Filed 8/27/20 Rosenthal v. City of Oakland CA1/4

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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                                  DIVISION FOUR



 MELVYN ROSENTHAL,
           Plaintiff and Appellant,                                    A156881
                            v.                                         (Alameda County Super. Ct.
 CITY OF OAKLAND et al.,                                               No. RG16840649)
           Defendants and Respondents.


         Melvyn Rosenthal filed a personal injury complaint in a trip-and-fall
case against Street 41, LLC (Street 41) and the City of Oakland (the City),
seeking damages for a severe shoulder injury sustained when he fell on a
public sidewalk. He sued Street 41 on a premises liability theory and the
City for creating a dangerous condition of public property. The trial court
granted summary judgment for both defendants, concluding that the alleged
cause of Rosenthal’s fall—some unevenness in the sidewalk where four
paving stones intersect—does not give rise to liability under the trivial defect
doctrine as a matter of law. After independently reviewing the record, we
affirm.




                                                               1
                              I. BACKGROUND
   A. The Complaint
      On a clear and dry afternoon in December 2015, 77-year-old Melvyn
Rosenthal was walking along the sidewalk in front of 250 41st Street in
Oakland, following a route he had taken regularly for decades. He tripped on
some unevenness in the sidewalk, pitching to the ground face forward and
fracturing his right shoulder. Some months later he filed a complaint seeking
damages from Street 41 for premises liability and from the City for public
entity liability pursuant to Government Code sections 835 and 835.2.1
      Rosenthal claimed he tripped on a crack in the sidewalk where two
paving stones abut one another at an intersection of four paving stones,
creating a vertical offset; that this offset in the paving stones meets the
criteria for moderate damage according to the City’s Sidewalk Repair
Program; and that the defect is a dangerous condition the City was obligated
to inspect and repair. He also alleged that Street 41, as the owner of adjacent
property, had actual and constructive notice of the sidewalk defect and was
negligent in failing to repair it.
   B. The Summary Judgment Ruling
      In separate motions, the City and Street 41 moved for summary
judgment. Each motion argued that the defect Rosenthal claims caused his
fall is trivial and insubstantial as a matter of law and thus cannot give rise to
liability. Street 41 argued, in addition, that as a private owner of adjacent
property it owed Rosenthal no duty of care to maintain a public sidewalk.



      1 The complaint named a second private party defendant, Duck’s Nest
Preschool, which is a tenant of Street 41’s property. Duck’s Nest was
dismissed without prejudice prior to the granting of the summary judgment
motions that led to dismissal of the case against the remaining defendants,
and is not a party to this appeal.
                                        2
The trial court granted both motions, agreeing that “a reasonable jury [could
not] find that the [alleged sidewalk defect] presented a substantial risk of
injury,” and the area of the sidewalk where Rosenthal fell “was not in a
dangerous condition as a matter of law.”
      In granting summary judgment on the issue of trivial defect for both
the City and Street 41, the court relied on expert testimony from the City’s
accident reconstructionist, Lonnie Haughton, who opined that the size of the
vertical offset was approximately one-quarter inch high. But the court did
not rely solely on the fact that, as measured, the alleged vertical offset was
small. It also took into account Rosenthal’s admission that he was not
looking at the sidewalk surface while walking, together with the overall
circumstances of what happened, including the fact that the accident
“occurred during the day with no conditions affecting [Rosenthal’s] ability to
see the crack in the sidewalk.”
      Rosenthal’s summary judgment opposition relied heavily on the theory
that there was a crater-like void extending about one inch below surface level
where two of the adjoined pavers met—a concave-shaped groove created by
the chipped edge of one of the paver stones—which meant that the size of the
vertical offset at that point was one and three-quarters inches, significantly
greater than the offset height claimed by the City’s expert if the depth of the
groove is added to the offset above ground. Backed by Rosenthal’s own
accident reconstructionist, Albert Ferrari, this theory rests on the hypothesis
that Rosenthal caught his shoe in the void, which is what caused him to pitch
forward and fall.
      Because Ferrari’s theory of causation conflicted with deposition
testimony in which Rosenthal had difficulty identifying exactly what caused
him to fall, the court found the idea that Rosenthal’s shoe was caught in the


