Burton v. City of La Verne CA2/4 ( 2022 )

Filed 9/7/22 Burton v. City of La Verne CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
IRENE BURTON, B312336
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV27788)
v.
CITY OF LA VERNE et al.,
Defendants and
Respondents.
APPEAL from judgments of the Superior Court of Los
Angeles County, Michael E. Whitaker, Judge. Affirmed.
Belgum, Fry & Van Allen and Alan A. Carrico; the
Arkin Law Firm and Sharon J. Arkin for Plaintiff and
Appellant Irene Burton.
Collins + Collins, Michael L. Wroniak, and Jacob M.
Ramirez; Pollak, Vida & Barer, Daniel P. Barer, and Hamed
Amiri Ghaemmaghami for Defendant and Respondent City
of La Verne.
Mark R. Weiner & Associates, Michael Park, and
Kathryn Albarian for Defendant and Respondent Constance
Shoemaker.
______________________________________
INTRODUCTION
While taking a walk in the City of La Verne (the City),
appellant Irene Burton tripped on a raised sidewalk slab.
She then sued respondents, the City and adjacent-property
owner Constance Shoemaker. The trial court ultimately
granted summary judgment for respondents, concluding as a
matter of law that the height differential -- about 1-5/16
inches at its highest -- constituted a trivial defect that could
not give rise to liability.
Burton challenges this ruling on appeal, arguing that
both the size of the defect and other aggravating factors
created a triable issue as to whether the defect was trivial.
We conclude that the defect was trivial as a matter of law
based on its nature and size, and that no aggravating factor
rendered it dangerous. We therefore affirm.
BACKGROUND
A. Burton’s Accident and the Complaint
On the morning of October 25, 2018, Burton and her
husband were walking east near 1042 Mildred Street in the
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City of La Verne, when she tripped over a raised sidewalk
panel. In August 2019, Burton filed this action against the
City and others, and subsequently added Shoemaker as a
defendant.1 She alleged that the raised slab constituted a
dangerous condition of public property under Government
Code sections 830 and 835, and that a tree on Shoemaker’s
property had created that sidewalk defect.
B. The Motion for Summary Judgment
In 2020, following discovery, the City moved for
summary judgment, arguing that the raised sidewalk slab
constituted a trivial defect as a matter of law.2 Shoemaker
joined the City’s motion. In support of summary judgment,
the City presented a declaration by two city employees,
Dustin Whitebear and Debra Fritz. Whitebear, a
maintenance worker for the City, stated that he was
dispatched to measure and grind down sidewalk deviations
in the area of Burton’s fall after the incident. According to
him, the largest height differential near 1042 Mildred Street
measured no more than one inch at its highest point. Fritz,
a deputy city clerk, stated that she had searched the city’s
records for claims, complaints, or incident reports within the
1 The other defendants are not pertinent to this appeal.
2 As discussed further below, under the trivial defect
doctrine, property owners are not liable for damages caused by
minor, trivial, or insignificant defects. (Caloroso v. Hathaway
(2004) 122 Cal.App.4th 922, 927 (Caloroso).)
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preceding 10 years, but found no other reported incidents
near the location of Burton’s fall.
The City additionally provided excerpts of Burton’s
deposition testimony, as well as Burton’s responses to
requests for admissions. At her deposition, Burton testified
that the day of the incident was clear and sunny. According
to her, she was walking on the right side of the sidewalk,
when her right foot caught on the raised slab, causing her to
fall. When asked if she recalled where she was looking
immediately before her fall, she replied she did not, but
stated, “I am very conscious of where I am stepping, and so I
was probably looking ahead and just missed that lift.”
Burton denied seeing any debris on the ground, but testified
that the raised slab looked like it was “newer” than the
adjacent one, and confirmed that one was darker than the
other. In response to questioning regarding her familiarity
with Mildred Street, she stated she did not think it was the
first time she had walked there, but that she was not as
familiar with the street as with others in the neighborhood.
In her responses to requests for admissions, Burton
admitted that the raised sidewalk slab had no jagged edges,
and that “at the time of the INCIDENT, there was nothing
in front of [her] obstructing [her] view of the raised sidewalk
panel.”
