Filed 10/14/22; Modified and Certified for Pub. 11/10/22 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SALVADOR FAJARDO, 

Plaintiff and Appellant,

v.

CYNTHIA A. DAILEY,

Defendant and Respondent.

 B314031

 (Los Angeles County

 Super. Ct. 

 No. 19STCV28455)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Edward B. Moreton, Daniel M. Crowley, 

Judges. Reversed.

Raymond Ghermezian and Coralia Lesin for Plaintiff and 

Appellant.

Demler, Armstrong & Rowland, John R. Brydon and David 

A. Ring for Defendant and Respondent.
2

INTRODUCTION

Salvador Fajardo filed this negligence action against 

Cynthia Dailey after he tripped and fell on an asphalt patch 

between two adjacent sidewalk slabs in front of Dailey’s property. 

The trial court granted Dailey’s motion for summary judgment, 

ruling the condition of the sidewalk was a trivial defect. Because 

Dailey did not meet her burden on summary judgment of showing 

the defect was trivial as a matter of law, and because Fajardo 

submitted admissible evidence creating a triable issue of material 

fact, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

A. Fajardo Files This Action Against Dailey

One morning in December 2018 Fajardo went for a walk in 

his neighborhood. Fajardo was wearing shorts and “tennies.” As 

he ran to reach an intersection before the traffic light turned red, 

he caught his foot on a lift in the sidewalk in front of Dailey’s 

home and fell, hitting his hands and knee on the ground. 

Fajardo filed this action in August 2019 against Dailey, the 

City of Monrovia, and the County of Los Angeles. In his 

operative, first amended complaint, he alleged causes of action 

against Dailey for premises liability and “negligence and property 

damage.” Fajardo alleged Dailey “negligently, carelessly and 

recklessly owned, maintained, controlled, possessed, repaired, 

inspected, operated, designed, built, managed and cleaned” the 

property “in a dangerous condition, so as [to] cause [him] to trip 

and fall on the sidewalk surface.”
3

B. The Trial Court Grants Dailey’s Motion for Summary 

Judgment

Dailey moved for summary judgment on the ground “the 

dangerous condition that [Fajardo] alleges caused injury 

amounted to nothing more than a trivial defect.” Dailey 

submitted Fajardo’s deposition testimony that, after he fell, he 

measured the height differential with his key and described it as 

“a little over one inch.” Fajardo also testified that the weather 

was sunny, that he had lived nearby for 13 years, and that he 

had previously walked on the sidewalk in front of Dailey’s house.

Dailey also submitted the declaration of an architect, 

Thomas Parco, who stated the sidewalk complied with applicable 

codes, statutes, and regulations and presented “no unreasonable 

safety hazard.” Parco stated that the displacement in the 

concrete slabs where Fajardo fell created a rise of less than one

inch and that the defect was trivial. Parco opined that the black 

asphalt patch made the displacement clearly visible and that, 

because Fajardo was traveling down the slope rather than up, it 

was less likely someone like him would trip. Several photographs 

attached to Parco’s declaration of a tape measure someone placed 

on the sidewalk suggested the differential was between 10/16 and 

13/16 of an inch. The trial court, however, sustained Fajardo’s 

objections to these (unauthenticated) photographs and to Parco’s 

(legal) conclusion the defect was trivial. 

In opposition to the motion, Fajardo disputed Parco’s

measurement of the height differential and argued the height of 

the displacement, combined with other aggravating factors, made 

the sidewalk defect nontrivial. Fajardo submitted the declaration 

of a forensic analyst, Eris J. Barillas, who stated that she visited 

the site in February 2021 and that, although the asphalt patch 
4

had been removed and replaced with concrete, she measured the 

height differential as approximately one and three-sixteenths 

inches. Barillas opined that the sidewalk defect had a vertical 

height differential between one and three-sixteenths and one and 

one-half inches in December 2018 when Fajardo fell and that the 

asphalt patch was at least 11 years old. Barillas stated “low 

lying height differentials often go unnoticed by pedestrians and 

are likely to pose a significant tripping hazard.” She also stated 

that a photograph Fajardo took two days after his fall showed the 

asphalt patch was “substantially defective and deteriorated and 

contains jagged, uneven, and irregularly shaped edges, cracks

and loose pieces of asphalt.” Barillas opined the asphalt patch 

was a “tripping hazard” and “not a trivial defect.” 

