Judge Anne Hwang, Case Number: 21STCV44250, Date: 2023-08-11 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

2. Plaintiff’s Response to Defendant’s Separate Statement and Additional Material Facts in Support of Opposition

4. Declaration of Natalie Fisher Regarding the Filing of Plaintiff’s Sur Opposition

4. Notice of Lodging Non-Paper Exhibit B and C in Support of Motion for Summary Judgment

5. City’s Sur-Objections to Plaintiff’s Additional Evidence Re: Google Certificate Dated September 13, 2023

On December 3, 2021, Plaintiff Alan Stewart Caron (Plaintiff) filed a complaint against Defendants City of Pasadena (City), County of Los Angeles, the State of California, and Does 1 to 50. On July 24, 2023, Plaintiff filed the operative First Amended Complaint (FAC) alleging a cause of action for general negligence and premises liability (dangerous condition of public property). Plaintiff alleges that on March 27, 2021, he was riding his bike southbound on N. Altadena Drive in between Queensberry Road and Casa Grande Street in the City of Pasadena, when he “hit a pothole, lost his balance, and struck a light pole.” (FAC, 4.)

City now moves for summary judgment arguing that no triable issue of material fact exists. First, City argues that Plaintiff did not state sufficient facts to raise a cognizable negligence action. Second, City argues there was no dangerous condition on public property, or in the alternative, there is no evidence of actual or constructive notice.

This motion was originally scheduled to be heard on July 7, 2023. Plaintiff requested a continuance in his Opposition, pursuant to Code of Civil Procedure section 437c(h), to authenticate Google Streetview images of the subject pothole. The prior judicial officer continued the hearing to October 16, 2023 and set a supplemental briefing schedule. (Min. Order, July 7, 2023.)

As a preliminary matter, Plaintiff explains he filed the supplemental opposition one day late, on September 26, 2023 due to a technological issue. (Fisher Decl. ¶ 3-5.) Since it does not appear City was prejudiced by the late filing, the court will consider Plaintiff’s supplemental opposition.

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[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; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court rules on Plaintiff’s evidentiary objections to City’s evidence, filed June 29, 2023, as follows:

1. Exhibit I: The Court sustains the hearsay objection to the extent that the video depicts statements by the police officer and another individual, but overrules the objection to the extent that it depicts Plaintiff’s statements and depicts conduct that is not hearsay.

6. Paragraph 8 of Declaration of Jeffrey Wong: the Court sustains the objection that the paragraph lacks foundation. City responds to Plaintiff’s objection with additional testimony of Wong, who states that “I would know if I did the work or not. Even though it might not be in the database….” However, the opinion itself is regarding the database: “After my search of the City’s database, I found there are no records of prior complaints or work orders with respect to the subject depression.” (See City’s Resp. to Pl.’s Obj. to City’s Evid. (emphasis added).)

City objects to all Google Streetview images. City also objects that Google’s Certificate of Authenticity dated September 13, 2023 is unauthenticated. In particular, City argues that Google’s custodian, Laura Devine, fails to state the images were reviewed and that they are a fair and accurate representation of the condition set forth.

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.”

“A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. [Citations omitted.] This foundation may, but need not be, supplied by the person taking the photograph or by a person who witnessed the event being recorded. [Citation omitted.] It may be supplied by other witness testimony, circumstantial evidence, content and location.” (People v. Goldsmith (2014) 59 Cal.4th 258, 267–68.)

“It is settled computer systems that automatically record data in real time, especially on government-maintained computers, are presumed to be accurate. Thus, a witness with the general knowledge of an automated system may testify to his or her use of the system and that he or she has downloaded the computer information to produce the recording. No elaborate showing of the accuracy of the recorded data is required. Courts in California have not required ‘testimony regarding the “ ‘acceptability, accuracy, maintenance, and reliability of ... computer hardware and software’ ” in similar situations. [Citations.]’ [Citation.] The rationale is that while mistakes may occur, such matters may be developed on cross-examination and should not affect the admissibility of the printout or recording of the data itself. [Citations.]” (People v. Dawkins (2014) 230 Cal.App.4th 991, 1003.) “[A] person who generally understands the system's operation and possesses sufficient knowledge and skill to properly use the system and explain the resultant data, even if unable to perform every task from initial design and programming to final printout, is a ‘qualified witness’ ” for authentication purposes.” (People v. Rodriguez (2017) 16 Cal.App.5th 355, 376.) People v. Rodriguez involved the introduction of a GPS report compiled from data transmitted from an ankle monitor. (Id. at 370.) The court held the data was properly authenticated because a witness testified about his familiarity with how the ankle monitor transmitted location information, the computer software used to track the data, and how the report was generated. (Id. at 375.)

