Nunez v. City of Redondo Beach ( 2022 )

Filed 7/27/22
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MONICA NUNEZ, B308741
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC695847
v.
CITY OF REDONDO BEACH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Thomas D. Long, Judge. Affirmed.
Mardirossian Akaragian, Garo Mardirossian, Armen
Akaragian and Adam Feit for Plaintiff and Appellant.
Michel & Associates, C.D. Michel, Joseph Di Monda
and Alexander A. Frank for Defendant and Respondent.
_________________________
* Under California Rules of Court, rules 8.1105 and 8.1110,
this opinion is certified for publication with the exception of
parts 1, 3, and 4 of the Discussion section.
Monica Nunez appeals from the judgment entered against
her after the trial court granted the City of Redondo Beach’s
(City) motion for summary judgment of her personal injury
lawsuit. Nunez suffered injuries after she tripped on an elevated
sidewalk slab within the City. The trial court dismissed her
lawsuit after concluding the defect in the sidewalk was trivial
as a matter of law, with no aggravating factors, and thus
nonactionable under Government Code section 830 et seq.1
We agree with the trial court and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The parties and underlying incident
Nunez is the Vice President of Finance and Accounting
at a restaurant chain, as well as a part-time fitness instructor
for a gym. On February 25, 2017, Nunez went for a group run
on Redondo Beach. At about 10:45 a.m., Nunez—wearing her
running shoes—walked back to her car on a public sidewalk
along the west side of South Catalina Avenue near or in front of
the residence at 1003 South Catalina Avenue, Redondo Beach.
As she was walking, her back foot hit a raised sidewalk slab
causing her to trip and fall forward to the ground. Nunez landed
on her left knee and right arm, fracturing her kneecap and
elbow.2 At the time of the incident, Nunez was in her early
forties. The City is the municipal entity responsible for the
sidewalk where Nunez tripped and fell.
1 Undesignated statutory references are to the Government
Code.
2 Nunez fractured her “radial head” and “coronoid process.”
The fractures required surgery.
2
On February 28, 2018, Nunez sued the City,3 alleging
causes of action for dangerous condition of public property
under section 835, negligence under section 815.2, and
failure to perform a mandatory duty under section 815.6.
2. The City’s motion for summary judgment
After answering the complaint, the City filed a motion
for summary judgment on the ground the raised sidewalk slab
was a trivial defect as a matter of law, and Nunez failed “to
testify to or adduce any evidence that aggravating circumstances
existed” to raise a triable issue as to the trivial nature of
the defect. In support of its motion, the City submitted the
declaration of Frank Contreras, the City’s Public Works Manager
– Streets/Sewer & Storm Drains, who oversees the maintenance
and repair of sidewalks in the City, including where Nunez fell. 4
After the City received notice about Nunez’s lawsuit,
Contreras visited the area where Nunez fell. He “quickly
noticed” one segment of the sidewalk appeared defective.
He measured “the displacement,” which he declared ranged
from zero “to 5/8ths of an inch, perhaps a millimeter more,”
and took a photograph. Contreras saw no other defects in
the sidewalk, “such as cracks, jagged edges, holes, loose concrete,
or anything other than the height displacement.” Based on
Contreras’s review of the City’s records, there had been no earlier
3 Nunez also sued the County of Los Angeles and
Vazmenka Milovic, who allegedly maintained the property
adjacent to the sidewalk. They are not parties to this appeal.
4 Contreras held that same position when Nunez tripped in
February 2017.
3
complaints, notices, or lawsuits involving the same sidewalk
defect.
The City also submitted Nunez’s deposition establishing
that when she fell it was sunny, not dark or gloomy, she had
nothing in her hands and was “normal walking, . . . looking
ahead,” and she did not see the sidewalk defect while she was
walking. Nunez also testified she exercised at the beach every
Saturday but had never walked through the area where she
tripped because she usually parked on a different street.
After Nunez fell and “a while of l[y]ing there,” she looked
to see what caused her to trip and fall and saw that the corner
of the sidewalk was raised. There was no liquid or sand on the
sidewalk. She remembered there was a tree near the defect but
did not recall seeing any branches or mulch or whether there
were a lot of leaves in the area. Nor did she recall seeing any
holes or chasms.
