Hernandez v. North County Transit Dist. CA4/1 ( 2023 )

Filed 12/20/23 Hernandez v. North County Transit Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JANICE HERNANDEZ, D080395
Plaintiff and Appellant,
v. (Super. Ct. No.
37-2019-00047794-CU-PO-CTL)
NORTH COUNTY TRANSIT
DISTRICT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Matthew C. Braner, Judge. Affirmed.
The Law Office of Evan D. Williams and Evan D. Williams for Plaintiff
and Appellant.
Devaney Pate Morris & Cameron, David R. Plancarte and Jeffery A.
Morris for Defendant and Respondent.
Plaintiff and appellant Janice Hernandez sued defendant and
respondent North County Transit District (NCTD) for allegedly maintaining
a dangerous condition of public property after she tripped on a sidewalk
having an approximately one and one-fourth-inch uplift. NCTD successfully
moved for summary judgment on grounds the sidewalk uplift was “trivial” as
a matter of law.
Hernandez contends the parties’ experts’ different measurements of the
uplift’s height created a triable issue of fact regarding its dangerousness. She
also contends the court should have granted her requests for a continuance,
and for permission to amend her complaint to add a common carrier cause of
action. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The undisputed facts show that on September 2, 2018, Hernandez
visited the Carlsbad Village Station (the Station), which is a train stop.
While she was walking on the Grand Avenue sidewalk in the City of Carlsbad
(Carlsbad) and stepped onto a concrete sidewalk on the premises of the
Station, she tripped and fell due to an uneven joint at the transition between
two concrete panels. She injured her left toe. Hernandez testified at her
deposition that the incident occurred at approximately 11:00 a.m. It was
sunny, and no shadows, debris, lighting conditions or anything else
obstructed her view of the concrete sidewalk. This was Hernandez’s first
time visiting the Station. Just before she tripped, she was not looking at the
ground, but was focused on a ticket booth ahead of her. She did not see the
uplift before she fell. Nothing prevented Hernandez from walking on the
portion of the sidewalk that did not have an uplift.
The joint between the adjoining concrete panels where the uplift lies is
approximately seven feet wide in total. Separate from the uplift, the
“remainder of the joint between the two concrete panels continued to decrease
in vertical height differential moving further to the right, eventually down to
zero height differential (i.e.[,] flush) for approximately two feet in width on
the far right side of the joint.”
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A. Hernandez’s Complaint
Hernandez sued Carlsbad1 and NCTD, which is a public entity that
provides public transportation to north San Diego County including via the
COASTER, a commuter train service operating over between Oceanside and
downtown San Diego. She alleged causes of action for negligence and
premises liability.
B. NCTD’s Motion
NCTD moved for summary judgment, and submitted several
documents to support its claim the sidewalk uplift was trivial and no
additional conditions showed dangerousness.2 Tom Zetz, NCTD’s legal
coordinator for claims, stated in a declaration that on June 3, 2019, he
personally visited the Station to investigate. He determined that the uneven
pavement was part of a joint at the transition between two concrete panels,
namely, a concrete walkway on the premises of the Station and Carlsbad’s
adjoining concrete sidewalk on Grand Avenue which borders the Station on
the south. Zetz concluded: “Based on my visual observations, the entirety of
the joint between the adjoining concrete panels was approximately [seven]
feet wide in total and the Subject Condition was approximately [two] feet
wide and on the far left side (facing north) of the joint. . . . it had a
maximum vertical height differential of approximately [one and one-fourth]
1 Carlsbad is not a party to this appeal.
2 Among the documents NCTD submitted were a declaration by its
attorney David Plancarte, who authenticated different exhibits including
Hernandez’s first amended complaint; NCTD’s various requests for
admissions and interrogatories propounded on Hernandez and her responses;
Hernandez’s deposition transcript including a photo of the sidewalk uplift;
and declarations from Tom Zetz and Ed Garbo.
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inches on the far left which gradually decreased moving to the right. The
remainder of this joint between the two concrete panels continued to decrease
in vertical height differential, eventually down to zero height differential (i.e.,
flush) for approximately [two] feet in width on the far right side of the joint.”
Zetz observed no broken pieces or jagged edges of concrete in or near
the uplift, nor any surrounding conditions that obstructed the view of
pedestrians walking across the uplift or that otherwise hid the uplift from
pedestrians.
Zetz stated NCTD made post-accident remedial efforts: “During my
investigation of the Subject Condition on June 3, 2019[,] I learned that the
Subject Condition had been painted yellow . . . on or about May 16, 2019.”