                                        3
void to be speculative. The court also rejected arguments from Rosenthal
that there were various aggravating circumstances (such as shadows cast on
the sidewalk, leaves covering the groove, and Rosenthal’s age) that
transformed what might otherwise have been a trivial defect into an
actionable one. Pointing out that in the absence of such aggravating
circumstances, vertical offsets of one and one-half inches or less are generally
deemed to be trivial as a matter of law, the court granted summary judgment
to the City and to Street 41 on that ground. The court did not reach
Street 41’s alternative no-duty argument.
      Rosenthal now appeals from the ensuing judgment.
                             II. DISCUSSION
   A. Standard of Review
      The purpose of summary judgment is 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).) Under the standards set forth in
Aguilar, a cause of action may be defeated on summary judgment “if either of
the following exists: [¶] (1) One or more of the elements of the cause of action
cannot be separately established, even if that element is separately
pleaded[, or] [¶] (2) [a] defendant establishes an affirmative defense to that
cause of action.” (Code Civ. Proc., § 437c, subd. (o)(1)–(2); Aguilar, at
pp. 849–850, 853.) A moving defendant is not required to conclusively negate
an element of the plaintiff ’s cause of action, but only to show that the
plaintiff cannot establish at least one element of the cause of action.
(Aguilar, at p. 853.)
      Under the burden-shifting framework by which this standard is
applied, the moving party initially bears the burden of production to make a
prima facie showing that there is no triable issue of material fact. (Aguilar,
                                        4
supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists if, and only
if, a reasonable fact finder could determine the underlying fact in favor of the
opposing party in accordance with the applicable standard of proof. (Ibid.) A
moving defendant must produce evidence “that ‘one or more elements of ’ the
‘cause of action’ in question ‘cannot be established,’ or that ‘there is a
complete defense’ thereto.” (Ibid., quoting Code Civ. Proc., § 437c, former
subd. (o)(2), now subd. (p)(2).) To meet his initial burden, “[t]he [movant]
must ‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which
judicial notice’ must or may ‘be taken.’ ” (Aguilar, at p. 843, quoting Code
Civ. Proc., § 437c, former subd. (b), now subd. (b)(1).)
      “If [the movant] carries his burden of production, he causes a shift, and
the opposing party is then subjected to a burden of production of his own to
make a prima facie showing of the existence of a triable issue of material
fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) In determining whether, based
on the opposing party’s showing, any triable issue of material fact exists,
warranting trial, “the trial court may, in its discretion, give great weight to
admissions made in deposition and disregard contradictory and self-serving
affidavits of the party.” (Preach v. Monter Rainbow (1993) 12 Cal.App.4th
1441, 1451; see Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853,
861–863 [disregarding plaintiff ’s declaration because it contradicted her
earlier deposition testimony].)
      Conjecture is “ ‘legally insufficient to defeat summary judgment.’ ”
(Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036.) On
matters within common knowledge and experience, courts have discretion to
eschew the need for expert testimony and make an independent judgment.
(See Los Angeles Unified School Dist. v. Superior Court (2014)


