Filed 11/5/13 Mitchelson v. Sunset Marquis Hotel CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


MARCELLA MITCHELSON,                                                 B241782

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC426618)
         v.

SUNSET MARQUIS HOTEL,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles 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.


                                          _______________________
                                     INTRODUCTION


       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.”
       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

                                              2
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.”


       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 occurred” 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.1
       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.


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 caused
[Mitchelson’s] alleged injury was 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 defects”];
Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [“law imposes no duty
on landowner . . . to repair trivial defects”].)


                                               3
       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.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



2      There is no evidence in the record of its exact depth.


                                              4
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

                                             5
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.3
       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. (Code Civ. Proc., § 437c, 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.” (Blue Shield of California Life & Health 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 Hollingshead v. Matsen (1995) 34
Cal.App.4th 525, 531 [“‘[i]f the defendant does not satisfy its burden as the moving


3      The court sustained the Hotel’s objections to the entirety of Grossman’s
declaration on grounds of lack of foundation and personal knowledge, relevance,
speculation, and hearsay, but considered it anyway.


                                               6
party, the motion must be denied, and it is unnecessary for the court to consider the
plaintiff’s opposition, if any’”].)


       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 land”]; 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 property”].) 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 thereby”]; 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 sidewalks”]; 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

                                             7
harm to persons lawfully using the sidewalk, and a person is injured as a proximate result
thereof, the property owner is liable”].) 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
condition”]; 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 property”].) “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.]” (Peters, supra, at p. 423) This rule applies even
“where the public sidewalk has been constructed or altered by the city in a particular
manner for the special benefit of his property.” (Sexton v. Brooks (1952) 39 Cal.2d 153,
157-158.)



                                             8
       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.”
       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.4 Nor does it matter when the alteration occurred. If the


4       We note, however, that the evidence creates a strong inference that an owner of
the property, and not a municipality, altered the sidewalk. The trial court in its ruling
cited the testimony of City Engineer Sharon Perlstein that the City has “no record of any
alteration to the pavement on either side of the property line.” Grossman noted in his
deposition that the County of Los Angeles, in whose jurisdiction the property was located
prior to the City’s incorporation in 1984, also had no record of a permit authorizing
alteration or modification of the sidewalk.

                                              9
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, supra, 39 Cal.2d at pp. 157-158; Seaber v. Hotel Del Coronado, supra,
1 Cal.App.4th at p. 488.) The issue is not who did the construction work for the
alteration or when it occurred, but whether the alteration benefitted the 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. (Ibid.;
cf. Winston v. Hansell, supra, 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 owners”].)5 The alteration helped cars drive into the 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.


5      “In the Winston case the only allegation to connect the defendant with the
defective sidewalk was that defendant had used the sidewalk as a driveway, not that such
use was responsible for the condition. Obviously, the use of a sidewalk as a driveway is
as much intended as its use as a walkway.” (Kopfinger v. Grand Central Pub. Market
(1964) 60 Cal.2d 852, 859.)


                                             10
       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 sidewalk”]; 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

                                              11
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’”]; 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’”;
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 defect”; 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.6


6       The conclusion of whether the trivial defect doctrine applies is a matter of law for
the court, not for an expert. (See Stathoulis v. City of Montebello, supra, 164
Cal.App.4th at p. 567 [trivial defect doctrine “permits a court to determine whether a
defect is trivial as a matter of law, rather than submitting the question to a jury”]; Ursino
v. Big Boy Restaurants, supra, 192 Cal.App.3d at p. 399 [trivial defect rule “permits a
court to determine ‘triviality’ as a matter of law”].) Thus, the expert witnesses’
conclusions in their respective declarations that the defect was and was not trivial are not
determinative. (See Burton v. Sanner (2012) 207 Cal.App.4th 12, 20-21 [expert opinion
not admissible when it “‘amounts to nothing more than an expression of his or her belief
on how a case should be decided’”]; WRI Opportunity Loans II, LLC v. Cooper (2007)
154 Cal.App.4th 525, 532, fn. 3 [“‘“manner in which the law should apply to particular
facts is a legal question and is not subject to expert opinion”’”]; Summers v. A.L. Gilbert
Co. (1999) 69 Cal.App.4th 1155, 1178 [“[t]here are limits to expert testimony, not least

                                              12
                                    DISPOSITION


      The judgment is reversed. Mitchelson is to recover her costs on appeal.



                                                SEGAL, J.*


We concur:



             WOODS, Acting P. J.



             ZELON, J.




of which is the prohibition against admission of an expert’s opinion on a question of
law”]; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1634-1637 [expert opinion
inadmissible on questions of law to be decided by trial court].)
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                           13