Zetz also stated, “a search of NCTD’s electronic database containing records
as far back as the year 2000 showed that no prior incidents or complaints
involving the Subject Condition occurred.”
Ed Garbo, Carlsbad’s risk manager, stated in a declaration: “I am
responsible for receiving and evaluating all government claims and lawsuits
filed with . . . Carlsbad. All claims and lawsuits are entered into a database
which is maintained by [Carlsbad’s] risk department. I accessed the
database and searched for all claims and lawsuits occurring at the sidewalk
location where plaintiff claims she fell (which is located within [the . . .
Station] . . . from September 2, 2008[,] to September 2, 2018. Other than
[Hernandez’s] claim and complaint, I found no other claims or complaints at
the location where [she] claims she fell.”
NCTD contended that under Government Code section 830.2, which
governs a public entity’s liability for injury caused by a dangerous condition
of public property, the pavement uplift was “not a ‘dangerous condition’
because the risk of injury it created was of such a minor, trivial, or
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insignificant nature in view of the surrounding circumstances that no
reasonable person would conclude that the condition created a substantial
risk of injury when used with due care in a reasonably foreseeable manner.”
C. Hernandez’s Opposition
Hernandez opposed the motion and submitted evidence supporting her
argument that a triable issue of material fact existed regarding the height of
the uplift, and whether the sidewalk was a dangerous condition under
Government Code section 835 et seq.3 Hernandez stated in her declaration:
“On August 26, 2021, I used a tape measurer [sic] to measure the height of
the raised concrete from grade at the initial point of impact. It measured
approximately [one and one-half inches].” She also stated: “During my
deposition, I was asked which toe caused me to fall. I was nervous. I was
very focused on ensuring my responses were perfectly accurate. The question
confused me because my toe did not cause me to fall. I was never asked what
party [sic] of my body first struck the raised concrete. If I was asked that
question, I would have said my left toe struck first, and my right toe struck
second.” “During my deposition, I was asked if I looked back to see what
caused me to trip. I replied I did not. [¶] . . . I believe I fell after my left big
toe struck a raised portion of concrete at the intersection of . . . Carlsbad’s
3 Hernandez submitted a declaration by her attorney, Mitch Oviedo, as
well as a declaration and curriculum vitae by her forensic engineer expert
Mark Burns. The expert attached to his declaration several photographs of
the sidewalk including from an onsite inspection he performed in November
2021; a journal article regarding biomechanical studies of human ambulation;
an article regarding statistical data on toe clearance; a research study titled,
“Why do we Bump into Things While Walking?” (some capitalization
omitted); sun data, including sunrise, sunset and shadow length from the
date of the incident; NCTD’s design criteria for train stations; the 2010
Americans with Disability Act (ADA) Standards Section 303.4; Google Street
View imagery archived; Hernandez’s own declaration and attached
photographs taken in August 2021; and Zetz’s deposition transcript.
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sidewalk and the beginning of the walkway on NCTD’s Carlsbad Transit
Center property. I believe it was my left toe that struck initially because it
was more severely damaged, and my right big toe had a scrape-type injury.”
Forensic engineer Burns stated in his declaration that on November 4,
2021, he measured the uplift and concluded it was “as high as [one and three-
fourth] inches and slightly over [one and one-half] inches in the area where [ ]
Hernandez indicated the trip and fall initiated.” He stated: “In my opinion,
[ ] Hernandez’s perception of the subject uplift would have been inhibited by
the lack of contrast between the subject sidewalk panels. Photographs of the
incident area . . . show the subject sidewalk uplift would be difficult to
perceive on the date of incident because the uplift is the same grey concrete
color as the adjacent sidewalks on either side. Additionally, [ ] Hernandez
stated in her deposition that it was her first time at the [Station]. . . . As
such, her attention was diverted because she was looking for where to buy
tickets. Finally, an adjacent tree would likely cast a shadow in the direction
of the subject uplift. Sun data from the date of incident . . . shows the sun
would cause the tree closest to Grand Avenue to cast a shadow in the
direction of the subject uplift.” Burns also stated NCTD violated the 2010
ADA Standards because “the subject uplift is greater than [one-half] inch and
is not ramped[.]”
Hernandez argued a triable issue of material fact existed regarding the
height of the uplift, as NCTD claimed it was at most one and one-fourth
inches, but Burns calculated it was one and three-fourth inches at its highest
point, and one and one-half inches at the point where Hernandez “impact[ed]”
it.
