On Aug. 25, 2018, plaintiff Jean Burnett, 83, a retiree, was walking with a friend on the sidewalk in front of a business known as the North Bay Café, located at 25 South Petaluma Blvd., Petaluma. At that location, the sidewalk narrows due to streetscape tree plantings that were surrounded by four-part decorative, thick, metal grates. Burnett’s path was also impeded/compromised by shadows, construction sign cones, sign posts, bicycle racks, a newspaper vending box, a bench and other pedestrians. As a result, Burnett began to walk ahead of her friend in order to avoid the tree in her path, but her foot/shoe became caught, causing her to trip. She was unable to “catch” herself and fell forward into an adjacent street sign pole before falling to the sidewalk. Burnett sustained to her upper left arm. Burnett sued the adjacent property owner, Encina Investment Group Inc. (doing business as Petaluma Town Center, LLC); and the adjacent property’s tenants, Antonio Santana Bustamonte, Jorge Santana, Maria Santana, and Diana Santana, individually and each doing business as North Bay Café, LLC. Burnett alleged that the subject location constituted a dangerous condition of public property and that the defendants were negligent in their failure to repair and/or maintain the hazardous condition. Encina Investment Group filed cross-claims against the Santanas and a third-party claim against the original lessee, Soley Nuon (dba Café des Croissants), seeking equitable indemnity, express indemnity and declaratory relief. Burnett’s counsel contended that a part of a thick metal grate that surrounded a tree was not level with the adjacent grates and sidewalk and that Burnett did not see that dangerous condition, causing her foot/shoe to become caught. Counsel argued that the approximate one inch differential was not a “trivial defect,” as California is not a “trivial defect” state that applies a “tape measure test,” whereby defects are classified as trivial or substantial related to the mere depth or height of the defect in comparison to the rest of the sidewalk. Plaintiff’s counsel further argued that Encina Investment Group’s failure to inspect the area and discover the defect, and failure to timely repair that defect was nonfeasance or passive negligence, not active negligence. In addition, counsel argued that several recognized standards with respect to walking surfaces/sidewalks were violated. Defense counsel denied all of Burnett’s contentions, and contended that the subject grate constituted a trivial defect. Counsel also argued that the defendants lacked notice of any alleged defect and that Burnett was comparatively negligent. The Santanas’ counsel argued that the Santanas had no notice or control over a property owner’s non-delegable duty to repair. Encina Investment Group’s counsel noted that the city of Petaluma adopted an ordinance in 1994 that imposed upon adjacent property owners and persons occupying such property the duty to maintain sidewalks and streetscape trees in a “safe and non-dangerous condition.” Counsel also noted that Nuon was the prior tenant that had a five-year lease from Oct. 1, 2012 to Oct. 1, 2018, and that when Nuon transferred the business and space to the Santanas, Nuon failed to obtain Encina Investment Group’s written consent to transfer by assignment or sublease. As such, counsel argued that Nuon’s lease was in effect at the time of the incident. Encina Investment Group’s counsel further argued that Nuon’s original lease contained a provision that required Nuon to carry comprehensive general liability insurance with a minimum limit of $1 million per occurrence and name Encina Investment Group as an additional insured. In addition, counsel argued that the lease also required that Nuon indemnify Encina., Burnett sustained a displaced fracture of the left humerus. She was taken to a hospital and ultimately underwent an open reduction surgical repair with the placement of a metal plate and 10 screws. Burnett claimed that she suffers from limited range of motion and loss of strength in her left arm and shoulder, rendering her left, upper extremity essentially useless in performing normal activities of daily living. Since Burnett had been retired for many years, there was no claim for impaired earning capacity. Burnett sought recovery of approximately $6,458.37 in past medical costs based on her recoverable medical specials and a Medicare lien. She also sought recovery of damages for her past and future pain and suffering.