Opinion
B233322
10-26-2011
COUNTY OF LOS ANGELES, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JALEH KOHAN, Real Party in Interest.
Office of the County Counsel, Ruben Baeza, Jr. and Ralph L. Rosato, Assistant County Counsel, Joanne Nielsen, Principal Deputy County Counsel, and Liliana Campos, Associate County Counsel, for Petitioner. No appearance for Respondent. Law Office of Burg & Brock and Arnold W. Gross for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. YC055512
ORIGINAL PROCEEDINGS in mandate. Dudley W. Gray, II, Judge. Petition denied.
Office of the County Counsel, Ruben Baeza, Jr. and Ralph L. Rosato, Assistant County Counsel, Joanne Nielsen, Principal Deputy County Counsel, and Liliana Campos, Associate County Counsel, for Petitioner.
No appearance for Respondent.
Law Office of Burg & Brock and Arnold W. Gross for Real Party in Interest.
The County of Los Angeles (the County) petitions for a writ of mandate directing the trial court to grant the County's motion for summary judgment in the underlying lawsuit in which plaintiff, Jaleh Kohan, sued the County for personal injuries stemming from a fall in the west plaza of the Inglewood courthouse. We conclude the trial court properly ruled the County failed to establish entitlement to summary judgment and deny the County's writ petition.
FACTS AND PROCEDURAL BACKGROUND
1. Kohan's complaint.
The operative complaint alleges that on May 9, 2006, Kohan was summoned to the Inglewood courthouse for jury duty. As Kohan attempted to enter the courthouse from the parking lot, she stepped over yellow caution tape that blocked her path and fell, sustaining injuries. The complaint alleged: "The fact . . . potential jurors had to step over the tape to report for jury duty created a dangerous condition" which presented "a reasonabl[y] foreseeable risk" of injury to prospective jurors entering the courthouse with reasonable care and was a substantial factor in causing Kohan's injuries.
The complaint also alleged a Claim for Damages to Person or Property was mailed on June 26, 2006, to the County's Board of Supervisors at 500 West Temple Street, Room 383, Los Angeles, California, 90012, and Kohan did not receive a written Rejection of Claim.
2. The County's motion for summary judgment.
The County sought summary judgment on three grounds. It asserted Kohan had failed to file a government claim, the alleged condition was not dangerous and, even if the condition were dangerous, the defect was minor, trivial or insignificant.
With respect to the government claim issue, the County relied on the declaration of Katherine Medina, a deputy clerk of the Los Angeles County Board of Supervisors, who declared she is personally familiar with, responsible for and has access to government claims, applications and correspondence maintained in the County's computer databases. On July 12, 2010, Medina searched the claims database and found it contained no claim or application for leave to file a late claim by or on behalf of Kohan, or correspondence from Kohan. The County requested judicial notice of the absence of a claim filed by or on behalf of Kohan under Evidence Code section 452, subdivision (c), which permits judicial notice of "[o]fficial acts" of political subdivisions of the State of California, citing Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1753.
Medina declared: "In accordance with my job duties, I am personally familiar with, and am responsible for, receiving, organizing, maintaining and the handling of claims ('Claims'), applications for late claims ('Applications') and related correspondence submitted to the Board. Claims, Applications and related correspondence are logged in upon receipt and an electronic version of such Claims, Applications and correspondence are retained and maintained in computer data bases, which date[] from 1987 to present. . . . [¶] On July 12, 2010, I searched our claims computer data base for any and all Claims and Applications filed against the County by, under or on behalf of Jaleh Kohan. I found no claims filed by, under or on behalf of Jaleh Kohan. Furthermore, no Application for leave to file a late claim by, under or on behalf of Jaleh Kohan was found in our claims computer database. In addition, I searched our correspondence computer data base for any . . . correspondence filed by, under or on behalf of Jaleh Kohan. I found no such correspondence."
The County additionally asserted that, when Kohan was asked in discovery to produce any written documents evidencing her compliance with the Government Claims Act, she produced no written documents and responded "[d]iscovery and investigation is continuing."
