Miller v. Pacific Gas & Electric Co. ( 2023 )

Filed 11/27/23; Certified for Publication 12/18/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
CRISTA MILLER,
Plaintiff and Appellant,
A165638
v.
PACIFIC GAS AND ELECTRIC (San Francisco City & County
COMPANY, et al., Super. Ct. No. CGC20582606)
Defendants and Respondents.
Crista Miller tripped on a vertical misalignment of less than one inch
between the metal plate covering an underground utility vault owned by
Pacific Gas and Electric Company (PG&E) and the surrounding sidewalk
adjacent to property owned by Hip Sen Benevolent Association (Hip Sen),
causing her to fall and hurt her ankle. The trial court granted summary
judgment, ruling that the lawsuit was barred by the trivial defect doctrine.
We affirm.
BACKGROUND
The Incident
At 11:30 p.m. on Saturday, February 16, 2019, Miller and her husband
were walking on Washington Street toward Grant Street in San Francisco’s
Chinatown on what they described as a “steep downhill slope.”
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It was a typical Saturday evening in the neighborhood. It had drizzled
earlier in the evening and the night sky was dark, foggy, and misty. The
sidewalk was wet and crowded with people. Miller did not recall it “ ‘feel[ing]
dark’ ” as the sidewalk was in an urban setting with lights from multiple
sources, including streetlights and store lights.
Miller tripped on the vertical misalignment between a metal plate
covering an underground utility vault owned by PG&E and the surrounding
sidewalk adjacent to property owned by Hip Sen. While walking downhill,
she stepped with her left foot on the rectangular, metal plate cover near the
center of the sidewalk. A toe on her left foot contacted the differential at the
left, downhill side of the metal plate, and she fell forward and landed on the
sidewalk.
The parties agree the height differential between the sidewalk edge
and metal plate was less than one inch. The metal plate covering the utility
vault was made of ordinary, diamond-plated metal. It was “neither ‘super
smooth’ nor ‘strange’ in any way,” but it was wet from the earlier rainfall.
Miller asserted she did not see the height differential before she tripped
because she was going downhill and therefore looking some eight to ten feet
ahead.
No History of Tripping Accidents at the Location
The City and County of San Francisco (the City)’s 311 call system is the
central repository for complaints and service requests concerning sidewalks.
A City employee found no complaints or service requests concerning the
incident location between January 1, 2010 and February 16, 2019 (date of
incident). Hip Sen was also not aware of any prior tripping incidents having
occurred on the sidewalk adjacent to its property at any time.
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City Repair Guidelines
The City’s Department of Public Works has guidelines concerning the
repair of sidewalk defects to improve accessibility within the area of a
sidewalk most traveled by pedestrians: Good Neighbor Guidelines (Order
No. 177,526) and Guidelines for Inspection of Sidewalk Defects (Order
No. 178,884). Priority repairs include sidewalk defects of vertical
displacement, meaning the sidewalk pavement or curb is displaced by a half-
inch or more from the abutting pavement or curb.
After Miller’s fall, a City inspector evaluated the incident location in
July 2019 and issued notices requiring PG&E and Hip Sen to repair the
vertical misalignment of the sidewalk and metal plate cover. The repairs
were completed.
Motions for Summary Judgment
Miller sued PG&E and Hip Sen, alleging general negligence and
premises liability (a theory of negligence) against both defendants. The
gravamen of the complaint was that defendants had allowed a dangerous
condition – the vertical misalignment of the metal plate cover and
surrounding sidewalk – to exist.
PG&E and Hip Sen filed separate motions for summary judgment on
the basis that the vertical misalignment did not constitute a dangerous
condition because it was trivial in nature and size and there were no other
factors that raised a question of fact regarding the triviality of the defect. In
opposition, Miller argued there was a triable issue of fact based on evidence
that the vertical alignment was more than one-half inch in size and based on
the City’s guidelines regarding repairs. Miller further argued the
circumstances surrounding her accident raised a triable issue as to the
existence of a dangerous condition despite its trivial nature and size.
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The trial court granted the motions based on the trivial defect doctrine.