Here, the Google images are being offered to show the depression/ pothole at various points in time, as well as road repairs in the area. Moreover, the Court relies on the photographs as a general depiction of the location of the two depressions, and not for Plaintiff’s asserted purpose of establishing a triable issue of fact regarding constructive notice by the City, as discussed in greater detail below. With this limited purpose, the Court finds that the images are properly authenticated. The certificate of authenticity, signed under penalty of perjury, describes the process by which Google took the images, the maintenance of the cameras, the keeping of the records, and further states that the images were recorded on or around the date reflected. City’s objection that the photographs were “stitched” together from overlapping photographs goes to the weight of the evidence not admissibility.

City also objects to Plaintiff’s declaration. The exhibits referenced in the declaration are not attached and therefore the Court sustains the objections.

City objects to Rosescu’s declaration. The Court agrees that the opinions lack foundation and therefore sustains the objections.

City requests judicial notice of Exhibit A attached, the transcript from the Court’s July 7, 2023 hearing for summary judgment. The Court grants the request for judicial notice and notes that at the July 7, 2023 hearing, the prior judicial officer limited the scope of the supplemental briefing to the admissibility of the Google images. (City’s request for Judicial Notice, Exh. A, p. 9:18-10:9.) The Court will only address arguments raised on that limited issue in the supplemental briefs.

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Consequently, “public entities may be liable only if a statute declares them to be liable.” (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088.) It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) Moreover, to state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.)

Here, City argues summary judgment/ adjudication should be granted as to the First Cause of Action for Negligence because this claim is based on common law. As such, City, as a public entity, cannot be held liable. The Court agrees. The First Cause of Action for Negligence is a common law cause of action. Plaintiff does not offer any argument in opposition. Accordingly, the Court grants summary adjudication as to the negligence cause of action.

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) A dangerous condition is “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.” (Gov. Code § 830(a).)

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) 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 and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code § 835.) Consequently, a public entity is only liable for a dangerous condition of property if it either creates the condition or has actual or constructive notice of the condition. (Gov Code §835(b).)

“Property owners are required to maintain land in their possession and control in a reasonably safe condition and to use due care to eliminate dangerous conditions on their property. But a property owner is not liable for damages caused by a minor, trivial, or insignificant defect on its property. 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.” (Fajardo v. Dailey (2022) 85 Cal.App.5th 221, 226 [cleaned up].)

“In limited circumstances a court may determine a walkway defect is trivial as a matter of law. 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. But where sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, summary judgment is inappropriate.” (Id. at p. 226.)

California Courts have developed two substantially similar tests to determine whether a sidewalk defect is trivial, i.e., not dangerous, as a matter of law. In Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-68, the Court of Appeal set out a two part test. “First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law ....” (See also Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 758 [adopting two-step framework]; Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105 [same].)

More recently, in Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110, the Court of Appeal read Government Code section 830.2 to require a more “holistic” approach, stating, “[a]lthough we agree with the premise that the size of the defect is the primary determinant of triviality, as discussed below, we modify the prevailing two-step framework into a holistic, multi-factor analysis.”

“We begin with the most important factor: the defect’s size.” (Stack, 91 Cal.App.5th at p. 110 [cleaned up].) “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1107; see Stathoulis, supra, 164 Cal.App.4th at p. 568 [“Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”]) A more “accurate encapsulation” of the law, according to Stack, is that “when 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, i.e., that it is minor or trivial.” (Stack, supra, 91 Cal.App.5th at p. 112.) “That said, there is no firmly fixed arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or not the defect is dangerous. This is because a court should not rely solely upon the size of the defect ... although the defect’s size ‘may be one of the most relevant factors’ to the court’s decision.” (Id. at pp. 112–113 [cleaned up].)

The Court next considers additional factors. “Beyond size, additional factors courts typically consider in assessing a sidewalk condition’s triviality as a matter of law are: the nature and quality of the defect (including whether it has jagged breaks or cracks); whether anything was obstructing or concealing the defect (for instance, an object, debris, or other substance); the lighting and weather conditions at the time of the incident; whether the defect has caused other accidents; and plaintiff's familiarity with the area.” (Stack, supra, 91 Cal.App.5th at p. 115.) With respect to the various foregoing factors, Stack held that “individual familiarity is not a proper factor for consideration within the trivial defect doctrine.” (Id. at p. 120.)