With respect to the dangerous condition and trivial defect issues, the County relied upon excerpts from Kohan's deposition and a declaration from Abner Martinez, a California Highway Patrol officer who witnessed Kohan's fall. The relevant portions of Kohan's deposition testimony indicated Kohan did not see the tape before she fell and does not remember if she had been looking ahead or looking at the ground. Kohan indicated the weather was very good on the day of the incident and it was not windy. After the fall, Kohan was taken to an office inside the courthouse to await the arrival of paramedics. From the second story window, Kohan could see the tape no longer was present in the courtyard.
Martinez declared that on May 9, 2006, as he left the north entrance of the parking structure and entered the west plaza of the Inglewood courthouse, he saw yellow caution tape sectioning off a portion of the courtyard. Some of the tape was wrapped around lamp posts in the courtyard and some was on the ground near the south entrance to the plaza. The tape extended about half way across the plaza. Martinez declared: "One could not proceed directly from the south side entrance of the parking structure across the west plaza area of the Inglewood Courthouse without crossing over the tape. However, one could walk out of their way around the caution tape in order to get from the south side entrance from the parking structure to the other side of the west plaza without crossing over the tape." Martinez saw Kohan walking from the south end of the parking structure toward the courthouse. "Instead of going out of her way to get to the doors of the entrance of the Inglewood Courthouse, [she] stepped over the tape. As she did, I saw her fall to the ground." "The path [Kohan] took from the south door of the parking structure toward the west side of the plaza . . . was not the only path available to her. She easily could have walked around the tape . . . to enter the building."
Based on this evidence, the County argued that, because an individual walking from the parking structure could enter the courthouse without walking over the tape simply by walking around it, the presence of yellow caution tape in the plaza did not present a substantial risk of injury and did not constitute a dangerous condition within the meaning of Government Code section 830.
Alternatively, the County asserted that, as a matter of law, the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude the condition created a substantial risk of injury when the property was used with due care in a reasonably foreseeable manner. (Gov. Code, § 830.2.)
The exhibits to the declaration of the County's counsel in support of the motion included transcripts of telephonic statements of two witnesses, Officer Martinez and Gloria Reed Andrews, which Kohan had produced in discovery. Neither statement was relied upon by the County in its undisputed statement of material facts.
Martinez's transcribed telephonic statement generally was consistent with his declaration offered by the County in support of the motion for summary judgment.
Reed Andrews's transcribed telephonic statement indicated the day before the incident the tape had been at a higher level "to prevent people from walking in that area." "That morning . . . , that tape was down on the ground. . . . [Kohan] stepped over [the tape] with one leg . . . and as she was bringing back her other leg, the wind . . . lifted up the yellow tape and it got caught in her heel and she went face forward to the concrete . . . ." Reed Andrews indicated Kohan could not have gone around the tape and had to walk over to the tape to get to the courthouse.
3. Kohan's opposition.
In opposition to the motion, with respect to the government claim issue, Kohan submitted the declaration of Bernard J. Thalheimer who averred he was an attorney and he had personal knowledge of the facts stated in the declaration. Thalheimer declared a "Claim for Damages to Person or Property" dated June 26, 2006, and a cover letter of the same date addressed to the County of Los Angeles, Board of Supervisors, both of which were attached to the declaration, were "prepared at [Thalheimer's] direction and reviewed and signed by [him] on the dates contained in the claim and the letter. [The claim] was mailed by first-class mail to the County of Los Angeles."
Regarding the County's claim Kohan failed to produce evidence of compliance with the Government Claims Act in discovery, Kohan noted the County failed to refer to the Claim for Damages to Person or Property produced by Kohan on June 26, 2010. Thus, the County had received evidence indicating Kohan had filed a claim.
Kohan also asserted there were triable issues of fact with respect to whether Kohan could enter the courthouse without walking over the tape and whether 20 feet of tape fluttering in the wind constituted a trivial or minor defect. The opposition noted Kohan was exiting a dark tunnel into daylight, the tape was lying on the ground and Kohan did not see the tape before she fell. Relying on the statement of Reed Andrews, Kohan asserted that, in order to enter the courthouse from the southern parking lot tunnel, Kohan had to walk over the tape. Kohan noted the County had presented the transcribed statement of Reed Andrews to the trial court in support of its motion for summary judgment. Thus, the trial court could consider this statement in ruling on the motion.
