Jan 16, 2017

FRIDAY, JANUARY 13, 2017, 3:00 p.m.
Courtroom 18 –  Hon. René Auguste Chouteau
3055 Cleveland Avenue, Santa Rosa


CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  Please contact CourtCall directly at (888) 882-6878.


The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Thursday, January 12, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

1. SCV-257470; Thomas v. Sonoma Mission Inn

Plaintiffs’ motion for preliminary approval of the class action settlement is granted. 

The court finds, for the purposes of approving this settlement only, that the proposed class meets the requirements for certification.

The party seeking settlement approval has the burden of showing the settlement to be fair and reasonable but “a presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”  (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802.)

Here, the first three factors have been adequately shown and the fourth factor will be assessed at the final approval hearing.  Therefore, the settlement agreement is within the range of reasonableness and meets the requirements for preliminary approval.

The schedule for the final approval hearing and related events proposed in plaintiffs’ motion is satisfactory.  The final approval hearing shall be set for hearing in Department 18 at 3 p.m. on March 15, 2017.  The court will consider any motions for attorney fees and costs at the final approval hearing. Plaintiffs’ counsel shall provide evidence in support which is sufficient to allow the court to adequately evaluate the reasonableness of the fees sought, including hours billed, hourly rates for each person billing, their qualifications and evidence demonstrating the hourly rates sought are in line with the rates in Sonoma County. 

Plaintiffs shall submit an order consistent with this ruling.



2. SCV-257533; Plichcik v. Plichcik
Appearances required.  Mary L. Smith, who allegedly served the papers on defendant, is also to appear.


Defendant’s motion for relief from default pursuant to CCP §473(d) cannot be determined without resolution of a conflict in the evidence regarding personal service of the summons and complaint.  The court will conduct an evidentiary hearing on that issue before hearing argument on the motion.



3. SCV-258523; Bainbridge-Krause v. The Foothills of Windsor

Defendant’s motion for summary judgment in this action for premises liability is granted.


The court finds the elevated crack in the sidewalk which allegedly caused plaintiff to trip and fall was a trivial defect as a matter of law.


“It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.”  (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 926.)


“The decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.  A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.  (Fielder v. City of Glendale, supra, 71 Cal.App.3d at p. 734, 139 Cal.Rptr. 876.)  Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect.”  (Caloroso v. Hathaway, supra,122 Cal.App.4th 922, 927, footnote omitted.)


“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.  (See, e.g., Barrett, supra, 41 Cal.2d at p. 74, 256 P.2d 977 [in the absence of aggravating conditions, differential of less than half an inch deemed trivial]; Caloroso, supra, 122 Cal.App.4th at p. 927, 19 Cal.Rptr.3d 254 [elevation difference of under half an inch]; Fielder, supra, 71 Cal.App.3d at p. 724, fn. 4, 139 Cal.Rptr. 876 [same]; Nicholson, supra, 5 Cal.2d at p. 367, 54 P.2d 725 [one and one-half inch elevation difference]; Whiting v. City of National City (1937) 9 Cal.2d 163, 165–166, 69 P.2d 990 [elevation difference of a maximum of three-fourths of an inch].) However, it is also true 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.’  (Fielder, supra, 71 Cal.App.3d at p. 726, 139 Cal.Rptr. 876.)” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568; see also Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, where an elevated section of sidewalk of three-quarters to seven-eighths of an inch found trivial as a matter of law.) 


Here, it is undisputed that the elevated section of sidewalk ranged in height from three-quarters of an inch to seven-eighths of an inch.  (Defendant’s SSUF, Fact No.16.)  The photographs show the elevation started around the middle of the sidewalk and grew in height as it extended toward the far edge of the sidewalk.  Plaintiff does not know the precise location of the elevated sidewalk where she tripped.  (Plaintiff’s Additional Disputed Facts, Fact No. 41.)  Plaintiff does not contend, and the photographs of the defect do not show any broken pieces or jagged edges.  It is undisputed there was no debris obstructing plaintiff’s view of the section of walkway where she tripped. (Defendant’s SSUF, Fact No. 20.)  It is undisputed that the weather was sunny when plaintiff fell.  (Defendant’s SSUF, Fact. No. 18.)  It also undisputed that the sidewalk was completely shaded at the time.  (Defendant’s SSUF, Fact No. 19.)  Plaintiff further testified at her deposition that she was distracted just before tripping because she was looking at flowers.  (Defendant’s SSUF, Fact No. 21.)  She testified that she does not believe she would have fallen had she been looking at the walkway when she was walking.  (Defendant’s SSUF, Fact No. 22.)  There is no evidence of prior tripping incidents in this location.  (Defendant’s SSUF, Fact No. 23.)


The photographs of the defect and the foregoing undisputed facts regarding the surrounding factors support the court’s conclusion that reasonable minds could not differ as to the triviality of the defect.


Plaintiff’s expert’s opinion does not raise a triable issue of material fact.  No such expert opinion is needed to evaluate the common sidewalk defect at issue in this case. (Caloroso v. Hathaway, supra, 122 Cal.App.4th 922, 928.)  In reaching this conclusion, the court has not considered the unpublished opinion improperly relied upon by defendant in its reply brief.


Kasparian v. AvalonBay Communities (2007) 156 Cal.App.4th 11, relied upon by plaintiff, is distinguishable because it did not involve a common sidewalk defect. Rather, the defect in Kasparian was a recessed drain in an interlocking concrete paver walkway.  Unlike here, in Kasparian, the depth of the recess and the impact of the surrounding circumstances on the dangerousness of the defect were disputed.


Nor does negligence per se based on national building safety standards or a California Building Code violation apply here to avoid summary judgment.  “[A]n underlying claim of ordinary negligence must be viable before the presumption of negligence of Evidence Code section 669 can be employed.  Sierra–Bay [Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318] explains that ‘it is the tort of negligence, and not the violation of the statute itself, which entitles a plaintiff to recover civil damages. In such circumstances the plaintiff is not attempting to pursue a private cause of action for violation of the statute; rather, he is pursuing a negligence action and is relying upon the violation of a statute, ordinance, or regulation to establish part of that cause of action.”  (California Service Station and Auto. Repair Ass'n v. American Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1178.)


In finding the defect trivial as a matter of law, the court has found defendant owed no independent duty to warn plaintiff of the defect or to repair it. Consequently, there is no viable underlying claim for ordinary negligence upon which to apply the presumption of negligence.


Accordingly, the motion for summary judgment is granted.


Defendant shall submit an order consistent with this ruling.



4. SCV-258814; Freeman v. Wells Fargo

CONTINUED TO February 24, 2017 at 3:00 p.m. in Department #18 per stipulation of the parties.


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