred on 2/27/26. (Wang Decl. iso Defendant’s Demurrer/Motion to Strike, ¶ 6; Cojocnean Decl. iso Plaintiff’s Opposition, ¶ 8.) After the call, Defendant sent a confirming email stating, “This email confirms that Plaintiff will amend the Complaint.” (Wang Decl., Ex. C, p. 3.) On 3/17/26, when Defendant followed up with a draft stipulation to amend, Plaintiff responded, that he was “willing to amend the complaint in exchange for ISOC’s waiver of their right to file a motion to strike or demurrer.

To facilitate that process, we can draft a proposed amended complaint” and that if ISOC was unwilling “to proceed in that manner,” it should file its responsive pleading. (Wang Decl., ¶ 7, Ex. C; Cojocnean Decl. ¶ 9, Ex. E.) Defendant refused and noted “there was no discussion of any waiver during the 2/27/26 call.” (Wang Decl., ¶ 8, Ex. C; see Cojocnean Decl. ¶ 9, Ex. E.)

Plaintiff’s agreement to amend concedes the complaint is deficient, at least in part. Yet Plaintiff refused to amend unless Defendant waived its right to file a demurrer or motion to strike the amended pleading. Thus, the court finds Plaintiff’s conduct lacked good faith and further meet and confer efforts would be productive.

The parties/counsel are ORDERED to engage in additional attempts to meet and confer in person, by telephone, or by video conference regarding the issues raised in the demurrer and motion to strike. Counsel shall discuss whether a first amended complaint would resolve some or all of the issues raised in the demurrer and motion to strike. If so, the parties should submit a stipulation to file an amended complaint. Plaintiff may not condition amendment on Defendant’s waiver of its right to file a demurrer or motion to strike the amended complaint.

No later than five court days before the continued hearing date, defendant’s counsel is ORDERED to file a supplemental declaration describing compliance with this order, including whether any issues were settled by the code compliant meet and confer efforts.

Failure to comply with this order may result in sanctions against the non-compliant party and/or their counsel pursuant to Code of Civil Procedure section 177.5.

12. BAUMAN VS. CITY OF LAGUNA NIGUEL 2024-01401532 MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

Defendant City of Laguna Niguel’s Motion for Summary Judgment/Adjudication is DENIED.

Defendant’s request for judicial notice (ROA 145) of federal government weather and astronomical records is granted. Plaintiff’s request for judicial notice (ROA 195) of Laguna Niguel Code provisions, City Council meeting minutes and City resolution is granted.

Plaintiff’s objections to evidence (ROA 210) are overruled. Defendant’s objections (ROA 197) are overruled.

Legal Standard:

“[T]he 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. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. (See Evid.Code, § 500.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, footnote omitted.)

Government Code section 835 sets out the elements of dangerous condition of public property:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

However, Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 states,

“[A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. (Whiting v. City of National City (1937) 9 Cal.2d 163, 69 P.2d 990.) Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. The ‘trivial defect defense’ is

available to private, nongovernmental landowners. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398–399, 237 Cal.Rptr. 413.) As the Ursino court stated, ‘persons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.’[¶] 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.”

“[T]he duty of care imposed on a property owner, even one with actual notice of a defect, does not require the repair of minor or trivial defects.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389.) “In summary, 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.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.)

Summary of Allegations and Evidence:

Defendant moves for summary judgment as to Plaintiff’s first cause of action for dangerous condition of public property on the grounds that (1) the alleged defect was trivial as a matter of law and (2) Plaintiff cannot establish the City created or had actual/constructive notice of the alleged condition. (Notice, p. 2.)

In the First Amended Complaint (FAC) Plaintiff alleges she was walking eastbound on the sidewalk adjacent to 30318-30322 Benecia Avenue in Laguna Niguel on 6/13/23 when she “tripped over a raised, uneven, unlevel, and displaced portion of the sidewalk, causing her to fall to the ground and sustain severe injuries and damages, including, without limitation, a broken shoulder and broken/dislocated wrist.” (FAC, ¶ 22.) She alleges Defendant City “negligently created the dangerous, unsafe, and defective condition of the sidewalk and/or failed to maintain, repair, inspect, and/or warn against it. Defendants had notice of the dangerous, unsafe, and defective condition of the sidewalk for a long enough time to have protected against it and failed to do so.” (¶ 27.)

Defendant owned and controlled the subject sidewalk. (Plaintiff’s Additional Fact [PAF] 5.)

Plaintiff, 74 years old at the time of the accident, had lived less than 1⁄4 mile from the subject location since 1974. (Defendant’s Undisputed Material Fact [UMF] No. 4; PAF 1.) While on an

evening walk with her husband and son, Plaintiff’s left foot caught the uneven sidewalk on the left side of the walkway, causing her to fall on the right side of her body. (PAFs 1, 2.)

The incident occurred around 7:45 p.m. on 6/13/23, before sunset at 8:02 p.m. (UMFs 12, 13.) There was no precipitation that day and the sidewalk was not wet or slippery at the time. (UMFs 9, 15.)

The City has no prior reports of trip and fall incidents at the location and the subject sidewalk had not been identified as requiring repair as part of the City’s sidewalk inspection/maintenance program prior to the accident. (UMFs 17-20.) The City remediated the subject sidewalk after the incident on 7/7/23. (PAF 8.)

