Tiainen-Bennett v. KRGW Fujimoto LLC CA1/1

Filed 5/26/16 Tiainen-Bennett v. KRGW Fujimoto LLC CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION ONE
HELENA TIAINEN-BENNETT,
Plaintiff and Appellant,
A144430
v.
KRGW FUJIMOTO LLC et al., (Alameda County
Super. Ct. No. RG11571525)
Defendants and Respondents.
Plaintiff Helena Tiainen-Bennett was injured when she tripped and fell on a public
sidewalk in the City of Berkeley (City). She filed a lawsuit against the City and the
owner of the property adjoining the sidewalk, defendant KRGW Fujimoto LLC
(KRGW), alleging causes of action for negligence and for maintaining a dangerous
condition of public property. Both the City and KRGW moved for summary judgment
on the ground the alleged dangerous condition was trivial as a matter of law. The trial
court granted the motions. We affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At her deposition, plaintiff testified that the accident occurred around 5:00 p.m. on
Saturday, April 24, 2010, as she was walking on the sidewalk that abuts the parking lot of
a market that is owned by KRGW. The surface area near the accident site was dry. She
believed her fall occurred when her right foot encountered an offset sidewalk slab.1 She
identified two photographs taken of the site by her attorney shortly after the accident. A
1
As a result of the fall, plaintiff fractured her knee and elbow, both of which required
surgery.
tape measure placed next to an upraised slab shows the offset to be no more than three-
quarters of an inch. Plaintiff also stated she was present when the photograph was taken
and recalled the offset as having been measured at three-quarters of an inch. The area
was near the remnants of a pole that had been cut off at its base. She did not know
whether she had tripped on the cut-off pole or the offset slab.
On April 18, 2011, plaintiff filed a complaint against defendants. The complaint
alleges a cause of action against KRGW for negligence in managing the property
adjacent to the sidewalk. It also alleges a second cause of action against the City for
maintaining a dangerous condition of public property.
KRGW and the City both filed motions for summary judgment, asserting the
vertical height of the offset at the sidewalk slab where plaintiff tripped was no more than
three-quarters of an inch, which, as a matter of law, constituted a trivial defect and was
therefore not actionable.
On September 5, 2012, the trial court issued its amended orders granting
defendants’ motions for summary judgment. The court found the undisputed facts
established that the sidewalk offset where plaintiff’s accident occurred was “at most a
trivial defect,” and not a dangerous condition giving rise to liability on the part of either
defendant. Specifically, the court found the sidewalk defect was no more than three-
quarters of an inch. It also concluded there were no unusual circumstances affecting the
sidewalk or the height differential, and there were no known complaints or accidents
concerning that location prior to plaintiff’s accident. The court deemed the possible
presence of daytime shadows to be immaterial to her allegation that the sidewalk was in a
dangerous condition.
On January 22, 2015, the trial court filed its judgment in favor of defendants. This
appeal followed.
DISCUSSION
I. Standard of Review
“We review a grant of summary judgment de novo. [Citation.] In performing our
de novo review, we employ a three-step analysis. ‘First, we identify the issues raised by
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the pleadings. Second, we determine whether the movant established entitlement to
summary judgment, that is, whether the movant showed the opponent could not prevail
on any theory raised by the pleadings. Third, if the movant has met its burden, we
consider whether the opposition raised triable issues of fact.’ [Citations.] To shift the
burden, the defendant must conclusively negate a necessary element of the plaintiff’s
case or demonstrate there is no triable issue of material fact requiring a trial. [Citation.]
If the evidence does not support judgment in the defendant’s favor, we must reverse
summary judgment without considering the plaintiff’s opposing evidence. [Citation.]
Any evidence we evaluate is viewed in the light most favorable to the plaintiff as the
losing party; we strictly scrutinize the defendant’s evidence and resolve any evidentiary
doubts or ambiguities in the plaintiff’s favor.” (Barber v. Chang (2007) 151 Cal. App. 4th
1456, 1462–1463, italics omitted.)
Evidence submitted in support of and in opposition to a motion for summary
judgment must be admissible. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal. App. 4th 755,
761.) “The same rules of evidence that apply at trial also apply to the declarations
submitted in support of and in opposition to motions for summary judgment.