                                         5
228 Cal.App.4th 222, 246 [“[f]actfinders do not always need a declaration
from an expert to reach a valid conclusion based upon common sense and
human nature”]; see also Cadam v. Somerset Gardens Townhouse HOA
(2011) 200 Cal.App.4th 383, 389 (Cadam) [“ ‘It is well within the common
knowledge of lay judges and jurors just what type of a defect in a sidewalk is
dangerous.’ ”].)
      On appeal, we review the trial court’s summary judgment decision de
novo, independently examining all evidence in the record in the light most
favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001)
25 Cal.4th 763, 768–769; Y.K.A. Industries, Inc. v. Redevelopment Agency of
City of San Jose (2009) 174 Cal.App.4th 339, 354.) Summary judgment can
be affirmed on any ground, “ ‘ “regardless of the considerations which may
have moved the trial court to its conclusion.” ’ ” (Transamerica Ins. Co. v.
Tab Transportation, Inc. (1995) 12 Cal.4th 389, 399, fn. 4.) In undertaking
our independent review of this record, we shall follow the same procedure
used by the trial court, looking at (1) Rosenthal’s pleadings to determine the
elements of his claim; (2) the summary judgment motions to determine if
Street 41 and the City had each established facts justifying judgment in their
favor; and (3) Rosenthal’s opposition to the motions—assuming both movants
met their initial burden—to decide whether Rosenthal raised a triable issue
of material fact. (Y.K.A. Industries, Inc., supra, at p. 354.)
   B. Governing Liability Principles
      It is “well established” that landowners do not have a duty to repair
“minor, trivial or insignificant defect[s] in property.” (Caloroso v. Hathaway
(2004) 122 Cal.App.4th 922, 927 (Caloroso); Gov. Code, § 830.2.) Whether a
personal injury claim is founded on premises liability, which is the basis of
the claim against Street 41, or the creation of a dangerous condition of public
property, which is the basis of the claim against the City, Rosenthal must
                                        6
prove as part of his case that a jury could reasonably conclude that the
alleged defect at issue is sufficiently dangerous to be actionable. (Caloroso,
122 Cal.App.4th at p. 929.) A defect meets the necessary minimum test of
dangerousness only if it “gives rise to . . . a substantial risk of injury when
the property is used with due care . . . .” (Fielder v. City of Glendale (1977)
71 Cal.App.3d 719, 733 (Fielder).)
      Pedestrians are expected to act with ordinary care by watching out for
defects in the sidewalk, particularly where they have previous knowledge of
them. (Dunn v. Wagner (1937) 22 Cal.App.2d 51, 54 [“[M]inor defects are
bound to exist in sidewalks and where the defect is trivial no liability exists.
Here the defect, if it was a defect, was visible and had existed for a long
period of time and plaintiff herself knew of its existence, as above stated, and
by the use of ordinary care could have avoided the accident.”].) The prospect
that an alleged defect may violate standards set for the protection of persons
who may be at unusually high risk while walking is irrelevant. (See Huckey
v. City of Temecula (2019) 37 Cal.App.5th 1092, 1102, 1110, fn. 5 (Huckey)
[affirming judgment after trial court rejected plaintiff ’s argument that a
defect was not trivial because “ ‘the height difference in the slabs violated
[Americans with Disabilities Act (ADA)] regulations’ ”]; Caloroso, supra,
122 Cal.App.4th at pp. 928–929 [holding that trial court properly sustained
objection to evidence that a sidewalk crack violated “certain building codes
and standards” where nothing indicated “that these codes and standards
ha[d] been accepted as the proper standard in California for safe sidewalks”].)
      The height of an alleged sidewalk defect is “one of the most relevant”
considerations in the assessment of dangerousness. (Fielder, supra,
71 Cal.App.3d at p. 734.) Absent aggravating circumstances, minor
displacements in a sidewalk are trivial and nonactionable. (See id. at


                                        7
pp. 733–734 [“In the present case the only facts alleged concerning whether
the ‘defect’ was dangerous was the evidence presented as to the depth of the
depression.”].) But in some cases, aggravating circumstances will heighten
the risk of what might otherwise be a trivial sidewalk defect, making it
actionable.
        On this record, Rosenthal argues (1) that the height of the alleged
vertical offset in the sidewalk, properly measured, is not trivial as a matter of
law, and (2) alternatively, that the offset is actionable due to aggravating
circumstances. Before even getting to these issues on the merits, however,
Rosenthal argues that neither the City nor Street 41 bore its initial burden
under Aguilar, and that the summary judgment orders in favor of both
defendants must be reversed for that reason alone. Below, we analyze each
of these arguments, addressing the motions by the City and by Street 41 in
turn.
   C. The City’s Motion
        1. Initial Burden Under Aguilar
        With respect to the City, Rosenthal’s threshold procedural argument
may be easily dismissed. First, the City produced many color photographs of
the alleged defect depicting a small chipped area at the intersection of four
sidewalk paving stones. (See Appendix A, exemplars of the City’s photos.)
These photos, alone, were sufficient for the court to assess the size of the
defect, independent of the experts. Second, the City produced measurements
of the alleged defect. Its expert, Haughton, opined that Rosenthal would
have encountered a maximum one-quarter inch height differential walking in
his direction of travel.
        Third, the City submitted a declaration of its sidewalk inspector, Lee
White, which established that there had been no prior incidents or
complaints involving the subject sidewalk. That, too, is well-recognized
                                        8
evidence of triviality. (Huckey, supra, 37 Cal.App.5th at p. 1108 [discussing
that the City had met its prima facie showing by producing, among other
things, evidence of no prior incidents].) Fourth, the City produced
Rosenthal’s deposition testimony, which established that he was very
familiar with the sidewalk where he fell, that he did not recall visibility
issues, and that he was aware of the alleged defect and others near it before
he fell. Further, the City submitted evidence that Rosenthal had difficulty
identifying and describing which part of the sidewalk caused him to fall with
enough specificity to indicate his shoe may have been caught in a small void.
He simply testified that his right foot tripped while he was looking straight
ahead.
      Based on the foregoing, our review of the record shows the City did
more than simply point out that Rosenthal could not prove his case. It
produced evidence, and in light of what it produced, we conclude the City did
enough to shift the burden back to Rosenthal under the Aguilar burden-
shifting framework.
      2. Trivial and Insubstantial Defect
      Moving to the merits of the issue of triviality in sidewalk defect cases,
defect heights “ranging from three-quarters of an inch to one and one-half
inches have generally been held to be trivial as a matter of law.” (Huckey,
supra, 37 Cal.App.5th at p. 1107.) There is a plethora of authority for this
point in the case law. (See, e.g., Cadam, supra, 200 Cal.App.4th at p. 389
[defect slightly under one inch]; Beck v. City of Palo Alto (1957)
150 Cal.App.2d 39, 43–44 [one and seven-eighths inches defect]; Meyer v. City