Hernandez further argued that additional factors failed to establish
that the uplift was a prima facie trivial defect. She countered NCTD’s claim
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it searched the database regarding other reported incidents of tripping at
that location, arguing there was a triable issue “regarding ownership and
control of the [i]ncident location and the reliability of [ ] Zetz’s database
search.” Hernandez clarified she “does not allege leaves, shadows, or dirt
obstructed her vision. Rather, her attention was naturally focused on the
transit center platform and ticket kiosk, as this was [her] first time at the
location. . . . Additionally, the rise in the sidewalk was masked by being the
same color as the rest of the walkway.” (Some capitalization omitted.)
Hernandez also argued the uplift was a dangerous condition, as shown
by the fact NCTD took the remedial action of painting the joint between the
two concrete slabs yellow. Referring to Burns’s declaration, she argued
NCTD failed to implement regular sidewalk inspections of its stations, which
would have revealed the uplift and prompted some remedial action.
Hernandez in her memorandum of points and authorities requested
leave to amend her complaint to state a cause of action for common carrier
liability under Civil Code section 2168, which provides: “Everyone who offers
to the public to carry persons, property, or messages, excepting only
telegraphic messages, is a common carrier of whatever he thus offers to
carry.” She also claimed she needed to conduct additional discovery and
depose NCTD’s most knowledgeable person, because Carlsbad and NCTD
each claimed the other owned or controlled the sidewalk; therefore,
Hernandez needed “to determine whether [NCTD] retains complaints for
locations it believes are outside its jurisdiction.”
D. NCTD’s Reply
NCTD in reply argued there was no triable issue of material fact:
“First, [Hernandez] submits evidence that on August 26, 2021, nearly three
years after her incident, [she] measured the Subject Condition and declared
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that the height differential was approximately [one and one-half] inches at
the assumed point of impact. However, pursuant to the authorities cited in
[NCTD’s] moving papers, this height differential is still within the [one and
one-half]-inch sidewalk height differential generally held trivial as a matter
of law. Second, [she] submits evidence that on November 4, 2021, more than
three years after her incident, retained expert . . . Burns measured the
Subject Condition and declared its height differential was slightly over [one
and one-half] inches at the assumed point of impact.”
NCTD also argued Hernandez’s evidence “must be disregarded as it
contradicts her own prior testimony. The measurements by [her] and her
expert of the Subject Condition are purportedly at the ‘point of impact’ of her
left foot . . . . But [she] testified at deposition she did not know which foot
contacted the Subject Condition nor where the point of impact was.”
(Emphasis omitted.)
NCTD objected to several statements in the declarations by Oviedo,
Hernandez, and Burns, and to their attached photographs and journal
articles, including on grounds there was a lack of foundation and lack of
personal knowledge to admit the photographs into evidence.
E. The Court’s Ruling
The court in granting summary judgment overruled the evidentiary
objections. It recognized NCTD is a public entity and that a finding of
liability is governed by Government Code section 835. It ruled: “[NCTD] has
met its burden to establish the defect was trivial. [Its] evidence shows that
the deviation in height between the two sidewalk panels was no more than
[one and one-fourth] inches. . . . [Hernandez] provided evidence that the
height difference was [one and three-fourths] inches at its highest point but
only [one and one-half] inches at the high point of impact. . . . Because both
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of these measurements are within the range of difference in elevation
considered to be a trivial defect, the court does not find this to be a disputed
material fact.”
Turning to additional factors to determine whether the defect
presented a substantial risk of injury, the court pointed out there were no
similar incidents involving the same walkway, and Hernandez produced no
evidence supporting her contrary argument. It concluded: “There is no
evidence presented that [Hernandez’s] view was obstructed. [¶] [She]
asserts that [NCTD] failed to implement regular sidewalk inspections or
meet its own design criteria. This argument is premised on a finding that the
defect is not trivial and would have been remedied had it been discovered by
[NCTD] prior to [Hernandez’s] incident. The fact that [she] might have been
distracted because it was her first time at the station is not a legal basis to
render the defect something more than trivial.”
The court denied Hernandez’s request for a continuance to conduct
additional discovery, pointing out she failed to submit an affidavit justifying
it. It did not address Hernandez’s request to amend her complaint to add a
common carrier cause of action.
