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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

Raubitschek v. County of Los Angeles CA2/8

California Court of Appeal

• Citations: None known
• Docket Number: B343157

• Precedential Status: Non-Precedential

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (913)

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Combined Opinion

Filed 2/27/26 Raubitschek v. County of Los Angeles CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FARIDEH RAUBITSCHEK, B343157

Plaintiff and Appellant, Los Angeles County
Super. Ct. No.
v. 21STCV21153

COUNTY OF LOS ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Karen Moskowitz, Judge. Affirmed.
Citywide Law Group, Lisa Saperstein and Taylor R. Dann
for Plaintiff and Appellant.
Kjar, McKenna & Stockalper, Patrick E. Stockalper, Kelly
A. Ward and Jessica C. Nunez for Defendant and Respondent.

---

While strolling through her neighborhood, Farideh
Raubitschek tripped on a sidewalk hole, fell to the ground, and
injured her hand. She sued the County of Los Angeles for
negligence and premises liability. In granting the County’s
summary judgment motion on these causes of action, the trial
court concluded the sidewalk hole was, as a matter of law, no
more than a trivial defect and could not support the County’s
liability. We agree and affirm the judgment.
BACKGROUND
Raubitschek lives in Marina Del Rey, California. Since
2018, she has taken a daily morning walk. She typically leaves
her apartment, follows Via Marina Street to the water, turns to
the right, and then walks for an additional stretch before
returning home. Raubitschek usually walks in the middle of the
sidewalk.
On a summer day in 2020, Raubitschek was out on her
morning walk. After walking about 300 or 400 feet on Via
Marina Street, she saw people coming toward her. Attempting to
avoid contact with one of them who was coming very close to her,
Raubitschek stepped to the right. The front portion of her shoe
by her toe caught on a small hole in the sidewalk, a condition we
shall describe more fully below. She fell to the ground, landing
on her left side. The fall caused permanent nerve damage to
Raubitschek’s hand.
Raubitschek sued the County for premises liability and
negligence.1 The County moved for summary judgment, arguing
Raubitschek could not secure relief because Government Code

1 Raubitschek also sued E & S Ring Management
Corporation, but that entity is not a party to this appeal.

2
section 835 (further statutory references are to the Government
Code unless specified) “sets out the exclusive framework under
which a public entity can be held liable for injuries caused by a
condition of its property,” and because Raubitschek could not
meet the requirements of that framework. Specifically, the
County argued Raubitschek could show no triable issue of fact as
to whether: (1) the asserted defect caused her fall; (2) the County
had actual or constructive notice of the defect; or (3) the defect
was non-trivial and therefore a dangerous condition.
After Raubitschek filed her opposition and the County filed
its reply, the County filed an amended motion for summary
judgment. The amended motion reiterated the grounds for relief
raised in the original motion and additionally argued that the
County was entitled to summary judgment based on
Raubitschek’s failure to comply with the Government Claims Act
(§ 810, et seq.).
Following a hearing, the trial court granted the County’s
amended motion for summary judgment. The court agreed with
the County that there was insufficient evidence regarding
causation and notice, and that the sidewalk defect was trivial as
a matter of law — it was “nothing outside the typical sidewalk
lay persons encounter daily.”
After entry of judgment for the County, Raubitschek filed a
motion for reconsideration and a motion for new trial. The trial
court concluded it lacked jurisdiction to rule on the motion for
reconsideration and denied the motion for new trial. Raubitschek
timely appealed from the judgment. She does not, however,
challenge the court’s post-judgment rulings.

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DISCUSSION
A. Summary Judgment
“A party is entitled to summary judgment only if there is no
triable issue of material fact and the party is entitled to judgment
as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment must show that one or
more elements of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Id., subd. (p)(2).)
If the defendant meets this burden, the burden shifts to the
plaintiff to present evidence creating a triable issue of material
fact. (Ibid.) A triable issue of fact exists if the evidence would
allow a reasonable trier of fact to find the fact in favor of the
party opposing summary judgment. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850.) [¶] We review the trial court’s
ruling on a summary judgment motion de novo, liberally construe
the evidence in favor of the party opposing the motion, and
resolve all doubts concerning the evidence in favor of the
opponent. [Citation.] We must affirm a summary judgment if it
is correct on any of the grounds asserted in the trial court,
regardless of the trial court’s stated reasons.” (Grebing v. 24
Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 636–637.)
B. Trivial Defect Doctrine
As noted above, Raubitschek seeks relief based on theories
of negligence and premises liability. Section 835, part of the
Government Claims Act, “ ‘sets out the exclusive conditions under
which a public entity is liable for injuries caused by a dangerous
condition of public property.’ ” (Stack v. City of Lemoore (2023)
91 Cal.App.5th 102, 108 (Stack).)