                                        9
of San Rafael (1937) 22 Cal.App.2d 46, 47 [one and three-eighths inches
defect]; Dunn v. Wagner, supra, 22 Cal.App.2d at pp. 53–54 [one inch defect].2
      In this case, when shown a photo and pressed to circle the location
where he tripped with precision, Rosenthal testified that he had “no idea”
about that and just said he was sure he tripped on something in the area of
the defect. Ferrari assumes he tripped at the groove’s deepest point—
disregarding expert and photo evidence that Rosenthal could not have fit his
shoe in the groove at that location, let alone trip there, due to its narrow
shape. The trial court found the groove’s “depth” to be insignificant in
deciding the danger of the alleged defect because there was no evidence
Rosenthal’s shoe entered the groove.
      The court concluded that “the defect in this case is trivial as a matter of
law because a reasonable jury cannot find that the condition presented a
substantial risk of injury.” We agree with that reading of the record. It
seems clear that Rosenthal must have stumbled upon some imperfection in
the pavement, but the void Ferrari focuses so heavily upon, a concave
depression that is one inch at its deepest point, is so small that it would be
difficult for someone to squeeze their toe inside. The City’s expert, Haughton,
concluded that Rosenthal “could not possibly have stepped down into this


      2 See also, e.g., Caloroso, supra, 122 Cal.App.4th at pages 925, 928
(holding that an elevation difference of less than a half-inch was trivial, even
when it was arguably irregularly shaped); Ursino v. Big Boy Rests. (1987)
192 Cal.App.3d 394, 396–397 (holding that a three-quarter inch differential
between sidewalk slabs was trivial); Whiting v. City of National City (1937)
9 Cal.2d 163, 164, 166 (holding that several-foot-long offset of three-quarters
of an inch in a sidewalk was trivial); Fielder, supra, 71 Cal.App.3d at page
726 (“when 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”); Barrett v. City of Claremont (1953) 41 Cal.2d 70, 74 (a ridge
of a half-inch above the surface of the sidewalk was trivial).
                                       10
tapered L-shaped void with the traditional walking shoes and normal gait
that he described in his deposition testimony.” Not only is Ferrari’s theory of
Rosenthal’s having wedged his shoe into a void unsupported by Rosenthal’s
deposition testimony, it is implausible given the groove’s size and depth.
      Here on appeal, Rosenthal contends the trial court misread this
deposition testimony as an admission that he did not know what caused his
fall, contrary to the basic rule that on summary judgment the record must be
read generously in favor of the non-movant. We disagree that the trial court
took the view that Rosenthal did not know what caused his fall. Quite the
contrary, the court accepted the inference Rosenthal draws from the location
of the accident—that because the vertical offset is located exactly where he
fell, it is reasonable to infer he tripped on it, and that caused his fall.3 It is
the further inference, drawn by Ferrari, that Rosenthal’s shoe must have
become wedged in the groove, that the court declined to accept as
unreasonable.
      In the absence of any evidence suggesting some part of Rosenthal’s foot
actually went into the groove, we agree that Ferrari’s hypothesized scenario
is speculative. The photos submitted by the City clearly indicate the
dimensions involved here are so small that it was unlikely Rosenthal’s shoe