In any event, Kohan's failure to walk around the tape went to the issue of comparative fault and did not negate the possible existence of a dangerous condition. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130.)
4. The County's reply.
In its reply, the County argued Kohan could not rely on the transcribed statement of Reed Andrews because it was not an affidavit or a declaration, as required by Code of Civil Procedure section 437c, subdivision (b)(2).
Further, Thalheimer's declaration was insufficient to raise a triable issue of fact with respect to the government claim issue in that it merely states a claim was prepared at his direction and was reviewed and signed by him. The County also objected to the Thalheimer declaration on the grounds it was incompetent, lacked foundation for the assertion the claim form "was mailed by first class mail to the County," and there is no indication Thalheimer had personal knowledge as to whether the mailing requirements of Government Code section 915.2 had been satisfied. Thus, the Thalheimer declaration was insufficient to show the claim had been mailed in the manner prescribed by Government Code section 915.2.
The County noted the claim form attached to the Thalheimer declaration did not bear a file stamp. Further, 45 days after the filing of the claim, it would have been rejected as a matter of law if not accepted. (Gov. Code, § 912.4, subd. (c).) Thus, when Kohan heard nothing from the County, she had an obligation to inquire as to the status of her claim. (Him v. City and County of San Francisco (2005) 133 Cal.App.4th 437, 445 (Him).) Here, Kohan did not confirm her claim had been denied and, had she followed up, she would have learned her claim had never been received. The County concluded the evidence submitted by Kohan was insufficient to show she had filed a claim.
5. The trial court's ruling.
The trial court denied the motion for summary judgment in a minute order. With respect to the claim presentation issue, the trial court concluded Deputy Clerk Medina's "declaration is not a matter that can be judicially noticed . . . . [¶] Assuming Ms. Medina's declaration is admissible, according to plaintiff's counsel, Bernard Thalheimer, on or about June 26, 2006, a claim was prepared at his direction and said claim was reviewed and signed by him and was mailed first class to the County. [¶] Conflict in the evidence precludes the granting of the County's Motion for Summary Judgment/Motion for Summary Adjudication."
Regarding the dangerous condition issue, the trial court concluded: "[w]hether the unsecured yellow caution tape . . . created the alleged dangerous condition to the courtyard is a triable issue of fact."
With respect to the County's evidentiary objections, the trial court overruled the objections to the Thalheimer declaration and the objections to the declaration of Kohan's counsel, attached to which was the transcribed telephonic statement of Reed Andrews.
CONTENTIONS
The County contends it was entitled to summary judgment on the claim presentation, dangerous condition and trivial defect issues, and the trial court erroneously overruled its objections to the Thalheimer declaration and the Reed Andrews statement, and erred in denying its request for judicial notice of the declaration of Deputy Clerk Medina.
DISCUSSION
1. General principles.
Summary judgment properly is granted if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) If the defendant fails to carry the initial burden of production, the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant's favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Id. at p. 849.)
"There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Ibid.) "A defendant bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. (Aguilar, supra, at p. 850, citing Code Civ. Proc., § 437c, subd. (o)(2).)
"In ruling on the motion, the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citations] and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) "The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, superseded by statute on other grounds as stated in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)
On appeal, we review the trial court's ruling on a motion for summary judgment de novo. (Aguilar, supra, 25 Cal.4th at p. 860; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We uphold the judgment if it is correct on any ground, regardless of the reasons given by the trial court. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694; Montgomery v. Cal Accountants Mutual Ins. Co. (1998) 61 Cal.App.4th 854, 859; Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal.App.4th 16, 19.) However, the trial court's evidentiary rulings are reviewed for abuse of discretion. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
With these principles in mind, we turn to the issues presented.
2. Summary judgment properly denied on the claim presentation issue.
a. The County's argument.
