Fajardo v. Dailey

Filed 10/14/22; Modified and Certified for Pub. 11/10/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SALVADOR FAJARDO, B314031
Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV28455)
CYNTHIA A. DAILEY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Edward B. Moreton, Daniel M. Crowley,
Judges. Reversed.
Raymond Ghermezian and Coralia Lesin for Plaintiff and
Appellant.
Demler, Armstrong & Rowland, John R. Brydon and David
A. Ring for Defendant and Respondent.
INTRODUCTION
Salvador Fajardo filed this negligence action against
Cynthia Dailey after he tripped and fell on an asphalt patch
between two adjacent sidewalk slabs in front of Dailey’s property.
The trial court granted Dailey’s motion for summary judgment,
ruling the condition of the sidewalk was a trivial defect. Because
Dailey did not meet her burden on summary judgment of showing
the defect was trivial as a matter of law, and because Fajardo
submitted admissible evidence creating a triable issue of material
fact, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. Fajardo Files This Action Against Dailey
One morning in December 2018 Fajardo went for a walk in
his neighborhood. Fajardo was wearing shorts and “tennies.” As
he ran to reach an intersection before the traffic light turned red,
he caught his foot on a lift in the sidewalk in front of Dailey’s
home and fell, hitting his hands and knee on the ground.
Fajardo filed this action in August 2019 against Dailey, the
City of Monrovia, and the County of Los Angeles. In his
operative, first amended complaint, he alleged causes of action
against Dailey for premises liability and “negligence and property
damage.” Fajardo alleged Dailey “negligently, carelessly and
recklessly owned, maintained, controlled, possessed, repaired,
inspected, operated, designed, built, managed and cleaned” the
property “in a dangerous condition, so as [to] cause [him] to trip
and fall on the sidewalk surface.”
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B. The Trial Court Grants Dailey’s Motion for Summary
Judgment
Dailey moved for summary judgment on the ground “the
dangerous condition that [Fajardo] alleges caused injury
amounted to nothing more than a trivial defect.” Dailey
submitted Fajardo’s deposition testimony that, after he fell, he
measured the height differential with his key and described it as
“a little over one inch.” Fajardo also testified that the weather
was sunny, that he had lived nearby for 13 years, and that he
had previously walked on the sidewalk in front of Dailey’s house.
Dailey also submitted the declaration of an architect,
Thomas Parco, who stated the sidewalk complied with applicable
codes, statutes, and regulations and presented “no unreasonable
safety hazard.” Parco stated that the displacement in the
concrete slabs where Fajardo fell created a rise of less than one
inch and that the defect was trivial. Parco opined that the black
asphalt patch made the displacement clearly visible and that,
because Fajardo was traveling down the slope rather than up, it
was less likely someone like him would trip. Several photographs
attached to Parco’s declaration of a tape measure someone placed
on the sidewalk suggested the differential was between 10/16 and
13/16 of an inch. The trial court, however, sustained Fajardo’s
objections to these (unauthenticated) photographs and to Parco’s
(legal) conclusion the defect was trivial.
In opposition to the motion, Fajardo disputed Parco’s
measurement of the height differential and argued the height of
the displacement, combined with other aggravating factors, made
the sidewalk defect nontrivial. Fajardo submitted the declaration
of a forensic analyst, Eris J. Barillas, who stated that she visited
the site in February 2021 and that, although the asphalt patch
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had been removed and replaced with concrete, she measured the
height differential as approximately one and three-sixteenths
inches. Barillas opined that the sidewalk defect had a vertical
height differential between one and three-sixteenths and one and
one-half inches in December 2018 when Fajardo fell and that the
asphalt patch was at least 11 years old. Barillas stated “low
lying height differentials often go unnoticed by pedestrians and
are likely to pose a significant tripping hazard.” She also stated
that a photograph Fajardo took two days after his fall showed the
asphalt patch was “substantially defective and deteriorated and
contains jagged, uneven, and irregularly shaped edges, cracks
and loose pieces of asphalt.” Barillas opined the asphalt patch
was a “tripping hazard” and “not a trivial defect.”