The City also submitted a black and white photograph,
produced by Nunez’s counsel during discovery, of the sidewalk
with a circle drawn around two adjacent slabs in the row of
slabs farthest from the street.5 Nunez confirmed the circle
encompassed the general area where she fell and that the
corner—where the north slab met the south slab—was raised.
3. Nunez’s evidence in opposition to the City’s motion
In opposition to the City’s motion, Nunez presented medical
records, declarations from two forensic engineers, photographs
of the incident scene, excerpts from the deposition of a City
employee and her own deposition, as well as her own declaration.
5 The sidewalk consisted of two rows of slabs—one adjacent
to the street and the other adjacent to property.
4
On March 30, 2017, Benjamin Molnar, a forensic engineer
at the safety and liability consulting firm Nunez’s counsel
retained, inspected the sidewalk where Nunez fell “under
substantially similar lighting conditions to that which
existed at the time of the incident.” He took photographs
and measurements of the sidewalk and attached photocopies
of the photographs to his declaration. Molnar did not declare
at what time of day he took the photographs, and there is no
time stamp on the copies he attached.
The photographs Molnar took show the sun is shining
and shadows—from a tree—are falling across the left side of
the sidewalk, where it is raised. Photographs of a ruler next to
different points along the offset measure the height differential
at just under three-quarters of an inch,6 about 9/16ths of an inch,
and about a half-inch. A shadow from the tree appears to cover
the three points measured.
Mark J. Burns—a senior forensic engineer at the same
firm and Nunez’s retained safety and liability expert—reviewed
the March 2017 photographs and measurements Molnar took.7
Burns also personally visited the site on February 14, 2020.
Based on the photographs Molnar took, which Burns grouped
and labeled as an exhibit to his declaration, Burns opined that
the sidewalk uplift that caused Nunez’s fall “presented an abrupt
height differential of approximately 11/16 inches.” Burns cited
human ambulation studies that have shown “the minimum toe
clearance of a pedestrian . . . during normal walking stride is
6 From our view, the ruler appears to measure the lift at
22/32nds of an inch high, or 11/16ths of an inch.
7 Molnar no longer worked at the firm.
5
approximately 0.50 to 0.60 inches.” He explained one study also
“relat[ed] an unseen one-inch . . . height differential to a trip
occurring on almost every stride. Therefore, any abrupt height
differential in excess of this magnitude has the substantial
possibility of causing a pedestrian to trip and fall or misstep
if the height differential is not conspicuous and readily
observable in advance.”
Burns opined the “subject height differential presents
a substantial risk of injury because it would have been difficult
to perceive at the time of the incident.” Burns noted (1) “the
subject height differential was high enough to cause a trip event,
but low enough that it would not be in plain sight”; (2) “there
was no color or texture differentiation between the concrete slabs
forming the height differential,” further concealing its existence;
and (3) astronomical data, in conjunction with the scene
photographs from March 2017, “indicates that shadows cast on
and around the subject defect from the adjacent tree(s), obscure
the hazard.” Burns thus concluded that “[s]ince there is a height
differential higher than the average minimum toe clearance of
pedestrians during normal ambulation, and an obscured hazard
that is not readily apparent, . . . the height differential and
surrounding area pose a substantial risk of injury for pedestrians
acting in a reasonable manner, and thus constituted a dangerous
condition of public property at the time [of the] incident.”
Michael Klein, the deputy director of Operations and
Public Works, testified as the City’s person most knowledgeable
on designated topics. The City’s Public Works Department is
responsible for sidewalk maintenance—including fixing uplifts or
side shifts in sidewalk concrete. A “ ‘lift’ ” or an “offset” is where
“one panel is lifting higher than the adjacent panel next to it.”
6
The City ground down sidewalk offsets as part of its
sidewalk maintenance and repair work. In December 2019,
however, it contracted with a company to grind sidewalk areas
the City identified as needing repair. That contract provides
the contractor will “eliminat[e] sidewalk tripping hazards by
grinding or saw cutting concrete sidewalk panel offsets between
the heights of 1/2 inch and 1-1/2 inches.” Klein confirmed the
City engineer set the criteria.