The County contends Deputy Clerk Medina's declaration was sufficient to meet its initial burden of production and to shift the burden to Kohan to demonstrate a triable issue of fact as to whether she had filed a government claim, which is a condition precedent to a plaintiff's ability to maintain an action against a public entity and thus an element of the plaintiff's cause of action. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734; Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239; Gov. Code, §§ 911.2, 945.4.)
The County argues the trial court erred in refusing to take judicial notice of the absence of a government claim filed by or on behalf of Kohan in the County's claims database as evidenced by the declaration of Deputy Clerk Medina, noting courts commonly take judicial notice that the records of a public entity do not contain a claim filed by a plaintiff. (Fowler v. Howell, supra, 42 Cal.App.4th at pp. 1752-1753.) The County further asserts the only evidence that showed Kohan had filed a claim was the Thalheimer declaration. However, the County objected to this declaration on the grounds of incompetency, lack of foundation and lack of personal knowledge with respect to whether the claim attached to the declaration had been mailed in accordance with the requirements of Government Code section 915.2. The County concludes the trial court should have sustained the County's objection to the Thalheimer declaration and granted summary judgment in its favor on the claim presentation issue.
b. Judicial notice of the Medina declaration properly refused.
Evidence Code section 452, subdivision (c), permits judicial notice of official acts of executive departments of a state, which includes the County. The statute applies to resolutions, reports and other similar official acts. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518; Childs v. State of California (1983) 144 Cal.App.3d 155, 162.) Given that the scope of the statute is limited to official acts, we agree the Medina declaration is not an official act of the County and thus is not a proper subject for judicial notice under Evidence Code section 452, subdivision (c). (See Big Valley Band of Pomo Indians v. Superior Court (2005) 133 Cal.App.4th 1185, 1192-1193 [resolutions of a federally recognized Indian tribe may be judicially noticed under Evidence Code section 452, subdivision (c) as official acts but the human resources manual of a casino operated by tribe may not]; Empire Fire & Marine Ins. Co. v. Bell (1997) 55 Cal.App.4th 1410, 1424, fn. 26 [declaration of a county official attesting no notice of driver exclusion was received did not qualify as an official act]; Childs v. State of California, supra, at p. 162 [declaration describing state agency's mailing practices not an official act]; cf. Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125 [the records and files of an administrative board are properly the subject of judicial notice under Evidence Code section 452, subdivision (c)].)
The case cited by the County for the proposition the trial court should have taken judicial notice of the absence of a claim in the County's records based on the declaration of the deputy clerk, Fowler v. Howell, supra, 42 Cal.App.4th 1746, does state judicial notice of the absence of a claim was appropriate in that case. However, the primary issue in Fowler was not whether a government claim had been filed but whether the plaintiff was required to file a claim. The plaintiff argued the defendant had not been acting in the course and scope of her employment as a California Highway Patrol officer when she accused him of sexual harassment. Fowler found, as a matter of law, the defendant was acting in the course and scope of her employment. Therefore, the plaintiff had to file a government claim before instituting suit. Although not specifically stated, it appears the plaintiff essentially conceded no claim had been filed. In the last paragraph of the opinion, Fowler states the trial court properly took judicial notice of the absence of a government claim filed by the plaintiff based on a declaration of a state employee familiar with the records of the Board of Control, citing Evidence Code section 452, subdivision (c). However, Fowler reached this conclusion without critical analysis. To the extent Fowler stands for the proposition judicial notice is appropriate in the circumstances presented here, we respectfully disagree.
Further, even where judicial notice of the existence of an official act properly is taken, " 'we do not take judicial notice of the truth of all matters stated therein.' [Citations.] '[T]he taking of judicial notice of the official acts of a governmental entity does not in and of itself require acceptance of the truth of factual matters which might be deduced therefrom, since in many instances what is being noticed, and thereby established, is no more than the existence of such acts and not, without supporting evidence, what might factually be associated with or flow therefrom.' [Citation.]" (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257; Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 885-887.) Thus, even had the deputy clerk's declaration qualified as an official act, it does not follow that judicial notice of the truth of its content would have been appropriate.