Declarations must show the declarant’s personal knowledge and competency to testify,
state facts and not just conclusions, and not include inadmissible hearsay or opinion.
[Citations.] . . . Only admissible evidence is liberally construed in deciding whether there
is a triable issue.” (Ibid., italics omitted.) We review evidentiary rulings in summary
judgment proceedings for abuse of discretion. (Walker v. Countrywide Home Loans, Inc.
(2002) 98 Cal. App. 4th 1158, 1169.)
II. Plaintiff’s Brief Fails to Provide Proper Citations to the Record
As KRGW correctly notes, an appellant’s opening brief is required to provide “a
summary of the significant facts limited to matters in the record.” (Cal. Rules of Court,
rule 8.204(a)(2)(C).) In addition, each brief must “[s]upport any reference to a matter in
the record by a citation to the volume and page number of the record where the matter
appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.) Plaintiff’s counsel
has essentially failed to support any factual matters in the opening brief by specific
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reference to volume and page number in the record. Instead, the brief sets forth in a
footnote a single list referring to 96 pages appearing in various parts of the record.
While KRGW pointed out this defect in its responsive brief, plaintiff’s counsel
made no effort to correct this error in the reply brief. Nor has he requested leave to file a
corrected opening brief. Instead, he suggests that his manner of referencing the record is
“more helpful” to this court because we can “conveniently” bookmark the relevant pages
in the clerk’s transcript. He clearly misapprehends his duty on appeal: “ ‘It is the duty of
counsel to refer the reviewing court to the portion of the record which supports
appellant’s contention on appeal. [Citation.] If no citation “is furnished on a particular
point, the court may treat it as waived.” ’ ” (Lonely Maiden Productions, LLC v.
GoldenTree Asset Management LLP (2011) 201 Cal. App. 4th 368, 384.)
The problem here is that for each of the countless “facts” referenced throughout
plaintiff’s opening brief, the reader is apparently expected to return to the footnote and
read through the 96 noncontiguous pages referred to, in hopes of finding the particular
fact alleged to support the statement made in the brief. It is not the burden of this court to
search through these pages and determine which evidence plaintiff is referring to in her
citations and how this evidence proves her point: “We are not required to search the
record to ascertain whether it contains support for [an appellant’s] contentions.”
(Mansell v. Board of Administration (1994) 30 Cal. App. 4th 539, 545.)
The purpose of requiring record citations is not merely formulaic. Rather, it is to
allow justices and staff attorneys to find facts in the record when evaluating arguments in
the brief. (City of Lincoln v. Barringer (2002) 102 Cal. App. 4th 1211, 1239, fn. 16.) By
failing to specify which aspects of the record actually support her claims, “ ‘ “[i]nstead of
a fair and sincere effort to show that the trial court was wrong, [plaintiff’s] brief is a mere
challenge to [defendants] to prove that the court was right.” ’ ” (People v. Dougherty
(1982) 138 Cal. App. 3d 278, 283.) Notwithstanding plaintiff’s counsel’s disregard of the
rules, we have examined the record and conclude the evidence amply supports the trial
court’s judgment.
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III. Defendants Met Their Burden on Summary Judgment
Under Government Code section 835, a public entity may be held liable for an
injury caused by a dangerous condition of its property. A public entity’s property is in a
dangerous condition when it “creates a substantial (as distinguished from a minor, trivial
or insignificant) risk of injury. . . .” (Gov. Code, § 830, subd. (a).) A condition is not
dangerous when it is “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.”
(Gov. Code, § 830.2.)2
“ ‘[P]ersons who maintain walkways, whether public or private, are not required to
maintain them in an absolutely perfect condition. The duty of care imposed on a property
owner, even one with actual notice, does not require the repair of minor defects.’ ”
(Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal. App. 4th 11, 26–27
(Kasparian).) “Courts have referred to this simple principle as the ‘trivial defect
defense,’ although it is not an affirmative defense but rather an aspect of duty that
plaintiff must plead and prove.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922,
927 (Caloroso).) As our high court has noted, “a . . . city is not an insurer of its public
ways and is not bound to keep them so as to preclude the possibility of injury or accident
therefrom.” (Whiting v. City of National City (1937) 9 Cal. 2d 163, 166 (Whiting).)