The court acknowledged that the parties disputed the size
of the height differential, but concluded that Fajardo’s evidence
the lift was one and three-sixteenths to one and one-half inches
high “does not create a triable issue of material fact, considering
courts have found height differentials as big as 1 1/2 inches high
to be trivial.” The court also rejected Fajardo’s contention “jagged
edges and irregular breaks” in the asphalt patch were
aggravating circumstances that precluded summary judgment.
The court found the “obvious and distinctive nature of the asphalt
patch,” rather than making the sidewalk defect more dangerous,
was “consistent with a determination that the condition of the
sidewalk was a trivial defect.” The court granted Dailey’s motion
for summary judgment, and Fajardo timely appealed from the
ensuing judgment.
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DISCUSSION
A. Applicable Law and Standard of Review
A court may grant a motion for summary judgment “‘only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”’” (Doe v. Roman Catholic
Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668; see
Code Civ. Proc, § 437c, subd. (c); Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618.)
“A defendant seeking summary judgment must show that the
plaintiff cannot establish at least one element of the cause of
action.” (Regents, at p. 618; see Mattei v. Corporate Management
Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.) “Only after the
defendant carries that initial burden does the burden shift to the
plaintiff ‘to show that a triable issue of one or more material facts
exists as to the cause of action . . . .’” (Luebke v. Automobile Club
of Southern California (2020) 59 Cal.App.5th 694, 703.)
“‘We review a grant of summary judgment de novo and
decide independently whether the facts not subject to triable
dispute warrant judgment for the moving party as a matter of
law.’” (Doe v. Roman Catholic Archbishop, supra, 70 Cal.App.5th
at p. 669; see Luebke v. Automobile Club of Southern California,
supra, 59 Cal.App.5th at p. 703.) We “liberally construe the
evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.”
(Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103
(Huckey).)
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B. Trivial Defects
Property owners are required “‘to maintain land in their
possession and control in a reasonably safe condition’ [citations]
and to use due care to eliminate dangerous conditions on their
property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-
944.) But “‘a property owner is not liable for damages caused by
a minor, trivial, or insignificant defect’ on its property.” (Nunez
v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757; see
Cadam v. Somerset Gardens Townhouse HOA (2011)
200 Cal.App.4th 383, 388.) The so-called “trivial defect doctrine”
recognizes that “‘persons 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); see Cadam, at
p. 389.)
In limited circumstances a court may determine a walkway
defect is trivial as a matter of law. (Huckey, supra,
37 Cal.App.5th at p. 1104; Stathoulis v. City of Montebello (2008)
164 Cal.App.4th 559, 567 (Stathoulis).) “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.” (Stathoulis, at p. 567; see Kasparian,
supra, 156 Cal.App.4th at p. 28.) But where “sufficient evidence
has been presented so that reasonable minds may differ as to
whether the defect is dangerous,” summary judgment is
inappropriate. (Kasparian, at p. 28.)
“In the sidewalk-walkway context, ‘[t]he decision whether
the defect is dangerous as a matter of law does not rest solely on
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the size of the crack in the walkway, since a tape measure alone
cannot be used to determine whether the defect was trivial.’”
(Nunez v. City of Redondo Beach, supra, 81 Cal.App.5th at p. 757;
see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)
Although a defect’s size “‘may be one of the most relevant factors’
to the court’s decision” (Huckey, supra, 37 Cal.App.5th at
p. 1105), the court also must consider “all of the circumstances
surrounding the accident that might make the defect more
dangerous than its size alone would suggest,” including “whether
the walkway had any broken pieces or jagged edges.” (Caloroso,
at p. 927.)
C. Dailey Did Not Meet Her Burden on Summary
Judgment To Show the Defect Was Trivial as a
Matter of Law
In her motion Dailey asserted the sidewalk differential was
less than one inch. In his supporting declaration, Parco stated:
“The displacement in the concrete slabs at an expansion joint, the
location reported to be the course [sic] of [Fajardo’s] trip, created
a vertical rise of less than 1 inch.” Parco, however, did not state
how or why he knew this. He did not say he measured the
displacement, nor did he give any other basis for his conclusion.
