Mitchelson v. Sunset Marquis Hotel
Filed 11/5/13 Mitchelson v. Sunset Marquis Hotel CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
MARCELLA MITCHELSON,
Plaintiff and Appellant,
v.
SUNSET MARQUIS HOTEL,
Defendant and Respondent.
B241782
(Los Angeles
County
Super. Ct.
No. BC426618)
APPEAL from
a judgment of the Superior Court
of
County, Craig D. Karlan, Judge. Reversed.
Law Offices
of the Pearman Law Corporation, Kim H. Pearman, Robert L. Pearman, Garo
Hagopian and Miguel Muro for Plaintiff and Appellant.
Bradley
& Gmelich, Jonathan A. Ross and Robert A. Crook for Defendant and
Respondent.
_______________________
>
Plaintiff
Marcella Mitchelson appeals from the judgment entered after the trial court
granted defendant Sunset Marquis Hotel’s motion for summary judgment. Mitchelson fell on a public sidewalk adjacent
to the Hotel’s property and filed this action for personal injuries. The Hotel filed a motion for summary judgment
on the ground that it did not owe a duty to maintain the sidewalk because it
did not own, control, maintain, or possess the area where Mitchelson fell. The Hotel also argued that the defect in the
sidewalk was trivial as a matter of law.
Because we conclude that the Hotel did not meet its burden on summary
judgment of showing that Mitchelson could not prove the element of duty and
that the defect is not trivial as a matter
of law, we reverse.
FACTUAL AND
PROCEDURAL BACKGROUND
A. The
Fall
On the morning of June 17, 2008 Mitchelson tripped and fell as she was walking past
the Hotel along Alta Loma Road in the City of West Hollywood (City). The day was clear, the ground was dry, and
nothing obstructed her view as she walked on the sidewalk. Mitchelson was wearing walking shoes made by
the Walking Company, which were in good condition, with low heels and rubber
soles. Mitchelson did not fall on the
property of the Hotel, but on a portion of the sidewalk that was located right
in front of the entrance to the Hotel’s underground parking garage. She did not recall seeing any defect in the
sidewalk immediately after she fell. She
was “lying . . . with shock.â€
Approximately one or possibly two months
later, Mitchelson returned to the area of her fall and noticed a broken area of
the sidewalk. She concluded that her
right heel had become caught in it and this caused her to fall. Describing how she determined how she fell, Mitchelson
stated: “I knew at the time that I fell
that I had caught my heel in something but I wasn’t exactly sure what at that
time . . . . It was
later that I went back and looked at the exact area where I fell and saw the
hole in the sidewalk and the slant of the sidewalk. [¶] . . . The combination of the hole that I caught my
heel in and the change in the slant of the sidewalk taking away the wide flat
sidewalk that I had been on in my opinion caused me to sustain this fall.â€
B. The
Lawsuit
Mitchelson filed this action in November
2009. Mitchelson alleged that the Hotel “negligently
and carelessly altered the sidewalk directly in front of its parking garage at 1200 Alta Loma Road,†thereby “causing a
dangerous condition without a permit on which plaintiff fell causing her
injuries and damages.†Mitchelson
alleged one cause of action for premises liability.
C. The
Motion for Summary Judgment
The Hotel moved for summary
judgment or in the alternative for summary adjudication on grounds that it “did
not own, control, operate, or maintain the premises where the incident occurredâ€
or create the allegedly dangerous condition, and that “the defect in the
pavement that caused [Mitchelson’s] alleged injury was trivial.†The Hotel did not move for summary judgment
or adjudication on the issue of causation.
The Hotel submitted the declaration
of David Grimes, a land surveyor, who inspected the sidewalk where the accident
occurred. He concluded that the area
where Mitchelson fell was public property entirely within Alta Loma Road, and
that no portion of the sidewalk was on the Hotel’s property.