4
Section 835 states the general rule that “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 either: ¶ A
negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous
condition; or ¶ The 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.” (§ 835.)
“ ‘An initial and essential element,’ ” then, “ ‘is proof a
dangerous condition existed.’ ” (Stack, supra, 91 Cal.App.5th at
p. 109.) In this context, “ ‘[d]angerous condition’ means 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.”
(§ 830, subd. (a).) The courts play a crucial gatekeeping role in
the assessment of substantiality and insubstantiality of risk.
“A condition is not a dangerous condition . . . if the trial or
appellate court, viewing the evidence most favorably to the
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

5
with due care in a manner in which it was reasonably foreseeable
that it would be used.” (§ 830.2.)
These statutes, “[t]ogether with the surrounding case
law, . . . form what is known as the ‘trivial defect doctrine,’
shielding public entities from liability for defects that a court
deems trivial as a matter of law.” (Stack, supra, 91 Cal.App.5th
at p. 109.) This doctrine has a history of arising in dangerous
condition of public property cases involving sidewalks and
“reflects an acknowledgement that ‘it is impossible to maintain a
sidewalk in perfect condition. Minor defects are bound to exist.
A municipality cannot be expected to maintain the surface of its
sidewalks free from all inequalities and from every possible
obstruction to travel.’ ” (Id. at pp. 109–110, fn. omitted.)
“ ‘Where reasonable minds can reach only one conclusion —
that there was no substantial risk of injury — the issue [of a
defect’s triviality] is a question of law, properly resolved by way
of summary judgment.’ ” (Huckey v. City of Temecula (2019) 37
Cal.App.5th 1092, 1104–1105 (Huckey).) In addressing a defect’s
triviality, courts have traditionally utilized a “two-step analysis.”
(Miller v. Pacific Gas & Electric Co. (2023) 97 Cal.App.5th 1161,
1167; see also Huckey, supra, at p. 1105; Nunez v. City of
Redondo Beach (2022) 81 Cal.App.5th 749, 758.) “ ‘First, the
court reviews evidence regarding type and size of the defect. If
that preliminary analysis reveals a trivial defect, the court
considers evidence of any additional factors [bearing on whether
the defect presented a substantial risk of injury].’ ” (Huckey, at p.
1105.) Such factors might include “whether there were any
broken pieces or jagged edges in the area of the defect, whether
any dirt, debris or other material obscured a pedestrian’s view of
the defect, the plaintiff’s knowledge of the area, whether the

6
accident occurred at night or in an unlighted area, the weather at
the time of the accident, and whether the defect has caused any
other accidents.” (Ibid.)
Our colleagues in the Fifth District have modified the
traditional two-step framework, reframing it as “a holistic
multifactor framework for assessing triviality . . . .” (Stack,
supra, 91 Cal.App.5th at p. 114.) Under the Fifth District’s
formulation, “the size of the defect is but one of the many
circumstances to be considered; however, size remains the
‘ “the most important” ’ of the dangerous condition factors.”
(Ibid.) In addition, the Fifth District concluded that “a particular
plaintiff’s familiarity with the defect” is “not a proper factor for
consideration within the trivial defect doctrine.” (Id. at p. 120.)
Whether we view the proper inquiry as a two-step or
holistic approach, we conclude the County sufficiently showed the
defect at issue was trivial as a matter law, such that Raubitschek
cannot prove an essential element of a section 835 claim, namely,
the existence of a dangerous condition. (Stack, supra, 91
Cal.App.5th at p. 109; Code Civ. Proc., § 437c, subd. (p)(2).)
Raubitschek did not present evidence creating a triable issue of
fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Thus, the trial court
properly granted summary judgment in the County’s favor.
(Id., subd. (c).)
1. The County carried its initial burden of showing
the defect was trivial as a matter of law.
We begin the triviality inquiry with the defect’s size.
(Stack, supra, 91 Cal.App.5th at p. 111.) Evidence of the hole’s
dimensions resides in the first declaration of Raubitschek’s