We employ a two-step process in determining whether a defect is trivial. “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
. . . . 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)
2
The “trivial defect defense” is also available to private, nongovernmental landowners.
(Ursino v. Big Boy Restaurants (1987) 192 Cal. App. 3d 394, 398–399.)
5
164 Cal. App. 4th 559, 567–568 (Stathoulis).) These additional factors may include
“lighting, debris, or a history of other similar injuries” (Ursino v. Big Boy Restaurants
(1987) 192 Cal. App. 3d 394, 397 (Ursino)), the weather at the time of the accident, the
plaintiff’s knowledge of the area, and whether a pedestrian’s view of the defect was
obstructed (Stathoulis, at pp. 567–568). In addition, the court should “ ‘view the intrinsic
nature and quality of the defect to see if, for example, it consists of the mere
nonalignment of two horizontal slabs or whether it consists of a jagged and deep hole.’ ”
(Kasparian, supra, 156 Cal.App.4th at p. 27.) The fact that a defect is plainly visible and
that it had been used by many others without injury may indicate that a defect is trivial.
(Whiting, supra, 9 Cal.2d at pp. 165–166.)
While plaintiff speculates to the contrary, it is undisputed that the offset between
the section of the sidewalk involved in this accident is no greater than three-quarters of an
inch.3 Even if one could infer the offset was greater than this measurement, some courts
have found that “height differentials of up to one and one-half inches [are] trivial as a
matter of law.” (Stathoulis, supra, 164 Cal.App.4th at p. 568; see Nicholson v. City of
Los Angeles (1936) 5 Cal. 2d 361, 367 [one and one-half inch difference in elevation];
Fielder v. City of Glendale (1977) 71 Cal. App. 3d 719, 725–727 (Fielder) [sidewalk slab
raised three-quarters of a inch in elevation].) While it is true that once the differential
starts to exceed one inch, “ ‘courts have been reluctant to find that the defect is not
3
We have viewed a digital image of the photographs plaintiff’s attorney took of the
offset, which includes a tape measure that clearly shows the offset to be no more that
three-quarters of an inch. In her statement of undisputed material facts, she alleged that
“[t]he size of the obstruction was, more likely than not, greater than ¾ inch” based on the
fact that the measuring tape in the photograph had been placed near the western edge of
the sidewalk. She claimed her fall occurred when her foot struck a portion of the raised
slab at a point where “the rise was greater.” She offered precisely zero evidence as to the
measurement of this purportedly “greater” rise. “A party may not avoid summary
judgment based on mere speculation and conjecture [citation], but instead must produce
admissible evidence raising a triable issue of fact.” (Compton v. City of Santee (1993)
12 Cal. App. 4th 591, 595–596.)
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dangerous as a matter of law.’ ” (Stathoulis, at p. 568.) Here, plaintiff does not claim the
offset exceeds one inch in the differential at any point.
Nor do the surrounding circumstances indicate the defect was otherwise
“sufficiently dangerous to a reasonably careful person” to create a substantial risk of
injury. (Stathoulis, supra, 164 Cal.App.4th at p. 568.) The incident occurred on a dry,
sunny afternoon. A declaration submitted by the sidewalk inspector for the City’s Public
Works Department states that since he started working in that position in March 2006, he
had not received any complaints about the sidewalk on the block where plaintiff fell.
Plaintiff does not dispute that there is no history of known accidents, falls, or
complaints about the site. She also does not affirmatively assert that the cut-off pole
played a part in her fall. Instead, plaintiff points to shadows allegedly cast by a nearby
tree, as well as to caked-in debris in the space between the mismatched sidewalk flags,
that allegedly obscured her perception of the defect. The mere existence of daytime
shadows does not transform a three-quarter-inch offset into a dangerous condition of
public property. (See Caloroso, supra, 122 Cal.App.4th at p. 929.) Additionally, based
on the photographs in the record, the rise does not appear to be obstructed by dirt or
debris.4
The cases upon which plaintiff relies are not persuasive. In Dolquist v. City of
Bellflower (1987) 196 Cal. App. 3d 261 (Dolquist), the plaintiff was stepping over a
concrete tire stop in a parking lot when she tripped on a piece of rebar that projected a
quarter of an inch above the tire stop. (Id. at pp. 264–265.) There had been no previous
accidents or complaints involving the rebar. (Id. at p. 265.) The trial court granted
summary judgment for the public entity defendant on the ground that the risk was trivial.