      3 The court did, to be sure, observe as an aside that “there are times
when people trip and fall even when the condition of the sidewalk or floor is
perfectly good.” But the court did not grant summary judgment to the City
for lack of any evidence of causation (i.e., failure to prove Rosenthal’s fall was
caused by a sidewalk defect, rather than by him simply losing his balance).
The thrust of the court’s reasoning, instead, was that whatever sidewalk
defect Rosenthal tripped upon was trivial as a matter of law. The
significance of the deposition testimony in which Rosenthal has difficulty
identifying the exact location of the defect that caused his fall, as we read the
testimony, is that it is insufficient to support Ferrari’s causation theory, not
that it should be taken as proof there was no defect at all.
                                         11
could have fitted in the groove as Ferrari contended. Rosenthal insists the
total vertical height of the defect at issue here is one and three-quarters of an
inch—if the depth of the groove is included. But because there was no proof
Rosenthal’s shoe somehow wedged into this rather shallow groove, the trial
court was correct to conclude that, to arrive at the relevant vertical offset, it
was unnecessary to combine the depth of the groove with the above-ground
offset.
      3. Aggravating Circumstances
      In a fallback line of argument, Rosenthal contends the size of the offset
is not the only relevant consideration here. According to him, there were
aggravating circumstances that made the offset especially hazardous. These
unique aggravating circumstances, according to Rosenthal, bring his case
within the exception for cases in which otherwise trivial defects may be
actionable where aggravating circumstances heighten the risk they pose.
Under the rule he invokes in support of this line of argument, an aggravating
circumstance is one that makes the alleged defect “more dangerous than its
mere abstract depth would indicate.” (Fielder, supra, 71 Cal.App.3d at
p. 734.)
      In support of his aggravating circumstances argument—tracking
various points made by his expert, Ferrari—Rosenthal contends the groove
was irregularly shaped. But that analysis lacks merit for the same reason all
of his other arguments about Rosenthal wedging his shoe in the groove fail.
There is no evidence of it. Rosenthal argues, for example, that the alleged
defect here posed a “tripping hazard” for those especially “at risk,” such as
the elderly or “those with ambulation impairments.” He also notes that the
alleged defect may have been dangerous to him as a 77-year-old man who
tends to “scuff the forward edge of his shoes” while walking. The theory of
heightened risk specific to Rosenthal, or indeed to any special class within
                                        12
the group of ordinary pedestrians, is inconsistent with governing law. The
legal standard is that property conditions must be safe for the ordinary
person, not for the elderly or ambulatorily impaired. (See Huckey, supra,
37 Cal.App.5th at pp. 1102, 1110, fn. 5; Dunn, supra, 22 Cal.App.2d at p. 54.)
Even Ferrari agrees that, “typically,” “shoes [would] not touch the walkway
during the swing phase,” making it nearly impossible for most pedestrians to
place the toe of their shoe in the groove, let alone trip there.
      Rosenthal next argues that, on the day of the accident, shady
conditions at the particular location where he fell, and leaves obscuring the
vertical offset, made the sidewalk defect at issue especially dangerous. But to
the contrary, the circumstances surrounding Rosenthal’s fall buttress the
trial court’s conclusion that any alleged defect was not substantially likely to
cause a reasonably prudent person injury. Rosenthal testified that he had
walked past this section of the sidewalk without a problem for decades, and
that he even knew of the alleged defect. He further testified that, on the one
occasion he fell, he was looking “straight ahead,” not at the sidewalk. While
the alleged sidewalk defect was small, nothing suggests that Rosenthal could
not have seen and avoided it had he looked down at where he was stepping,
as he admits he “should have.”
      Rosenthal also admits the weather was a non-issue and recalls no
lighting issues impeding his visibility. There was no indication “that the
ground was damp or wet” or slippery. (See Caloroso, supra, 122 Cal.App.4th
at pp. 925, 927 [defect on “dry” ground trivial].) A weather-related argument
was made and rejected in Caloroso, where the plaintiff contended that the
sun was blocking his sight. There is even less of a basis for such an
argument here, where the fall occurred at 3:00 p.m. while the sun was still
out. (Id. at p. 929 [a half-inch deep defect trivial as a matter of law despite


                                        13
the sun blocking the plaintiff ’s view]; see also Cadam, supra,
200 Cal.App.4th at p. 389 [defect trivial where the fall occurred on a sunny
day].) It fails here too.
      Taking another tack with his aggravating circumstances argument,
Rosenthal argues that the sidewalk condition at issue in this case was out of
compliance with the ADA. In the absence of a pleaded ADA violation, relied
upon to establish the applicable standard of care—which is not the theory on
which the complaint is founded—that argument is beside the point. (Huckey,
supra, 37 Cal.App.5th at p. 1108; Caloroso, supra, 122 Cal.App.4th at p. 928.)
Finally, Rosenthal suggests that the groove was only “part of a broader
dangerous condition” due to the existence of other defects on the same
pavement, but we see no evidence supporting such argument. The case
Rosenthal relies upon to support his “part of a broader dangerous condition”
argument, Clark v. City of Berkeley (1956) 143 Cal.App.2d 11, is
distinguishable. There, after examining relevant photo evidence, the court
found the entire sidewalk in an “extremely dilapidated and fragmented
condition.” (Id. at p. 15.)4
      The two other aggravated circumstances cases on which Rosenthal
relies are distinguishable as well. In Dolquist v. City of Bellflower (1987)
196 Cal.App.3d 261, for instance, the plaintiff sued the city because a steel
rod protruded one-quarter inch above a concrete tire-stop. (Id. at pp. 266–