The court found defendants had met their initial burden of demonstrating the
height differential between the sidewalk and metal plate cover was trivial in
nature and therefore did not constitute a dangerous condition requiring
repair or warning. It further found Miller had failed to meet her burden of
showing a triable issue of material fact concerning triviality. It also found no
triable issue of material fact as to whether the vertical misalignment was a
dangerous condition based on the City having issued notices requiring PG&E
and Hip Sen to repair the sidewalk and metal plate cover. “As PG&E points
out, the City’s policy is to issue Notices to Repair whenever there is a
sidewalk differential of .5 inches or greater. . . . However, the City’s notice
guidelines do not impose a legal duty to repair defective conditions under the
trivial defect standard. The Court finds that sidewalk maintenance need not
meet the .5-inch differential throughout the entire City in order for
[defendants] to . . . avail [themselves] of the trivial defect doctrine.”
The court entered a judgment of dismissal in favor of defendants on
June 9, 2022, and this appeal ensued.
DISCUSSION
I. Standard of Review
We review the propriety of a grant of summary judgment de novo,
“considering all the evidence set forth in the moving and opposition papers
except that to which objections have been made and sustained.” (Guz v.
Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) As in the trial court, we
first determine whether the moving party has met its initial burden to
establish facts justifying judgment in its favor; if so, we then decide whether
the opposing party has demonstrated the existence of a triable, material issue
of fact. (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th
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621, 630.) “We need not defer to the trial court and are not bound by the
reasons in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
II. Vertical Misalignment Was a Trivial Defect as a Matter of Law
A. Trivial Defect Doctrine
To recover damages for either negligence or premises liability, Miller
must prove defendants breached a legal duty to either repair or warn about
the existence of a dangerous condition – the vertical misalignment – that
allegedly caused her to trip and fall. (See Stathoulis v. City of Montebello
(2008) 164 Cal.App.4th 559, 566 [elements of premises liability]; Ursino v.
Big Boy Restaurants (1987) 192 Cal.App.3d 394, 397 [elements of negligence
liability].)
It is well settled law that landowners are “not liable for damages
caused by a minor, trivial or insignificant defect in property.” (Caloroso v.
Hathaway (2004) 122 Cal.App.4th 922, 927.) 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 defects
that create a substantial risk of injury to a pedestrian using reasonable care.”
(Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757 (Nunez); see
Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1109–1110 (Huckey)
[while the height differential of sidewalk defect “posed some risk of injury,”
and was evidence of a “tripping hazard,” to constitute a dangerous condition
the height differential and the area surrounding it must pose “ ‘a substantial
. . . risk of injury’ ”].) This simple principle of law is referred to as the trivial
defect doctrine – “it is not an affirmative defense but rather an aspect of duty
that [a] plaintiff must plead and prove,” and it applies where liability is
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alleged against both governmental entities and private landowners such as
defendants. (Caloroso, at p. 927.)
Whether a particular sidewalk defect is trivial and nonactionable may
be resolved as a matter of law using a two-step analysis. (Huckey, supra, 37
Cal.App.5th at p. 1105 [citing cases applying two-step analysis]; see Nunez,
supra, 81 Cal.App.5th at p. 758 [accord].) First, we review the evidence of the
size and nature of the defect. (Huckey, at p. 1105.) 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. (Id. at
p. 1105.)
One court of appeal has 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.” (Stack v. City of Lemoore (2023) 91 Cal.App.5th
102, 114.)
Under either approach, we conclude the vertical misalignment of the
metal plate cover and surrounding sidewalk was a trivial defect as a matter
of law barring this lawsuit.
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B. Defendants Made Prima Facie Showing that Vertical
Misalignment Was Trivial Defect
Defendants met their initial burden of presenting evidence (both
testimonial and photographic) demonstrating prima facie that the vertical
misalignment was a trivial defect based on the following factors: (1) the size,
nature, and quality of the defect – a vertical misalignment of less than one
inch with no broken pieces or jagged edges on the metal plate or surrounding
sidewalk; (2) visibility – although the accident occurred at nighttime the area
was illuminated with artificial lighting from multiple sources and there was
no debris or material on the metal plate or surrounding sidewalk that
concealed the defect; and (3) lack of prior incidents – there was no evidence of
tripping incidents before Miller’s accident. (See Huckey, supra, 37
Cal.App.5th at p. 1105 [discussing factors to be considered in making prima
facie showing that sidewalk defect was trivial].)
