Filed 3/29/24 Cornelius v. County of Los Angeles CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JOAN CORNELIUS, B332128
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV25852)
v.
COUNTY OF LOS ANGELES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lynne M. Hobbs, Judge. Affirmed.
Mahoney & Soll, Paul M. Mahoney and Ryan P. Mahoney
for Plaintiff and Appellant.
Collins + Collins, Tomas A. Guterres, and Angelica Victoria
O. De Mesa for Defendant and Respondent.
__________________________________
After appellant Joan Cornelius tripped and fell over an
uplift in a sidewalk (where one slab of the sidewalk is higher
than an adjoining slab) maintained by respondent County of Los
Angeles, she sued the County for general negligence and
premises liability. The County moved for summary judgment,
arguing that the uplift was a trivial defect and that, in any case,
it had no notice of the defect. The trial court granted the motion
on the ground that the defect was trivial as a matter of law and
did not reach the issue of notice. Cornelius appeals from the
resulting judgment, arguing the court erred because: (a) her
expert witness opined the defect was not trivial; and (b) the court
was required to consider other factors besides the size of the
defect. We conclude that: (a) the court correctly disregarded the
opinion of Cornelius’s expert; and (b) the court considered the
other factors. Therefore, we affirm.1
FACTUAL AND PROCEDURAL BACKGROUND2
A. Cornelius Files a Complaint
In July 2021, Cornelius filed a complaint for general
negligence and premises liability against the County of Los
1 The parties also disagree whether there was a triable
issue as to whether the County had notice of the defect. Because
we find the trial court correctly ruled the defect was trivial, we do
not address this issue.
2 We limit our summary to the facts and procedural history
relevant to the issues raised on appeal.
2
Angeles and the City of Covina.3 She alleged that in February
2021, she fell on Badillo Street in Charter Oak, due to “Lack of
maintenance and upkeep on public sidewalk creating unsafe
environment to general public.” She added that “[t]he fall
resulted in a fractured shoulder as well as a fractured humerus,
and 3 fractured ribs all resulting in multiple surgeries.” The
County answered in August 2021.
B. The County Moves for Summary Judgment
1. The County’s Motion
In January 2023, the County moved for summary judgment
or, in the alternative, summary adjudication. According to the
motion, in February 2021, Cornelius was walking on the
sidewalk, “when she got distracted by surrounding road traffic,
tripped over an uplift in the sidewalk, and fell forward to the
ground.” Cornelius admitted that, had she been looking forward
when walking, she could have avoided the uplift. The County
alleged that, one day before the incident, its Public Works’ Road
Maintenance Division had “performed a drive-by inspection” of
the sidewalk and had not observed “any deviation or uplift.” Nor
had anyone reported or complained about the uplift since July
2017. Five days after the incident, the County measured that the
uplift was “13/16 of an inch at its highest point, less than 3/4 of
an inch towards the center, and less than 1/2 of an inch closest to
the curb.”
3 In its Minute Order granting the County’s motion for
summary judgment, the court noted that “the City of Covina was
dismissed on November 3, 2021.”
3
As evidence, the County submitted excerpts from
Cornelius’s deposition, where she testified that the sidewalk on
which she fell was along one of the routes she took on her daily
walks, and that she had been walking in that area “[p]robably
since 2015.” She explained that when she fell, she was “probably
distracted, looking at the street instead of the sidewalk” because
she heard “screeching brakes coming.” She agreed that when she
heard the noise, she “turned [her] head” and “looked over,” and
that was when she fell. When asked whether she believed she
could have avoided the uplift if she were looking forward at the
time of the incident, Cornelius responded: “Absolutely, yes.” She
admitted it was a clear day, and that there “were no weather
conditions, debris, or shadows that would have prevented [her]
from seeing the uplift.” The County also submitted declarations
from its employees, discussing the inspections done and the
measurements taken of the uplift, as well as the lack of
complaints about the uplift before Cornelius’s fall.
Based on these facts, the County argued that it could not be
liable because: (1) it lacked actual notice of the uplift and
Cornelius could not establish it had constructive notice; and (2) at
less than an inch in height, the uplift was a trivial defect as a
matter of law in the absence of any aggravating factors.