Before the incident, City employees inspecting sidewalks
were instructed to note, in essentially a repair log, any offsets
a “half inch or more.” Klein explained that repair standard
“could be” in part to eliminate a tripping hazard, but also because
the City “like[d] to have even sidewalks around here, whether
it’s a tripping hazard or not.” He did not know if the City ever
had inspected the subject sidewalk before Nunez fell. But, if
the three-quarter inch offset on the sidewalk where Nunez fell
had been seen or reported, Klein “would expect that someone
through [the City’s] work order system” would have fixed it.
Klein confirmed the City’s sidewalk maintenance grinding crew
had since ground down the offset on March 2, 2018, after
receiving notice about Nunez’s claim.
In a declaration signed February 25, 2020, Nunez attested
she “tripped on a defect on the left side of the sidewalk that
was obscured from my view, including as a result of shadows,
and fell.” She also declared that, when she fell, “I had occasion
to observe the area where I fell, including the light conditions,
shadows, and general condition of the area.” She attached
two photographs that she declared “fairly and accurately depict
the conditions observed at the location and time of my fall.”
7
The photographs appear to be copies of two of the photographs
Molnar took on March 30, 2017.
Nunez argued the offset constituted a dangerous condition
under the City’s policy that offsets half of an inch or greater were
tripping hazards needing repair, and aggravating circumstances
existed here—the existence of shadows, “with the continuity of
the walking surface color[,] shrouded the defect,” and Nunez was
unfamiliar with the area—that substantially increased the risk
that Nunez would fall.
4. The trial court’s ruling
In advance of the September 4, 2020 hearing on the City’s
motion, the court issued a tentative ruling granting the motion.
Both the City and Nunez had filed several evidentiary objections.
The court sustained the City’s objection to Burns’s declaration,
as an improper opinion, to the extent Burns opined that the
sidewalk defect posed “a substantial risk of injury for pedestrians
acting in a reasonable manner,” and that it constituted “a
dangerous condition.”8 The court found Burns’s other statements
were appropriate factual conclusions for it to consider. The
court also overruled the City’s lack of foundation objection
to Molnar’s declaration, and the photographs attached to it,
finding a proper foundation had been established.
The City also objected to Nunez’s declaration that the
sidewalk defect “was obscured from my view, including as a
result of shadows,” on the ground it contradicted her deposition
testimony and must be disregarded under D’Amico v. Board
of Medical Examiners (1974) 11 Cal.3d 1 and Villanueva v. City
8 Nunez does not challenge this, nor any, of the trial court’s
evidentiary rulings.
8
of Colton (2008) 160 Cal.App.4th 1188. The City argued Nunez
had never mentioned—in her deposition or written discovery
responses—that shadows obscured her view of the defect. In
overruling the City’s objection, the court explained the deposition
testimony the City cited did not directly contradict Nunez’s
declaration. She did not, for example, testify “there were
no shadows at all.” The Court noted Burns’s testimony that—
based on his review of the astronomical data—“shadows would
have been cast over the area of this alleged defect at the time
that the plaintiff indicated she was walking there,” was “a fact
I have to consider.”
After hearing counsel’s arguments, the court took the
matter under submission. On September 15, 2020, the court
filed its written order granting the City’s motion for summary
judgment, finding the City established the sidewalk offset was
trivial as a matter of law, and Nunez failed to present evidence
raising a triable issue of material fact. The court entered
judgment in favor of the City on October 30, 2020, and Nunez
appealed.
DISCUSSION
1. Summary judgment and standard of review
Summary judgment is proper if the papers submitted
show there is no triable issue as to any material fact and the
moving party is entitled to prevail on a cause of action as a
matter of law. (Code. Civ. Proc., § 437c, subd. (c); Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A
defendant moving for summary judgment has the initial burden
to show the plaintiff cannot establish one or more elements of
the challenged cause of action or there is a complete defense
to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
9
A defendant meets its burden by presenting affirmative evidence
that negates an essential element of the plaintiff’s claim, or by
submitting evidence that demonstrates “the plaintiff does not
possess, and cannot reasonably obtain, needed evidence” to prove
an essential element of the plaintiff’s claim. (Aguilar, at p. 855.)