DISCUSSION
I. Summary Judgment Principles and Standard of Review
“Summary judgment is appropriate only ‘where no triable issue of
material fact exists and the moving party is entitled to judgment as a matter
of law.’ ” (Regents of University of California v. Superior Court (2018) 4
Cal.5th 607, 618.) But “[s]ummary judgment shall not be granted by the
court based on inferences reasonably deducible from the evidence if
contradicted by other inferences or evidence that raise a triable issue as to
any material fact.” (Code Civ. Proc., § 437c, subd. (c).)
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A defendant moving for summary judgment meets its burden of
showing that a cause of action has no merit if the defendant has shown that
one or more elements of the cause of action cannot be established or that
there is a complete defense to the cause of action. (Code Civ. Proc., § 437c,
subd. (p)(1).) “Once the defendant . . . has met that burden, the burden shifts
to the plaintiff . . . to show that a triable issue of one or more material facts
exists as to the cause of action or a defense thereto.” (Id., § 437c, subd.
(p)(2).)
“ ‘On review of an order granting or denying summary judgment, we
examine the facts presented to the trial court and determine their effect as a
matter of law.’ [Citation.] We review the entire record, ‘considering all the
evidence set forth in the moving and opposition papers except that to which
objections have been made and sustained.’ [Citation.] Evidence presented in
opposition to summary judgment is liberally construed, with any doubts
about the evidence resolved in favor of the party opposing the motion.”
(Regents of University of California v. Superior Court, supra, 4 Cal.5th at p.
618; see also Weiss v. People ex rel. Department of Transportation (2020) 9
Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it
in the light most favorable to the opposing party and draw all reasonable
inferences in favor of that party”].
Despite that review standard, we presume the judgment is correct and
Hernandez still bears the burden of demonstrating error. (Jones v.
Department of Corrections & Rehabilitation (2007) 152 Cal.App.4th 1367,
1376; Go Tek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th
1240, 1245 [“ ‘[A]ppellant has the burden of showing error, even if [s]he did
10
not bear the burden in the trial court’ ”]; Tubbs v. Berkowitz (2020) 47
Cal.App.5th 548, 554.)
II. Legal Principles
NCTD’s liability is governed by the Government Claims Act (at times,
the Act). (See Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.)
“Section 835 [of the Act] prescribes the conditions under which a public entity
may be held liable for injuries caused by a dangerous condition of public
property. [Citation.] [It] provides that a public entity may be held liable for
such injuries ‘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, [and] that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred.’ In
addition, the plaintiff must establish 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) ‘[t]he public entity had
. . . notice of the dangerous condition . . . a sufficient time prior to the injury
to have taken measures to protect against the dangerous condition.’ [¶] The
Act defines a ‘ “[d]angerous condition” ’ as ‘a condition of property that
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 it is reasonably foreseeable that it will be used.’ ”
(Cordova v. City of Los Angeles, supra, 61 Cal.4th at p. 1105, quoting Gov.
Code, § 830.)
A separate section of the Act, Government Code section 830.2,
addresses the standard for minor, trivial or insignificant risks. The Cordova
court summarized these principles: “Public property is in a dangerous
condition within the meaning of [Government Code] section 835 if it ‘is
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physically damaged, deteriorated, or defective in such a way as to foreseeably
endanger those using the property itself.’ [Citation.] A condition is not
dangerous ‘if the trial 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 or
adjacent property was used with due care in a manner in which it was
reasonably foreseeable that it would be used.’ ” (Cordova v. City of Los
Angeles, supra, 61 Cal.4th at p. 1105, in part quoting Gov. Code, § 830.2; see
also Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 233-234.)
“ ‘Whether property is in a dangerous condition often presents a
question of fact, but summary judgment is appropriate if the trial or
appellate court, viewing the evidence most favorably to the plaintiff,
determines that no reasonable person would conclude the condition created a
substantial risk of injury when such property is used with due care in a
manner which is reasonably foreseeable that it would be used.’ ” (Sambrano
v. City of San Diego, supra, 94 Cal.App.4th at p. 234, citing Gov. Code,
§ 830.2; see also Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755
[even expert opinion on whether a given condition is dangerous does not
eliminate the court’s statutory task of independently evaluating the
circumstances].) “This principle, referred to as the ‘trivial defect doctrine’ . . .
is not an affirmative defense, but ‘an aspect of duty that a plaintiff must
plead and prove.’ [Citation.] That is so because a property owner’s duty of
care ‘does not require the repair of minor or trivial defects.’ ” (Nunez v. City
of Redondo Beach (2022) 81 Cal.App.5th 749, 757 (Nunez).) The doctrine
“provides a check valve for the elimination from the court system of
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unwarranted litigation which attempts to impose upon a property owner
what amounts to absolute liability for injury to persons who come upon the
property.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 399.)