2. Cornelius’s Opposition and the County’s
Reply
In Cornelius’s opposition, she argued there was a triable
issue of material fact as to the defect’s triviality because “[t]rivial
defect cases generally involve defects that are fractions of an
inch,” because “the defect here was above 1/2 inch,” and because
the court was required to consider the “nature and quality of the
defect and the time of day and lighting conditions when the
4
accident occurred.” As evidence, she cited the declaration of a
retained expert, who averred that he had visited the site of the
fall and “[t]he courts have ruled extensively on whether or not a
walking surface discontinuity is a trivial defect. The threshold
values have, for the most part been 1/2 to 3/4 of an inch--
sidewalks in particular have been one-half inch. My site
inspection did not provide any evidence to justify a lower
standard of tolerance.” The expert acknowledged the
measurements of the uplift provided by the County and
concluded that, “[b]ased on the aforementioned considerations, it
is my opinion that the subject incident site was non-trivial and
unsafe for ordinary pedestrian passage.”4
In her response to the County’s separate statement of
undisputed facts, Cornelius agreed that, at the time of the
incident, “the sky was clear and there were no weather
conditions, debris, or shadows that would have prevented
Plaintiff from seeing the uplift on the Subject Sidewalk.” She
also agreed to the measurements of the uplift submitted by the
County. She denied that she was not looking forward when she
fell due to being distracted by a vehicle in the area, but cited only
her declaration where she stated she was “distracted by noise
4 Additionally, while Cornelius did not dispute that the
County lacked actual notice of the defect, she contended there
was a triable issue as to whether the County had constructive
notice because it was “responsible for the maintenance and
cleaning of the property in question, including the sidewalk
where Plaintiff fell” and “should have seen the dangerous
condition.”
5
made from a vehicle in the area.”5 (Emphasis added.) Citing
only “Pltf’s Decl.,” she denied the County’s undisputed fact that
she “could have avoided the uplift in the Subject Sidewalk if she
was looking forward while she was walking” by responding: “If
she had been looking forward, there is no proof she would have
seen the dangerous condition.” Cornelius additionally denied the
County’s facts regarding the inspections they conducted and the
lack of complaints they received with the phrase: “No proof
entered by defendants.”
The County objected to several paragraphs of the
declarations submitted by Cornelius. It also filed a reply,
arguing that Cornelius presented no evidence demonstrating the
County had actual or constructive notice or to raise a triable
issue as to the triviality of the defect.
3. Ruling
In April 2023, the trial court granted the County’s motion
for summary judgment. The court cited the undisputed evidence
that the uplift was measured at 13/16 of an inch at its highest
point and pointed out the lack of other factors that would
“transform the defect which is trivial in size into a nontrivial
defect.” The court noted that photographs submitted by the
County “clearly demonstrate that the defect alleged by Plaintiff is
an uplift between concrete slabs of sidewalk. There are no other
irregularities in sight, such as dirt, debris, jagged edges, an
asphalt patch or the like.” The court added that the undisputed
evidence showed “[t]he weather was fine on the day of the
5 In other words, it appears Cornelius was not disputing
that she was distracted, only that she was distracted by the noise
made from the vehicle, as opposed to the vehicle itself.
6
accident and the accident took place during daylight hours,” that
“[t]here was no dirt or debris or anything else obstructing
Plaintiff’s view of the sidewalk,” that Cornelius “had walked on
the sidewalk numerous times since 2015,” and that “[t]he
sidewalk itself did not have jagged edges, an asphalt patch or any
other deformities other than the raised slab of concrete.” The
court found that nothing obstructed Cornelius’s view of the uplift,
but rather she “was not paying attention to the sidewalk because
she was looking into the street after hearing the sound of
screeching brakes.”
Based on these facts, the trial court found that the “defect
in the sidewalk is trivial as a matter of law because the sidewalk
is offset by less than an inch and no other conditions make the
sidewalk dangerous.” Citing numerous appellate court cases
dealing with similar offsets, the trial court elaborated that the
height of the uplift was “within the differentials held by Courts of
Appeal to be de facto trivial.” The court also struck the
conclusion of Cornelius’s expert witness that the defect was not
trivial because “[e]xpert witnesses may not testify about issues of
law or draw legal conclusions,” and noted that because the
expert’s “opinion of whether the defect is trivial is based on an
improper legal conclusion rather than his education, experience,
or other reasonable basis, [his] opinion is of no value.”
C. Cornelius Moves for a New Trial
In April 2023, Cornelius moved for a new trial. She argued
the court had erred in striking her expert’s conclusion because he
“had an absolute right to rely on California case law in support of
his opinion,” and that his opinion that the defect was not trivial
created a triable issue of material fact. She then repeated,
essentially verbatim, the arguments she made in her opposition
7
to the motion for summary judgment regarding triviality and
notice.6
In May 2023, the court entered judgment in favor of the
County. The next day, the County filed an opposition to
Cornelius’s motion, arguing there was sufficient evidence to
support a conclusion that the defect was trivial and that the
County had no notice of the defect, and that the exclusion of the
testimony of Cornelius’s expert was neither erroneous nor
prejudicial.