The Hotel also submitted the
declaration of Alan Keith Miller, a physicist, who stated that the specific
area where Mitchelson fell consisted of a cut and filled area of concrete,
which begins in the Hotel’s driveway and extends fifteen and one-half inches
into the public sidewalk from the east edge of the sidewalk. The broken part of the concrete sidewalk was
located at a corner of the filled area on the public sidewalk, measuring two
and three-fourths by five and one-half inches, which created a recess in the
concrete.
title="">[2] Miller inspected the area of the sidewalk
where Mitchelson fell and stated that he could not observe a raised lip within
the recess. He opined that the sidewalk
area was not a tripping hazard and that pedestrians wearing standard footwear
would probably not feel the effect of the broken concrete as they walked over
it.
To show that the Hotel had not
created the change in the sidewalk or the displaced concrete, the Hotel
submitted the testimony of several long-term employees, Mark Rosenthal
(employed 26 years), Scott Benner (employed
14 years), and Brigitte Erbert (employed 20 years). All of these witnesses testified in their
respective depositions that they had no knowledge of any alterations to the
driveway or the surrounding area.
In opposition to the motion,
Mitchelson argued that several factual issues precluded summary judgment. She argued that her fall was caused by a reconfiguration
of the parking entrance apron, which was done for the benefit of the hotel and without
permits. Mitchelson argued that the
Hotel altered the grade of the driveway to prevent cars “bottoming out†as they
entered the parking structure.
Mitchelson submitted the declaration
of Richard Grossman, an engineer. Grossman determined that a 17-foot-long,
30-inch-wide section of concrete had been cut out of the driveway and replaced
with the current flatter section in an attempt to reduce the height of the
driveway, in order to prevent cars from bottoming out. Grossman based this conclusion on his
inspection of the property, his observation that cars continued to bottom out
when entering and exiting the garage, and his opinion that a permit would be
required to make any modifications to the driveway when it expands out onto the
public sidewalk.
Grossman also stated that “[w]here
the driveway crosses the parkway, the driveway slopes up from the street, which
would have been from Mrs. Mitchelson’s left, at across [sic] slope of
approximately 10.5%, and down to her right at a slope of approximately
13%. For reason[s] of safety it has long
been standard practice . . . to limit the cross slope of sidewalks to
a maximum of 2%.†Grossman opined that
although “the modification to the driveway included changes to public property,
a permit was required,†but there was no evidence that the City or the County
had issued a permit. Grossman further
stated that “in order to ensure that modifications made to the driveway
complied with then existing design practices, the County or City would have
required that that driveway be brought into compliance with the 2% maximum
cross slope requirement, thereby eliminating a condition which caused or
contributed significantly to Mrs. Mitchelson’s accident.†Grossman also concluded, without explanation,
that the defect in the concrete was not trivial.
D. The
Ruling
The trial court recognized that the sidewalk had been
altered from its original condition, and that because the change in the
sidewalk matched up perfectly with the entrance to the Hotel’s parking garage, it
was a reasonable inference that the alteration was for the benefit of the Hotel
or a prior owner or occupier of the property.
Nevertheless, the trial court granted the Hotel’s motion for summary
judgment. The court found that it was undisputed
that Mitchelson fell on a public sidewalk, and that the Hotel did not own,
possess, or control the area where she fell. Relying on the uncontroverted testimony of
Hotel employees, the court concluded that the Hotel did not create the
condition of the sidewalk where Mitchelson fell. The trial court also determined that
Mitchelson had not created a triable issue of material fact on the issue of
whether the Hotel had created the allegedly dangerous condition for its
benefit. The court also concluded that
the defect was trivial as a matter of law.
The court found that Grossman’s opinion
to the contrary was insufficient to create a triable issue of fact because
Grossman did not provide any evidentiary support for his opinion that the
defect in the sides was not trivial.
The trial court denied Mitchelson’s
motion for a new trial and entered judgment in favor of the Hotel. Mitchelson filed a timely notice of appeal.
