Liss v. City of San Diego CA4/1

Filed 2/17/21 Liss v. City of San Diego CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
KATHLEEN LISS, D076971
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00058658-CU-PO-CTL)
CITY OF SAN DIEGO,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Reversed.
Law Offices of Brandon M. Smith and Brandon M. Smith for Plaintiff
and Appellant.
Mara W. Elliott, City Attorney, George F. Schaefer, Assistant City
Attorney, Jacqueline J. McQuarrie, Deputy City Attorney for Defendant and
Respondent.
Plaintiff Kathleen Liss appeals from a judgment entered in favor of
defendant the City of San Diego (the City) on her causes of action for
dangerous condition of public property and premises liability after she
tripped and fell on a public sidewalk where there was an approximate one
and one-half inch difference between a portion of the sidewalk with a water
meter box lid and the adjacent sidewalk section. The trial court granted the
City’s motion for summary judgment on the ground that the City had shown
that Liss could not establish one or more elements of her cause of action, i.e.,
concluding that the defective condition was trivial, that it was not created by
the negligence or wrongful conduct of the City’s employee(s), and that the
City had neither actual nor constructive notice of the dangerous condition a
sufficient time prior to the injury to take measures to protect against the
condition.
On appeal, Liss contends that the trial court erred in granting
summary judgment in favor of the City. Specifically, Liss challenges the
court’s conclusion that the defect was trivial as a matter of law. She argues
the court’s exclusion of her expert’s testimony on that point was both
erroneous and reflected court bias. She also takes issue with the trial court’s
conclusion that she could not demonstrate the City had actual or constructive
knowledge of the alleged dangerous condition. Our review of the record on
summary judgment indicates the City did not meet its burden to show that
Liss cannot establish one or more elements of her cause of action. We
therefore reverse the trial court’s judgment in favor of the City.
BACKGROUND AND PROCEDURAL FACTS
On January 25, 2018, Liss and her friend Linda Karelis were walking
in a La Jolla neighborhood for exercise. Karelis had walked on the street
where the incident occurred about 20 times before that day, but Liss said it
was the first time she had walked the particular route, and she was not
familiar with the street at the time.
As the two approached the sidewalk in front of 1643 Calle De Cinco,
they noticed a car backing out of the driveway. The vehicle stopped to allow
2
the women to pass behind it. As Liss moved around the rear of the vehicle,
she felt her right toe hit the corner of the sidewalk containing the water
meter box depression closest to the street, and Karelis saw Liss pitch forward
and fly into the street, where she landed primarily on her face.
Karelis did not see what caused Liss to fall, but after her friend lay on
the ground, she saw the spot where Liss might have caught her toe, noting
there was a “pretty good size lip on a water meter access point in the
sidewalk.” Karelis stated there was nothing besides the water meter box that
posed any sort of hazard. The women were walking around 9:30 in the
morning, and there were no rocks or other debris along the lines of the water
meter box or the sidewalk; nor was there any grease or oil.
Liss did not see the water meter cover as she walked toward it that
morning; her attention was focused on the vehicle in the driveway. Although
Karelis testified she is generally aware of things to watch for on a walk, she
did not recall previously noticing the specific water meter that Liss tripped
on.
After Liss was home, Karelis returned to the location of the incident
and took pictures of the water meter box and sidewalk.
A team of student engineers had walked that area of La Jolla and
documented on or about January 21, 2015, that the sidewalk at 1643 Calle de
Cinco was in good condition. Prior to Liss’s fall, the City had not received any
complaints or reports of concerns dating back to at least 2011. Additionally,
Public Utilities employees read the water meters every two months and can
report problem conditions they observe with a meter box and lid.
Liss presented her claim to the City on April 9, 2018. (Gov. Code,
§ 905.) A claims representative in the City’s Risk Management Department
investigated the claim and took photographs of the location of the incident on
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or about July 31, 2018. The employee measured the height differential
between the water meter cover and the sidewalk as between one-half inch
and one inch.
After the City rejected the claim, Liss filed her complaint in November
2018, alleging dangerous condition of public property and premises liability.
Liss’s mechanical engineering expert Zachary M. Moore visited the
location of the incident on January 8, 2019 to inspect it, but the City had
already begun to repair the water meter cover, so any height differential had
been removed prior to the site inspection. He took measurements of the
sidewalk and the water meter box, and he took photographs. A city employee
explained in a declaration that she was working on a job nearby when a
customer approached her and asked her to replace the water meter box in
front of 1643 Calle de Cinco. Unaware there was a repair crew already
scheduled to repair the meter and unaware of the pending litigation, the
employee replaced the water meter box.
The City moved for summary judgment in July 2019.