4
Plaintiff also asserts the height differential is harder to notice than it would have been
had it been substantially larger, and claims she had never walked on this stretch of
sidewalk before. She also contends her awareness of the sidewalk was obstructed by the
parking lot she had to traverse to reach the sidewalk, which was filled with cars and lined
by a row of trees that blocked her vision of the sidewalk’s surface. None of these factors
suggest to us that the defect presented a substantial risk of injury to a reasonable careful
person using the sidewalk.
7
(Id. at p. 266.) The appellate court reversed. It held that a jury could find the rebar
created a substantial risk of injury. (Id. at pp. 267–270.) It explained that “the protrusion
was large enough to cause an injury while being small enough to avoid easy detection.
The condition was not one that resulted from wear or tear, nor was it the result of a
change in the weather; it was one that existed from the date of installation of the concrete
tire-stop and remained constant.” (Id. at p. 270.)
Here, unlike in Dolquist, supra, 196 Cal. App. 3d 261, it is significant that the
defect was the result of ordinary wear and tear, likely caused by an encroaching tree root:
“ ‘[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 its sidewalks free from all inequalities and from every possible
obstruction to travel. Minor defects due to continued use, or action of the elements, or
other cause, will not necessarily make [a public entity] liable for injuries caused thereby.
What constitutes a minor defect is not always a mere question of fact. If the rule were
otherwise [a public entity] could be held liable upon a showing of a trivial defect.’ ”
(Barrett v. City of Claremont (1953) 41 Cal. 2d 70, 73, quoting Whiting v. City of
National City (1937) 9 Cal. 2d 163, 165.) We note it is common for tree roots to create
distortions in a sidewalk’s surface. Additionally, the plane of the defect was horizontal, a
factor noted by the Dolquist court as creating a lesser danger to pedestrians. (Dolquist, at
p. 270.)
In Stathoulis, supra, 164 Cal. App. 4th 559, the defect, a “gouge mark,” did not
exceed one inch, but the appellate court reversed an order granting summary judgment.
The Stathoulis court held that “size alone is not determinative of whether a rut presents a
dangerous condition.” (Id. at p. 568.) Unlike the present case, that case concerned not
one but “three holes in the street, about nine feet from the curb. The southernmost gouge
was 20 inches long, with a maximum width of six and one-half inches and a maximum
depth of one inch. The middle gouge was 19 inches long, had a maximum width of four
and one-half inches, and was half an inch deep. The northernmost hole was 24 inches
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long, a maximum of five inches wide, and had a maximum depth of one inch. The holes
were one to four inches apart.” (Id. at p. 564.)
The Stathoulis court disagreed with the municipality’s contention that the defects
were trivial as a matter of law. (Stathoulis, supra, 164 Cal.App.4th at p. 565.)
Significantly, there was some evidence complaints had been lodged with the municipality
concerning the street’s conditions. Additionally, “the presence of not one, but three,
irregularly shaped and sizeable holes of about an inch deep flanking one another in the
street” may have both increased the risk of falling and decreased the likelihood of
regaining one’s balance before hitting the ground. While a still a close case, the court
found summary judgment to be inappropriate. (Id. at p. 569.)
Here, the height differential was less than one inch and there is no evidence that
any other defect on the sidewalk contributed to plaintiff’s accident. Furthermore, we
have already considered the other factors noted in Stathoulis, such as “the nature and
quality of the defect, the time of day and lighting conditions when the accident occurred,
and whether there is evidence anyone else has been injured by the same defect.”
(Stathoulis, supra, 164 Cal.App.4th at p. 568.) Based on the undisputed material facts of
this case, even under Stathoulis we find no triable issue exists regarding dangerousness of
the defect.
