Case Name:??? Jonathan Reyes v. Country Club Villa Shopping Center, LLC

Case No.:??????? 1-12-CV-238025

Motion for Summary Judgment by cross-defendant Silicon Valley Paving, Inc.

On November 19, 2013, cross-defendant Silicon Valley Paving, Inc. (?SVP?) filed the motion presently before the court, a motion for summary judgment to the cross-complaint.? (Code Civ. Proc. ? 437c.)? SVP asserts that its liability under the cross-complaint depends on whether Plaintiff can prevail on his complaint for premises liability.? SVP argues that ?that Plaintiff?s claim for premises liability is barred by the trivial defect doctrine and judgment should be granted as a matter of law.

?Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.? A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense.? Once the defendant has met that burden, the burden shifts to the plaintiff ?to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.?? ?There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.??? (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

In moving for summary judgment, SVP argues that the size of the crack in the parking lot constitutes a trivial defect.

?An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.? The law imposes no duty on a landowner?including a public entity?to repair trivial defects, or to maintain [its property] in an absolutely perfect condition.? [A] property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.? Some defects are bound to exist even in the exercise of reasonable care in the maintenance of property and cannot reasonably be expected to cause accidents.?? (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [internal citations and quotation marks omitted].)

?The decision whether a crack or other defect in a walkway is dangerous does not rest entirely on the size of the depression.? Although the size of a crack or pothole is a pivotal factor in the determination, a tape measure alone cannot be used to determine whether the defect was trivial.? Instead, the court should determine whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate.? Aside from the size of the defect, the court should consider 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.? The court should also consider the weather at the time of the accident, a plaintiff?s knowledge of the conditions of the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury.?? (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at pp. 566-567 [internal citations and quotation marks omitted].)

?The trivial defect doctrine is not an affirmative defense.? It is an aspect of a landowner?s duty which a plaintiff must plead and prove.? The doctrine permits a court to determine whether a defect is trivial as a matter of law, rather than submitting the question to a jury.? 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.? The rule which permits a court to determine ?triviality? as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.? ?? [A] landowner is not an insurer of the safety of its users.?? (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at p. 567 [internal citations omitted].)

?The legal analysis involves several steps.? First, the court reviews evidence regarding the type and size of the defect.? If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff?s knowledge of the area.? If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.?? (Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at pp. 567-568.)

In moving for summary judgment, SVP provides the deposition testimony of Maria Zamudio (?Ms. Zamudio?), Plaintiff?s mother, who testified that the shopping cart struck a lump of gravel measuring approximately ? inch above the surface of the parking lot.? (See SVP?s Separate Statement of Undisputed Facts at Nos. 3-4.)? Several California decisions have found height differentials of up to one and one-half inches trivial as a matter of law.? (See Barrett v. Claremont (1953) 41 Cal.2d 70, 74 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [elevation difference of under half an inch]; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 724, fn. 4 [same].)? However, as stated above, size alone is not determinative of whether the crack presents a dangerous condition.? It is just one of several factors for determining whether a given defect may be deemed trivial as a matter of law.? The court must also consider 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.? (See Stathoulis v. City of Montebello, supra, 164 Cal.App.4th at p. 568; Fielder, supra, 71 Cal.App.3d at p. 734.)

With respect to these additional factors, Ms. Zamudio testified during deposition that there were lights in the parking lot and that she could see where she was going.? (See SVP?s Separate Statement of Undisputed Facts at No. 6.)? Even though? SVP?s photographs of the scene are not ideal, they do not show any jagged or uneven edges that might create a dangerous condition.? (Id. at No. 4.)? To defeat the motion, Plaintiff offers the following disputed facts in opposition to the motion:

  • The uplifted asphalt debris existed for at least two months prior to the incident;
  • The area of the parking lot where the incident occurred was dimly lit;
  • SVP had actual notice of the condition of the parking lot because they performed work in the shopping center approximately twelve days before the incident; and
  • The defect in the parking lot is not a trivial defect as SVP made repairs to it after the incident occurred.

(See OPP at p. 1; Plaintiff?s Disputed Fact Nos. 3, 5, and 6.)

However, Plaintiff fails to support its opposition with any evidence to defeat the motion. (See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant?s showing].)? In fact, the only evidence cited in opposition pertains to the deposition testimony of Ms. Zamudio attached to the moving papers.? (See Plaintiff?s Disputed Fact No. 6.)? Even though Ms. Zamudio testified that the shopping center was poorly lit, shortly thereafter she admitted that she could see where she was going.? (See SVP?s Separate Statement of Undisputed Facts at No. 6.)? Thus, the court finds that Plaintiff has not raised any triable issue of fact to show that a dangerous condition existed at the time of the incident.? Therefore, the trivial defect doctrine applies.

Accordingly, SVP?s motion for summary judgment is GRANTED.