In determining whether a property defect is trivial as a matter of law,
most courts of appeal have applied a two-step analysis. “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 and grant judgment for the
landowner.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559,
567–568 (Stathoulis); see Nunez, supra, 81 Cal.App.5th at p. 758 [applying
Stathoulis’s two-step analysis]; Huckey v. City of Temecula (2019) 37
Cal.App.5th 1092, 1105 (Huckey) [same].)
One court of appeal, in reviewing a jury verdict, has recently rejected
this two-step framework in favor of “a holistic multi-factor framework for
assessing triviality.” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102,
108, 114.) Under this framework, “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.” (Ibid.)
III. The Defect Here was not a Dangerous Condition
To decide whether a particular defect is minor or trivial before allowing
a jury to consider the question, our role under the foregoing authorities is to
ask whether the evidence permits a reasonable person to conclude a
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substantial risk of injury is involved when the sidewalk is used with due care
in a reasonably foreseeable manner. (Cordova v. City of Los Angeles, supra,61 Cal.4th at p. 1105; Huckey, supra, 37 Cal.App.5th at pp. 1110-1111.) We
must construe the evidence most favorably to Hernandez.
First, our assessment of the type and size of the defect (Huckey, supra,
37 Cal.App.5th at p. 1105) supports a finding that the sidewalk uplift is
trivial as a matter of law. As Zetz stated in his declaration, the entire joint
between the two pavement slabs was seven feet wide, and the uplift was two
feet wide, and had a maximum vertical height differential of approximately
one and one-fourth inches on the far left which gradually decreased moving to
the right. The remainder of the joint between the two concrete panels
continued to decrease in vertical height differential, eventually down to zero
height differential (i.e., flush) for approximately two feet in width on the far
right side of the joint. This is consistent with defects found trivial in Huckey,
supra, 37 Cal.App.5th 1092, Nunez, supra, 81 Cal.App.5th 749 and the cases
on which they rely. (See, Barrett v. City of Claremont, supra, 41 Cal.2d at p.
72 [differential of one-half inch, with gradual curve upward]; Balmer v. City
of Beverly Hills (1937) 22 Cal.App.2d 529, 530 [greatest height elevation was
at a corner but decreased to level]; Ursino v. Big Boy Restaurants, supra, 192
Cal.App.3d at p. 398 [parties stipulated to a height variation between
sidewalk slabs of no more than three-fourths of an inch without aggravating
surrounding circumstances; on summary judgment, reasonable minds could
not differ as to whether the defect was trivial as a matter of law].)
On appeal, Hernandez concedes that the court’s finding “that the
height differential in the area of the sidewalk that caused [her] to trip was
less than one and one-half inches,” and that this “finding is within the range
that California law has recognized as trivial as a matter of law.” She points
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out the California Supreme Court’s decision in Barrett v. City of Claremont,
supra, 41 Cal.2d at pp. 72, 74, has permitted defects of one and one-half
inches in height to be considered trivial. However, she contends the court
erred: “First, [the court erred] because [NCTD] failed to present competent
evidence that the defect was trivial. Second, because even if [it] had
presented competent evidence[, she] presented rebuttal evidence which was
sufficient to create a triable issue of fact. Third, the trial court failed to
consider scientific evidence that the condition was dangerous.”
Hernandez’s argument that Zetz’s measurements were erroneous and
her conclusion that Zetz “admitted he failed to take steps to get an accurate
measurement” are based on a mischaracterization of his deposition
testimony. In it, defense counsel, referring to a photo Zetz had taken of his
measuring ruler, asked him: “[N]ow the fact that you’ve acknowledged that
the measuring tool itself is off by [one-eighth] of an inch. Do you believe your
measurements were accurately taken at—on your site inspection on June of
2019?” (Italics added.) Zetz answered, “Yes.” Defense counsel subsequently
asked Zetz, “You indicate in your declaration that [the sidewalk uplift] was
approximately [one and one-fourth] of an inch based upon what your
measurements are. You’ve indicated for the record that your measuring tool
is off by [one-eighth] of an inch. So is your testimony here today that . . .
[one-eighth] of an inch as well as this gap that you acknowledged for the
record would not skew your measurements in any way?” Zetz responded, “I
would . . . if you look at the top as well, it’s just under one and one-fourth of
an inch, so that small gap would true up to that inch and a quarter is what I
feel, yes.” In the totality of his testimony, Zetz maintained that his
measurement of the uplift at one and one-fourth inches at its highest point
15
was accurate even taking into account any discrepancy with the ruler shown
in the photograph.