Concededly, requiring the County to prove a negative is a difficult task. (See, Aguilar, 25 Cal.4th at p. 854.) However, in the context presented, this difficulty is not insurmountable. Evidence Code section 1284 states an exception to the hearsay rule for a declaration asserting the absence of an official record. It provides: "Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is not made inadmissible by the hearsay rule when offered to prove the absence of a record in that office." It appears such a declaration would permit a party seeking to prove the absence of a government claim to shift the burden of production to the opposing party. However, the hearsay exception does not apply in this case because Medina does not declare she is the "official custodian of the records" at issue or that her search was "diligent." Given that we must strictly construe the affidavits offered in support of a motion for summary judgment (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107), the declaration of Deputy Clerk Medina did not qualify under the hearsay exception for declarations regarding the absence of a public record.
Based on this conclusion, it follows the County has failed to negate an element of Kohan's cause of action. Thus, the burden of production was not shifted to Kohan to prove she had filed a claim. We therefore need not address whether Kohan's evidence demonstrated a triable issue of material fact. However, as discussed below, even if this issue is addressed, we would reach the same result as the trial court.
c. Kohan demonstrated the existence of a triable issue of material fact with respect to the claim presentation issue.
Assuming the declaration of Deputy Clerk Medina constituted admissible evidence suggesting Kohan had failed to file a government claim, Kohan's evidence in opposition to the motion for summary judgment was sufficient to give rise to a triable issue of material fact on the claim presentation issue.
Government Code section 915 permits a plaintiff to present a claim against a local public entity by "[m]ailing it to the clerk, secretary, auditor, or to the governing body at its principal office." (Gov. Code, § 915, subd. (a)(2).) Government Code section 915.2 further provides: "If a claim . . . is presented or sent by mail under this chapter, [it] shall be . . . deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim . . . shall be deemed to have been presented and received at the time of the deposit. . . . Proof of mailing may be made in the manner prescribed by Section 1013a of the Code of Civil Procedure." (Gov. Code, § 915.2.)
Thus, the filing of a government claim is complete upon mailing. Further, although proof of mailing may be made in the manner provided in Code of Civil Procedure section 1013a, Government Code section 915.2 is permissive in this regard. (Him, supra, 133 Cal.App.4th at p. 443.) Therefore, the failure to prove mailing as outlined in Code of Civil Procedure section 1013a does not render the Thalheimer declaration inadmissible.
Moreover, even where proof of service must conform to Code of Civil Procedure section 1013a, only substantial compliance is required. (Him, supra, 133 Cal.App.4th at pp. 443-444; Glasser v. Glasser (1998) 64 Cal.App.4th 1004, 1011 ["proof of service substantially complied with the requirements of Code of Civil Procedure section 1013a, although it did not expressly state on its face that the envelope was sealed and placed for collection and mailing following ordinary business practices"]; Douglas v. Janis (1974) 43 Cal.App.3d 931, 937 [the rule of "strict compliance" with Code of Civil Procedure section 1013a is satisfied by substantial compliance].)
Here, Thalheimer declared he reviewed the Claim of Damages to Person or Property attached to his declaration, signed it and "it was mailed by first class mail" to the County. Although Thalheimer uses the passive voice, construing this declaration liberally in Kohan's favor, as we must (Molko v. Holy Spirit Assn., supra, 46 Cal.3d at p. 1107), the declaration reflects substantial compliance with Code of Civil Procedure section 1013a and was sufficient to create a triable issue of fact with respect to whether Kohan mailed the County a government claim in a timely manner and thereby forestalled summary judgment on the claim presentation issue.
Consequently, even if a search of the County's claims database failed to produce a claim filed by Kohan, based on the Thalheimer declaration, there nonetheless was a material conflict in the evidence with respect to whether Kohan had filed a claim such as to preclude summary judgment.