C. Burton’s Opposition
Opposing the motion for summary judgment, Burton
contended that the defect was larger than the City claimed,
4
and argued it was not trivial because it posed a substantial
risk of causing a pedestrian to trip and fall, and because it
was not readily observable. In support, Burton provided
photos taken by police shortly after her fall, including the
following photo, depicting the raised sidewalk slab and the
adjacent slab:
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Burton additionally presented an April 2019 internal
City memo noting that in 2016, a city-wide sidewalk
inspection identified two locations needing repairs at the site
of Burton’s fall. Those locations were added to the City’s
“grind list of sidewalk repairs,” but were not actually
repaired until late October 2018, after Burton’s fall.
Finally, Burton provided the declaration of Mark
Burns, a forensic engineering expert. Based on
measurements he conducted after the City had ground down
the raised slab, Burns opined that the height differential at
the site of Burton’s fall was about 1-5/16 inches at its
highest. Citing human ambulation studies, Burns opined
that “any abrupt height differential in excess of [one inch]
. . . has the substantial possibility of causing a pedestrian to
trip and fall or misstep if [it] is not conspicuous and readily
observable in advance.” According to Burns, “[f]rom a
human factors standpoint, the subject height differential
was high enough to cause a trip or misstep event, but low
enough that it would not be readily apparent.” Burns
proceeded to identify three factors that in his opinion,
rendered the height differential more difficult to detect. He
asserted: (1) “there was no color or texture differentiation
between the concrete slabs forming the height differential,
which would tend to conceal [its] existence”; (2) based on the
photo of the defect taken by police, a shadow covered the
height differential at the time of Burton’s fall; and (3) the
raised slab was sloped so that “the differential at the curb
was basically non-existent/flush with the curb,” and “a
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reasonable pedestrian viewing the sidewalk ahead could be
misled by the fact that the sidewalk was level on the left
side, lured into not seeing there was a differential on the
right side.”
D. The Trial Court’s Ruling
In February 2021, the trial court granted summary
judgment for respondents, holding that the raised sidewalk
slab constituted a trivial defect as a matter of law.
Assessing the size of the defect, the court found that even
under Burns’s calculation -- placing the height differential at
about 1-5/16 inches -- the defect was trivial. The court
further found no aggravating factor that might have
rendered the defect non-trivial.
E. The Judgments and Burton’s Notice of Appeal
The court entered separate judgments for Shoemaker
and the City, on March 9 and March 12, 2021, respectively.3
Burton filed a notice of appeal, stating that she was
appealing “from the Judgment entered on March 12, 2021 in
favor of Defendant[] City of La Verne and Defendant
Constance Louise Shoemaker, after an order granting
3 Although the trial court had already entered judgment for
Shoemaker, its March 12 judgment for the City stated that
judgment was then being entered for both the City and
Shoemaker.
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summary judgment.” The notice of appeal was served on
both the City and Shoemaker.
DISCUSSION
A. Burton’s Notice of Appeal Indicated Her Intent to
Challenge the Judgment for Shoemaker
Shoemaker contends the judgment against her is
unreviewable in this appeal because Burton’s notice of
appeal designated only the judgment against the City. We
disagree. “‘[I]t is, and has been, the law of this state that
notices of appeal are to be liberally construed so as to protect
the right of appeal if it is reasonably clear what [the]
appellant was trying to appeal from, and where the
respondent could not possibly have been misled or
prejudiced.’” (In re Joshua S. (2007) 41 Cal.4th 261, 272.)
Burton’s notice of appeal was served on both the City and
Shoemaker and stated that she appealed “from the
Judgment entered on March 12, 2021 in favor of Defendant[]
City of La Verne and Defendant Constance Louise
Shoemaker, after an order granting summary judgment.”