In contending a triable issue of material fact exists, Hernandez relies
on her expert’s measurements. NCTD argues the court erred in overruling
its objection to those measurements. Even if we consider Burns’s declaration
and measurements, he claimed that the uplift was one and one-half inches
“at the point of impact.” This does not create a disputed fact because, as set
forth above, that measurement falls within the boundaries of what courts
have considered trivial defects.4
Hernandez contends the court erred by not considering additional
evidence she presented to show dangerousness, particularly “relevant
scientific studies that indicate the height differential was indeed dangerous.”
She adds: “These studies indicate that current case law addressing
dangerous conditions is not based in reality.” She acknowledges the
California Supreme Court’s jurisprudence surrounding the definition of
4 NCTD claims Hernandez’s measurements submitted in opposition to
summary judgment must be disregarded because there is a conflict between
Hernandez’s deposition testimony in which she was asked, “So were you
walking with your left toe first?” She replied, “I can’t say yes or no to that
one.” She was also asked if at the time of the accident and immediately
afterwards she noticed if there was a raised portion along the sidewalk. She
replied, “No. I didn’t notice it was raised.” NCTD argues that, in her
declaration, she states her left foot struck first, and her measurements are
“purportedly at the ‘point of impact’ of [her] left toe.” It is true that
Hernandez in her deposition stated she was focused on getting to the kiosk
and not on the sidewalk or on which foot struck first; therefore, there seems
to be a discrepancy between her deposition testimony and her claim in her
declaration that her left foot struck first. However, NCTD does not
specifically show that she was asked at her deposition regarding the height
differential; accordingly, we do not place much emphasis on the seeming
contradiction in Hernandez’s different statements.
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trivial defects as measured by one and one-half inches (Barrett v. City of
Claremont, supra, 41 Cal.2d at p. 74), but claims it has existed “for more than
[65] years” and that her expert presented studies indicating “that current
case law addressing dangerous conditions is not based in reality.” She points
to her expert’s opinion “that according to studies, a differential of one-half
inch is likely to make the average person trip [85] percent of the time, a
differential of one and one-half inch a differential of [99] percent of the time.”
We conclude the current jurisprudence provides a workable way to
implement the mandate of Government Code section 835 et. seq, which is
meant to “ ‘guarantee that cities do not become insurers against the injuries
arising from trivial defects.’ ” (Thimon v. City of Newark, supra, 44
Cal.App.5th at p. 755.)
In any case, the court did consider additional factors that comply with
the applicable law and are supported by the evidence, and it specifically
concluded, “There is no evidence presented that [Hernandez’s] view was
obstructed.” It also concluded Hernandez had not presented evidence to
support her claim that NCTD’s database search was flawed. As stated, the
incident occurred on a sunny morning. Hernandez conceded in her opposition
papers that she did not allege that leaves, shadows, or dirt obstructed her
vision. Further, there were no broken pieces or jagged edges in the area of
the defect.
Hernandez does not renew her argument that the court failed to take
into account the fact she was visiting the train station for the first time. But
NCTD addresses the point in its responsive brief: “Although the incident
occurred on [Hernandez’s] first time visiting the . . . Station, it is important to
note that her situation is unique. That a defect is plainly visible and used by
many others without injury may indicate that a defect is trivial.” (Emphasis
17
omitted.) NCTD reiterates that despite the significant number of pedestrians
who visit the station annually, there were no prior reports of persons falling
on that same sidewalk. NCTD also points out Hernandez testified in her
deposition that nothing prevented her from maneuvering to the right side of
the joint, which was flush.
We take into account the evidence showing Hernandez was not familiar
with the area, as it was her first time walking that path. Both Huckey,
supra, 37 Cal.App.5th 1105 and Stathoulis, supra, 164 Cal.App.4th 559mention a plaintiff’s familiarity with or knowledge of the area as a relevant
factor in the analysis of the dangerousness of a condition. (Huckey, at p.
1105; Stathoulis, at p. 567.) Other cases identify the plaintiff’s knowledge of
the area as a factor that “courts have considered” in the analysis. (Nunez,
supra, 81 Cal.App.5th at p. 758; Fielder v. City of Glendale, supra, 71
Cal.App.3d at p. 729.) However, we also consider that on this record and,
under the totality of the circumstances, that factor alone does not make the
sidewalk a dangerous condition, particularly in light of the fact there were no
reported incidents of other people falling at that spot at the Station.