In opposition, Liss filed a declaration in which Moore opined, among
other things, that the height differential ranged from over one half of one
inch to over one and one-half inches and that any height differential beyond
six-tenths of one inch has the substantial possibility of causing a pedestrian
to slip and fall. The City objected to the declaration, contending that expert
testimony was unnecessary because the situation was one within the common
experience and also that the opinions offered by Moore lacked foundation.
The court sustained all but one of the City’s objections to Moore’s declaration.
At the hearing, the court said it was not the first time it had sustained
objections to declarations offered by the firm employing Moore. The court
said it was aware that firm advertises heavily, then it told counsel: “This is a
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shoddy, incomplete job of—of trying to support your client’s claims by
someone who didn’t spend enough time and didn’t do a good job establishing
a foundation for his opinions.” The court continued: “This is the Lexco firm,
and I have sustained objections before this year to declarations offered by
this same outfit. This is—it’s poor work.” The court again said, “It’s poor.
He did not do a good job with this.” When counsel began to comment that the
court was basing its opinion of the expert’s declaration on dealings with his
firm in other matters, the court interrupted: “I’m not basing [my decision] on
the fact that—that the firm is a bad firm, don’t get me wrong. I’m basing it
on the fact that this specific declaration does not contain an adequate
foundation for the opinions that have been offered.”
When Liss’s counsel argued there was evidence the water meter had
been read in person January 12, 2018, shortly before the incident, the court
asked where that foundational evidence was located. Counsel argued a
response to a special interrogatory stated that employees read water meters
every two months and could report problem conditions with the meter box
and lid at that time, which implied they were physically present at the water
meters. Counsel told the court he had additional documentation with him
that showed a route number attached to the meter readings, suggesting the
meter was read in person, but the court declined to receive that evidence
because it had not been submitted in the summary judgment papers.
Liss’s counsel also told the court that the evidence indicated the highest
point of height differential was one-and-one-half of an inch, and he argued
that because this falls along the upper threshold of what could be considered
trivial, and there were aggravating factors, a jury should decide if the
condition were a trivial defect. He identified as aggravating factors the
plaintiff’s lack of familiarity with the area of the fall, the inconsistency in the
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height differential due to the slope of the driveway entrance, and the
distraction of a vehicle backing out of the driveway where the water meter
was located.
Counsel for the City argued that aggravating circumstances must
regard the condition itself and not other activities nearby. She also told the
court the City’s policy was for meter readers to enter a trouble code when
they conducted meter readings in person and discovered an issue. She
argued that had a reader been on site, the reader must not have determined
that the lid was so sunken that it needed to be reported because there was no
report. And because there were no reports or complaints regarding this
particular meter, Liss did not establish a triable issue of fact regarding
notice.
In its order granting summary judgment, the trial court noted that Liss
alleged a height differential of one and one-quarter inch in her complaint and
that her expert opined that the differential was as large as one and one-half
inches. Citing to Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092(Huckey), the court noted that “ ‘[s]idewalk elevations ranging from three-
quarters of an inch to one and one-half inches have generally been held
trivial as a matter of law,’ ” and it concluded “the height differential at hand
may be viewed as trivial, as a matter of law.” The court stated that the
height differential “of 1 1/2 inches (plaintiff’s stated height differentiation) is
not a dangerous condition of public property under Gov[ernment] Code
section 835. [Liss’s] view of the water meter box was not obstructed. There is
no evidence of prior similar accidents. No prior complaints about the water
meter box or cover had been made to the City’s Street Division, Risk
Management Department, or Citizens’ Assistance Program. [Liss] is
unaware of anyone else tripping over the water meter box. The accident
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occurred in the morning, while it was light outside. Thus, when considering
the surrounding circumstances, the accident site is not a dangerous
condition . . . , but only a trivial defect.” The court also commented that it did
not consider the location of the incident near the driveway, and it was not
apparent from the submitted photographs that the sidewalk was “jagged” or
had an “uneven condition.” Ultimately, the court concluded that there were
no aggravating circumstances, and it stated there was “an overwhelming
amount of evidence that the accident site at the time of [Liss’s] injury was a
trivial defect and not a dangerous condition.”
Liss timely appealed.
DISCUSSION
I
COURT RULINGS ON OBJECTIONS TO EXPERT DECLARATION
Liss argues the court abused its discretion by excluding the opinion of
her expert from consideration.
A. Additional Facts
The City objected to substantially all of Moore’s declaration on a
variety of grounds, including lack of foundation (Evid. Code, §§ 403, 702, 801
& 802) and improper expert opinion (Id. at § 801). This included objections to
statements that the metal water cover had been replaced with a concrete-
colored cover between June 2007 and December 2008, that the water meter
box showed evidence of sinking in December 2015, that the City’s employees
are frequently physically at the subject water meters when doing readings,
that the photographs taken by the City’s employee did not truly and
accurately depict the subject height differential, that the true height
differential increased from one-half inch at the south edge to one inch in the
center to one and one-half inches at the north edge that the height
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differential created a substantial trip hazard and an unsafe condition, that
any height differential at or in excess of .59 inches has a substantial
possibility of causing a pedestrian to trip and fall, and that it was foreseeable
that a pedestrian would not identify the height differential at issue here.