C. City Guidelines Do Not Raise a Triable Issue
In challenging defendants’ prima facie showing, Miller contends the
vertical misalignment cannot be deemed trivial as a matter of law because
City guidelines require repair of sidewalk height differentials one-half inch or
greater and the City inspector ordered repairs of the misalignment.
Therefore, Miller contends, a trier of fact could find the virtual misalignment
was a dangerous condition, citing to Laurenzi v. Vranizan (1945) 25 Cal.2d
806 (Laurenzi). We disagree.
Miller’s reliance on City guidelines requiring repair of sidewalk height
differentials of one-half inch or great is unavailing as she has presented no
evidence that the City’s standard for repair of sidewalk defects has “been
accepted as the proper standard in California for safe sidewalks.” (Caloroso,
supra, 122 Cal.App.4th at pp. 928–929 [defendant’s noncompliance with
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certain building codes and standards did not raise triable issue of fact that
sidewalk crack was dangerous].)
Miller’s reliance on the repair orders is also unavailing, as is her
reliance on Laurenzi. In Laurenzi, the plaintiff’s foot became wedged in a
large hole in a sidewalk (a foot long, up to two and one-half inches deep, and
from two inches wide at one end to six inches wide at the other end); at the
time of the fall, the area was poorly lit, the sidewalk was wet with scattered
carrot top debris, and vegetable crates were stacked on either side of hole;
and a City inspector testified that he would consider the sidewalk condition
to be “hazardous.” (Id. at pp. 808, 811, 812). Here, we are concerned with an
unobscured vertical misalignment of less than one inch, a nighttime urban
location illuminated by artificial lights from multiple sources, and no
evidence that the City inspector’s decision to order repairs was premised on a
finding that the vertical misalignment was a hazardous condition. (See
Nunez, supra, 81 Cal.App.5th at p. 759 [rejecting argument that Laurenzi
stands for proposition that a city’s determination that a sidewalk defect is
hazardous and in need of repair precludes finding the defect was trivial as a
matter of law; “[t]he Laurenzi court did not hold . . . that the city’s admission
that a particular defect might be dangerous creates a triable issue of fact as
to whether an otherwise trivial defect constitutes a dangerous condition,”
italics added].)
D. Circumstances of Accident Do Not Raise a Triable Issue
Having found defendants made a prima facie showing that the vertical
misalignment is a trivial defect, we next examine Miller’s argument that the
circumstances of her accident raise a triable issue of material fact as to
whether the defect could be found to be a dangerous condition that would put
a reasonably careful pedestrian at significant risk of injury. She asks us to
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consider that the following circumstances – the steep downward decline of
the sidewalk, the weather, the nighttime hour, and the crowds on the street –
all combined to make the height differential less obvious than it would
appear in the daylight, thereby creating a dangerous condition necessitating
denial of summary judgment. We disagree.
As to the decline of the sidewalk, we find unavailing Miller’s contention
that the visibility of the vertical misalignment was obscured because the
incident occurred on a steep (9% grade) downhill slope, affecting her depth
perception and creating an “optical illusion” that the sidewalk surface was
level. Even accepting her assertions concerning the grade percentage of the
downward slope, 1 neither in the trial court nor on appeal does Miller cite to
any relevant authority, legal or scientific, supporting her assertions
concerning human vision and perception of an “optical illusion.” (See
McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1106
[party cannot manufacture triable issue of fact with self-serving opinion and
speculation devoid of any basis, explanation, or reasoning].) While Miller
refers to the Americans with Disabilities Act standards regarding maximum
1 We have disregarded defendants’ arguments challenging Miller’s
assertions concerning the grade percentage of the downward slope of the
sidewalk. In the absence of any showing that the trial court granted
objections to this evidence, we presume the court overruled any objections
and considered the disputed assertions in ruling on the motions. (Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 534.) While impliedly overruled
evidentiary objections may be renewed on appeal, the burden is on
defendants to properly present those arguments and they have failed to do so.
(Cal. Rules of Court, rule 8.204(a)(1)(B).) PG&E does not include record
citations showing it made written evidentiary objections in the trial court,
and it proffers no citations to relevant statutory or case authority. Hip Sen
similarly does not include record citations showing it made written
evidentiary objections in the trial court, and while it cites to Evidence Code
sections, it offers no explanation as to how the statutory provisions support
its argument.