In sum, we conclude that the size and nature of the sidewalk defect in
this case was trivial as a matter of law, and while there is case law stating
that an uplift above one-half inch poses a tripping hazard, no additional
factors were adduced to create a triable issue as to whether the defect created
a substantial risk of injury when the property is used with due care. (Nunez,
supra, 81 Cal.App.5th at pp. 759-760.)
IV. Request for Continuance
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Hernandez contends her counsel erroneously included the request for a
continuance within the points and authorities he submitted in opposition to
summary judgment; therefore, his failure to submit a supporting affidavit is
a purely procedural error, and this court should reverse the grant of
summary judgment or order that her counsel be allowed to correct the error
by submitting an affidavit.
The summary judgment statute permits courts, under certain
circumstances, to order a continuance for the opposing party to conduct
additional discovery: “If it appears from the affidavits submitted in
opposition to a motion for summary judgment . . . that facts essential to
justify opposition may exist but cannot, for reasons stated, be presented, the
court shall deny the motion, order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may be just. The
application to continue the motion to obtain necessary discovery may also be
made by ex parte motion at any time on or before the date the opposition
response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).)
An affidavit in support of a continuance must show that the facts to be
obtained are essential to opposing the motion, that there is reason to believe
such facts may exist, and it must explain why additional time is needed to
obtain those facts. (Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144,
152 ) We review the trial court’s ruling for abuse of discretion. (Ibid.) “ ‘ “An
abuse of discretion occurs if, in light of the applicable law and considering all
of the relevant circumstances, the court’s decision exceeds the bounds of
reason and results in a miscarriage of justice.” ’ ” (Espejo v. The Copley Press,
Inc. (2017) 13 Cal.App.5th 329, 378.)
The purpose of the affidavit requirement is “ ‘to inform the court of
outstanding discovery which is necessary to resist the summary judgment
19
motion.’ ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.) The
summary judgment statute “ ‘requires more than a simple recital that “facts
essential to justify opposition may exist.” The affidavit or declaration in
support of the continuance request must detail the specific facts that would
show the existence of controverting evidence.’ ” (Granadino v. Wells Fargo
Bank, N.A. (2015) 236 Cal.App.4th 411, 420.)
“[L]ack of diligence may be a ground for denying a request for a
continuance of a summary judgment motion hearing.” (Cooksey v. Alexakis
(2004) 123 Cal.App.4th 246, 257.) “A good faith showing that further
discovery is needed to oppose summary judgment requires some justification
for why such discovery could not have been completed sooner.” (Ibid.)
Hernandez’s request for a continuance was limited to one paragraph in
her opposition to summary judgment: “As discussed above, there is an open
question as to ownership and control of the sidewalk intersecting the
[Station’s] walkway. [Carlsbad] denies it owns or controls the sidewalk.
NCTD alleges, without support, that [Carlsbad] owns and controls it.
Plaintiff needs to depose persons most knowledgeable at NCTD to determine
whether it retains complaints for locations it believes are outside its
jurisdiction. If not, NCTD’s argument that it has no record of prior similar
incidents will be significantly diminished.” (Some capitalization omitted.)
Hernandez’s failure to submit an affidavit with her request for a
continuance deprived the court of an opportunity to evaluate whether the
facts to be obtained were essential to opposing the summary judgment
motion, that there was reason to believe such facts may exist, and why she
needed additional time to obtain those facts. Accordingly, we conclude the
court did not abuse its discretion in denying the continuance request.
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In arguing that her failure to file an affidavit was a mere procedural
error that the court could have remedied, Hernandez relies on Kalivas v.
Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1162, which is inapposite.
In that case, the procedural error the appellate court found reversible was the
trial court’s denial of a motion to reconsider after it granted summary
judgment based on these circumstances: “[T]he trial judge promulgated a
‘courtroom local rule’ that applied solely to cases in that judge’s courtroom.
This courtroom local rule, however, conflicted with the Code of Civil
Procedure and the Government Code, was procedurally confusing, and led
appellant’s counsel to believe the court had taken a summary judgment
motion off calendar. Counsel, therefore, filed no opposition or separate
statement, and did not appear at the hearing on the motion.” (Kalivas,
supra, at p. 1154.) The court concluded Kalivas “deserved an opportunity to
cure the defect so as to have the motion adjudicated on the merits.” (Id. at p.