If the defendant makes a sufficient showing, the burden
then shifts to the plaintiff to demonstrate a triable issue of
material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).)
A triable issue of fact exists if the evidence would allow a
reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion. (Aguilar, supra, 25 Cal.4th
at p. 850.)
On appeal from a summary judgment, we review the
record de novo and independently determine whether triable
issues of material fact exist. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000)
24 Cal.4th 317, 334.) We “view the evidence in a light favorable”
to the nonmoving party, “resolving any evidentiary doubts or
ambiguities” in that party’s favor. (Saelzler, at p. 768.) We
consider all evidence the parties submitted in connection with
the motion, except that which the court properly excluded.
(Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
2. The doctrine of trivial defect
Under the Government Claims Act (§ 810 et seq.) a public
entity may be held liable for injuries caused by a dangerous
condition on public property. (§§ 830, 835.) A condition is
“dangerous” if it “creates a substantial (as distinguished from
a minor, trivial or insignificant) risk of injury when such property
or adjacent property is used with due care in a manner in which
10
it is reasonably foreseeable that it will be used.” (§ 830, subd.
(a).) Although generally a question of fact, a property defect
is not a dangerous condition as a matter of law if the court
determines, “viewing the evidence most favorably to the plaintiff,
. . . 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 . . . .” (§ 830.2
& Law Revision Commission Comments; Fielder v. City of
Glendale (1977) 71 Cal.App.3d 719, 726–727 (Fielder); see also
Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104–
1105 (Huckey) [summary judgment proper where reasonable
minds could only conclude there was no substantial risk of injury,
but court may not find defect trivial as a matter of law where
evidence presented shows reasonable minds could differ as
to whether defect presents a substantial risk of injury].)
Thus, “a property owner is not liable for damages caused
by a minor, trivial, or insignificant defect” on its property.
(Cadam v. Somerset Gardens Townhouse HOA (2011) 200
Cal.App.4th 383, 388 (Cadam).) This principle, referred to
as the “trivial defect doctrine” or the “ ‘trivial defect defense,’ ”
is not an affirmative defense, but “an aspect of duty that a
plaintiff must plead and prove.” (Huckey, supra, 37 Cal.App.5th
at p. 1104; Cadam, at p. 388.) That is so because a property
owner’s duty of care “does not require the repair of minor or
trivial defects.” (Cadam, at p. 389; see also Ursino v. Big Boy
Restaurants (1987) 192 Cal.App.3d 394, 398 (Ursino) [“persons
who maintain walkways, whether public or private, are not
required to maintain them in an absolutely perfect condition”].)
11
In the sidewalk-walkway context, “[t]he decision whether
the defect is dangerous as a matter of law does not rest solely
on the size of the crack in the walkway, since a tape measure
alone cannot be used to determine whether the defect was
trivial.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927
(Caloroso); see also Huckey, supra, 37 Cal.App.5th at p. 1105
[“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”].) Rather, “[a] court should
decide whether a defect may be dangerous only after considering
all of the circumstances surrounding the accident that might
make the defect more dangerous than its size alone would
suggest. [Citation.] 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, at p. 927.) “[T]he
plaintiff’s knowledge of the area, . . . the weather at the time
of the accident, and whether the defect has caused any other
accidents,” are also factors courts have considered. (Huckey,
at p. 1105.)
Thus, our analysis of whether the sidewalk defect here is
trivial as a matter of law involves two steps. First, we review
evidence of the “ ‘type and size of the defect.’ ” (Huckey, supra,
37 Cal.App.5th at p. 1105.) If that analysis reveals a trivial
defect, we then consider “ ‘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
12
sufficiently dangerous to a reasonably careful person,’ ” then we
will “ ‘deem the defect trivial as a matter of law.’ ” (Id. at p. 1105,
quoting Stathoulis v. City of Montebello (2008) 164 Cal.App.4th
559, 567–568 (Stathoulis).)
