Greco v. Varsity Contractors

Filed 4/7/06 Greco v. Varsity Contractors CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed.

I.

INTRODUCTION

Plaintiff Carmelina Greco appeals from a grant of summary judgment in favor of defendants Varsity Contractors, Inc., Simon Management Associates, LLC, and Fashion Valley Mall, LLC. Greco was injured after allegedly falling on a sidewalk outside a J.C. Penney's store located in the Fashion Valley Mall in San Diego in October 2002. Greco filed a personal injury action in which she claimed that she was injured when she tripped over a disruption in the walkway outside the store, where one of the concrete slabs that forms the walkway was between one-half inch and one inch higher than the adjacent slab. Greco claims that defendants had a duty to maintain the walkway without such disruptions.

Defendants moved for summary judgment, arguing that the alleged defect in the walkway was trivial as a matter of law. Greco opposed the motion, contending that the defect in this case could not be trivial as a matter of law because California Code of Regulations, title 24, section 1133B.7 (section 1133B.7) requires that public walkways and sidewalks not be interrupted by changes in level exceeding one-half inch. The trial court ruled that Greco had failed to raise a triable issue of fact and that the alleged defect was trivial as a matter of law, and granted summary judgment in defendants' favor.

Greco contends on appeal that the trial court erred in ruling that the alleged defect at issue in this case was trivial as a matter of law because the court failed to rely on section 1133B.7, and relied instead on case law prior to the enactment of section 1133B.7. She asserts that section 1133B.7 applies to the defendants, and prohibits them from allowing a defect of the magnitude alleged here to remain on their property. Greco maintains that this regulation governs this case because the defendants are not "exempt from the California Building Code." We disagree with Greco's contentions that section 1133B.7 imposes a new, heightened standard of care on defendants with regard to members of the general public. Rather, section 1133B.7 provides standards for sidewalks and walkways to ensure that disabled persons have access to public buildings. In order to invoke the protections of the standard of care set forth in a statute or regulation, the person suffering injury must be a member of the class of persons for whose protection the statute or regulation was adopted. (Evid. Code, § 669, subd. (a)(4).) Greco has not alleged or established that she is a member of the class of persons for whose protection section 1133B.7 was enacted. We therefore affirm the trial court's judgment in favor of defendants.

II.

PROCEDURAL AND FACTUAL BACKGROUND

A. Factual Background

On October 10, 2002, Greco, who was then 78 years old, visited the Fashion Valley Mall to return a few items she had purchased. At approximately 2:15 p.m. she left the mall through the south exit of the J.C. Penney's store, on her way to the bus stop. The weather was nice that day; it was not rainy or cloudy, and the pavement was dry. There was no debris on the sidewalk.

Greco was walking at a regular pace and looking straight ahead. A few feet from the exit, Greco tripped and fell. Greco alleged that she tripped over a disruption in the sidewalk where one of the concrete slabs was one-half inch to one inch higher than the adjacent slab.

B. Procedural background

Greco filed a complaint in October 2003, against Lend Lease Real Estate Investments, Inc., alleging a cause of action for premises liability. She amended the complaint in December 2003 to add Varsity Contractors, Inc., Simon Management Associates, LLC, and Fashion Valley Mall, LLC, as defendants.

Defendants filed a motion for summary judgment contending that the alleged disruption of between one-half inch and one inch in the walkway was "trivial" as a matter of law. Defendants also filed a number of evidentiary objections, including an evidentiary objection to Greco's citation to section 1133B.7. The trial court issued a tentative ruling in which it indicated that it intended to sustain the evidentiary objections and grant the motion for summary judgment.

After holding a hearing, the trial court took the matter under submission. The court issued a minute order in which it confirmed its tentative ruling, with modifications. The court's order stated in part,

" . . . Plaintiff has failed to carry her burden to raise a material issue of fact by admissible evidence. [Plaintiff] has failed to show that her reference to Section 1133B.7 of the California Building Code applies to the area where [Plaintiff] is alleged to have fallen[,] that non-compliance with the Building Code made the crack more dangerous, or that the codes have been accepted as the proper standard in California for safe sidewalks. In fact, the reference to [section] 1133B.7 concerns the accessibility to public buildings by physically handicapped persons. See Uniform Building Code at Ch. 5, Article 1, access to public buildings by physically handicapped persons, 5-101, and G.C. section 4450 et seq."

The trial court entered judgment in favor of defendants on March 22, 2005. Greco filed a timely notice of appeal.

III.