7
expert, Philip L. Rosecu.2 Although Raubitschek, not the County,
offered this declaration, we may, like the superior court did,
nonetheless consider it, and any other evidence Raubitschek
proffered, to determine whether the County carried its summary
judgment burden. (Code Civ. Proc., § 437c, subd. (c) [“In
determining if the papers show that there is no triable issue as to
any material fact, the court shall consider all of the evidence set
forth in the papers, except the evidence to which objections have
been made and sustained by the court” (italics added)]; Villa v.
McFerren (1995) 35 Cal.App.4th 733, 736 [plaintiff’s opposition
papers “filled the evidentiary gap” in defendant’s moving papers
on summary judgment]; cf. Stack, supra, 91 Cal.App.5th at p.
110, fn. 6 [allowing defendant municipality to raise the trivial
defect doctrine for the first time on appeal following trial and
noting the absence of triviality “is not an affirmative defense but
‘an aspect of duty that a plaintiff must plead and prove’ ”].)
Rosecu is a senior forensic engineer with “expertise in
investigating and analyzing structural and architectural failures,
roadway, highway and parking lot design deficiencies,
accessibility compliance, and product defect matters . . . .”
On April 6, 2021, Rosecu photographed and measured the
sidewalk defect at issue, as well as its surrounding area.

2 Raubitschek also submitted a supplemental declaration of
Rosecu after the County filed its amended summary judgment
motion. It added additional assertions that we address in part
B.2, post.

8
Observing that Rosecu inspected the scene more than seven
months after the accident occurred, the County questions
whether his measurements and photographs, included in his first
declaration, properly reflect the hole’s size, nature, and
appearance at the time of Raubitschek’s fall. While we
understand the County’s point, we need not address it.
Even assuming Rosecu’s measurements and photographs
accurately illustrate the sidewalk defect as of the accident date,
we conclude they demonstrate triviality.
Rosecu concluded the hole was “approximate[ly]” 1.5 inches
deep at its deepest point, 5 inches long, and 4.5 inches wide,
though the attached photographs that juxtapose the expert’s
ruler and the hole show the 1.5-inch depth approximation to have
been rounded up by at least an eighth of an inch — that is, the
ruler shows no more than a 1.375-inch depth. (See Stack, supra,
91 Cal.App.5th at p. 111 [“the reviewing court must examine the
photographs in evidence for itself and make its own
determinations”].) The sidewalk where the hole was located was
about five feet wide, and the hole was at the edge of the sidewalk
nearest the street. The side of the hole closest to the street began
where a slab of sidewalk concrete met a five- to six-inch-wide
curb of the same concrete material. It was by this curb where the
hole was deepest. From there, the hole sloped upward for about
4.5 inches toward the sidewalk’s center, tapering off into the
surrounding flat, level portions of the sidewalk.
Courts have held walkway defects of the same or similar
height differentials to be trivial as a matter of law, especially
when unaccompanied by other aggravating factors. (See, e.g.,
Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43−44
[uplift between two concrete slabs measuring between 1.5 and

9
1.875 inches]; Huckey, supra, 37 Cal.App.5th at pp. 1108–1110
[1.21875-inch height differential between two concrete panels];
Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568–
569 [gouge mark measuring “ ‘about one inch deep’ ”]; see Barrett
v. Claremont (1953) 41 Cal.2d 70, 74 [citing cases in which
defects of up to 1.5 inches were deemed minor]; cf. Stack, supra,
91 Cal.App.5th at pp. 114, 123 [walkway defect with 1.75-inch
height differential was not trivial as a matter of law in light of
several aggravating factors].)
Mindful of this caselaw, we turn to evidence regarding the
absence of factors that would have rendered the defect “ ‘more
dangerous than its size alone would suggest.’ ” (Huckey, supra,
37 Cal.App.5th at p. 1105.) At her deposition, Raubitschek
testified the accident occurred on a clear and sunny day, and
that, while there were oncoming pedestrians to avoid — as one
would expect to encounter on sidewalks — nothing blocked her
view of the sidewalk before she fell. Consistent with this
testimony, Rosecu’s photographs of the scene demonstrate a
defect in open view, unobscured by branches, bushes, trees, or
other objects. They also show that the hole did not have jagged
edges and sloped upward from its deepest point towards the
center of the sidewalk.
In sum, evidence suggests the defect at issue here, based on
its size, falls within the range of defects previously held to be
trivial as a matter of law. Moreover, evidence suggests the
absence of “ ‘circumstances surrounding the accident that might
[have] ma[d]e the defect more dangerous than its size alone
would [have] suggest[ed].’ ” (Huckey, supra, 37 Cal.App.5th at
p. 1105.) Accordingly, the County has shown, for purposes of
meeting its initial summary judgment burden, that Raubitschek