Moore’s declaration explained he based his opinions on the papers submitted
by the City in connection with the motion for summary judgment, the
depositions of Liss and Karelis, the complaint, a January 21, 2015 sidewalk
inspection record, and several city and state code sections, three academic
articles, Google images, photographs taken by the City, and photographs
taken during his site inspection.
The court concluded that Moore’s explanation was “devoid of foundation
for his opinions and contains speculation.” It noted that expert opinions
based on conclusions or assumptions not supported by the record had no
evidentiary value for the purpose of summary judgment. (Lockheed
Litigation Cases (2004) 115 Cal.App.4th 558, 563.) Separately, the court
concluded the presence of photographic evidence is sufficient to show the
defect, so no expert opinion was needed to determine the dangerousness of
the condition.
B. Legal Principles
We review evidentiary rulings on summary judgment for abuse of
discretion. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 192,
fn. 15; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928 (Caloroso).) It
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is appellant’s burden to challenge any evidentiary ruling and demonstrate
error. (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058,
1074.)
To be admissible, an expert’s opinions may not be based on
assumptions that lack evidentiary support or speculation. (Kelley v. Trunk
(1998) 66 Cal.App.4th 519, 525 (Kelley); Bushling v. Fremont Medical Center
(2004) 117 Cal.App.4th 493, 510 (Bushling).)
Additionally, expert witness testimony is limited to an opinion on
“ . . . a subject that is sufficiently beyond common experience [so that] that
the opinion of an expert would assist the trier of fact . . . .” (Evid. Code,
§ 801.) When the proffered testimony regards a matter within the common
experience of lay people and the fact finder can draw a conclusion from the
facts as easily as the expert, the expert testimony is inadmissible.
(Westbrooks v. State of California (1985) 173 Cal.App.3d 1203, 1210
(Westbrooks).)
C. Analysis of Evidentiary Objections
Liss argues on appeal that Moore’s opinions were founded on “Moore’s
review of documentation and other data related to the case as set forth in
Paragraph 5 of his declaration,” Moore’s review of photographic evidence
supplied by the City, and Moore’s expertise in mechanical engineering.
It is unclear on what basis Moore concludes that the cover to the water
meter was changed, why he believes there was evidence of the water meter
box sinking as early as December 2015, or why the true height differential
was one and one-half inches when he was unable to measure the differential
since the City had already undertaken repairs. Referencing Moore’s review
of “documentation and other data related to the case” as providing foundation
9
is insufficient; the information and opinion provided in the declaration does
not appear to derive from the details provided in the complaint, the
declarations, or the other papers submitted in connection with the motion for
summary judgment.1
Further, Moore’s opinions do not regard subject matter that extends
beyond common experience. (See Westbrooks, supra, 173 Cal.App.3d at
p. 1210.) Walking along a sidewalk, including one with height differentials,
falls within the common experience, and lay people are capable of assessing
whether a defect is trivial. (Fielder v. City of Glendale (1977) 71 Cal.App.3d
719, 732 (Fielder) [no need for expert opinion regarding nature of defect; “It is
well within the common knowledge of lay judges and jurors just what type of
a defect in a sidewalk is dangerous”].) Thus, the court did not abuse its
discretion by concluding that expert testimony on this point was unnecessary.
D. Analysis of Bias Allegations
Relying on the court’s statements about the quality of the expert’s
testimony and the quality of his firm, Liss also maintains that the court was
biased, and, thus, it did not rule impartially on the evidentiary objections or
while reaching a decision more broadly.
It would have been preferable for the court to resist sharing
information about the frequency of the firm’s advertisements or his rulings
regarding that firm in previous cases before it. However, these comments
themselves are insufficient to demonstrate bias that impacted the outcome,
particularly when the court told the parties it was not basing its
determination in the case on its opinion of the firm but on the basis that the
1 The City’s responses to special interrogatories and a water meter log
implied the meter was read in person. However, as we detail post, the water
meter log was not submitted in connection with the motion for summary
judgment, and the court did not permit the late introduction of the evidence.
10
declaration did “not contain an adequate foundation for the opinions that
have been offered.” As we discussed ante, the court’s evidentiary ruling was
not erroneous; it appeared that Moore did not have a clear foundational basis
to support his opinions, and that is a valid basis for excluding the opinion.
