Gonzalez v. City of San Buenaventura

• Decision Date: 17 November 2021
• Docket Number: 2d Civ. B309961
• Court: California Court of Appeals
• Parties: MARIA GONZALEZ, Plaintiff and Appellant, v. CITY OF SAN BUENAVENTURA, Defendant and Respondent.

MARIA GONZALEZ, Plaintiff and Appellant, v. CITY OF SAN BUENAVENTURA, Defendant and Respondent.

2d Civ. No. B309961

California Court of Appeals, Second District, Sixth Division

November 17, 2021

NOT TO BE PUBLISHED

Superior Court County of Ventura No 56-2019-00524094-CU-PO-VTA Kevin G. DeNoce, Judge

Law Office of Ball and Yorke, Esther R. Sorkin for Plaintiff and Appellant.

Gregory G. Diaz, City Attorney, Andy H. Viets and Dirk DeGenna, Assistant City Attorneys, for Defendant and Respondent.

GILBERT, P. J.

Maria Gonzalez appeals a summary judgment the trial court granted in favor of defendant City of San Buenaventura (City) on her personal injury action alleging a dangerous condition on a City-owned sidewalk. We conclude, among other things, that the trial court erred because there are triable issues of fact. We reverse.

FACTS

On June 16, 2018, at 7:10 in the morning, Gonzalez, an elderly grandmother, was walking on the sidewalk in the City for her daily exercise. She had been doing daily walks for about 20 years. She approached a portion of the sidewalk that had a crack in the cement. It was a jagged-edged, irregular-shaped elevated crack that extends to almost the entire width of the sidewalk. The defect elevated the broken area of the sidewalk up to a maximum height of "1 and 3/16 inches" above the normal level of the sidewalk.

In her deposition Gonzalez testified she fell because her foot "got caught on the cement" crack and she "went flying." The City's attorney asked her, "Was there anything blocking your view of the rise?" Gonzalez: "No." When asked where she was looking, she said, "I'm just always concentrating on my walking." She did not have a problem walking in this area before she fell. She identified a photograph showing the area where she tripped. That photograph showed the elevated crack was entirely in the shadows of a tree. She said there are always "bottlebrush leaves on the ground" there.

The City filed a motion for summary judgment claiming the cracked sidewalk area was "a trivial defect" and, on the day of the accident, the weather "was clear" and sunrise occurred at 5:41 a.m. Charles Dean, the City's public works supervisor, declared that from January 1, 2009, to June 16, 2018, there were no complaints about this sidewalk defect. The City attached Gonzalez's deposition testimony where she identified a photograph showing where she tripped. That photograph showed the elevated crack was entirely in the shadows of a tree. The City highlighted her inability to remember certain details about the incident. It attached three photographs of the accident area.

Gonzalez contested factual statements in the City's separate statement of undisputed facts. The parties agreed undisputed facts included that the area where she fell is "located between two potential shadow-casters-trees on one side and a wall on the other." The City claimed as undisputed facts that a photograph admitted in the deposition "shows the condition of the sidewalk as it relates to leaves, trash and other debris on the sidewalk in essentially the same condition it was on the day of the accident." Gonzalez responded that the photograph shows the scene "similar to the way it was on the day of the accident."

In her opposition Gonzalez claimed the sidewalk defect was not trivial and there were triable issues. Citing Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439, she could not remember certain details, such as the presence of shadows, which could be proven by other evidence.

Gonzalez's expert William Dexter, the former director of the California Center for Construction Education at the California Polytechnic State University-San Luis Obispo, declared the crack area in the sidewalk was not safe because it was not ramped or beveled and the City violated building code standards resulting in "safety inadequacies." Gonzalez fell "on a vertical change in the level of the sidewalk that exceeded the maximum deviation permitted" under the building code and the "City's own standards."

Gonzalez included the deposition of Joe Yahner; the City designated him as the staff person who is the most knowledgeable concerning City sidewalk repairs. Yahner testified that under City standards a sidewalk height differential of "up to a half an inch" falls within the minor defect category. The current defect did not fall within that category because of its larger size. To correct it, the City would have to build a "ramp to take off [the] edge." The City does not "have an active investigation process" for sidewalk repairs. That process is "driven by complaints" by the public. He said, "We have no warning method for the public after the complaint" is filed. The City had made repairs near this area "around the corner." The trees in the area are "City trees."