As an initial matter, City has not established which pothole is at issue. The evidence establishes that on the southside of N. Altadena Drive, there is a light pole in front of a residence. To the north of the light pole (or, to the right of it, when looking at the photograph), there is a dip or depression in the road next to a dark patch in front of a driveway. To the north of that dip (on the right side of the photograph), there is a pothole. Exhibit C to the Rosescu declaration submitted by Plaintiff depicts these clearly and are delineated.[1]

City appears to have presented evidence of the depression closer to the light pole. (See UMF 4 (“Plaintiff responded to the City’s further inquiry on June 11, 2021 with attached photographs of the exact and specific location of the incident.”); see also Retchless Decl., Exh. I (body worn video)[2].) However, City also presents evidence in its motion of the other pothole. (See Retchless Decl., Exh. H, at Exh. 1 and 2 (Plaintiff’s Response to Def.’s Request for Production of Documents) (“All documents that evidence, relate, or refer to your allegation that a dangerous condition of public property caused your injuries.”).) Based on the City’s moving papers, it is unclear which depression or pothole is the alleged dangerous condition.

Moreover, Plaintiff’s papers refer to the pothole to the right of the driveway. (See Valenzuela Decl. Exh. 1, 2, 3.) City does not object to Plaintiff’s position on either the ground that this pothole was not the subject of the claim presented,[3] or is irrelevant to these proceedings because it is not the pothole that allegedly caused the injury. (See City’s Objections to Plaintiff’s Evidence, Obj. to Exh. 1, 2, 3.)

With regard to its argument that the defect is trivial as a matter of law, City curiously provides no measurements or characteristics of the pothole, instead arguing that Plaintiff has not provided measurements.[4] (UMF 6, 7.) The only factors presented by City in its moving papers for the Court’s consideration are close-up photographs, and the undisputed facts that (1) it was a clear, dry, sunny day, and (2) that the depression is in the street. (UMF 8, 14.) However, the City bears the initial burden of production in this motion for summary judgment. The Court cannot determine as a matter of law that the defect (especially the pothole to the north of the driveway) is trivial as a matter of law simply by looking at the photographs presented by City. That pothole in particular appears to be a sharp drop and a clear hole, rather than a smooth dip with no jagged edges. (See Retchless Dec., Exh. H., Exh. 1, pg. 5.)

The Court notes that Plaintiff argues that the depression is 1.5 inches deep, which would weigh in City’s favor. However, City objects to this measurement as lacking foundation, and the photographs presented by Plaintiff do not clearly show this measurement.[5] (See Rosescu Decl., Exh. D.)

For all of these reasons, the Court finds that City has not met its initial burden.

A public entity had actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (Gov. Code § 835.2(a).) “To establish actual notice, ‘[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question’; ‘it is not enough to show that the [public entity's] employees had a general knowledge’ that the condition can sometimes occur. [Citation.]” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.)

A public entity had constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code § 835.2 (b).) On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition. (Gov. Code § 835.2 (b)(1)-(2).) “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.” (Ibid.)

Although the conspicuousness of the condition and the length of time it existed are normally questions of fact for resolution by the jury, they may be resolved as matter of law where the plaintiff's evidence as to either element is legally insufficient. (Kotronakis v. City & County of San Francisco (1961) 192 Cal.App.2d 624, 629 [jury verdict for plaintiff reversed where there was no evidence the puddle of vomit in which plaintiff slipped had been on the sidewalk longer than overnight]; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318-319, 321 [summary judgment proper where plaintiff failed to provide evidence to rebut the City's showing the condition was not obvious].)

With regard to actual or constructive notice, City sets forth the following facts:

- The City has a Pavement Management Program (“PMP”) that utilizes a contractor to survey its streets and roadways. The objective of the PMP is to collect key data elements such as roughness, surface distress (cracking, rutting, patching, distortions, raveling, etc.), and structural integrity and use of this data to assign a Pavement Condition Index (“PCI”) to each street segment. (UMF 15.)