3. The sidewalk defect was trivial as a matter of law
The evidence, viewed in the light most favorable to Nunez,
shows the height differential between the sidewalk slabs where
she tripped was—at its highest point—just under three-quarters
of an inch. Courts consistently have held that—in the absence
of aggravating factors—a sidewalk offset of this size (and higher)
is a trivial defect as a matter of law. (Huckey, supra, 37
Cal.App.5th at p. 1107 [noting “[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”]; Cadam, supra,
200 Cal.App.4th at pp. 385–386 [height differential between
three-fourths and seven-eighths of an inch trivial]; Ursino,
supra, 192 Cal.App.3d at pp. 396–397 [three-quarters of an inch
uplift trivial]; Fielder, supra, 71 Cal.App.3d at pp. 721, 733–734
[three-quarter inch depression a trivial defect]; Beck v. City
of Palo Alto (1957) 150 Cal.App.2d 39, 43–44 [no liability for
sidewalk elevation differential up to one and seven-eighths inch];
Whiting v. National City (1937) 9 Cal.2d 163, 165–166 (Whiting)
[three-quarter inch height differential “minor” defect].)
Accordingly, our “ ‘preliminary analysis’ ” of the evidence
“ ‘reveals a trivial defect.’ ” (Huckey, at p. 1105.)
We thus consider evidence of additional factors that
bear on whether the offset posed a substantial risk of injury
to pedestrians. (Huckey, supra, 37 Cal.App.5th at p. 1105.)
The City presented evidence demonstrating there were no
aggravating factors when Nunez fell that made the offset here
13
more dangerous than its size posed: it was a sunny, dry morning;
the offset between the two adjoining slabs had no jagged edges,
debris did not cover the defect, and the sidewalk was free of
cracks, holes, loose concrete, liquid, or other defects;9 and the City
had no record of any earlier complaints about accidents involving
the offset.
4. Nunez’s evidence did not demonstrate the offset
presented a substantial risk of injury under the
circumstances
Nunez contends she presented evidence from which a
jury could infer the offset was obscured from view, making it a
substantial risk of injury. She argues the evidence demonstrates
the offset—which, according to her expert, was “high enough to
cause a trip event, but low enough that it would not be in plain
sight”—was obscured from her view by shadows from a nearby
tree. That shading, Nunez argues, combined with the color
continuity between the two slabs, and her unfamiliarity with
the area, presented a triable issue of fact as to whether the
sidewalk offset posed a substantial risk of injury. Viewing the
sidewalk uplift in the context of the surrounding circumstances
(Kasparian v. AvalonBay Communities, Inc. (2007) 156
Cal.App.4th 11, 27–28 (Kasparian)), we cannot conclude a
trier of fact reasonably could conclude the three-quarter inch
offset constituted a dangerous condition.
First, we reject Nunez’s contention the color of the sidewalk
substantially increased the risk that a pedestrian would trip
9 The March 30, 2017 photographs Nunez submitted also
show the offset and sidewalk free of these sorts of potentially
aggravating factors.
14
on the offset. As the trial court noted, a sidewalk offset by its
nature occurs on a surface—sidewalk slabs—that lacks color
differentiation. If the color continuity between the sidewalk
slabs here could turn an otherwise trivial defect into a dangerous
condition, the doctrine—as the City asserts—would be
“practically inapplicable to public sidewalks.”
In contrast, in Kasparian, relied on by Nunez, the court
reversed summary judgment where an elderly tenant fell and
sustained severe injuries after she tripped over a drain recessed
in the ground, at a depth lower than the offset here, along a
brick paver walkway in her apartment complex. (Kasparian,
supra, 156 Cal.App.4th at pp. 14–15.) Although there was
no debris on the ground, nothing obstructed the plaintiff’s view
of the drain, and she fell on a sunny afternoon (id. at p. 17),
the appellate court concluded plaintiff’s expert’s testimony
presented a triable issue of fact as to the defect’s triviality. (Id.
at pp. 28–30.) The expert testified the hole for the drain grate
was uneven—with a height ranging from 1/32 inch to 5/16 inch—
and was not flush with the surrounding area brick pavers, while
all other drains in the immediate vicinity were flush with the
ground. (Id. at pp. 28–29.) The slope also was “ ‘dramatically
more severe than that found in customary drains.’ ” (Id. at p. 29.)