The court acknowledged that the parties disputed the size 

of the height differential, but concluded that Fajardo’s evidence 

the lift was one and three-sixteenths to one and one-half inches 

high “does not create a triable issue of material fact, considering 

courts have found height differentials as big as 1 1/2 inches high 

to be trivial.” The court also rejected Fajardo’s contention “jagged 

edges and irregular breaks” in the asphalt patch were

aggravating circumstances that precluded summary judgment. 

The court found the “obvious and distinctive nature of the asphalt 

patch,” rather than making the sidewalk defect more dangerous, 

was “consistent with a determination that the condition of the 

sidewalk was a trivial defect.” The court granted Dailey’s motion 

for summary judgment, and Fajardo timely appealed from the 

ensuing judgment. 
5

DISCUSSION

A. Applicable Law and Standard of Review

A court may grant a motion for summary judgment “‘only 

when “all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.”’” (Doe v. Roman Catholic 

Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668; see 

Code Civ. Proc, § 437c, subd. (c); Regents of University of 

California v. Superior Court (2018) 4 Cal.5th 607, 618.)

“A defendant seeking summary judgment must show that the 

plaintiff cannot establish at least one element of the cause of 

action.” (Regents, at p. 618; see Mattei v. Corporate Management 

Solutions, Inc. (2020) 52 Cal.App.5th 116, 122.) “Only after the 

defendant carries that initial burden does the burden shift to the 

plaintiff ‘to show that a triable issue of one or more material facts 

exists as to the cause of action . . . .’” (Luebke v. Automobile Club 

of Southern California (2020) 59 Cal.App.5th 694, 703.)

“‘We review a grant of summary judgment de novo and 

decide independently whether the facts not subject to triable 

dispute warrant judgment for the moving party as a matter of 

law.’” (Doe v. Roman Catholic Archbishop, supra, 70 Cal.App.5th

at p. 669; see Luebke v. Automobile Club of Southern California, 

supra, 59 Cal.App.5th at p. 703.) We “liberally construe the 

evidence in support of the party opposing summary judgment and 

resolve doubts concerning the evidence in favor of that party.” 

(Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103

(Huckey).)
6

B. Trivial Defects

Property owners are required “‘to maintain land in their 

possession and control in a reasonably safe condition’ [citations] 

and to use due care to eliminate dangerous conditions on their 

property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-

944.) But “‘a property owner is not liable for damages caused by 

a minor, trivial, or insignificant defect’ on its property.” (Nunez 

v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757; see 

Cadam v. Somerset Gardens Townhouse HOA (2011) 

200 Cal.App.4th 383, 388.) The so-called “trivial defect doctrine” 

recognizes that “‘persons who maintain walkways, whether 

public or private, are not required to maintain them in an 

absolutely perfect condition. The duty of care imposed on a 

property owner, even one with actual notice, does not require the 

repair of minor defects.’” (Kasparian v. AvalonBay Communities, 

Inc. (2007) 156 Cal.App.4th 11, 26-27 (Kasparian); see Cadam, at 

p. 389.)

In limited circumstances a court may determine a walkway 

defect is trivial as a matter of law. (Huckey, supra,

37 Cal.App.5th at p. 1104; Stathoulis v. City of Montebello (2008) 

164 Cal.App.4th 559, 567 (Stathoulis).) “Where reasonable minds 

can reach only one conclusion—that there was no substantial risk 

of injury—the issue is a question of law, properly resolved by way 

of summary judgment.” (Stathoulis, at p. 567; see Kasparian, 

supra, 156 Cal.App.4th at p. 28.) But where “sufficient evidence 

has been presented so that reasonable minds may differ as to 

whether the defect is dangerous,” summary judgment is 

inappropriate. (Kasparian, at p. 28.) 

“In the sidewalk-walkway context, ‘[t]he decision whether 

the defect is dangerous as a matter of law does not rest solely on 
7

the size of the crack in the walkway, since a tape measure alone 

cannot be used to determine whether the defect was trivial.’” 

(Nunez v. City of Redondo Beach, supra, 81 Cal.App.5th at p. 757; 

see Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) 

Although a defect’s size “‘may be one of the most relevant factors’ 

to the court’s decision” (Huckey, supra, 37 Cal.App.5th at 

p. 1105), the court also must consider “all of the circumstances 

surrounding the accident that might make the defect more 

dangerous than its size alone would suggest,” including “whether 

the walkway had any broken pieces or jagged edges.” (Caloroso, 

at p. 927.)

C. Dailey Did Not Meet Her Burden on Summary 

Judgment To Show the Defect Was Trivial as a 

Matter of Law 

In her motion Dailey asserted the sidewalk differential was 

less than one inch. In his supporting declaration, Parco stated: 

“The displacement in the concrete slabs at an expansion joint, the 

location reported to be the course [sic] of [Fajardo’s] trip, created 

a vertical rise of less than 1 inch.” Parco, however, 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. 