DISCUSSION
A. Standard
of Review
“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. [Citation.]†(Chavez
v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301; see King v. Wu (2013) 218 Cal.App.4th 1211, 1213 [review of order
granting summary adjudication is also de novo].)
“A defendant
moving for summary judgment meets its burden of showing that there is no merit
to a cause of action if that party has shown that one or more elements of the
cause of action cannot be established or that there is a complete defense to
that cause of action. (
subds. (o)(2), (p)(2).) If the defendant does so, the burden shifts back to the
plaintiff to show that a triable issue of fact exists as to that cause of
action or defense.†(
Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) “If the defendant fails to meet this initial
burden, it is unnecessary to examine the plaintiff’s opposing evidence; the
motion must be denied. [Citation.]†(Zoran
Corp. v. Chen (2010) 185 Cal.App.4th 799, 805; accord, Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 850; see
Cal.App.4th 525, 531 [“‘[i]f the defendant does not satisfy its burden as the
moving party, the motion must be denied, and it is unnecessary for the court to
consider the plaintiff’s opposition, if any’â€].)
B. The
Hotel Failed To Meet Its Initial Burden on Summary Judgment That
It Did Not Owe a Duty To
Maintain the Area of the Sidewalk Where
Mitchelson Fell.
A defendant owning property adjacent
to or abutting a sidewalk may be liable for injuries suffered by pedestrians
walking on the sidewalk in at least three circumstances. First, the defendant may own, occupy, or
control the land on which the sidewalk rests.
(See Alpert v. Villa Romano
Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1334 [“landowner or possessor
of land has a duty to take reasonable measures to protect persons from
dangerous conditions on adjoining land when the landowner or possessor
exercises possession or control over that adjacent landâ€]; Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487 [“[g]enerally,
absent statutory authority to the contrary, a landowner is under no duty to
maintain in a safe condition a public street or sidewalk abutting upon his
propertyâ€].) That is not the case
here. The Hotel met its burden on
summary judgment of showing that it did not own, occupy, or control the area of
the sidewalk where Mitchelson fell. The
Hotel submitted the declaration of a surveyor, Grimes, who inspected the area
and concluded that the sidewalk lay entirely outside the property of the
Hotel. Mitchelson did not submit any
contrary evidence that would create a triable issue of fact.
Second, the defendant may make an
alteration to the sidewalk or to the portion of the sidewalk where the accident
occurred. (See Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 846 [“a
person who creates a dangerous condition on a public roadway or walkway is
liable for foreseeable injuries caused therebyâ€]; Seaber v. Hotel Del Coronado, supra,
1 Cal.App.4th at p. 488 [“an abutting landowner has always had an obligation to
refrain from affirmative conduct which results in a dangerous condition upon
public streets or sidewalksâ€]; Barton v.
Capitol Market (1943) 57 Cal.App.2d 516, 518 [“if the abutting owner by
positive action creates a condition which is likely to cause harm to persons
lawfully using the sidewalk, and a person is injured as a proximate result
thereof, the property owner is liableâ€].)
That also is not the case here.
The Hotel met its burden on summary judgment of showing that it did not
create the condition of the sidewalk that caused Mitchelson to fall. The Hotel submitted the declarations of
several long-term employees who had no recollection of any alternations to the
sidewalk in front of the Hotel, the driveway leading to the Hotel’s garage, or
the surrounding area. Mitchelson did not
submit any contrary evidence that would create a triable issue of fact.
Third, the property owned by the
defendant may be the beneficiary of an alteration to the sidewalk, even an
alteration performed by someone other than the property owner, that provides an
exclusive benefit to the property. (Peters
v. City & County of San Francisco (1953) 41 Cal.2d 419, 424.) “The rule is that an abutting
landowner may be held liable for the dangerous condition of portions of the
public sidewalk which have been altered or constructed for the benefit of his
property and which serve a use independent of and apart from the ordinary and
accustomed use for which sidewalks are designed.†(Id.