And, the drain was not distinguishable by color or texture from
the surrounding pavers. (Ibid.) The expert opined that, as a
result, the recessed drain, which a pedestrian would not expect,
could not be “ ‘easily detected even in daylight.’ ” (Ibid.)
Nunez, however, tripped on a sidewalk. As we discussed,
in contrast to a drain grate in brick pavers, sidewalk slabs are
not expected to have any color or texture differentiation between
them. Moreover, as the City notes, Nunez never attested the lack
15
of color differentiation between the two sidewalk slabs obscured
her view of the offset or otherwise contributed to her tripping.
She declared only that the sidewalk defect was obscured from her
view, “including as a result of shadows.” And, at her deposition,
Nunez testified only that she did not see the offset as she was
“normal walking, . . . looking ahead.”
Similarly, Nunez presented no evidence to demonstrate
how her lack of familiarity with the sidewalk rendered the
otherwise trivial defect in the sidewalk a dangerous condition.
In Stathoulis, supra, 164 Cal.App.4th at p. 567, on which Nunez
relies, the court mentioned courts should consider a “plaintiff’s
knowledge of the conditions in the area” when analyzing whether
circumstances surrounding the fall might have rendered a defect
more dangerous. The defect there, however, was unusual—
a cluster of three, “irregularly shaped and sizeable holes of
about an inch deep flanking one another in the street”—and
photographs supported the plaintiff’s contention that they
contained “loose material.” (Id. at p. 569.) Those are not the
facts here. And, as the trial court found, there is no evidence
of other aggravating factors that would make the offset here
dangerous when coupled with Nunez’s lack of familiarity with
that particular sidewalk.
Nunez also seems to argue the very fact she tripped and
fell despite her athleticism shows the sidewalk defect here
presented a substantial risk for injury. We do not agree. Any
defect in a sidewalk might cause someone to injure themselves.
(See Whiting, supra, 9 Cal.2d at p. 165 [“It is a matter of
common knowledge that it is impossible to maintain a sidewalk
in a perfect condition. Minor defects are bound to exist. A
municipality cannot be expected to maintain the surface of
16
its sidewalks free from all inequalities and from every possible
obstruction to travel.”].) The trivial defect doctrine exists for
that very reason: to “provid[e] a check valve for elimination from
the court system of unwarranted litigation which attempts to
impose upon a property owner what amounts to absolute liability
for injury to persons.” (Ursino, supra, 192 Cal.App.3d at p. 399.)
Finally, Nunez contends evidence that shadows obscured
her visibility of the offset precluded the court from finding the
defect trivial as a matter of law, despite its size. The court noted
Nunez mentioned the shadows for the first time at summary
judgment, but nevertheless considered her argument that they
constituted an aggravating factor raising a triable issue as to the
dangerous nature of the offset. In rejecting Nunez’s contention,
the trial court first noted the case law “contemplates aggravating
factors more serious than a shadow, standing alone, when finding
a defect is non-trivial as a matter of law.” We agree.