Therefore, it had no evidentiary value and could not support
summary judgment. (See McAlpine v. Norman (2020)
51 Cal.App.5th 933, 939 [a “‘moving party’s burden . . . cannot be
satisfied by an expert declaration consisting of ultimate facts and
conclusions that are unsupported by factual detail and reasoned
explanation’”]; Doe v. Good Samaritan Hospital (2018)
23 Cal.App.5th 653, 662 [expert’s “‘opinion unsupported by
reasons or explanations does not establish the absence of a
material fact issue for trial, as required for summary judgment’”];
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Sanchez v. Kern Emergency Medical Transportation Corp.
(2017) 8 Cal.App.5th 146, 155 [“‘when an expert’s opinion is
purely conclusory because unaccompanied by a reasoned
explanation connecting the factual predicates to the ultimate
conclusion, that opinion has no evidentiary value because an
“expert opinion is worth no more than the reasons upon which it
rests”’”].) The closest Parco came to providing a factual basis for
his statement the rise was less than one inch was his reference to
10 photographs (one of which was an image from an internet
search engine function that provides interactive panoramas from
positions on public streets) attached to his declaration. But Parco
did not say he took the photographs, or even who did. Nor did he
state that he based his less-than-one-inch opinion on the
photographs or that the photographs showed the displacement
was less than one inch. And the trial court sustained Fajardo’s
objection to the admissibility of those photographs.1
Moreover, “size alone is not determinative of whether a rut
presents a dangerous condition.” (Stathoulis, supra,
164 Cal.App.4th at p. 568; see Kasparian, supra, 156 Cal.App.4th
at p. 28, fn. 38 [“‘application of a strict tape measure approach to
determine whether a defect is trivial as a matter of law,
disregards the fact that other factors and circumstances involved
in a particular case could very well result in an entirely different
conclusion from one arrived at by simply measuring the size of a
defect’”].) The court must also consider whether the
circumstances surrounding the accident made the sidewalk
1 Dailey also cited Fajardo’s deposition testimony that he
measured the displacement with his key and that it measured a
“little over one inch.” A little over one inch, however, is not the
same as “less than one inch.”
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displacement more dangerous than a one-and-one-half-inch
sidewalk lift otherwise would be. (Caloroso v. Hathaway, supra,
122 Cal.App.4th at p. 927; Fielder v. City of Glendale (1977)
71 Cal.App.3d 719, 734.) In her motion for summary judgment,
the only evidence Dailey presented on the condition of the asphalt
patch was Parco’s statement that a “black asphalt patch at the
displacement provided a distinct color contrast to the
surrounding grey concrete making it clearly visible.” But neither
Dailey nor Parco submitted a photograph or other evidence of the
condition of the asphalt patch at the time of the accident. Parco
attached to his declaration a copy of an image from the internet
of Dailey’s address from 2012, but as discussed the trial court
sustained Fajardo’s objection to that image, which in any event
was taken from too far away to show any detail and did not show
the condition of the asphalt patch at the time of the accident.
D. In Any Event, Fajardo Created Triable Issues of
Material Fact That Precluded Summary Judgment
Even if Dailey had met her moving burden on summary
judgment, Fajardo submitted evidence creating triable issues of
material fact on the height differential. Barillas stated that, in
her opinion, the displacement was one and three-sixteenths to
one and one-half inches and that the width of the defect was
approximately 30 inches. And unlike Parco, Barillas provided
the basis for her conclusion. She stated she “visited the site”
after the asphalt patch was removed and replaced with concrete,
was “able to take height measurements,” and found “a height
differential of approximately 1-3/16 inches.” She attached
photographs of the site taken by her company the day she visited
showing the height differential was between 13/16 and one and
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three-sixteenths inches.2 Thus, there was a factual issue about
the size of the defect.3
Fajardo also submitted evidence creating a triable issue of
material fact on whether circumstances or factors other than the
height of the differential increased the danger. Fajardo
submitted the only photograph in the record that showed the
asphalt patch in any detail: a black and white photograph he took
approximately two days after he fell. Although the copy quality
is not the best, the dark-colored asphalt patch is clearly visible
and appears to have a rough texture, an uneven surface, and a
jagged edge where it meets the concrete. A few dark spots near
the patch appear to be pieces of asphalt that have broken off from
the patch.4
2 Although Barillas did not provide the basis for her
conclusion the height differential may have been as high as one
and one-half inches at the time Fajardo fell, Dailey did not object
to this portion of Barillas’s declaration.