The County's assertion Kohan had a duty to inquire when she did not receive a written rejection 45 days after she filed the claim fares no better than her primary contention. Although the failure of the governmental entity to reject the claim in writing may be relevant to the issue (see Him, supra, 133 Cal.App.4th at p. 445), the absence of a formal rejection by the government entity does not force the conclusion Kohan did not file a government claim. This is especially true where, as here, the record contains evidence of mailing.
In sum, we agree with the trial court's conclusion there was a triable issue of material fact on the claim presentation issue that precluded summary judgment.
3. Summary judgment properly denied on the dangerous condition and trivial defect issues.
A public entity is "liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [that]: [¶] . . . [¶] (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Gov. Code, § 835.)
"A condition is not a dangerous condition . . . if the trial or appellate court, viewing the evidence most favorably to plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which was reasonably foreseeable that it would be used." (Gov. Code, § 830.2.)
The question whether a set of circumstances demonstrates a dangerous condition of property generally presents an issue of fact and may only be resolved as a matter of law if reasonable minds can come to but one conclusion. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1133; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799.) Similarly, only when reasonable minds must conclude the defect was so trivial that a reasonable inspection would not have disclosed it does the question become one of law. (Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261.)
The County contends that, because the tape did not extend across the entire plaza and Kohan could have gained access to the courthouse without stepping over the tape simply by walking around it, reasonable minds can conclude only that use of the plaza by persons exercising due care did not present a substantial risk of harm. Therefore, the loose tape that caused Kohan's fall did not constitute a dangerous condition within the meaning of Government Code section 830.
The County further contends the risk created by the condition, as a matter of law, was so minor, trivial or insignificant in view of the surrounding circumstances that no reasonable person would conclude the condition created a substantial risk of injury when the property was used with due care in a reasonably foreseeable manner. (Gov. Code, § 830.2.) The County asserts that, absent the statement of Reed Andrews, which should not have been considered, the evidence before the trial court failed to raise a triable issue of material fact and thus was insufficient to oppose the County's motion for summary judgment.
However, putting aside the Reed Andrews declaration, the evidence showed a dangerous condition that was not trivial and which created a substantial risk of injury. The County does not dispute that yellow caution tape extended halfway across the west plaza of the courthouse or that Kohan was leaving the tunnel of the west parking lot and walking into daylight at the time she fell. Although Kohan could have walked around the tape, reasonable minds might conclude persons exercising due caution would not have done so and elected instead to step over the tape where the evidence showed the tape was lying on the ground and it extended half-way across the plaza. Reasonable minds might further conclude the possibility the wind might lift the tape off the ground presented a trap for the unwary which rendered the condition of the premises dangerous to those using the premises with due caution. Thus, the evidence supports a finding there was a triable issue of fact with respect to whether a dangerous condition existed in the plaza at the time of Kohan's fall.
The trivial defect doctrine does not assist the County. It is grounded in the understanding that property owners are not required to maintain their premises in an absolutely perfect condition. "Growing out of the difficulty of maintaining heavily traveled surfaces in perfect condition is the practical recognition that minor defects inevitably occur, both in construction and maintenance, and that their continued existence is not unreasonable. In such case, irrespective of the question of notice of the condition, no liability may result. [Citations.]" (Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73.) The doctrine most frequently is applied in trip and fall cases where a landowner establishes that the height differential between two sections of sidewalk amounted to a trivial defect. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 723-734 [reviewing cases].)
However, the present case is not one involving a minor defect in the walkway that inevitably might occur such as a difference in elevation from one section of sidewalk to the next. Rather, Kohan's fall was the result of her tripping over caution tape that was lying on the ground. Because reasonable minds might conclude the tape negligently had been left in the plaza and its continued presence rendered the plaza dangerous to persons walking in the plaza with due care, it was not a trivial defect.
In sum, because the evidence before the trial court was sufficient to permit reasonable minds to disagree as to whether the west plaza of the Inglewood courthouse presented a dangerous condition on the morning of May 9, 2006, the trial court properly denied the County's motion for summary judgment.
DISPOSITION
The petition for writ of mandate is denied. Kohan shall recover her costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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KLEIN, P.J.
We concur:
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CROSKEY, J.
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ALDRICH, J.