10
cannot establish a dangerous condition of public property as
required by section 835. (§§ 830, subd. (a) & 835; Stack, supra,
91 Cal.App.5th at p. 109; Code Civ. Proc., § 437c, subd. (p)(2).)
The burden therefore shifts to Raubitschek to produce evidence
creating a triable issue of fact. (Code Civ. Proc., § 437c, subd.
(p)(2).)
2. Raubitschek has not created a triable issue of fact
regarding the defect’s triviality.
Raubitschek contends she presented evidence creating a
triable issue of fact by way of Rosecu’s supplemental declaration,
in which he opines the hole in the sidewalk “presented a
substantial fall hazard.” He explains that, based on its
dimensions, the hole “could easily induce a fall incident by means
of a trip and/or an ankle roll depending on foot placement,
especially during a side step.” Rosecu also opines that
“[t]he subject defect would have been unexpected to a reasonable
pedestrian” because it was “similar in color and texture to the
surrounding curb and the adjacent undamaged sections of
concrete . . . .” For this reason, as well as Raubitschek’s focus on
oncoming pedestrians, Rosecu states the defect “would not be
readily apparent to Ms. Raubitschek during her side step
immediately prior to her fall.”
Rosecu’s supplemental declaration does not create a triable
issue of fact as to the defect’s triviality. We need not accept
Rosecu’s opinion that the sidewalk hole constituted a dangerous
condition as that term is used in the context of public entity
liability. Expert testimony to such a legal conclusion, based on a
defect’s size, shape, or other factors, does not prevent a court
from finding triviality as a matter of law. (Thimon v. City of
Newark (2020) 44 Cal.App.5th 745, 763–764; Caloroso v.

11
Hathaway (2004) 122 Cal.App.4th 922, 928; Fielder v. City of
Glendale (1977) 71 Cal.App.3d 719, 732.) “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.” (Fielder, at p. 732.) “[T]hat a witness
can be found to opine that . . . a condition” is dangerous “does not
eliminate this court’s statutory task, pursuant to section 830.2, of
independently evaluating the circumstances.” (Davis v. City of
Pasadena (1996) 42 Cal.App.4th 701, 705.) In performing that
statutory task, we can, for instance, credit the photographs
showing the hole here was minor, was a darker shade of gray and
of a distinct, grainier texture compared to the concrete around it,
would have been sufficiently noticeable to a reasonable
pedestrian, and would not have presented a dangerous condition
in the sidewalk’s ordinary use. (Caloroso, at p. 928 [expert
testimony, in light of photographs, did not create a triable issue
regarding triviality]; cf. Bushling v. Fremont Medical Center
(2004) 117 Cal.App.4th 493, 510 [an expert’s assertion lacks
“evidentiary value” when based on unsupported factual
assumptions].)
Ultimately, Raubitschek has not carried her burden of
presenting evidence sufficient to create a triable issue of fact on
the existence of a dangerous condition, and summary judgment
for the County was proper. (Code Civ. Proc., § 437c, subds. (c),
(p)(2).)3

3 Having reached this conclusion, we need not address
whether the trial court correctly granted summary judgment
based on Raubitschek’s inability to prove causation or notice.

12
DISPOSITION
The judgment is affirmed. The County shall recover its
costs on appeal.

SCHERB, J.
We Concur:

WILEY, Acting P. J.

VIRAMONTES, J.

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