6 In support of the motion for new trial, Cornelius’s counsel
submitted a declaration in which he complained of the “gradual
erosion of the courts and the rights of California citizens” and
declared that “[w]hat the courts did, in COVID-19 cases,
particularly in Los Angeles County, is obscene,” lamenting that
public servants were fired because they “refused to take an
untested vaccine.” He continued, “[n]ow that the COVID-19
hysteria is over, the concept of ‘trivial defects’ has now emerged,”
complained that the sidewalk uplift could not be a “trivial defect”
when “someone like Joan Cornelius suffers 3 fractured ribs, and
other serious injuries, has had pain management treatment, and
underwent surgeries,” and accused the trial court of “ignor[ing]
the law.” The attorney opined that the court’s ruling was “bad,
unfair, . . . [and] another example of courts siding with the
bureaucracy against the people in order to cause harm.” He
concluded that the court could “redeem itself by issuing the
proper ruling,” and noted it was “offensive” to him as a lawyer
“that the LA County judges have a political action committee.”
The County objected to this declaration and the court
sustained its objections, finding the declaration “irrelevant” and
that it “impugned the integrity of the court.” After noting counsel
had previously been found in contempt by the appellate court for
making similar statements, the court additionally struck the
declaration from the record.
8
In Cornelius’s reply brief, she accused the court of
improperly weighing evidence, and then repeated, again
essentially verbatim, the arguments made in opposition to the
motion for summary judgment and the arguments made in the
motion for new trial.
In August 2023, the court denied Cornelius’s motion,
repeating its ruling in granting summary judgment, and finding
that it did not err in sustaining the objection to the testimony of
Cornelius’s expert. The court declined to address Cornelius’s
arguments regarding notice because it had found it unnecessary
to address that issue in granting summary judgment. Cornelius
timely appealed the judgment.
DISCUSSION
For the County to be liable for Cornelius’s injury, she would
have been required to establish that her injury was proximately
caused by a dangerous condition on the County’s property, and
that the dangerous condition created a reasonably foreseeable
risk of the kind of injury she sustained. (Gov. Code, § 835.)7 A
“dangerous condition” is “a condition of property that creates a
substantial (as distinguished from a minor, trivial or
insignificant) risk of injury when such property or adjacent
property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.” (Gov. Code, § 830,
subd. (a).) “ ‘[A] property owner is not liable for damages caused
by a minor, trivial or insignificant defect in property.’ ”
7 She would also have needed to show that a negligent or
wrongful act by a County employee created the condition, or that
the County had actual or constructive notice of the dangerous
condition. (Gov. Code, § 835, subds. (a) & (b).)
9
(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566
(Stathoulis).)
To determine whether a defect is trivial “involves several
steps. First, the court reviews evidence regarding the type and
size of the defect. If that preliminary analysis reveals a trivial
defect, the court considers evidence of any additional factors such
as the weather, lighting and visibility conditions at the time of
the accident, the existence of debris or obstructions, and
plaintiff’s knowledge of the area. If these additional factors do
not indicate the defect was sufficiently dangerous to a reasonably
careful person, the court should deem the defect trivial as a
matter of law and grant judgment for the landowner.”
(Stathoulis, supra, 164 Cal.App.4th at pp. 567–568.)
A defendant moving for summary judgment has met its
burden of showing that a cause of action has no merit if it shows
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. Once the defendant has met that burden, the burden
shifts to the plaintiff to show that a triable issue of one or more
material facts exists as to that cause of action or defense.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; Code
Civ. Proc., § 437c, subd. (p)(2).) Here, the trial court found that
the County had met its burden to demonstrate the sidewalk
uplift was a trivial defect because it measured 13/16 of an inch at
its highest and because there were no additional factors to render
the defect sufficiently dangerous to a reasonably careful person;
it found also that Cornelius failed to demonstrate the existence of
a triable issue of material fact.
Cornelius contends the court erred because: (a) her expert
opined the defect was not trivial; and (b) the court was required
10
to consider other factors besides the size of the defect. We review
a trial court’s ruling on a motion for summary judgment de novo.
(Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) We discern no
error and find none of Cornelius’s cited authorities applicable.