(Italics added.) Although the court entered separate
judgments for the City and Shoemaker, and the judgment for
the latter was, in fact, entered on March 9, rather than
March 12, the notice of appeal clearly reflected Burton’s
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intent to appeal the judgment for Shoemaker.4 Shoemaker
could not have been misled or prejudiced by the notice of
appeal’s reference to a single judgment. Accordingly, the
judgment in her favor is properly before us.5
B. The Trial Court Properly Granted Summary Judgment
for Respondents
1. Governing Principles
a. Summary Judgment
“A party is entitled to summary judgment only if there
is no triable issue of material fact and the party is entitled to
judgment as a matter of law. [Citation.] A defendant
moving for summary judgment must show that one or more
elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. [Citation.]
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of
material fact. [Citation.] A triable issue of fact exists if the
evidence would allow a reasonable trier of fact to find the
4 Burton’s erroneous treatment of the March 12 judgment as
the operative judgment for Shoemaker was understandable,
given that judgment’s incorrect statement that it was being
entered for both the City and Shoemaker.
5 Shoemaker complains about other procedural omissions by
Burton following the filing of the notice of appeal, but presents no
argument in that respect. She has therefore forfeited any
contention related to those omissions. (See Sviridov v. City of San
Diego (2017) 14 Cal.App.5th 514, 521 [failure to present reasoned
argument constitutes forfeiture].)
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fact in favor of the party opposing summary judgment.
[Citation.] [¶] We review the trial court’s ruling on a
summary judgment motion de novo, liberally construe the
evidence in favor of the party opposing the motion, and
resolve all doubts concerning the evidence in favor of the
opponent.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234
Cal.App.4th 631, 636-637.)
b. Trivial Defect Doctrine
“The elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of
that duty, and proximate cause resulting in injury.
[Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1158.) However, “persons who maintain walkways,
whether public or private, are not required to maintain them
in 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
Rests. (1987) 192 Cal.App.3d 394, 398.)
Thus, “[i]t is well established that a property owner is
not liable for damages caused by a minor, trivial or
insignificant defect in property. [Citation.] 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 [the] plaintiff must plead and prove.”
(Caloroso, supra, 122 Cal.App.4th at 927.)
The trivial defect defense also applies to claims under
the Government Claims Act (Gov. Code, § 810 et seq.).
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Under this statute, a governmental entity may be liable for
injuries caused by a dangerous condition on its property.
(Gov. Code §§ 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 . . . is used
with due care in a manner in which it is reasonably
foreseeable that it will be used.” ([Gov. Code,] § 830, subd.
(a).) Conversely, a condition is “not dangerous,” if “the trial
court 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. ([Gov. Code,] § 830.2.)’”
(Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092,
1104, 1103 (Huckey).)
“In appropriate cases, the trial court may determine,
and the appellate court may determine de novo, whether a
given walkway defect was trivial as a matter of law.
[Citations.] ‘Where reasonable minds can reach only one
conclusion—that there was no substantial risk of injury—the
issue is a question of law, properly resolved by way of
summary judgment.’ [Citation.] 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
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conclude that the defect is trivial as a matter of law.”
(Huckey, supra, 37 Cal.App.5th at 1104-1105.) The court
must independently evaluate the circumstances in
determining whether the defect was trivial, regardless of any
expert opinion stating that it posed a serious a significant
risk. (See Caloroso, supra, 122 Cal.App.4th at 928, citing
Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705
(Davis) [“regardless of whether a witness can be found to
opine on the subject of a dangerous condition, the court must
independently evaluate the circumstances”].)
“In determining whether a given walkway defect is
trivial as a matter of law, the 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. [Citation.] The court should consider other
circumstances which might have rendered the defect a
dangerous condition at the time of the accident. [Citation.]
[¶] These other circumstances or factors include whether
there were any broken pieces or jagged edges in the area of
the defect, whether any dirt, debris or other material
obscured a pedestrian’s view of the defect, the plaintiff’s
knowledge of the area, whether the accident occurred at
night or in an unlighted area, the weather at the time of the
accident, and whether the defect has caused any other
accidents. [Citations.] In sum, ‘[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
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suggest.’” (Huckey, supra, 37 Cal.App.5th at 1105, italics
omitted.)
“The court’s analysis of whether a walkway defect is
trivial involves as a matter of law two essential steps. ‘First,
the court reviews evidence regarding type and size of the
defect. If that preliminary analysis reveals a trivial defect,
the court considers evidence of 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 . . . .’”