at p. 423; accord, City & County of
S. F. v. Ho Sing (1958) 51 Cal.2d 127, 129; see Seaber v. Hotel Del Coronado, supra,
1 Cal.App.4th at p. 488 [“an abutting landowner who has altered an adjacent
sidewalk for the benefit of his property apart from its ordinary use for which
it was designed, has a duty to employ ordinary care in making such alteration
and in maintaining that portion of the sidewalk in a reasonably safe conditionâ€];
Winston v. Hansell (1958) 160
Cal.App.2d 570, 575 [an adjoining landowner may be liable “for defects created
by special construction for the particular needs of the abutting propertyâ€].) “The duty to maintain portions of a sidewalk
which have been altered for the benefit of the property runs with the land, and
a property owner cannot avoid liability on the ground that the condition was
created by or at the request of his predecessors in title. [Citation.]â€
(Peters,
sidewalk has been constructed or altered by the city in a particular manner for
the special benefit of his property.†(
157-158.)
The Hotel did not meet its burden on
summary judgment of showing that it was not the beneficiary of an alteration of
the sidewalk, nor did the Hotel present any argument on this issue in its
motion for summary judgment. The
photographic exhibits attached to the motion showed that the altered portion of
the sidewalk matches up exactly with the entrance to the driveway and can have
no other logical or functional purpose other than one relating to the
driveway. The photographs showed that
the alteration cannot have been for anyone’s benefit other than the Hotel
property. The Hotel does not argue
otherwise.
The trial court noted, “[i]t’s clear
there was a cut there.†The court
stated: “I can see there was a
modification. I 100 percent agree with you
[counsel for plaintiff]. . . .
I can see a cut [in the cement sidewalk]. The defense has to concede they see a cut.†The trial court, however, focused on the
issues of who made the alteration and when it was made. The trial court stated that “ultimately it
comes down to we don’t know who made the modification even though I don’t think
it’s outrageous to speculate that the Hotel did it or somebody did it for the Hotel. But why couldn’t the county have done it for
the Hotel?†The court added, “The real
issue is I don’t have any idea when that cut was made. For all I know, it was done 50 years
ago. I don’t have any idea. Nobody knows because the earliest evidence we
have is [that] it was there in ’84.†The
trial court stated in its final ruling, “there is nothing to show that the
[Hotel], versus the [City], made any changes to the sidewalk area in question.â€
The trial court focused on the wrong
issues. As noted above, it does not
matter whether the Hotel, the prior owner of the property, or even the City
performed the alteration in the sidewalk.
occurred. If the alteration benefits the
property, which the trial court seemed to believe it did, then the abutting
landowner can be liable for the defect if it does not reasonably maintain the
property. (See Peters v. City & County of
San Francisco, supra, 41 Cal.2d
at p. 423; Sexton v. Brooks,
property, and the Hotel did not introduce any evidence that the alteration did
not. To the contrary, the photographic evidence
submitted by the Hotel shows, at a minimum, that the alteration benefitted the
Hotel.
Although not argued by the Hotel, it
is true that “liability under this theory does not arise upon a mere finding
that the abutting owner derives a benefit from the alteration. The additional factors of whether the
alteration serves a use independent of and apart from the ordinary and
accustomed use of the sidewalk and the degree of exclusivity of such use must
be considered.†(Contreras v. Anderson (1997) 59 Cal.App.4th 188, 202.) Here, however, the alteration of the driveway
into the Hotel’s parking garage has nothing to do with the “ordinary and
accustomed use of the sidewalk,†and everything to do with assisting cars getting
in and out of the Hotel. (
160 Cal.App.2d at pp. 576-577 [no use independent of “ordinary and accustomed uses
for which sidewalks are designed†where there was “no allegation that the
sidewalk was specially constructed or altered to meet some peculiar need of the
abutting property†and the only claim was that “the sidewalk was used as a
driveway by the abutting ownersâ€].)
hotel; it only hindered pedestrians in the safe passage on the sidewalk. The Hotel does not contend that modified sidewalk
assisted pedestrians enter or walk past the hotel.