A. The Court Correctly Excluded Legal Opinions of
Cornelius’s Expert
Cornelius’s expert noted that the uplift measured 13/16 of
an inch at its highest point and that “[t]he courts have ruled
extensively on whether or not a walking surface discontinuity is a
trivial defect. The threshold values have, for the most part been
1/2 to 3/4 of an inch--sidewalks in particular have been one-half
inch. My site inspection did not provide any evidence to justify a
lower standard of tolerance.” He then concluded that “[b]ased on
the aforementioned considerations, it is my opinion that the
subject incident site was non-trivial and unsafe for ordinary
pedestrian passage.” The County objected to these statements
and the court sustained the objections. The court explained that
“[e]xpert witnesses may not testify about issues of law or draw
legal conclusions” and found that the expert “improperly draws a
legal conclusion by opining that differentials of ½ to ¾ of an inch
are trivial as a matter of law.” The court concluded that because
the expert’s “opinion of whether the defect is trivial is based on
an improper legal conclusion rather than his education,
experience, or other reasonable basis, [his] opinion is of no
value.”8
8 Furthermore, even if the expert’s opinion had a proper
basis, it would not preclude either the trial court or us from
concluding differently. (See Fielder v. City of Glendale (1977) 71
Cal.App.3d 719, 732 (Fielder) [“expert testimony that the defect
(Fn. is continued on the next page.)
11
Cornelius does not directly argue that the court erred in
disregarding the opinion of her expert witness. Instead, she
contends that, because the expert opined that “the subject change
in the sidewalk elevation where the fall came constituted a
dangerous hazard and was not a trivial defect,” the case of
Fajardo v. Dailey (2022) 85 Cal.App.5th 221 (Fajardo) required
the court to find a triable issue as to whether the defect was
trivial. Fajardo is inapposite.
In Fajardo, the plaintiff “tripped and fell on an asphalt
patch between two adjacent sidewalk slabs in front of [defendant]
Dailey’s property.” (Fajardo, supra, 85 Cal.App.5th at p. 223.)
The superior court granted the defendant’s motion for summary
judgment, finding the condition of the sidewalk was a “trivial
defect.” (Ibid.) The appellate court reversed, finding that: (a) the
defendant had failed to provide admissible evidence to support
her assertion that the sidewalk differential was less than one
inch in height whereas the plaintiff submitted admissible
evidence that it was between “13/16 and one and three-sixteenths
inches” in height;9 and (b) the defendant failed to submit evidence
was dangerous, due to its depth, . . . should not prevent us from
finding in an appropriate situation that the defect was trivial as a
matter of law. For in this area there is no need for expert
opinion. It is well within the common knowledge of lay judges
and jurors just what type of a defect in a sidewalk is
dangerous”].)
9 Although the defendant had submitted an expert
declaration opining that the defect was less than one inch in
height, the appellate court noted that the expert “did not state
how or why he knew this. He did not say he measured the
displacement, nor did he give any other basis for his conclusion.
(Fn. is continued on the next page.)
12
regarding the circumstances surrounding the accident and the
plaintiff submitted admissible evidence that the asphalt patch
“appears to have a rough texture, an uneven surface, and a
jagged edge where it meets the concrete.” (Id. at pp. 227–229.)
The appellate court concluded that because reasonable minds
could differ about whether the condition of the asphalt patch,
combined with the height differential, presented a substantial
risk of injury, the superior court erred in granting summary
judgment. (Id. at p. 230.)
Unlike in Fajardo, the defendant here submitted
admissible evidence to support its claim that the sidewalk uplift
measured 13/16 of an inch at its highest point at the far side of
the sidewalk, and that there were no weather or other conditions
to prevent the plaintiff from seeing the uplift. While the plaintiff
in Fajardo disputed the defendant’s assertion of the defect’s
height and submitted admissible evidence of other factors that
enhanced its danger, Cornelius does neither. Instead, she agreed
with the measurements proffered by the County, admitted no
external conditions prevented her from seeing the uplift, and
proffered no evidence to demonstrate anything enhanced the
danger of the uplift. Moreover, unlike here, the expert witness
testimony presented by the plaintiff in Fajardo was not based on
improper legal conclusions. Thus, Fajardo’s reversal of the
superior court’s granting of summary judgment has no bearing on
how we should rule.
Therefore, it had no evidentiary value and could not support
summary judgment.” (Fajardo, supra, 85 Cal.App.5th at p. 227.)
13
B. The Court Considered Other Factors
Cornelius additionally argues that “size alone is not the
only factor” in determining triviality, and that the court was also
required to “consider the nature and quality of the defect and the
time of day and lighting conditions when the accident occurred.”
In granting the County’s motion, the court noted that there
were no “irregularities in sight, such as dirt, debris, jagged edges,
an asphalt patch or the like,” that “[t]he weather was fine on the
day of the accident and the accident took place during daylight
hours,” that “[t]here was no dirt or debris or anything else
obstructing Plaintiff’s view of the sidewalk,” that Cornelius “had
walked on the sidewalk numerous times since 2015,” and that
“[t]he sidewalk itself did not have jagged edges, an asphalt patch
or any other deformities other than the raised slab of concrete.”