(Huckey, supra, 37 Cal.App.5th at 1105.)
2. Analysis
Burton contends the trial court erred by concluding
that the height differential between the sidewalk slabs was a
trivial defect as a matter of law. As discussed below, we
disagree and conclude the trial court correctly determined
that respondents were entitled to summary judgment under
the trivial defect doctrine.
According on Burton’s evidence, the sidewalk elevation
at the site of her fall was about 1-5/16 inches at its highest.
“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, supra, 37 Cal.App.5th at 1107,
citing Caloroso, supra, 122 Cal.App.4th at 927, Barrett v.
City of Claremont (1953) 41 Cal.2d 70, 74, and Fielder v. City
of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4.) Thus, our
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preliminary assessment of the type and size of the defect
reveals a trivial defect.6 (See Huckey, at 1105, 1107.) We
6 Burton cites several cases for the proposition that the size
of the defect here alone precluded a conclusion that it was trivial
as a matter of law. None of those cases supports her contention.
(See Barone v. City of San Jose (1978) 79 Cal.App.3d 284,
291-292 [one-inch displacement was not trivial as matter of law
where defect was “an irregular and jagged break” (id. at 291) and
it was unclear if prior accidents had occurred in area]; Johnson v.
City of Palo Alto (1962) 199 Cal.App.2d 148, 150 [height
differential of up to 5/8 inch was not trivial as matter of law
because of aggravating factors, including poor visibility at site of
accident]; Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d
463, 467-468 [differential of up to one inch was not trivial as
matter of law where there had been at least four prior accidents
at relevant location]; Kasparian v. Avalonbay Communities, Inc.
(2007) 156 Cal.App.4th 11, 28-29 [drain grate recession up to 5/16
inch deep was not trivial as matter of law where drain was
indistinguishable from surrounding pavers in color and texture
and could not be easily detected even in daylight, and all other
drains in area were flush with ground, creating expectation that
all drains in walkways would be flush with ground]; Stathoulis v.
City of Montebello (2008) 164 Cal.App.4th 559, 569 [“three[]
irregularly shaped and sizeable holes of about an inch deep
flanking one another in the street” were not trivial as matter of
law, as their proximity to each other “may have both increased
the risk of injury to a reasonably careful pedestrian, and
decreased the possibility of his or her recovery (where, as here,
one attempting to regain one’s balance after tripping in one hole
is caught)”].)
Burton additionally points to Burns’s opinion, citing human
ambulation studies, that “any abrupt height differential in excess
of [one inch] has the substantial possibility of causing a
pedestrian to trip and fall or misstep if [it] . . . is not conspicuous
(Fn. is continued on the next page.)
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therefore consider the evidence regarding any additional
factors bearing on whether the defect presented a
substantial risk of injury. (See ibid.)
The record establishes that the sidewalk defect was
readily visible, and the surrounding circumstances do not
suggest that the minor sidewalk elevation presented a
substantial risk of injury. The incident occurred on a clear
and sunny day. The raised slab on which Burton tripped
had no jagged edges, and the area was clear of dirt or debris.
By Burton’s own admission, “there was nothing in front of
[her] obstructing [her] view of the raised sidewalk panel.”
The photo of the raised slab, taken shortly after the incident,
shows that the height differential was conspicuous and
confirms that nothing obscured it.
Burton argues several factors rendered the sidewalk
defect more dangerous and created a triable issue as to
whether it was trivial. We conclude that none of the claimed
factors supports her claim. First, Burton notes Burns’s
statement in his declaration that “[f]rom a human factors
standpoint, the subject height differential was high enough
to cause a trip or misstep event, but low enough that it
would not be readily apparent.” Burns’s suggestion that a
height differential of the size involved here is categorically
dangerous even absent any aggravating factors is contrary to
and readily observable in advance.” As discussed below, we
conclude that under the circumstances at the time of appellant’s
fall, the height differential was both conspicuous and readily
observable in advance.