(Bushling, supra, 117 Cal.App.4th at p. 510; Kelley, supra, 66 Cal.App.4th at
p. 525.) Further, even had he better established a foundation for his
conclusions, much of Moore’s opinion is unnecessary because the issue is one
that falls within the common experience. (Fielder, supra, 71 Cal.App.3d at p.
732.) Finally, although the court excluded the expert’s opinion, we note in
reaching its conclusion, the court used a height differential of one and one-
half inches, the number offered by Liss and her expert, rather than the
smaller one half of an inch height differential offered by the City.
II
SUMMARY JUDGMENT
A. Legal Principles
Summary judgment is appropriate when all of the papers submitted by
the parties show there is no triable issue of material fact and the moving
party is entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c,
subd. (c).) A defendant who moves for summary judgment has the initial
burden of showing each alleged cause of action is without merit. (Ibid.;
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A
defendant can meet that burden by showing one or more elements of a cause
of action cannot be established or that there is a complete defense to that
cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) A defendant seeking
to prevail on the ground that one or more elements of the cause of action
cannot be established must make an affirmative showing that the plaintiff
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does not possess, and cannot reasonably obtain, evidence to prove her case.
(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889 (Gaggero).)
If the defendant meets this burden, the burden shifts to the plaintiff to
produce evidence to make a prima facie showing of the existence of a triable
issue of material fact as to the cause of action or affirmative defense. (Code
of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-851.)
If the plaintiff fails to meet that burden, the motion for summary judgment
will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-
781 (Saelzler).)
We review the grant of summary judgment de novo. (Stathoulis v. City
of Montebello (2008) 164 Cal.App.4th 559, 565 (Stathoulis).) We view the
evidence in a light most favorable to the party opposing the motion, liberally
construing his or her evidence and strictly scrutinizing the moving party’s
evidence, and we resolve any evidentiary doubts or ambiguities in plaintiff's
favor. (Saelzler, supra, 25 Cal.4th at p. 768.)
A triable issue of material fact exists if the evidence would allow a
reasonable trier of fact to find the underlying facts in favor of the party
opposing the motion in accordance with the applicable standard of proof.
(Aguilar, supra, 25 Cal.4th at p. 850.)
B. Trivial Defect Doctrine
Government Code section 835 provides: “Except as provided by statute,
a public entity is liable for injury caused by a dangerous condition of its
property 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, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and that either: [¶]
(a) A negligent or wrongful act or omission of an employee of the public entity
12
within the scope of his employment created the dangerous condition; or [¶]
(b) The public entity had actual or constructive notice of the dangerous
condition under Section 835.2 a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition.”
A dangerous condition is one that creates a substantial risk of injury
when the property is used with due care in a manner that is reasonably
foreseeable. (Gov. Code, § 830, subd. (a); Stathoulis, supra, 164 Cal.App.4th
at pp. 565-566.) A condition is not dangerous “[i]f 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.” (Gov. Code, § 830.2.)
There is no duty for a landowner, even a public one, to repair trivial
defects or maintain property in “an absolutely perfect condition.” (Ursino v.
Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399 (Ursino).) “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 the city liable for injuries caused thereby.” (Barrett v.
City of Claremont (1953) 41 Cal.2d 70, 73 (Barrett).) This is because even
when a property owner exercises reasonable care in maintaining property,
some defects are bound to exist (Stathoulis, supra, 164 Cal.App.4th at p. 566).
“Ordinarily the existence of a dangerous condition is a question of fact.”
(Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704, citing Peterson v.
13
San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.) But a
court can resolve this question as a matter of law “if reasonable minds can
come to but one conclusion.” (Peterson, at p. 810; Gentekos v. City & County
of San Francisco (1958) 163 Cal.App.2d 691, 697 (Gentekos) [question of fact
exists if reasonable minds could differ as to whether the condition was
dangerous].)
C. Analysis
Before reaching its conclusion that the height differential on the
sidewalk was trivial, the trial court quoted Huckey: “Sidewalk elevations
ranging from three-quarters of an inch to one and one-half inches have
generally been held trivial as a matter of law.” (Huckey, supra, 37
Cal.App.5th at p. 1107.) The trial court then concluded: “As such, the height
differential at hand may be viewed as trivial, as a matter of law.” It also
recognized that it should not rely solely upon the size of the defect, meaning
the depth or height of the sidewalk depression or elevation, because it was
also to consider “other circumstances or factors includ[ing] whether there
were any broken pieces or jagged edges in the area of the defect, whether
there was any dirt, debris or other material [that] obscured a pedestrian’s
view of the defect, the plaintiff’s knowledge of the area, whether the accident
occurred at night or in an unlighted area, the weather at the time of the
accident, and whether the defect has caused any other accidents.” (See
Huckey, at p. 1105.)