Therefore, it had no evidentiary value and could not support 

summary judgment. (See McAlpine v. Norman (2020) 

51 Cal.App.5th 933, 939 [a “‘moving party’s burden . . . cannot be 

satisfied by an expert declaration consisting of ultimate facts and 

conclusions that are unsupported by factual detail and reasoned 

explanation’”]; Doe v. Good Samaritan Hospital (2018) 

23 Cal.App.5th 653, 662 [expert’s “‘opinion unsupported by 

reasons or explanations does not establish the absence of a 

material fact issue for trial, as required for summary judgment’”]; 
8

Sanchez v. Kern Emergency Medical Transportation Corp.

(2017) 8 Cal.App.5th 146, 155 [“‘when an expert’s opinion is 

purely conclusory because unaccompanied by a reasoned 

explanation connecting the factual predicates to the ultimate 

conclusion, that opinion has no evidentiary value because an 

“expert opinion is worth no more than the reasons upon which it 

rests”’”].) The closest Parco came to providing a factual basis for 

his statement the rise was less than one inch was his reference to 

10 photographs (one of which was an image from an internet 

search engine function that provides interactive panoramas from 

positions on public streets) attached to his declaration. But Parco 

did not say he took the photographs, or even who did. Nor did he 

state that he based his less-than-one-inch opinion on the 

photographs or that the photographs showed the displacement 

was less than one inch. And the trial court sustained Fajardo’s 

objection to the admissibility of those photographs.1

Moreover, “size alone is not determinative of whether a rut 

presents a dangerous condition.” (Stathoulis, supra, 

164 Cal.App.4th at p. 568; see Kasparian, supra, 156 Cal.App.4th 

at p. 28, fn. 38 [“‘application of a strict tape measure approach to 

determine whether a defect is trivial as a matter of law, 

disregards the fact that other factors and circumstances involved 

in a particular case could very well result in an entirely different 

conclusion from one arrived at by simply measuring the size of a 

defect’”].) The court must also consider whether the 

circumstances surrounding the accident made the sidewalk 

1 Dailey also cited Fajardo’s deposition testimony that he 

measured the displacement with his key and that it measured a 

“little over one inch.” A little over one inch, however, is not the 

same as “less than one inch.”
9

displacement more dangerous than a one-and-one-half-inch 

sidewalk lift otherwise would be. (Caloroso v. Hathaway, supra,

122 Cal.App.4th at p. 927; Fielder v. City of Glendale (1977)

71 Cal.App.3d 719, 734.) In her motion for summary judgment, 

the only evidence Dailey presented on the condition of the asphalt 

patch was Parco’s statement that a “black asphalt patch at the 

displacement provided a distinct color contrast to the 

surrounding grey concrete making it clearly visible.” But neither 

Dailey nor Parco submitted a photograph or other evidence of the 

condition of the asphalt patch at the time of the accident. Parco 

attached to his declaration a copy of an image from the internet

of Dailey’s address from 2012, but as discussed the trial court 

sustained Fajardo’s objection to that image, which in any event 

was taken from too far away to show any detail and did not show

the condition of the asphalt patch at the time of the accident. 

D. In Any Event, Fajardo Created Triable Issues of 

Material Fact That Precluded Summary Judgment

Even if Dailey had met her moving burden on summary 

judgment, Fajardo submitted evidence creating triable issues of 

material fact on the height differential. Barillas stated that, in 

her opinion, the displacement was one and three-sixteenths to 

one and one-half inches and that the width of the defect was 

approximately 30 inches. And unlike Parco, Barillas provided 

the basis for her conclusion. She stated she “visited the site” 

after the asphalt patch was removed and replaced with concrete, 

was “able to take height measurements,” and found “a height 

differential of approximately 1-3/16 inches.” She attached 

photographs of the site taken by her company the day she visited 

showing the height differential was between 13/16 and one and 
10

three-sixteenths inches.

2 Thus, there was a factual issue about

the size of the defect.3

Fajardo also submitted evidence creating a triable issue of 

material fact on whether circumstances or factors other than the 

height of the differential increased the danger. Fajardo 

submitted the only photograph in the record that showed the 

asphalt patch in any detail: a black and white photograph he took 

approximately two days after he fell. Although the copy quality 

is not the best, the dark-colored asphalt patch is clearly visible 

and appears to have a rough texture, an uneven surface, and a 

jagged edge where it meets the concrete. A few dark spots near 

the patch appear to be pieces of asphalt that have broken off from 

the patch.4

2 Although Barillas did not provide the basis for her 

conclusion the height differential may have been as high as one 

and one-half inches at the time Fajardo fell, Dailey did not object 

to this portion of Barillas’s declaration. 