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percentage grades allowed for ramps, she has not cited any law indicating
that is a relevant standard for determining whether a sidewalk defect
constitutes a dangerous condition. (See Caloroso, supra, 122 Cal.App.4th at
p. 928 [evidence that defendant’s noncompliance with certain building codes
and standards made sidewalk crack dangerous did not raise triable issue as
there was no evidence that the codes and standards “have been accepted as
the proper standard in California for safe sidewalks”].) 2
We also are not persuaded by Miller’s argument that the weather, the
nighttime hour, and the crowds on the street combined to make this a
dangerous condition. It was a typical February evening in San Francisco’s
Chinatown. The sky was foggy and misty and the streets were wet from an
earlier rainfall, but according to Miller it was not actively raining and the
street was illuminated. Moreover, despite the frequency of heavy pedestrian
traffic in the area, there is no evidence that anyone other than Miller had
complained of tripping at that location.
We therefore agree with the trial court that Miller failed to proffer
evidence sufficient to raise a triable issue of fact as to “whether the size of the
height differential itself, or any other circumstances concerning it, rendered
it a dangerous condition.” (Huckey, supra, 37 Cal.App.5th at p. 1108.)
III. Miller’s Claim that Complaint Supports Theory of Negligence
Per Se Is Forfeited
Miller argues summary judgment should be reversed because the City’s
repair notices to PG&E and Hip Sen for their violations of the City’s
2 While not dispositive, we note the photographs in the record do not
reflect that the sidewalk was on one of the steep hills for which the City is
famous; rather they reflect the sidewalk’s downward slope was gradual and
unremarkable. Additionally, Miller did not submit photographic evidence
showing that at nighttime the vertical misalignment was not visible.
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Guidelines render them liable under a theory of negligence per se. This
argument is forfeited.
Miller did not raise this argument to the trial court although there was
no barrier to her doing so. It is a fundamental principle that an appellate
court will generally not consider an issue presented for the first time on
appeal that could have been but was not presented in the trial court. (See
Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th 1386, 1398–1399.)
Further, appellate arguments presented for the first time in a reply brief (as
Miller has done) are forfeited without a showing of good cause. (See
Committee to Relocate Marilyn v. City of Palm Springs (2023) 88 Cal.App.5th
607, 636, fn. 8.; Holmes v. Petrovich Development Co., LLC (2011) 191
Cal.App.4th 1047, 1064, fn. 2.) We see no reason not to apply the general
rules of forfeiture.
IV. Conclusion
In sum, the trial court properly granted summary judgment as
reasonable minds could come to only one conclusion in this case – that the
vertical misalignment of the metal plate cover and surrounding sidewalk was
a trivial defect. Despite Miller’s argument to the contrary, we see no
evidence from which a reasonable trier of fact could find the trivial sidewalk
defect posed a substantial risk of injury to a foreseeable pedestrian exercising
due care. Therefore, we shall affirm.
DISPOSITION
The judgment is affirmed. Defendants and respondents are awarded
costs on appeal.
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_________________________
Petrou, J.
WE CONCUR:
_________________________
Fujisaki, Acting P.J.
_________________________
Rodríguez, J.
A165638/Miller v. Pacific Gas and Electric Company, et al.
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Filed 12/18/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
CRISTA MILLER,
Plaintiff and Appellant,
A165638
v.
PACIFIC GAS AND ELECTRIC (San Francisco City & County
COMPANY, et al., Super. Ct. No. CGC20582606)
Defendants and Respondents.
BY THE COURT:‡
The written opinion which was filed on November 27, 2023, has now
been certified for publication pursuant to rule 8.1105(b) of the California
Rules of Court, and it is ordered published in the official reports.
Dated: ___12/18/2023______ ____ Fujisaki, Acting P.J._________
Acting Presiding Justice
‡ Petrou, J., Fujisaki, Acting P.J., Rodríguez, J.
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Richard B. Ulmer, Jr.
Counsel: Law Office of Nikolaus W. Reed, Nikolaus Reed, for
Plaintiff and Appellant.
Gough & Hancook, Mark Hancock, Gayle Gough, and Peter
Messrobian, for Defendants and Respondents Pacific Gas
and Electric Company, et al.
Phillips Spallas & Angstadt, Robert Phillips, Michael
Halvorsen, and Matthew Gardner, for Defendants and
Respondents, Hip Sen Benevolent Association.
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