Liss challenges the court’s apparent reliance on Huckey’s conclusion
that courts have generally held that a height differential of up to one and
one-half inches is trivial as a matter of law, and she contends the law does
not so hold. We agree; the cases on which Huckey relies do not point to any
situation in which the height differential was one and one-half inches. (See
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Barrett, supra, 41 Cal.2d at p. 72 [differential of half an inch, with gradual
sloping]; Sischo v. City of Los Banos (1940) 37 Cal.App.2d 717, 718 [sidewalk
slope of 58 one-hundredths of one inch]; Balmer v. City of Beverly Hills (1937)
22 Cal.App.2d 529, 530 [height differential of one inch in one corner of the
sidewalk slab]; Whiting v. City of National City (1937) 9 Cal.2d 163, 164-165
[gradual rise in sidewalk from no differential to three-quarters inch]; Dunn v.
Wagner (1937) 22 Cal.App.2d 51, 53-54 [one inch differential of which
plaintiff was aware]; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47,
50 [differential of five-eighths of an inch to one and three-eighths of an inch,
but court did not reach conclusion regarding triviality of defect, instead
concluding the city had no notice of the defect].) Several of the cases upon
which Huckey relied cited to Whiting. In Whiting, the Supreme Court
referenced its Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361 (Nicholson)
decision before concluding that a height differential of three-quarters of an
inch was trivial. (Whiting, at p. 166.)
In Nicholson, there was a break in the concrete surface of the sidewalk
at the joints between the panels with a difference in the grade at the break of
no more than one and one-half inches, and it was not conspicuous from where
the plaintiff accessed the sidewalk. (Nicholson, supra, 5 Cal.2d at p. 364.)
However, the Supreme Court did not draw a conclusion as to whether the
defect was trivial, instead only assuming as much to discuss the
conspicuousness of the defect for the purpose of determining whether the city
had notice. (Id. at pp. 365-366; see Ness v. City of San Diego (1956) 144
Cal.App.2d 668, 671 (Ness) [explaining reversal in Nicholson based on lack of
15
notice “of a dangerous condition which was assumed for the purpose of
deciding that there was no notice, and is only relevant here for the value in
the assumption”].)
Our review of case law did not uncover any cases in which a height
differential of one and one-half inches was deemed trivial as a matter of law,
and neither party cites to a case in which there are such facts. Case law
more recent than those cases cited in Huckey that finds defects trivial does
not address height differentials that reach one and one-half inches. (See
Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383,
385-386 [trivial height difference of between three-fourths and seven-eighths
of an inch]; Caloroso, supra, 122 Cal.App.4th at pp. 925-926 [trivial defect
found where there was elevation of between seven-sixteenths of an inch and
one inch]; Ursino, supra, 192 Cal.App.3d at p. 394 [three-quarters of an inch
trivial]; Fielder, supra, 71 Cal.App.3d at p. 721 [trivial defect found where
there was depression in sidewalk of three-quarters of an inch at the deepest
point];2 Ness, supra, 144 Cal.App.2d at p. 673 [trivial defect where height
differential was seven-eighths of an inch].)
There are also a few cases where the height differential was close to or
reached one-and-one-half inches, and where courts did not find the defects to
be trivial as a matter of law. For example, where the height differential of
2 The court in Fielder noted that “when 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.” (Fielder, supra, 71 Cal.App.3d at
p. 726.) In Rodriguez v. City of Los Angeles (1963) 215 Cal.App.2d 463, the
sidewalk slabs had a height differential ranging from “one-half inch to
approximately one inch higher than the other,” which created an obstruction
that led to at least five accidents at the location, and the court concluded the
defect was not minor as a matter of law. (Id. at pp. 467-468.)
16
between one and one-sixteenth and one and three-quarter inches and located
in a cross walk, the court concluded reasonable minds might differ as to
whether it could be characterized as dangerous. (Johnson v. City of San
Leandro (1960) 179 Cal.App.2d 794, 800.) In Gentekos, there was in the
middle of the sidewalk a broken piece with jagged and broken edges that
“projected at least an inch and a quarter abruptly above the surrounding
area.” (Gentekos, supra, 163 Cal.App.2d at p. 700.) And in Sheldon v. City of
Los Angeles (1942) 55 Cal.App.2d 690, the difference in elevation rose to a
high point of one and one-half of one inch, and the court concluded the defect
was not trivial as a matter of law. (Id. at pp. 692-693.)
We also recognize, as did the trial court, that “whether the defect is
dangerous as a matter of law does not rest solely on the size of the crack in
the walkway, since a tape measure alone cannot be used to determine
whether the defect was trivial.” (Caloroso, supra, 122 Cal.App.4th at p. 927.)