3 The trial court ruled that, even accepting Fajardo’s
evidence the height differential was as high as one and one-half
inches, the dispute did not create a triable issue of material fact.
The trial court cited this sentence from the court’s opinion in
Stathoulis, supra, 164 Cal.App.4th at page 568: “Several
decisions have found height differentials of up to one and one-half
inches trivial as a matter of law.” The court in Stathoulis went
on to state, however: “[I]t is also true that as ‘the size of the
depression begins to stretch beyond one inch the courts have been
reluctant to find that the defect is not dangerous as a matter of
law.’” (Ibid.; see Fielder v. City of Glendale, supra, 71 Cal.App.3d
at p. 726.)
4 For the first time on appeal, Dailey argues Fajardo’s
deposition testimony contradicted his position that the asphalt
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The trial court compared the area where Fajardo fell to the
“irregular and jagged” sidewalk in Gentekos v. City and County of
San Francisco (1958) 163 Cal.App.2d 691 (Gentekos), which
included a “hollowed out space” and a “broken piece” that
“projected about two inches above the bottom of the depression.”
(Id. at p. 695.) The trial court concluded Fajardo had “not
introduced any evidence showing aggravating circumstances
rising to the level of the defect described in Gentekos that would
create a triable issue regarding whether the defect is trivial.”
But neither Gentekos nor any other case establishes a minimum
level of irregularity or jaggedness required to defeat summary
judgment. (See, e.g., Barone v. City of San Jose (1978)
79 Cal.App.3d 284, 291 [photographs showing an “irregular and
jagged break” in the sidewalk with a one-inch difference in
elevation precluded a finding of a trivial defect as a matter of
law]; cf. Huckey, supra, 37 Cal.App.5th at p. 1108 [defect was
trivial where there were “no broken concrete pieces or jagged
concrete edges in the height differential”].) It all depends on the
nature of the defect, which in this case, based on the evidence
submitted in connection with the motion for summary judgment,
was not trivial as a matter of law. Because reasonable minds
could differ about whether the condition of the asphalt patch,
combined with the one and one-half inch height differential,
patch created a dangerous condition. In his deposition Fajardo
testified that the “black area” he tripped over had no “jagged
edges,” that there were no “loose rocks,” and that he did not know
any other reason the sidewalk was dangerous other than its
“height.” By not making this argument in the trial court, Dailey
forfeited it. (See Doe v. Roman Catholic Archbishop of Los
Angeles, supra, 70 Cal.App.5th at p. 672.)
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“presented a substantial risk of injury” (Stathoulis, supra,
164 Cal.App.4th at p. 570), the trial court erred in granting
Dailey’s motion for summary judgment. (See Huckey, at p. 1105
[if “reasonable minds may differ as to whether the defect presents
a substantial risk of injury, the court may not conclude that the
defect is trivial as a matter of law”].)
DISPOSITION
The judgment is reversed. Fajardo is to recover his costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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Filed 11/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
SALVADOR FAJARDO, B314031
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV28455)
v. ORDER MODIFYING AND
CERTIFYING OPINION FOR
PUBLICATION; NO CHANGE IN
CYNTHIA A. DAILEY,
APPELLATE JUDGMENT
Defendant and Respondent.
THE COURT:
The opinion filed on October 14, 2022 and not certified for publication is
modified as follows:
On page 10, line 2 of footnote 3, the word “high” is replaced with
“great,” so that the sentence reads:
The trial court ruled that, even accepting Fajardo’s evidence the
height differential was as great as one and one-half inches, the
dispute did not create a triable issue of material fact.
The opinion in this case filed October 14, 2022 was not certified for
publication. Because the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c), the non-party’s request
for publication under California Rules of Court, rule 8.1120(a), is granted.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the opinion be published in the Official Reports.
This order does not change the appellate judgment.
PERLUSS, P. J. SEGAL, J. FEUER, J.
2