As the City argues, in circumstances where no other
aggravating factors exist, finding the existence of a shadow
on an otherwise trivial sidewalk defect creates a dangerous
condition effectively would make the City guarantee “the safety
of every square inch of its sidewalks.” As the City notes, as the
sun moves throughout the day, shadows on sidewalks caused by
natural sunlight are “ubiquitous” and ever changing. The law
does not require a public entity to repair all conditions that might
create a possibility of injury, however. (See Fredette v. City of
Long Beach (1986) 187 Cal.App.3d 122, 130, fn. 5 [condition
of property “ ‘should create a “substantial risk” of injury, for an
undue burden would be placed upon public entities if they were
responsible for the repair of all conditions creating any possibility
17
of injury however remote that possibility might be’ ” (quoting
4 Cal. Law Revision Com. Rep. (1963) p. 822)].)
Caloroso is instructive. As the City notes, the appellate
court there concluded “disputed issues about light and shadow
in the circumstances of [that] case [were] immaterial.” (Caloroso,
supra, 122 Cal.App.4th at p. 929.) Similar to Nunez, the plaintiff
there, on a sunny, dry, mid-morning day, tripped over a 7/16-
inch-high crack in a walkway—about a quarter-inch lower than
the offset here. (Id. at pp. 925, 929.) The plaintiff, like Nunez,
was looking straight ahead when she fell. (Id. at p. 925.) And,
as here, there was no evidence of previous falls caused by the
defect. (Ibid.) Much like Burns’s testimony, the plaintiff’s expert
testified the interplay between bright sunlight and shadows,
and the shadow from a tree that fell across the crack, making
the area dark, contributed to making the walkway a dangerous
condition. (Ibid.) Although the plaintiff waffled in her testimony
about whether the sun affected her vision, the court assumed
“that bright, dappled light blinded [the plaintiff’s] view of the
crack.” (Id. at p. 929.) Given the trivial nature of the crack,
the court concluded the evidence did “not support the conclusion
that reasonable minds could differ regarding whether the risk of
injury was trivial.” (Ibid.) Considering the similar circumstances
here, we cannot conclude a trier of fact reasonably could find the
existence of a shadow over the defect area created a dangerous
condition.
In any event, we have examined the photographs in the
appellate record of the sidewalk defect and surrounding area.
(Kasparian, supra, 156 Cal.App.4th at p. 15 [“reviewing court
takes a fresh look at the photographs relied upon by the trial
court and examines the photographs de novo”].) The photographs
18
of the sidewalk defect show a shadow falling over the highest
point of the offset on the far left (west) side where the slabs meet
and abut a cement walkway. The entire slab is not in shadows,
however. More than half of the slab is in the sunlight. The
offset extends past the shadowed area, into the sunlit area,
but at a lower height differential.10
In the photographs taken at a distance from the defect,
we cannot discern the height differential between the slabs where
they are shaded by the tree’s shadow. But, from that distance,
we cannot see the height differential, albeit a smaller one,
between the slabs where they are not shaded, either.
Accordingly, a fact finder could not reasonably conclude the
shadow decreased the visibility of the offset to render it more
dangerous. Moreover, in photographs taken from a distance
closer to the defect, the offset is visible despite being shaded by
the shadow. We thus agree with the trial court—the photographs
do not demonstrate the offset was obscured by shadows—and
conclude reasonable minds could not find the shadow made the
offset more dangerous than its size would suggest.11
5. The City’s policy to repair sidewalk tripping hazards
greater than a half-inch does not create a triable
issue as to the triviality of the offset
Nunez also contends the City undertook a duty to repair
sidewalk offsets greater than a half-inch, like this one, which
10 Based on the photographs, the offset measures a half-inch
just before the shadow ends.
11 It also is not clear how the shadow could have obscured
Nunez’s ability to see the offset given she was looking ahead,
not down at the sidewalk, before she tripped.
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the City considered a tripping hazard. She argues that because
the City admitted the offset here met the criteria for repair under
the City’s policy, it cannot be said that no reasonable person
could find the offset created a substantial risk of injury. It is
undisputed that, had the City seen the offset on the sidewalk
before Nunez fell, it would have repaired it. The City in fact
repaired the sidewalk in March 2018 after receiving notice of
Nunez’s lawsuit.
We cannot agree the City’s policy that sidewalk height
differentials between a half-inch and one-and-a-half inches
should be repaired—in part because they are tripping hazards—
renders the nonalignment of the sidewalk slabs here a dangerous
condition as contemplated by sections 830 and 830.2. “It is
impossible to maintain heavily traveled surfaces in perfect
condition. Minor defects such as the [nonalignment] in [the
City’s sidewalk] inevitably occur, and the continued existence
of such [nonalignments] without warning or repair is not
unreasonable.” (Caloroso, supra, 122 Cal.App.4th at p. 929.)