Courts must also consider the surrounding circumstances (Gov. Code,
§ 830.2; Fielder, supra, 71 Cal.App.3d at p. 734), including “whether the
walkway had any broken pieces or jagged edges and other conditions of the
walkway surrounding the defect, such as whether there was debris, grease or
water concealing the defect, as well as whether the accident occurred at night
in an unlighted area or some other condition obstructed a pedestrian’s view of
the defect.” (Caloroso, at p. 927; see also Fielder, at p. 734.) Other
circumstances the court should consider include the shape and configuration
of the defect, “and any other conditions surrounding the defect.” (Dolquist v.
City of Bellflower (1987) 196 Cal.App.3d 261, 267-268.)
Although the trial court here sustained objections to the expert’s
declaration, it nonetheless considered the defect as reaching one and-one-half
inches in height differential. Looking at the photographs and other evidence,
17
and viewing the information in a light most favorable to Liss, we likewise
treat the height differential as reaching up to one and one-half inches for
purposes of summary judgment. This size defect does not fall squarely
among those determined to be trivial as a matter of law.
We view some of the possible aggravating circumstances differently
than the trial court did. Certainly, many possible factors were not at play
here: the incident occurred around 9:30 in the morning; there is no
information suggesting the water meter box was shaded, unlit, or otherwise
obscured from Liss’s view, and there was no debris present. Thus,
obstruction of the water meter box does not appear to have played a part in
the incident. Additionally, there were no known, reported previous falls
connected with that water meter box; neither Liss nor Karelis were aware of
any, and none had been reported to the City through any of the various
departments that collected the data.
However, the photographic evidence shows crumbled and broken
concrete on the sidewalk surrounding and next to the water meter, including
around the water meter cover itself. This suggests some amount of
instability in the sidewalk surrounding the water box. And while the City
argued the presence of a vehicle backing out of the driveway in front of which
the water meter box is located is not an appropriate circumstance to consider,
the placement of the water meter box on the sidewalk in the lip of the
residence driveway is a factor specific to the condition’s location that we can
and do consider.
We understand the City’s position that distractions are always possible,
and that it is the pedestrian’s responsibility to act with due care. (See Gov.
Code, § 830, subd. (a).) But the case law which the City cites addresses a
different kind of distraction than what we observe here. In Mixon v. Pacific
18
Gas & Electric Company (2012) 207 Cal.App.4th 124, 136, the court
concluded that an accurate, reasonably-placed warning sign does not create a
danger just because it focuses a driver’s attention on one pending roadway
feature among many because drivers must attend to the roadway as a whole.
And in Lompoc Unified School District v. Superior Court (1993)
20 Cal.App.4th 1688, 1697, the court concluded the school district did not
have a duty to users of an adjacent street to shroud the athletic fields so
passing motorists could avoid distraction.
Here, the distraction of the moving vehicle in the driveway did not alert
Liss to possible upcoming danger like the caution sign did in Mixon. Nor was
Liss distracted by an event unrelated to her exercise activity, like the drivers
in Lompoc. Instead, Liss’s attention on the vehicle in the driveway highlights
the relevance of the water meter box’s location, not simply in a sidewalk slab,
but in a slab at the foot of a driveway where vehicles enter and exit. Its
location has relevance here because of the pedestrian’s duty to exercise due
care.
Given the height of the differential, the broken concrete surrounding it,
its placement at the base of a driveway where vehicle activity is foreseeable,
and the presence of a moving vehicle in the driveway, and resolving all
evidentiary doubts and ambiguities in Liss’s favor, we cannot say that
reasonable minds could reach only the conclusion that the defect here was
trivial. This is a determination for the jury to make.
D. Notice
A public entity can be liable for a dangerous condition it did not create
if it had actual or constructive notice of the defect before injury, and it had
19
sufficient time to correct it.3 (Gov. Code, § 835.) Actual notice exists if the
public entity knows of the condition and knows or should have known of the
condition’s dangerous character. (Gov. Code, § 835.2, subd. (a).)
A public entity has constructive notice of a dangerous condition if the
condition exists long enough and is obvious enough that, in the exercise of
due care, the entity should have discovered the condition’s dangerous
character. (Gov. Code, § 835.2, subd. (b).) Constructive notice also exists if
the hazard would have been discovered by a reasonable inspection, but the
public entity failed to have such a system in place or failed to operate its
inspection system with due care. (Gov. Code, § 835.2, subd. (b)(2); see
Straughter v. State of California (1976) 89 Cal.App.3d 102, 110-111
(Straughter) [constructive notice based on failure to inspect].)
“ ‘[Constructive] notice may be imputed if it can be shown that an obvious
danger existed for an adequate period of time before the accident to have
permitted the [public entity], in the exercise of due care, to discover and
remedy the situation . . . .’ [Citation.]” (Carson v. Facilities Development Co.