      4 In passing, Rosenthal weaves in two other arguments—that the City
should be liable for failing to erect a warning sign, and that the City should
be liable because there is evidence of poorly executed past repairs to paving
stones at the location where the accident happened—but both of these
versions of the argument assume the conclusion they are offered to support:
that there are aggravating conditions here which heightened the risk in a
particular way. Because both lines of argument rest on the same faulty
assumption, they fail for lack of a supportable premise.
                                       14
270.) The court refused to find the steel rod trivial. It observed that the
presence of distractions, such as cars in the area, made the rod difficult to
see. (Id. at p. 270) But most of the court’s analysis focused on the ways in
which a steel rod sticking out of an elevated tire-stop is “[u]nlike sidewalk
cases, where the planes are horizontal.” (Ibid.) After all, when “persons
must step up from the plane they are walking on to a higher plane in order to
continue on their route,” a small protrusion may be “large enough to cause an
injury while being small enough to avoid easy detection.” (Ibid.) This case, of
course, is based on a small vertical offset on a flat sidewalk. Rosenthal had
seen the alleged defect before, and nothing would have stopped him from
seeing it that day, had he been looking.
      In Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, the plaintiff
sued over two holes on a sidewalk “a few inches apart and approximately four
or five inches long, two inches wide and from one-half to two inches in depth.”
(Id. at p. 664.) The two holes may not have been trivial, as a matter of law,
largely based on additional evidence. Plaintiff was the third person to have
tripped at the location of the two holes in a year. (See id. at p. 665;
cf. Whiting v. City of National City, supra, 9 Cal.2d at p. 164 [defect trivial
where four people fell in the past five years].) This case is different, even
assuming Balkwill is still good law. (See Brown v. Poway Unified School
District (1993) 4 Cal.4th 820, 831 [suggesting that Balkwill is no longer good
law to the extent it relied on “ ‘the happening of the accident’ ” at issue as
definitive “ ‘evidence that public property was in a dangerous condition’ ”].)
Rosenthal complains about a single alleged defect on the sidewalk and
provides no evidence of any other complaints or falls at the same spot.
Instead, he admits that he walked past the sidewalk safely for decades.