Moreover, in the absence of a constitutional requirement, only
the legislature can create public entity liability. (Cochran v.
Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409 [“public
entities may be liable only if a statute declares them to be
liable”].)
Nunez nevertheless relies on Laurenzi v. Vranizan (1945)
25 Cal.2d 806 (Laurenzi) for the proposition that a public entity’s
determination that a sidewalk defect is hazardous and in need
of repair precludes finding the defect trivial as a matter of law.
Laurenzi is distinguishable. There, the California Supreme
Court found substantial evidence supported the jury’s verdict
that the sidewalk defect in that case was a dangerous condition
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of which the City had constructive notice. (Id. at pp. 810–812.)
The plaintiff in Laurenzi fell when he slipped, and his foot
became wedged in a hole in the sidewalk. (Id. at pp. 807–808.)
The hole was significantly larger than the offset here—up to
two and a half inches deep, two inches wide at one end and up to
six inches wide at the other end, and a foot long. (Id. at p. 811.)
Moreover, contrary to the conditions here, at the time the
plaintiff in Laurenzi fell, it was dark and only one light lit
the area; the sidewalk was wet with carrot top debris scattered
over it; and vegetable crates were stacked on either side of
the hole. (Id. at p. 808.) The city inspector, who did not notice
the hole during his inspection, testified that, if he had seen a
condition like the one described and photographed, he would have
considered it hazardous and repaired it. (Id. at pp. 811–812.)
Based on that evidence, the court concluded, “it cannot be said
as a matter of law that the defect was such a minor defect to be
insufficient to impose liability upon the city.” (Id. at p. 812.)
The Laurenzi court did not hold, however, that the city’s
admission that a particular defect may be dangerous creates
a triable issue of fact as to whether an otherwise trivial defect
constitutes a dangerous condition. There, the evidence supported
finding the defect was likely to cause substantial injury: it was
a large hole, obstructed from view. In contrast to two inches,
the height differential here was at most three-quarters of an
inch. And, none of the aggravating factors present in Laurenzi
were present here: Nunez fell in mid-morning, on a sunny day;
the sidewalk was dry with no debris covering the defect; and
the defect was not obscured from view as Nunez approached it.
The height differential here posed some risk of injury;
despite her athleticism, Nunez suffered significant injuries when
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she tripped on it. And, the evidence, viewed in the light most
favorable to Nunez, supports a reasonable inference that height
differentials greater than a half-inch pose a tripping hazard
to walkers. But, the City does not have a duty to protect
pedestrians from every sidewalk defect that might pose a tripping
hazard—only those defects that create a substantial risk of injury
to a pedestrian using reasonable care. (See Huckey, supra, 37
Cal.App.5th at pp. 1109–110 [height differential “posed some
risk of injury” and evidence supported inference that height
differentials like the one at issue posed a tripping hazard, but
“to constitute a dangerous condition, the height differential, and
the area surrounding it, must have posed ‘a substantial . . . risk
of injury’ ”].) Indeed, in the cases we have cited where the court
concluded a defect was trivial as a matter of law, the complaining
plaintiff was injured. Accordingly, although the City may have
thought offsets of the size here posed a tripping hazard, the
evidence does not support finding the defect posed a substantial
risk of injury.
The trial court did not err in finding the sidewalk offset
was trivial as a matter of law and no aggravating factors created
a triable issue as to whether the offset created a substantial risk
of injury at the time Nunez fell.12
12 We thus need not address the City’s contentions that
the trial court should have sustained its objection to Nunez’s
declaration about shadows, and that, because Nunez did not
amend her complaint to allege shadows, color differentiation,
or her unfamiliarity with the area were aggravating factors in
her fall, we should disregard her argument about those factors.
We also need not consider Nunez’s contention that a material
dispute exists as to whether the City had notice of the defect.
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DISPOSITION
The judgment is affirmed. Respondent the City of Redondo
Beach is to recover its costs on appeal.
CERTIFIED FOR PARTIAL PUBLICATION
EGERTON, J.
We concur:
LAVIN, Acting P. J.
KIM, J.*
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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