DISCUSSION

A. Standard of review

"The purpose of the law of summary judgment is to provide 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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is proper when "all the papers submitted show there is no triable issue as to any material fact" such that "the moving party is entitled to judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must establish that he has "met his burden of showing that a cause of action . . . cannot be established." (Aguilar, supra, 25 Cal.App.4th at p. 849.) Only if the defendant makes a sufficient showing is the burden shifted to the plaintiff, who then bears the burden of establishing that there exists one or more triable issues of material fact. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593.)

On appeal from a summary judgment, the appellate court independently determines whether, as a matter of law, the motion for summary judgment should have been granted. (Koebke v. Bernardo Heights Country Club (2005) 36 Cal.4th 824, 832.) "In conducting de novo review 'we must view the evidence in a light favorable to plaintiff[s] as the losing party [citation], liberally construing [their] evidentiary submission while strictly scrutinizing defendant['s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff[s'] favor.' [Citation.]" (Ibid.)

B. Greco has not established that there is a triable issue as to whether defendants

owed a duty to Greco to repair the walkway

The defendants sought summary judgment on the ground that they owed no duty to Greco to repair or otherwise alter the alleged disruption in the walkway because the defect was trivial as a matter of law. "'[P]ersons who maintain walkways, whether public or private, are not required to maintain them in an absolutely perfect condition.'" (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 (Caloroso).) "It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. [Citation.]" (Ibid., citing Whiting v. City of National City (1937) 9 Cal.2d 163.)^[1] "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, supra, 122 Cal.App.4th at p. 927.)

The question at issue is not whether defendants have established a complete defense to Greco's claims, but rather, whether Greco has established that there is a triable issue as to whether the walkway was in a dangerous condition such that the defendants had a duty to repair it. (See Caloroso, supra, 122 Cal.App.4th at p. 927.) It is for a court to determine whether a given defect is dangerous or trivial as a matter of law. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 (Fielder).)

In cases in which the defect alleged is a discrepancy in the height of two adjoining slabs of concrete sidewalk, "[t]he decision 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.) "While size may be one of the most relevant factors to the decision, it is not always the sole criterion. 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." (Fielder, supra, 71 Cal.App.3d at p. 734.) The court should also 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." (Caloroso, supra, 122 Cal.App.4th at p. 927; see also Fielder, supra, 71 Cal.App.3d at p. 734.) "Furthermore, the court should see if there is any evidence that other persons have been injured on this same defect." (Fielder, supra, 71 Cal.App.3d at p. 734.)

The relevant facts here are not in dispute. All parties agree that the alleged defect at issue is a change in elevation of one-half to one inch between adjacent concrete slabs. There is also no dispute that Greco fell during daylight hours, and that it was neither cloudy nor rainy that day. Additionally, there was no evidence that there was debris on the sidewalk, or that the walkway was wet. Greco did not allege that other individuals had been injured in the past as a result of the same defect. When faced with comparable records, many courts have concluded that similar alleged defects did not amount to dangerous conditions but rather were trivial as a matter of law. (See Whiting v. City of National City (1937) 9 Cal.2d 163, 165-166; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 367; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529, 531; Dunn v. Wagner (1937) 22 Cal.App.2d 51, 54; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50; see also Barrett v. Claremont (1953) 41 Cal.2d 70, 74; Fielder, supra, 71 Cal.App.3d at p. 734.)^[2]

Greco contends that the disruption in the sidewalk of between one-half and one inch cannot be deemed trivial as a matter of law because section 1133B.7 requires that walkways and sidewalks not have disruptions of more than one-half inch in height.^[3] According to Greco, earlier cases that addressed the issue of the trivial defect defense─cases on which the defendants and the trial court relied─were decided before section 1133B.7 was enacted and should no longer be considered controlling. She argues that section 1133B.7 provides a new standard of care for the maintenance of sidewalks and walkways that requires property owners to prevent or to repair disruptions of more than one-half inch between concrete slabs.

Greco has the burden of establishing that there is a triable issue as to whether there was a dangerous condition on the walkway as to which defendants owed her a duty to repair. (See Caloroso, supra, 122 Cal.App.4th at p. 927.) If Greco intends to establish that there is a triable issue as to whether the discrepancy in the heights of adjacent slabs constituted a dangerous condition requiring repair solely by relying upon section 1133B.7, she must establish that defendants owed her a duty under section 1133B.7 to repair the alleged defect. Greco has failed to do so. Apparently relying on the fact that section 1133B.7 is part of the California Building Code and that it addresses walks and sidewalks, Greco asserts, without supporting authority, that this section regulates the Fashion Valley Mall property and precludes a finding that the disruption at issue in this case is trivial as a matter of law. However, even if section 1133B.7 does apply to the Fashion Valley Mall, this would not establish that Greco may invoke the regulation to establish that the walkway constituted a dangerous condition.