(1984) 36 Cal.3d 830, 842.) Typically, “[t]he questions of whether a
dangerous condition could have been discovered by reasonable inspection and
whether there was adequate time for preventive measures are properly left to
the jury.” (Id. at p. 843; Rowland v. City of Pomona (1947) 82 Cal.App.2d
622, 626 [whether a defective and dangerous condition existed for a sufficient
length of time to constitute constructive notice, and whether a reasonable
time to remedy the condition or to take action to protect the public against
the condition existed are questions for the trier of fact to determine].)
3 The City raised both actual and constructive notice in its motion for
summary judgment.
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The City maintains that it did not have actual notice because “it
received no report, complaint, service request, claim, or other notification of
any kind concerning the subject location or its allegedly dangerous character,
prior to Liss’s fall.” It also argues that no problems were noted during the
sidewalk inspection in January 2015, three years before Liss’s fall. It
contends that because it made a prima facie showing that it did not receive
actual notice, Liss bears the burden of presenting evidence of a triable issue
of material fact, and that she fails to do so because her only argument is that
a City employee read the water meter two weeks before the incident, and
there had been no significant change to the water meter box’s condition
between that time and the incident. The City alleges that the only evidence
to support this contention is Liss’s citation to Moore’s (inadmissible) opinion.
The City’s position regarding notice, then, relies on whether there is evidence
that a person visited the site to read the meter in the weeks or months prior
to Liss’s fall and therefore “should have known of the dangerous condition.”
(See Gov. Code, § 835.2, subd. (b).)
In response to Liss’s Special Interrogatory No. 2, which asked the City
to describe its inspection system for discovering any potentially dangerous
conditions during the 12 months preceding Liss’s fall, the City wrote: “Every
two months, water meters are read by Public Utilities employees to
determine the amount of water passing through the meter and for billing
purposes. These employees can report problem conditions they observe with
the meter, box, and lid.” The response implies that public employees visit the
21
site when reading meters; otherwise, they would not be able to observe any
problem conditions with the meter, box, or lid to report to the City.4
The attorney for the City argued the presence of a meter reader in
person was “not really the issue,” because there was “no evidence that the
meter reader was aware—should have been aware of the dangerous
condition.” However, the City’s response to the interrogatory indicated its
policy was for some sort of inspection of water meter boxes to occur every
couple months, at which time employees could report any problems. Thus, if
the hazard would have been discovered by a reasonable inspection as part of
this process, but the City failed to operate its inspection process with due
care, it could still be found to have constructive notice of a defect. (Gov. Code,
§ 835.2, subd. (b)(2); see Straughter, supra, 89 Cal.App.3d at pp. 110-111
[constructive notice based on failure to inspect].)
The City’s representation that there is no evidence that the meter
reader should have been aware of a dangerous condition cuts both ways;
there is also no evidence that the meter reader was not aware of it. The
City’s argument is that the water meters are read every two months and the
meter readers can report problem conditions, but if there is not actually a
meter reader present and reading this meter, then that does not ring true.
The City, which possesses access to such information, presented no evidence
on this point at all whatsoever.
During the hearing, the court commented that smart meters had been
installed in La Jolla, though no parties had submitted evidence related to
4 The City acknowledged during the hearing that the policy was for
meter readers to enter a trouble code when observing an issue during an in-
person meter reading, and the attorney for the City told the court there are
trouble codes for sunken water meter lids, so that if a reader were on site and
discerned the lid were so sunken that it needed to be reported, he or she could
do so.
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this possibility. In its judgment, the trial court explained that “[m]odern
‘smart meters’ do not always require periodic examination by ‘meter
readers.’ ” Aside from this reference and the corresponding verbal exchange
at the hearing on this point, we find no evidence in the record regarding
smart readers, how they function, or whether the water meter at issue in this
case was, in fact, a “smart meter.” The City does not provide evidence or
represent that the meter box at issue is a “smart meter,” and when the court
asked defense counsel whether there was any evidence that this was or was
not a smart meter, the attorney responded, “I don’t think you have an
indication either way.”
It is the City’s burden to demonstrate the cause of action is without
merit by showing an element cannot be established. (Code Civ. Proc., § 437c,
subd. (c); Aguilar, supra, 25 Cal.4th at p. 843.) Given the implication of the
response to the special interrogatory, we cannot conclude Liss cannot
reasonably obtain evidence to prove this element. (See Gaggero, supra, 108
Cal.App.4th at p. 889.) If an employee had visited the location, that employee
is in a position to explain whether the condition seemed dangerous and why
or why not. And if no employee visited the location, that is relevant
information as well. In other words, there remains an open question as to
whether the City may have had actual or constructive notice of the subject
defect.5 (See Saelzler, supra, 25 Cal.4th at p. 768.)