3 The trial court ruled that, even accepting Fajardo’s 

evidence the height differential was as high as one and one-half 

inches, the dispute did not create a triable issue of material fact. 

The trial court cited this sentence from the court’s opinion in 

Stathoulis, supra, 164 Cal.App.4th at page 568: “Several 

decisions have found height differentials of up to one and one-half 

inches trivial as a matter of law.” The court in Stathoulis went 

on to state, however: “[I]t 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.’” (Ibid.; see Fielder v. City of Glendale, supra, 71 Cal.App.3d 

at p. 726.) 

4 For the first time on appeal, Dailey argues Fajardo’s 

deposition testimony contradicted his position that the asphalt 
11

The trial court compared the area where Fajardo fell to the 

“irregular and jagged” sidewalk in Gentekos v. City and County of 

San Francisco (1958) 163 Cal.App.2d 691 (Gentekos), which

included a “hollowed out space” and a “broken piece” that 

“projected about two inches above the bottom of the depression.” 

(Id. at p. 695.) The trial court concluded Fajardo had “not 

introduced any evidence showing aggravating circumstances 

rising to the level of the defect described in Gentekos that would 

create a triable issue regarding whether the defect is trivial.” 

But neither Gentekos nor any other case establishes a minimum 

level of irregularity or jaggedness required to defeat summary 

judgment. (See, e.g., Barone v. City of San Jose (1978) 

79 Cal.App.3d 284, 291 [photographs showing an “irregular and 

jagged break” in the sidewalk with a one-inch difference in 

elevation precluded a finding of a trivial defect as a matter of 

law]; cf. Huckey, supra, 37 Cal.App.5th at p. 1108 [defect was 

trivial where there were “no broken concrete pieces or jagged 

concrete edges in the height differential”].) It all depends on the 

nature of the defect, which in this case, based on the evidence 

submitted in connection with the motion for summary judgment, 

was not trivial as a matter of law. Because reasonable minds 

could differ about whether the condition of the asphalt patch, 

combined with the one and one-half inch height differential, 

patch created a dangerous condition. In his deposition Fajardo 

testified that the “black area” he tripped over had no “jagged 

edges,” that there were no “loose rocks,” and that he did not know 

any other reason the sidewalk was dangerous other than its 

“height.” By not making this argument in the trial court, Dailey 

forfeited it. (See Doe v. Roman Catholic Archbishop of Los 

Angeles, supra, 70 Cal.App.5th at p. 672.) 
12

“presented a substantial risk of injury” (Stathoulis, supra, 

164 Cal.App.4th at p. 570), the trial court erred in granting 

Dailey’s motion for summary judgment. (See Huckey, at p. 1105 

[if “reasonable minds may differ as to whether the defect presents 

a substantial risk of injury, the court may not conclude that the 

defect is trivial as a matter of law”].)

DISPOSITION

The judgment is reversed. Fajardo is to recover his costs on 

appeal. 

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.
Filed 11/10/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SALVADOR FAJARDO,

Plaintiff and Appellant,

v.

CYNTHIA A. DAILEY,

Defendant and Respondent.

 B314031

 (Los Angeles County

 Super. Ct. No. 19STCV28455)

 ORDER MODIFYING AND 

 CERTIFYING OPINION FOR 

 PUBLICATION; NO CHANGE IN 

 APPELLATE JUDGMENT

THE COURT: 

The opinion filed on October 14, 2022 and not certified for publication is 

modified as follows:

On page 10, line 2 of footnote 3, the word “high” is replaced with 

“great,” so that the sentence reads: 

The trial court ruled that, even accepting Fajardo’s evidence the 

height differential was as great as one and one-half inches, the 

dispute did not create a triable issue of material fact.

The opinion in this case filed October 14, 2022 was not certified for 

publication. Because the opinion meets the standards for publication 

specified in California Rules of Court, rule 8.1105(c), the non-party’s request 

for publication under California Rules of Court, rule 8.1120(a), is granted.
2

IT IS HEREBY CERTIFIED that the opinion meets the standards for 

publication specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the opinion be published in the Official Reports.

This order does not change the appellate judgment. 

PERLUSS, P. J. SEGAL, J. FEUER, J.