The purpose of section 1133B.7 is to set standards for public buildings to ensure that they are accessible to handicapped individuals. Thus, the regulation pertains to building accessibility for disabled persons, not for the general public.

"'In this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. [Citations.] The Legislature has . . . codified this presumption with the adoption of Evidence Code section 669: "The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Subd. (a).)' [Citation.]" (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 938 (Hoff), italics added.)

"'Whether the injury involved resulted from an occurrence of the nature which the statute was designed to prevent and whether the plaintiff was one of the persons for whose protection the statute was enacted are questions of law.' [Citations.]" (Id. at p. 939, citing Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 135.)

Section 1133B.7 is part of the California Building Code. Section 101.2 of the California Building Code describes the purpose of this set of regulations: "The purpose of this code is to ensure that barrier-free design is incorporated in all buildings, facilities, site work and other developments to which this code applies and to ensure that they are accessible to and usable by persons with disabilities." (Cal. Code Regs., title 24, § 101.2.) Thus, section 1133B.7 was enacted to protect the ability of disabled persons to have access to buildings that are open to the public. Greco has not established that she is a person for whose protection the regulation was enacted. Thus, she cannot rely on section 1133B.7 to prevent summary judgment in defendants' favor.

Greco has pointed to no other case in which a court has imported into a premises liability case for negligent failure to maintain a public walkway or sidewalk the standards set forth in section 1133B.7. Rather, she contends that the early cases on which defendants rely must not apply now because they were decided prior to the enactment of section 1133B.7. In the absence of any authority indicating that section 1133B.7 is controlling in this situation, we find this argument meritless.

There is at least one published case regarding the trivial defect defense involving a sidewalk defect that was decided after section 1133B.7 became effective. Caloroso, supra, 122 Cal.App.4th at page 927, involved a sidewalk crack that caused an elevation difference of less than one-half inch in the slab of concrete. The trial court in Caloroso noted that a number of cases, including those cases relied upon by defendants here, have held "that sidewalk defects greater than [a half inch] were trivial as a matter of law. [Citations.]" (Ibid.) The Caloroso court then concluded that "the defect here should also be deemed trivial as a matter of law, unless there is disputed evidence that other conditions made the walkway dangerous." (Ibid.) The Caloroso court relied on pre-1998 cases in reaching its holding, and did not refer to section 1133B.7 at any point in the opinion.

Greco contends that the Caloroso court did not discuss section 1133B.7 because that case involved a difference in height of less than one-half inch, and thus 1133B.7 did not apply. However, if section 1133B.7 does set a new standard of care applicable to members of the general public, then the Caloroso court presumably would not have relied on earlier cases in determining that the defect of less than one-half inch was not dangerous as a matter of law, but rather, would have relied on the standard of section 1133B.7. Greco has pointed us to nothing else that would establish that this narrow regulation should be considered to alter the long-standing duty of landowners to members of the general public with regard to maintaining sidewalks.

Based upon our independent application of the long-standing common law rules regarding trivial defects to facts in the record before us, we conclude that summary judgment is appropriate because Greco has not established that there is a triable issue as to whether defendants had a duty to Greco to repair or otherwise alter the disruption in the walkway.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.

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^[1] Although the trivial defect defense originally arose out of the law pertaining to governmental landowners, the defense has long been available to private landowners. (Caloroso, supra, 122 Cal.App.4th at p. 927, citing Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399.)

^[2] Greco suggests that Fielder, supra, 71 Cal.App.3d 719, and many of the older cases that discuss the trivial defect defense do not apply here because the defendant was a governmental entity, and the claims were based on the Government Tort Claims Act. As stated earlier, however, it is well established that "[t]he 'trivial defect defense' is available to private, nongovernmental landowners. [Citation.]" (Caloroso, supra, 122 Cal.App.4th at p. 927.)

^[3] Section 1133B.7 generally governs walks and sidewalks. Subdivision 1133B.7.1 provides in pertinent part: "Walks and sidewalks subject to these regulations shall have a continuous common surface, not interrupted by steps or by abrupt changes in level exceeding 1/2 inch (12.7 mm) . . . and shall be a minimum of 48 inches (1219 mm) in width."