In other words, the record reflects that the court did consider
factors other than the height of the uplift.
C. Cornelius’s Citations Are Inapposite
Cornelius cites and summarizes a litany of cases, without
explaining why those cases are relevant to the appeal before us.
None is.
First, Cornelius asserts that “[t]rivial defect cases generally
involve defects that are fractions of an inch,” and cites to five
cases supporting this statement.10 However, given that the
10 (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 72, 74–
75 [reversing judgment in spite of jury verdict because ridge of
asphalt rising “about 1/2 inch above the surface of the sidewalk”
trivial as a matter of law]; Cadam v. Somerset Gardens
Townhouse HOA (2011) 200 Cal.App.4th 383, 389 [affirming
judgment notwithstanding the verdict because walkway
(Fn. is continued on the next page.)
14
defect here was also a fraction of an inch—specifically, 13/16 of
an inch at its highest point at the far side of the sidewalk—these
cases merely confirm that the trial court’s decision is not an
outlier.
Next, she cites to Stathoulis, supra, 164 Cal.App.4th at
pages 568–569 for the proposition 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.’ ” While that may be, the defect in question did
not stretch beyond one inch; Stathoulis is inapplicable.
Finally, Cornelius cites four cases in which a defect was
found not to be trivial without explaining why the holdings in
those cases apply to the situation before us. Upon our own
examination of these authorities, we find they do not apply.
In Kasparian v. AvalonBay Communities, Inc. (2007) 156
Cal.App.4th 11, the appellate court reversed the superior court’s
grant of summary judgment where the plaintiff tripped over a
recessed drain installed in an apartment complex, because the
plaintiff presented evidence that the hole created for the drain
grate was uneven and differed from other installed drains in the
complex, and the slope of the drain was “dramatically more
severe” than customary drains. (Id. at pp. 28–29.) The appellate
separation between three-fourths and seven-eighth of an inch
deep “was trivial as a matter of law”]; Caloroso v. Hathaway
(2004) 122 Cal.App.4th 922, 927 [sidewalk crack less than one-
half of an inch deep trivial as a matter of law]; Ursino v. Big Boy
Restaurants (1987) 192 Cal.App.3d 394, 396–397 [raised edge
three-fourths of an inch high was trivial defect as a matter of
law]; Fielder, supra, 71 Cal.App.3d at p. 724, fn. 4 [listing cases
in which defects ranging from one-half of an inch to one and one-
half of an inch found trivial as a matter of law].)
15
court also noted the drain was not distinguishable by color or
texture from the surrounding pavers and could not be easily
detected, even in daylight. (Id. at p. 29.) Additionally, the
plaintiff’s experts had opined that the drains did not comply with
the building code and were not installed according to industry
standards. (Ibid.) Here, by contrast, the potential hazard
involved a raised sidewalk not a recessed drain, and there were
no external factors preventing Cornelius from seeing the uplift—
indeed, Cornelius testified she “[a]bsolutely” could have avoided
tripping on the uplift had she simply been facing forward while
walking.
In Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261,
the appellate court held that “[u]nlike sidewalk cases,” a steel rod
protruding one-fourth of an inch from concrete tire stop in a
parking lot was not a trivial defect because “a protrusion such as
a piece of metal rebar located in an area where foot traffic occurs
poses a greater danger, especially where, as here, persons must
step up from the plane they are walking on to a higher plane in
order to continue on their route.” (Id. at p. 270.) However, this is
a sidewalk case, there was no protrusion, and Cornelius was not
stepping up from one “plane” to another.
In Sheldon v. City of Los Angeles (1942) 55 Cal.App.2d 690,
the appellate court found that a sidewalk uplift of one and one-
half inches was not a trivial defect. (Id. at p. 692.) But the defect
here was a little over half that height, at 13/16 of an inch at its
highest point on the far side of the sidewalk.
Finally, in Johnson v. City of Palo Alto (1962) 199
Cal.App.2d 148, the appellate court held that, although a
sidewalk uplift measuring one-half to five-eighths of an inch was
“slight” and “in many cases an even greater differential has been
16
held to constitute a trivial condition as a matter of law,” the
defect was not trivial because “this was respondent’s first sojourn
down Lincoln Avenue in this particular direction; the accident
occurred at night and the sidewalk was shadowy because of
overhead trees.” (Id. at p. 152.) Here, Cornelius had been
walking down this road since 2015 and no weather or other
conditions prevented her from seeing the uplift.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
17