- To conduct field surveys, Laser Road Surface Tester (RST) and ASTM D6433 (microPAVER) protocols are utilized. The data obtained is used to develop comprehensive multiple-year street rehabilitations plans that optimize pavement quality with annual expenditures. The PMP does not identify where specific imperfections, such as any particular depression, are located. The most recent street and roadway survey conducted before this subject incident was in 2019 (“2019 PMP”). The survey prior the 2019 PMP was in 2015. The 2019 PMP is not designed to pinpoint specific depressions such as the one Plaintiff encountered while riding his bicycle on the street. (UMF 16.)

- The inspection produces a report spelling out the condition of the street or roadway as a whole. The purpose of the 2019 PMP is to assess the City’s entire roadway network so that it can prioritize future roadway maintenance and resurfacing projects. (UMF 17.)

- The City’s 2019 PMP did not place the City on notice of the existence of the depression in the street that Plaintiff alleges caused him to fall off his bicycle. (UMF 18.)

- The City maintains a centralized service center called Citizen Service Center (CSC) which helps members of the public submit requests for service and report injuries and incidents, including reporting uneven sidewalks. The City maintains a database wherein service requests are logged into the system. The CSC database goes back until 2012 when it was implemented. (UMF 19.)

- The City conducted a search for requests and incidents relating a depression or pothole located on N. Altadena Street at Casa Grande Street, on which Plaintiff alleges he fell while riding his bicycle. The City found zero prior CSC requests. The City searched for evidence of documents of any prior trips, injury, or incident, other than Plaintiff’s incident, at N. Altadena Street at Casa Grande Street. Other than Plaintiff’s incident, there are no reported incidents on record of any injury or reported hazards on N. Altadena Street at Casa Grande Street. (UMF 20.)

- All hard copy claims and lawsuits submitted to the City regarding death, injury to person, or damage to personal property resulting for alleged activities of the City are entered into the database by City employees in the regular course of business. It was and is the regular practice of the City to record and maintain such information. The City database includes all such open claims and lawsuits entered from 1979 to the present and all such closed claims and lawsuits within ten years from the date of closure. (UMF 21.)

- Razmik Serkisian reviewed the database of claims related to the subject depression in the street on N. Altadena Street at Casa Grande Street, Pasadena, California. Between 2012 and the date of the incident, there were no claims related to the subject depression in the street. (UMF 22.)

- City employees do not regularly walk the City’s streets and roadways to inspect them. City inspections of streets and roadways are done only in response to complaints. (UMF 23.)

- On May 6, 2019, in response to a report of a hazard at 2510 Queensberry Road, Pasadena, California, crews made three hot patched repairs at the location. No repair was made to the subject depression identified by Plaintiff. Jeffrey Wong, the Street Maintenance Superintendent does not know, and could not tell, whether Plaintiff’s “depression” existed on May 6, 2019. (UMF 24.)

- On May 9, 2019, in response to a report of a hazard at 2510 Queensberry Road, Pasadena, California, a small sinkhole was repaired by City contractors. No repair was made to the subject depression identified by Plaintiff. Jeffrey Wong, the Street Maintenance Superintendent does not know, and could not tell, whether Plaintiff’s “depression” existed on May 9, 2019. (UMF 25.)

- On July 29, 2019, a caller reported a pothole in the gutter lane on the northbound lanes of Altadena Drive at or near Cooley Place. This was a hole from a utility trench and was forwarded to the City’s Power Department for repair. No repair was made to the subject depression identified by Plaintiff. Jeffrey Wong, the Street Maintenance Superintendent does not know, and could not tell, whether Plaintiff’s “depression” existed on July 29, 2019. (UMF 26.)

- On August 6, 2019, a caller reported a 4-inch pothole located on Altadena Drive in the left turn lane before Cooley Lane, crews made one pothole repair at the location. No repair was made to the subject depression identified by Plaintiff. Jeffrey Wong, the Street Maintenance Superintendent does not know, and could not tell, whether Plaintiff’s “depression” existed on August 6, 2019. (UMF 27.)

- Plaintiff has no evidence that, before the incident, the City knew of the depression. (UMF 29.)

City has not met its burden to show that there are no triable issues of fact that it did not have actual notice. Here, the Court finds Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508 to be instructive. There, the City went to the subject alley to fill three different potholes but did not repair the divot at issue, which was approximately 1.75 inches in depth. (Id. at 515.) The City presented evidence from a supervisor that crew members would have taken no notice of the divot because it was too insignificant to be patched. (Id. at 522.) Here, although City’s evidence of the lack of claims or reported hazards is evidence of City’s lack of actual notice, City itself presents evidence of repairs in the area in 2019. The mere fact that City did not repair the subject pothole is not sufficient to establish that City lacked knowledge as a matter of law. For example, City has not established that it would not have notice of the pothole, even if it was in the general area to repair other defects, because it was too insignificant, or because it would have affirmatively repaired the pothole without a complaint or work request. A reasonable inference remains that City saw the pothole and simply did not repair it.