1162.) As the circumstances here are dissimilar, it does not suffice for
Hernandez to claim that her counsel’s cursory explanation of the basis for the
continuance request in the opposition papers without an accompanying
affidavit, which the statute requires, warrants reversal of the summary
judgment.
V. Request to Amend Complaint
Hernandez contends the court abused its discretion by implicitly
denying her request to amend her complaint to add a cause of action for
common carrier liability “because courts across the country have long held
that common carrier liability can attach in these circumstances and there are
no allegations of any misconduct which would support denial of that request.”
The court may, in its discretion, after notice to the adverse party, allow,
upon any terms as may be just, an amendment to any pleading or proceeding.
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(Code Civ. Proc., § 473, subd. (a)(1).) A trial court’s decision denying leave to
amend is reviewed for abuse of discretion. (Leader v. Health Industries of
America, Inc. (2001) 89 Cal.App.4th 603, 612.) It is Hernandez’s burden to
make a sufficient showing on appeal of an abuse of discretion. (Ibid.) “[A]s a
matter of policy ‘[t]he discretion of the trial court should be upheld unless
clearly abused.’ ” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926,
939.)
Assuming proper notice, the trial court has wide discretion in
determining whether to allow amendment, but the appropriate exercise of
that discretion requires the trial court to consider a number of factors:
“including the conduct of the moving party and the belated presentation of the
amendment. [Citation.] . . . The law is well settled that a long deferred
presentation of the proposed amendment without a showing of excuse for the
delay is itself a significant factor to uphold the trial court’s denial of the
amendment.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135-136,
italics added.) “The law is also clear that even if a good amendment is
proposed in proper form, unwarranted delay in presenting it may—of itself—
be a valid reason for denial.” (Roemer v. Retail Credit Co. (1975) 44
Cal.App.3d 926, 939-940.)
Hernandez did not comply with the statutory requirement that she file
a noticed motion. The record does not show grounds to amend, excusable
22
delay, or compliance with California Rules of Court, rule 3.1324.5 Moreover,
we cannot determine the adequacy of a proposed amended pleading when it is
not part of the record. Hernandez made no factual showing of good cause for
delay in the trial court. We point out Hernandez’s fall occurred in September
2018. She filed her complaint in August 2020. NCTD moved for summary
judgment in June 2021. Hernandez requested to amend her complaint in
February 2022. But she knew from the outset that the fall occurred on the
premises of a train station; therefore, her failure to explain the delay in
seeking to add a common carrier liability cause of action is glaring. “[W]hen
a plaintiff seeks leave to amend his or her complaint only after the defendant
has mounted a summary judgment motion directed at the allegations of the
unamended complaint, even though the plaintiff has been aware of the facts
upon which the amendment is based, ‘[i]t would be patently unfair to allow
plaintiffs to defeat [the] summary judgment motion.’ ” (Falcon v. Long Beach
Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280, italics added.)
NCTD additionally argues that, even on the merits, Hernandez’s
amendment would fail, and it cites cases for the proposition that “restrictions
5 California Rules of Court, rule 3.1324 provides in part: (a) Contents of
motion [¶] “A motion to amend a pleading before trial must: [¶] (1) Include
a copy of the proposed amendment or amended pleading, which must be
serially numbered to differentiate it from previous pleadings or amendments;
[¶] (2) State what allegations in the previous pleading are proposed to be
deleted, if any, and where, by page, paragraph, and line number, the deleted
allegations are located; and [¶] (3) State what allegations are proposed to be
added to the previous pleading, if any, and where, by page, paragraph, and
line number, the additional allegations are located. [¶] (b) Supporting
declaration [¶] A separate declaration must accompany the motion and must
specify: [¶] (1) The effect of the amendment; [¶] (2) Why the amendment is
necessary and proper; [¶] (3) When the facts giving rise to the amended
allegations were discovered; and [¶] (4) The reasons why the request for
amendment was not made earlier.”
23
imposed on common carriers are limited to carriage-related activities only,
exempting other activities of the carrier even if on the same property.” (See
e.g., Simon v. Walt Disney World, Co. (2004) 114 Cal.App.4th 1162;
McGettigan v. Bay Area Rapid Transit Dist. (1997) 57 Cal.App.4th 1011,
1017.) Because we conclude the trial court did not err in denying
Hernandez’s request on other grounds, we need not address this additional
ground.
DISPOSITION
The judgment is affirmed.
O’ROURKE, Acting P. J.
WE CONCUR:
DO, J.
KELETY, J.
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