III
COMPLIANCE WITH COURT RULES
5 Even if there is an equally probable inference from this interrogatory
response that no person attended to the meter in person to conduct the
reading because it does not state expressly how the readings are conducted,
we do not weigh conflicting inferences. (Aguilar, supra, 25 Cal.4th at p. 856;
Code Civ. Proc., § 437c, subd. (c).)
23
Although we conclude the City has not met its burden and will reverse
the judgment, we reach this conclusion despite the quality of Liss’s briefing
and her non-compliance with California Rules of Court.
First, Liss attached to her opening brief a document, which was not
accepted or considered by the trial court.6 A party may attach exhibits to a
brief if those documents are already part of the appellate record. (Cal. Rules
of Court, rule 8.204(d).) But when the attached documents are not in in the
record, we disregard that evidence on appeal. (See Hodge v. Kirkpatrick
Development, Inc. (2005) 130 Cal.App.4th 540, 546, fn. 1.)
Second, Liss devoted approximately a page of her argument to
discussing an unpublished opinion. This was inappropriate because opinions
not certified for publication “must not be cited or relied on by a court or party
in any other action.”7 (Cal. Rules of Court, rule 8.1115(a).) We did not
consider the unpublished opinion in reaching our decision.
Third, California Rules of Court require an appellant to “[s]upport any
reference to a matter in the record by citation to the volume and page number
of the record where the matter appears.” (Cal. Rules of Court, rule
6 The document she attached as “Exhibit D” was not in the record below.
It is a document that has at the top the address 1643 Calle de Cinco, then
lists the route number, meter number, read date, and meter reader. It is
labeled with discovery number CoSD_000028, suggesting it was produced by
the City. Because it was not in the record, we do not consider it. (Roman v.
BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054-1055 [evidence “not
presented in opposition to the motion for summary judgment motion itself is
not properly considered by the court in ruling on the motion”].)
7 Neither of the exceptions to this rule are applicable here because the
cited opinion has no bearing on this particular case under doctrines of law of
the case, res judicata, or collateral estoppel (Cal. Rules of Court, rule
8.1115(b)(1)), and the case before us does not regard a criminal or
disciplinary action (Cal. Rules of Court, rule 8.1115(b)(2)).
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8.204(a)(1)(C).) “The appellate court is not required to search the record on
its own seeking error. . . . [Any] point raised that lacks citation may, in this
court’s discretion, be deemed waived.” (Del Real v. City of Riverside (2002) 95
Cal.App.4th 761, 768.) The failure to comply with this rule may result in
offending portions of the brief being disregarded. (Young v. Fish & Game
Com. (2018) 24 Cal.App.5th 1178, 1190-1191.)
In her opening brief, Liss cites to the court transcript volume and page
number directing us to her underlying memorandum of points and
authorities in opposition to the motion for summary judgment, not to any
specific evidence. This required us to utilize the references within the
memorandum to locate the information in her statement of undisputed facts.
That document in turn provided the location of the relevant, supporting
evidence, which was located elsewhere in the record. But Liss failed to
provide direct citations to the relevant evidence.
Although we decline to treat the issues in this matter as forfeited as a
result, we would describe the briefing here, generously, as sloppy. We
encourage counsel to pay closer attention to details and to follow the Rules of
Court with diligence in the future.
We also caution Liss against raising new arguments in a reply brief.
Liss’s first argument in her reply brief was that the court improperly
concluded the City did not intentionally destroy evidence. Liss did not raise
spoliation as an issue in her opening brief. On the basis of this (new)
argument, Liss contends that because the water meter box was destroyed
when the City repaired it, there must be an inference that the height
differential reached one and one-half inches and was not trivial.
Spoliation occurs when a party significantly alters or destroys evidence
or fails to preserve evidence for future use in litigation. (Williams v. Russ
25
(2008) 167 Cal.App.4th 1215, 1223.) When spoliation occurs, the responsible
party can be subject to a broad range of punishments (Ibid.), including “the
evidentiary inference [that] one party has destroyed or rendered unavailable
evidence [that] was unfavorable to that party” (Cedars-Sinai Medical
Center v. Superior Court (1998) 18 Cal.4th 1, 11-12). Additionally, “in most
cases of purported spoliation[,] the facts should be decided and any
appropriate inference should be made by the trier of fact after a full hearing
at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th
1403, 1431.) But by raising a substantive argument like this for the first
time in her reply brief, Liss has forfeited appellate consideration of its
application. (Padron v. Watchtower Bible & Tract Society of New York, Inc.
(2017) 16 Cal.App.5th 1246, 1267.)
DISPOSITION
The judgment is reversed, and this matter is remanded to the trial
court for further proceedings. In the interests of justice, each party shall bear
its own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.
26