The trial court granted the City's motion.

DISCUSSION

Summary Judgment

"Summary judgment provides courts with 'a mechanism to cut through the parties' pleadings in order to determine whether despite their allegations, trial is in fact necessary to resolve their dispute.'" (San Jose Neurospine v. Aetna Health of California, Inc. (2020) 45 Cal.App.5th 953, 957.) "A defendant may obtain summary judgment by showing one or more elements of plaintiff's cause of action is missing or that there is a complete defense to the cause of action." (Ibid.)" '[A]ny doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.'" (Id. at p. 958.)

"' "On appeal, the reviewing court makes' "an independent assessment of the correctness of the trial court's ruling [regarding summary judgment], applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law . . . ." '" '" (San Jose Neurospine v. Aetna Health of California, Inc., supra, 45 Cal.App.5th at p. 958.)

The party moving for summary judgment has the burden to support the motion with admissible evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 844, 884, 893.) If that burden is not met, the motion must be denied. (Ibid.) "Once this burden has been met, the burden shifts to the plaintiff to demonstrate through specific facts . . . the existence of a triable material factual issue as to the cause of action." (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 19.)

"[W]e consider the evidence presented in the light most favorable to the opposing party, liberally construing the opposing party's evidence and strictly scrutinizing the moving party's." (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at p. 19.)" 'We are not bound by the trial court's stated reasons or rationales.'" (Ibid.)" 'Summary judgment is a drastic remedy to be used sparingly . . . .'" (Ibid.)

A trial court's rulings relating to photographs on a summary judgment motion are "subject to a de novo standard" of review. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at p. 24.) "It is incumbent on the reviewing court to examine the photographs for itself and make its own determinations." (Ibid.)

The Trivial Defect Doctrine

Municipalities defending personal injury lawsuits based on sidewalk defects are entitled to summary judgment as a matter of law where the defects are trivial. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at p. 27.)" '[P]ersons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.'" (Id. at p. 26) The duty of care "does not require the repair of minor defects." (Id. at p. 27.) But, "[i]f the 'court determines . . . sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule . . . the defect is not dangerous as a matter of law." (Id. at p. 28.)

Gonzalez's Deposition Testimony-Plaintiff's Negligence?

The City notes that during her deposition Gonzalez was asked, "Was there anything blocking your view of the rise?" Gonzalez responded, "No."

But that answer is not dispositive for a summary judgment for the City. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at p. 28.) "[T]he fact that the defect in the sidewalk was visible . . . does not compel a conclusion that the plaintiff was negligent . . . ." (Sykes v. City of Los Angeles (1952) 110 Cal.App.2d 57, 60.) Visibility is only one of many factors, including the pedestrian's "right to assume that a public sidewalk is in reasonably safe condition." (Garber v. City of Los Angeles (1964) 226 Cal.App.2d 349, 356, italics added.) Moreover, Gonzalez's counsel properly objected to this question. It did not specify whether her "view" was looking over the "rise" or as she approached it from a different angle 10 feet away. The view of the defect will be different from different distances. (Kasparian, at pp. 25-26.)

The more critical issue was not whether there was some object blocking her view, but whether pedestrians approaching the area would be able to detect the danger of jagged-edged concrete, that could trap their feet, imbedded in an elevated sidewalk rise. (Kasparian v. AvalonBay Communities, Inc., supra, 156 Cal.App.4th at p. 23 [the defect was visible but the danger it posed was not "obvious"]; id. at pp. 28-29; Gilbert v. City of Los Angeles (1967) 249 Cal.App.2d 1006, 1010 [viewing an object is not the same as knowing the "magnitude" of its risk].)

In Kasparian, the plaintiff testified there was nothing obstructing her view of a recessed drain on a sunny day when she tripped over it. But the court reversed a summary judgment against her. The drain was visible, but the...