Finally, plaintiff erroneously relies on Johnson v. City of Palo Alto (1962)
199 Cal. App. 2d 148 (Johnson), a case that has been superseded by the Government
Claims Act (Gov. Code, § 810 et seq., added by Stats. 1963, ch. 1681, § 1, p. 3266 (Act))
as explained by the Supreme Court in Brown v. Poway Unified School Dist. (1993)
4 Cal. 4th 820, 829 (Brown). In Johnson, the appellate court had affirmed judgment in
favor of the plaintiff where a difference in height of one-half inch between sidewalk
edges had caused her to fall. (Johnson, at p. 150.) The provision of the Act at issue in
Brown “was expressly intended to abrogate a rule to the effect that ‘the happening of the
accident is evidence that public property was in a dangerous condition’ ” (Brown, at
p. 831.) The court explained this was because “[t]he rule had occasionally led to the
imposition of liability on public entities for relatively trivial defects in, and unforeseeable
9
uses of, public property,” citing to Johnson as one such example. (Ibid.) Thus, the case
does not assist plaintiff here.
On the basis of the undisputed evidence before the trial court, we are guided by the
court’s observation in Fielder, supra, 71 Cal.App.3d at pages 725 to 726: “[W]here a
sidewalk slab is raised in elevation by only about three-fourths of an inch, such a ‘defect’
is not dangerous as a matter of law. This is because it is impossible for a city to maintain
its sidewalks in perfect condition. Minor defects nearly always have to exist. The city is
not an insurer of the public ways against all defects. If a defect will generally cause no
harm when one uses the sidewalk with ordinary care, then the city is not to be held liable
if, in fact, injury does arise from the defect.”5
IV. Plaintiff’s Evidentiary Objections Were Properly Overruled
Plaintiff objected to virtually all of the evidence presented in both defendants’
statements of undisputed material facts. The court overruled all of her objections, finding
that they failed to comply with California Rules of Court, rule 3.1354(b) because they
went to defendants’ characterization of evidence and not to the evidence itself.6 For
5
Plaintiff also claims the court erred in excluding her expert witness evidence. The
conclusion of whether the trivial defect doctrine applies is a matter of law for the court,
not for an expert. (See Stathoulis, supra, 164 Cal.App.4th at p. 567 [trivial defect
doctrine “permits a court to determine whether a defect is trivial as a matter of law, rather
than submitting the question to a jury”]; Ursino, supra, 192 Cal.App.3d at p. 399 [same].)
Thus, the expert witness’s conclusions in his declaration that the defect was not trivial are
not determinative. (See Burton v. Sanner (2012) 207 Cal. App. 4th 12, 20–21 [expert
opinion not admissible when it “ ‘amounts to nothing more than an expression of his or
her belief on how a case should be decided’ ”]; WRI Opportunity Loans II, LLC v.
Cooper (2007) 154 Cal. App. 4th 525, 532–533, fn. 3 [“ ‘ “manner in which the law should
apply to particular facts is a legal question and is not subject to expert opinion” ’ ”];
Summers v. A.L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1178 [“[t]here are limits to
expert testimony, not the least of which is the prohibition against admission of an
expert’s opinion on a question of law”]; Staten v. Superior Court (1996) 45 Cal. App. 4th
1628, 1634–1637 [expert opinion inadmissible on questions of law to be decided by trial
court].)
6
More specifically, California Rules of Court, rule 3.1354(b) provides: “Each written
objection must be numbered consecutively and must: [¶] (1) Identify the name of the
document in which the specific material objected to is located; [¶] (2) State the exhibit,
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example, she repeatedly raised a generic relevance objection, even as to the
unquestionably undisputable evidence that the accident occurred on the sidewalk adjacent
to KRGW’s property: “Objection, Relevance, since the statement does not go to the only
matter in dispute in this motion, which is whether the at-issue defendant can be deemed
NON-dangerous as a matter of law, which it cannot, under any stretch of the
imagination.”
We have reviewed each and every of one of the overruled objections. It bears
emphasizing that plaintiff made relevance objections to nearly every single piece of
evidence offered by defendants. She repeatedly asserted this objection to many
undeniably true evidentiary statements, including statements made by her at her
deposition. Relevance objections do not create triable issues of material fact. Rather,
they merely address the weight to be accorded to each fact. The trial court did not abuse
its discretion in overruling her objections.
DISPOSITION
The judgment is affirmed.
title, page, and line number of the material objected to; [¶] (3) Quote or set forth the
objectionable statement or material; and [¶] (4) State the grounds for each objection to
that statement or material.”
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_________________________
DONDERO, J.
We concur:
_________________________
MARGULIES, Acting P. J.
_________________________
BANKE, J.
A144430
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