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the caselaw (see, e.g., Huckey, supra, 37 Cal.App.5th at 1107;
Caloroso, supra, 122 Cal.App.4th at 927), and we are not
compelled to accept it (see Davis, supra, 42 Cal.App.4th at
704-705 [concluding that stair design that purportedly
“‘invite[d]’” people to descend at oblique angle was trivial
defect as matter of law despite expert opinion that it was
dangerous; “the fact that a witness can be found to opine
that such a condition constitutes a significant risk and a
dangerous condition does not eliminate this court’s statutory
task . . . of independently evaluating the circumstances”]; cf.
Caloroso, supra, 122 Cal.App.4th at 928 [no abuse of
discretion in excluding expert opinion because photos of
defect demonstrated it was minor and thus “no expert was
needed to decide whether the size or irregular shape of the
crack rendered it dangerous”].)
Second, Burton quotes Burns’s statement -- for which
he provided no express foundation -- that “there was no color
or texture differentiation between the concrete slabs forming
the height differential, which would tend to conceal the
existence of the subject height differential.” Initially, we
note that similarity of color and texture is the typical
condition of adjacent sidewalk slabs, and we question
whether standard conditions could be deemed aggravating
factors that render an otherwise trivial defect dangerous.
Regardless, Burton’s own testimony refutes Burns’s
unsupported assertion: she testified at her deposition that
the raised slab looked like it was “newer” than the adjacent
16
one, and confirmed in response to questioning that one was
darker than the other.
Third, pointing to the photo, Burton argues that at the
time of her fall, a shadow from a nearby hedge covered the
sidewalk where she fell. Even if this is true, no evidence
suggests the shadow obscured the height differential’s
visibility. On the contrary, the relevant photo shows the
defect was readily visible despite any shadow.
Fourth, Burton repeats Burns’s statement that “the
differential at the curb was basically non-existent/flush with
the curb,” and that “a reasonable pedestrian viewing the
sidewalk ahead could be misled by the fact that the sidewalk
was level on the left side, lured into not seeing there was a
differential on the right side.” However, nowhere in his
declaration did Burns explain why a reasonably prudent
pedestrian walking on the right side of the sidewalk, as
Burton was, would look to the opposite side to determine if
the path ahead of him or her was clear of obstacles.
Fifth, Burton contends she was unfamiliar with
Mildred Street, the site of her fall. At her deposition, Burton
testified she did not think that was the first time she had
walked on Mildred Street, but that she was not as familiar
with it as with other streets in her neighborhood. She cites
no case deeming a plaintiff’s lack of intimate familiarity with
the site of their accident, on its own, sufficient to transform
an otherwise trivial defect into a dangerous one, and we are
aware of none. And given that the defect here was readily
17
visible, Burton’s relative lack of familiarity with the street
would not have prevented her from noticing it.
Finally, Burton notes the City’s 2016 addition of the
sidewalk where she fell to its “grind list,” and argues a jury
could conclude that the City would not expend funds to
repair a defect it considered trivial. We disagree. The defect
here undoubtedly posed some risk and in fact caused Burton
to trip. But a city’s commendable aspiration to eliminate
even small risks and make its streets safer does not support
a finding that the risk was nontrivial for purposes of
imposing liability on the city. (See Huckey, supra, 37
Cal.App.5th at 1110 & fn. 5 [city’s maintenance
superintendent’s instruction that employees bevel height
differentials higher than one-half inch indicated that such
defects posed some trip hazard, “[b]ut to constitute a
dangerous condition, the height differential, and the area
surrounding it, must have posed ‘a substantial (as
distinguished from a minor, trivial or insignificant) risk of
injury’ when ‘used with due care in a manner in which it is
reasonably foreseeable that it will be used’”]; Nunez v. City of
Redondo Beach (2022) 81 Cal.App.5th 749, 758-759, [city’s
policy that height differentials above half-inch should be
repaired did not establish that defect was dangerous
condition; “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”
(id. at 759, italics added)].) Accordingly, Burton has failed to
establish any triable issue of fact as to whether the sidewalk
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defect was trivial, and the trial court correctly granted
summary judgment in respondents’ favor.
DISPOSITION
The judgments are affirmed. Respondents are entitled
to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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