                                        15
      Accordingly, we think the trial court was correct to conclude that
Rosenthal’s fall had nothing to do with aggravated conditions heightening the
risk of an otherwise trivial defect, but instead that it reflects his failure to
watch out for a visible sidewalk imperfection he could have avoided had he
exercised more care for his own safety. (See Mora v. Favilla (1921) 186 Cal.
199, 206 [“[t]he fact that defendant had wrongfully and unlawfully created a
dangerous condition of the sidewalk would not excuse plaintiff in exposing
himself to injury if he knew or had warning of the dangerous condition and
could with a slight change of route have avoided it”]; Dunn, supra,
22 Cal.App.2d at p. 54 [finding a defect trivial as a matter of law since the
plaintiff “kn[ew] of the danger” and was required to “look out for it”], citing
Davis v. California St. C. R. R. Co. (1894) 105 Cal. 131, 138.)
   D. Street 41’s Motion
      1. Affirmance on Any Ground
      The posture of the appeal with respect to Street 41 differs from that of
the City, because the court sustained objections to much of the evidence
submitted in support of the motion, including the declaration of Street 41’s
expert, Kirsten White. Street 41 filed its summary judgment motion in
September 2018, and the City filed its motion in November 2018. Rather
than simply file a joinder when the City filed its summary judgment motion,
adopting the City’s proof on the trivial defect issue as a bootstrap measure,
Street 41 relied solely on its first-filed own motion, supported by a
declaration from its expert, together with photographs and measurements
taken by her. So when the court sustained Rosenthal’s objections to the bulk
of the evidence supporting the motion, that left Street 41 with no evidentiary
showing to support its prima facie case of triviality. Thus, with respect to
Street 41, Rosenthal’s argument that there was a failure to bear the initial
burden of production under Aguilar is correct as to the trivial defect issue.
                                        16
Absent some other ground to support the grant of summary judgment as to
Street 41, we might be constrained to reverse on that point.
      But apparently anticipating this possible problem, Street 41, correctly
invoking the rule that we may affirm on any ground supported by the record,
whether or not relied upon by the trial court (Transamerica Insurance Co. v.
Tab Transportation, Inc., supra, 12 Cal.4th at p. 399, fn. 4), argues that there
is such an alternative ground for decision in its favor as a matter of law: As a
private landowner, Street 41 contends, it cannot be held liable to Rosenthal
because it owed him no duty. There is no dispute here that the owner of the
public sidewalk in question is the City and that Street 41 is merely the owner
of adjacent private land. That being the case, Street 41 contends, summary
judgment in its favor may be sustained on the ground that it owed Rosenthal
no duty of care to maintain or repair a public sidewalk.
      Though, in his opening brief on appeal, Rosenthal does not address the
issue of whether Street 41 owed him a duty, he does address the issue in his
reply brief. Street 41 urges us to treat its no-duty arguments as unrebutted
and Rosenthal’s effort to address the point in his reply as forfeited because he
fails to deal with it in his opening brief. While it is true that arguments
raised for the first time in reply are generally forfeited, we will address the
duty arguments raised by Rosenthal in reply because Street 41
anticipatorily—and fully—covers these arguments in its responding brief.
(Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 33 [“Ordinarily, we
would deem arguments made for the first time in reply to have been forfeited,
but since [respondent] addresses both issues in his responding brief,
unprompted, we briefly address each one.”].)
      2. Absence of Duty
      “The elements of a cause of action for premises liability are the same as
those for negligence: duty, breach, causation, and damages.” (Castellon v.
                                       17
U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The common law rule is that
“abutting property owners and occupants ha[ve] no affirmative duty to
maintain or repair a public sidewalk and [are] not liable for injuries occurring
there which resulted from the mere failure to maintain it.” (Dennis W.
Williams v. Foster (1989) 216 Cal.App.3d 510, 515 (Williams).) Because “the
common law d[oes] not impose [a] duty to repair a defective public street
upon the abutting owner . . . any such duty would have to be found in the
statutes.” (Ibid., citing Eustace v. Jahns (1869) 38 Cal. 3, 14–15.) Such a
statute must create a duty through “ ‘clear and unambiguous language.’ ”
(Williams, supra, at p. 517, quoting Schaefer v. Lenahan (1944)
63 Cal.App.2d 324, 331–332 (Schaefer).)
      Rosenthal argues that his review of relevant City of Oakland
documents suggests that the City has advised adjacent property owners since
the mid-2000’s, at the latest, that property owners have liability to
pedestrians injured on public sidewalks adjacent to their properties. He cites
Selger v. Steven Bros., Inc. (1990) 222 Cal.App.3d 1585 for the proposition
that ordinances requiring an abutting landowner to maintain a public
sidewalk must be construed to create a duty of care to third persons if the
ordinance clearly and unambiguously provides the same, and in any event
that, wholly apart from such an ordinance, property owners have a basic duty
of care to refrain from conduct which would render a sidewalk dangerous to
the public. (Id. at p. 1590.)
      Rosenthal has not identified any statute or ordinance that clearly and
unambiguously states that Street 41 owes pedestrians such a duty. Under
state statutes, any duty a local business has to maintain a sidewalk is owed
to the City, not the general public. (See Schaefer, supra, 63 Cal.App.2d at
pp. 331–332; Williams, supra, 216 Cal.App.3d at pp. 515–522.) In Schaefer,