In addition, City has not met its burden to show that there are no triable issues of fact that it did not have constructive notice. Again, the Court finds Martinez to be instructive. “[W]hether a nontrivial defect is sufficiently obvious, conspicuous, and notorious that a public entity should be charged with knowledge of the defect for its failure to discovery it depends upon ‘all [of] the existing circumstances.” [Citation omitted.] Those circumstances include (1) ‘the location, extent, and character of the use of the walk [or, more generally, the public property] in question,’ which looks to both its intended use for travel as well as the actual ‘frequency of travel in the area’ [citation omitted]; and (2) ‘the magnitude of the problem of inspection’ [citation omitted], and more specifically, ‘the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise’ [citations omitted].” (Martinez, supra, 71 Cal.App.5th at 521.) The Court concluded that alleys are different than sidewalks, and because alleys are used almost exclusively by heavy vehicles, the cost of keeping alleys safe is higher, while the likelihood of injury to pedestrians is lower because alleys are used less frequently than sidewalks. (Id. at 524.) As such, the Court found as a matter of law that the divot, “which was less than two inches in depth and located in an alley where the alley’s asphalt abuts its concrete drainage swale” was not a defect that is “of such an obvious nature that [the City], in the exercise of due care, should have discovered the condition and its dangerous character.” (Id.)

Here, City’s reliance on close-up photographs of the defect is insufficient to meet its burden. Although a measurement of 1.5 inches would weigh in City’s favor, particularly because the defect is in the street rather than the sidewalk, City has not presented evidence regarding the obviousness of the pothole, and therefore has not met its initial burden of production.

Based on the foregoing, Defendant City of Pasadena’s Motion for Summary Adjudication of the negligence cause of action is granted.

City’s motion for summary judgment, or summary adjudication of the dangerous condition of public property cause of action, is denied.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] Although the Court has sustained City’s objections to Rosescu’s opinions, the Court has overruled City’s objections to the Google images. Many of the photographs depict the street view showing the areas of both potholes/ depressions, but the Court finds Exhibit C to Rosescu’s declaration to be clear for the demonstrative purpose of depicting the two different potholes.

[2] City has presented body worn video of an officer’s interaction with Plaintiff after the injury. Plaintiff states that “there’s a hole in the street,” and appears to state that it is right behind the officer’s vehicle. (Retchless Dec., Exh. I.) Plaintiff’s objection to this video is hearsay. However, this particular statement is a statement by a party-opponent. (Evid. Code § 1220.) The officer can then be seen walking to the back of his vehicle, where the depression can be seen to the right of the dark patch of the road near the driveway (i.e., in between the dark patch and the bumper of the police vehicle). However, City has not presented this specific location as an undisputed material fact. City’s position is only that Plaintiff appears to have presented this location in its claim. However, as explained above, Plaintiff later presented evidence of both locations in subsequent discovery responses, and City has waived any objection that it is not the correct pothole by failing to object to Plaintiff’s opposition.

[3] City’s undisputed material fact is phrased in terms of the pothole presented to City with regard to the claim. (See UMF 4.)

[4] Although City argues that Plaintiff has no evidence of the measurements, it appears that Plaintiff could provide such evidence, and therefore City does not meet its burden by making conclusory statements. For example, Plaintiff could provide the foundation for Rosescu’s opinion (see infra, fn. 5), or possibly provide testimony by City employees who made the subsequent repairs.

[5] Rosescu’s declaration provides the measurements, however, his measurements do not appear to match the photographs. He refers to the “northern depression/ pothole” as measuring 18 inches and 1.5 inches deep. However, the photographs appear to depict the southern depression as being 18 inches long. As he has not provided the basis for his calculations, the Court agrees with City that his opinion lacks foundation.

DEPT:	32
HEARING DATE:	October 16, 2023
CASE NUMBER:	21STCV44250
MOTIONS:	Motion for Summary Judgment, or in the Alternative, Summary Adjudication
MOVING PARTY:	Defendant City of Pasadena
OPPOSING PARTY:	Plaintiff Alan Stewart Caron