Plaintiff’s son measured and took photos of the subject sidewalk with an inch ruler the day after the incident, 6/14/23. (UMF 1; PAF 6; Defendant’s Exs. 3-9.) Based on his review of those photos, the City’s expert Mr. Rosenthal opined the offset between the two sidewalk panels was approximately ‰ inch near the right sidewalk edge and 5/8 inch near the left middle sidewalk edge but did not exceed 7/8 inch on the left side. (UMFs 2, 3; Rosenthal Decl., ¶¶ 9, 11.)

However, Plaintiff’s expert Mr. Rosescu opines that, based on analysis of the June 2023 photos and his own measurements taken in August 2026, the offset was “25/32 inch and 23/32 inch at six inches and one foot from the parkway edge, respectively...” based on his own measurements and “approximately 13/16 inch” based on the analysis of the June 2023 photos. (PAF 9; Rosescu Decl., ¶¶ 7, 12 and Plaintiff’s Ex. Q.) In summary, Plaintiff’s expert opines that in the location where Plaintiff tripped, the offset was slightly over 3⁄4 inch.

City’s Creation or Actual/Constructive Notice of the Defect:

Defendant asserts Plaintiff cannot show the City created the dangerous condition, i.e. the offset, and there is no evidence of prior incidents or inspections placing the City on notice of the condition.

Plaintiff contends that the concrete slabs shown in the June 2023 photos are of different colors/textures, showing the City had performed work at the site and should have been aware of the offset. (See Defendant’s Ex. 9.) The lower slab is significantly lighter in color and appears to have been ground or sanded down compared to the higher slab. In response to Plaintiff’s discovery, the City has not identified a third party or contractor who performed such work. (PAF 23.)

At this stage, the visual evidence of relatively recent work having been performed on the concrete slabs which created the offset is

sufficient to raise a triable issue of fact regarding whether the City created the offset by work the City or one of its agents performed on the sidewalk, which was undisputedly owned and maintained by the City.

Trivial Defect:

Plaintiff and Defendant’s experts opine that the vertical offset height was between 10/16 and 13/16 of an inch, very close to 3⁄4 inch, at the location where Plaintiff’s foot likely caught the edge.

“California Courts of Appeal typically follow a two-step analysis for determining whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law. 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.” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110–111 [cleaned up].)

“Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107.) However, “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.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.)

In Cadam v. Somerset Gardens Townhouse HOA, supra, 200 Cal.App.4th at 389-390, the plaintiff tripped on an approximately 3⁄4 inch separation in the walkway, which was well-lit at the time of the accident. The appellate court found this condition to be a trivial defect due to its size, lack of obstruction or history of falls, and the plaintiff’s failure to see it because she was not looking. In Caloroso v. Hathaway, supra, 122 Cal.App.4th at 927-929, the plaintiff tripped over an approximately ‰ inch crack in the walkway, and the Court of Appeal upheld the grant of summary judgment as a trivial defect. In Ursino v. Big Boy Restaurants, supra, 192 Cal.App.3d at 397-399, a 3⁄4 inch raised portion of sidewalk was deemed trivial in light of the absence of prior falls.

The Court may consider factors other than height in determining whether a defect is trivial, including the lighting, visibility, and obvious nature of the defect which would allow a reasonable pedestrian to avoid injury by using due care. (Stack v. City of Lemoore, supra, 91 Cal.App.5th at 110–111; Caloroso v. Hathaway, supra, 122 Cal.App.4th at 927.)

Here, the Court cannot say as a matter of law that the offset was trivial. Although California courts have upheld a finding of trivial defect for similar-sized offsets of approximately 3⁄4 inch, the offset was not a consistent height across the separation and a jury could reach different conclusions regarding its height depending where it believes Plaintiff tripped, with the left side of the offset reaching nearly one inch according to Plaintiff’s expert and 7/8 inch according to Defendant’s expert.

Moreover, Plaintiff has presented evidence that the lighting was low due to approaching sunset and a nearby hill, and that the offset was unlikely to be seen by pedestrians under the totality of circumstances. Therefore, Plaintiff has adequately demonstrated a triable issue regarding whether the defect was trivial for purposes of this motion.

13. SOLIMAN VS. LAWYERS TITLE COMPANY 2025-01454308 MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION

Defendant Lawyers Title Company’s motion for summary judgment as to plaintiff Salaheldin S. Soliman’s First Amended Complaint (“FAC”) is GRANTED.

Plaintiff’s Evidentiary Objections to the Declaration of Phillip Rodriguez are OVERRULED.

Defendant’s Evidentiary Objections to Plaintiff’s Evidence is OVERULED.

The FAC alleges a single cause of action for Promissory Estoppel against Defendant.

“The elements of a promissory estoppel claim are ‘(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.’ [Citation.]” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.)

Defendant moves for judgment on the grounds Defendant did not make a clear and unambiguous promise.

“ ‘ “[A] promise is an indispensable element of the doctrine of promissory estoppel. The cases are uniform in holding that this doctrine cannot be invoked and must be held inapplicable in the absence of a showing that a promise had been made upon which the complaining party relied to his prejudice ....” [Citation.] The promise must ... be “clear and unambiguous in its terms.” [Citation.] “Estoppel cannot be established from ... preliminary discussions and negotiations.” ’ ” (Granadino, supra, 236 Cal.App.4th at p. 417.)