                                       18
the appellant argued that an amendment to the Improvement Act of 1911
(the Amendment) “creates a statutory duty to repair on the part of the owner,
and that violation of such duty gives rise to a cause of action against such
owner in favor of travelers injured on such sidewalks.” (Schaefer, supra, at
p. 326.) Consistent with “the overwhelming weight of authority” nationwide
(id. at p. 327), the Court of Appeal disagreed. (Id. at pp. 328–332 [noting that
many of these authorities were interpreting “statutes as broad or broader
than the one here involved”].) Although the Amendment directed landowners
“ ‘to maintain any sidewalk . . . in such condition that the same shall not
endanger persons or property,’ ” its enforcement mechanisms indicated that
this duty was only owed to the city for the cost of repairs the city found
necessary to make. (Id. at pp. 326–327, quoting Stats. 1935, ch. 771, § 31,
p. 2149.)
      Rather than create a private cause of action, the Amendment directed
the superintendent of streets to mail to the property owner and post on the
premises a notice to repair. (Schaefer, supra, 63 Cal.App.2d at p. 327.) If the
property owner failed to “make the required repairs, the superintendent
[would] do so. After the superintendent ma[de] the repairs, he [would then]
prepare a notice of cost of repairs.” (Ibid.) The Amendment’s “obvious
purpose . . . was to provide a means of reimbursing the city for the cost of the
repairs,” not to “impose a wholly new duty upon the property owner in favor
of third persons.” (Schaefer, supra, at p. 332.) Streets and Highways Code
section 5610 (section 5610), the Improvement Act’s successor statute, does
not create a duty between landowners and pedestrians for the same reasons.
(Williams, supra, 216 Cal.App.3d at pp. 515–522.)
      Even where there is no pertinent statute, local ordinances can
sometimes make adjacent property owners liable to maintain public


                                       19
sidewalks. (See Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127,
1132, 1134 [San Jose ordinance providing “that if an abutting property owner
fails to maintain a sidewalk in a nondangerous condition and any person
suffers injuries as a result thereof the property owner shall be liable to such
person for the resulting damages or injury” creates duty].) But absent such
an ordinance, local businesses are not liable to pedestrians for injuries
sustained on public sidewalks. (E.g., Contreras v. Andersen (1997)
59 Cal.App.4th 188, 195–197 [no city ordinance created such a duty]; Selger
v. Steven Bros., Inc., supra, 222 Cal.App.3d at pp. 1589–1590 [same].)
      The relevant provisions of the Oakland Municipal Code largely track
the language in both the Amendment and section 5610. (Compare Sts. & Hy.
Code, § 5610 et seq. with Oakland Mun. Code, § 12.04 et seq.) The Oakland
Municipal Code requires the Superintendent of Streets to provide local
businesses written notice that a sidewalk is “out of repair.” (Oakland Mun.
Code, § 12.04.020.) Once notice is given, the local business may then either
make the repairs itself or pay the City to make them. (Oakland Mun. Code,
§ 12.04.030.) Nowhere does the Code create a private cause of action or
suggest that property owners are liable to pedestrians. Like section 5610, the
City of Oakland’s Municipal Code establishes a duty between local businesses
and the City, not between local businesses and the general public.
(Cf. Gonzales v. City of San Jose, supra, 125 Cal.App.4th at p. 1132.)
      The only other exception to the no-duty rule is if something on the
adjoining private landowner’s property (e.g., a tree with roots extending
under the sidewalk) causes the sidewalk to be dangerous. (See Lee v.
Ashizawa (1964) 60 Cal.2d 862, 865–866 [adjoining landowner can be liable if
“the defendant, or his employees, in the course of using the property for
commercial purposes, created a hazard”]; Alpert v. Villa Romano


                                       20
Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1334–1335 [landowner
“exercise[d] possession or control over [the] adjacent land” by, for instance,
“plant[ing] and maintain[ing] all of the trees and vegetation in the area, on
both sides of the sidewalk,” “install[ing] sprinklers on both sides of that
walkway,” and “water[ing] and trim[ming]” the trees which grew the roots
that were the cause of uplifting and cracking in the sidewalk]; Williams,
supra, 216 Cal.App.3d at p. 515 [adjoining landowner can be “liable for
injuries occurring on a public sidewalk which were caused by the abutter’s
negligence or nuisance involving some act or omission other than the mere
failure to maintain or repair the public sidewalk”].) There is no evidence or
allegation of any such thing here.
      We conclude that Street 41 has the better of the argument on the issue
of duty. Street 41 is a private business. As such, it is not a guarantor of the
safety of local sidewalks for the public at large. Even if the City had ordered
it to pay for or make repairs to the sidewalk—which the City is empowered to
do but did not do here—that would still be nothing more than a matter
between Street 41 and the City. Because, on this record, the absence of a
duty of care owed by Street 41 to Rosenthal negates an element of
Rosenthal’s claim against it, Street 41 was entitled to summary judgment.
                            III. DISPOSITION
      The judgment is affirmed. Respondents to recover their costs on
appeal.
                                                  STREETER, J.
WE CONCUR:

POLLAK, P. J.
BROWN, J.




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APPENDIX




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