C. The
Defect Is Not Trivial
The trial court found that the
defect in the sidewalk was trivial as a matter of law. We cannot see how a defect of this size and
with these characteristics can be a trivial defect. Trivial defect cases generally involve
defects that are fractions of an inch. (See, e.g., Barrett v. City of Claremont (1953) 41 Cal.2d 70, 72, 74 [ridge of
asphalt rising “about 1/2 inch above the surface of the sidewalkâ€]; Cadam v.
Somerset Gardens Townhouse HOA, supra,
200 Cal.App.4th at p. 389 [walkway separation between 3/4 and 7/8 inch deep]; Caloroso
v. Hathaway (2004) 122 Cal.App.4th 922, 927 [sidewalk crack less than 1/2 inch
deep]; Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 396
[raised edge 3/4 inch high]; Fielder v. City of Glendale (1977) 71
Cal.App.3d 719, 724, fn. 4 [collecting trivial defect cases involving defects ranging
from 1/2 inch to 1-1/2 inches].) In Stathoulis
v. City of Montebello, supra,
164 Cal.App.4th at p. 568 the defect, a “gouge mark,†was up to one inch deep,
but the court reversed an order granting summary judgment on the ground that
the defect was trivial. The Stathoulis
court stated, after collecting trivial defect cases from less than half an inch
up to one and one-half inches, “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.’
[Citation.] Moreover, size alone
is not determinative of whether a rut presents a dangerous condition.†(Id.
at p. 568.)
The defect
here was two and three-fourths by five and one-half inches, far beyond the one-inch
reluctance threshold referenced by the Stathoulis
court. The Hotel has not cited any case
where a defect of this size was trivial, and we have found none. Holding a defect of this size trivial as a
matter of law would be an outlier in this area of the law.
In
addition, size is not the only factor. “We
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. [Citation.]†(Stathoulis v. City of Montebello, supra,
164 Cal.App.4th at p. 568.) Although
the Hotel did not submit evidence of the defect’s depth, and there was no
evidence of any other injuries
at the location, the nature and quality of the defect weigh against a
finding of legal triviality. The photographs submitted by
the Hotel with its motion for summary judgment show that the defect is not a
tiny hole or a small nail, nor is it a minor chip in the pavement. The defect is a relatively large, dislodged, two
and three-fourths by five and one-half-inch broken chunk of cement resting in
what Miller called a “recess.†It is in
the center of the right half of the sidewalk where pedestrians are likely to
walk, on the edge of the slope into the Hotel’s driveway created by the
alteration. (See Stathoulis, supra, at p.
567 [“‘[a]side 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’â€]; Kasparian
v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27 [“‘the court
should view the intrinsic nature and quality of the defect to see if, for
example, it consists of the mere nonalignment of two horizontal slabs or
whether it consists of a jagged and deep hole’â€; defect of 5/16 inch or less not
trivial]; Dolquist v. City of Bellflower
(1987) 196 Cal.App.3d 261, 268 [“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 defectâ€; 1/4 inch defect not trivial].) The Hotel did not meet its burden of
establishing that the defect was trivial as a matter of law.
The judgment is reversed. Mitchelson is to recover her costs on appeal.
SEGAL,
J.
We concur:
WOODS,
Acting P. J.
ZELON,
J.
name="_ftn1" title="">[1] Although
the Hotel’s notice of motion stated that the Hotel was moving for summary
adjudication on the issue of whether “the defect in the pavement that
trivial,†the motion raised the issue of duty, not causation. (Italics added.) Whether a defect is trivial is an issue of
duty (or perhaps breach), not causation.
(See, e.g., Cadam v. Somerset
Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 389 [“duty of care
imposed on a property owner, even one with actual notice of a defect, does not
require the repair of minor or trivial defectsâ€]; Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [“law
imposes no duty on landowner . . . to repair trivial defectsâ€].)
name="_ftn2" title="">[2] There
is no evidence in the record of its exact depth.
