Judge Ashfaq G. Chowdhury, Case Number: 23GDCV00864, Date: 2024-11-08 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV00864, Date: 2024-11-08 Tentative Ruling

Case Number: 23GDCV00864 Hearing Date: November 8, 2024 Dept: E

Hearing Date: 11/08/2024 – 8:30am
Case No. 23GDCV00864
Trial Date: 02/24/2025
Case Name: ELMIRA OGANYAN, an individual, v. CITY OF GLENDALE, a governmental entity; and DOES 1-20, Inclusive

TENTATIVE RULING ON MSJ

RELIEF REQUESTED¿
“Defendant City of Glendale (“City”) will and hereby does move the Court for an order, pursuant to California Code of Civil Procedure section 473c, granting summary judgment in its favor as to the entire complaint on the following grounds:

1. Plaintiff’s sole cause of action against City for Dangerous Condition of Public Property fails as a matter of law because City did not have actual or constructive notice of a dangerous condition under Government Code Sec. 835.2 a sufficient time prior to the alleged injury to have taken measures to protect against the alleged dangerous condition. (Government Code Sec. 835(b))

This Motion will be based on this Notice, the attached Memorandum of Points and Authorities, the declarations and exhibits submitted herewith, the Separate Statement of Undisputed Material Facts, and upon such other and further evidence, both oral and documentary, as may be presented at the hearing of this Motion.”

(Def. Mot. p. 1-2.)

Preliminary
Moving Party: Defendant, City of Glendale

Responding Party: Plaintiff, Elmira Oganyan

Moving Papers: Notice/Motion; Separate Statement; Evidence in Support of MSJ; Proposed Order

Opposing Papers: Memo; Response to Separate Statement; Objections to Evidence; Request for Judicial Notice; Evidence in Support; Statement of Material Facts;

Reply Papers: Reply; Proposed Order; Response to Plaintiff’s Statement of Additional Material Facts; Objections to Request for Judicial Notice; Objections to Plaintiff’s Evidence

PROCEDURAL ANALYSIS

437c(a)(2)

Under Code of Civil Procedure (“CCP”) section 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. (Code Civ. Proc., §437c(a)(2).)

Here, the motion is timely.

437c(a)(3)
“The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.” (CCP §437c(a)(3).)

Here, the motion is timely.

LEGAL STANDARD MOTION SUMMARY JUDGMENT
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

ANALYSIS

Plaintiff, Elmira Oganyan, filed the instant action on 4/28/2023.

On 6/20/2023, Plaintiff filed a First Amended Complaint (FAC) against Defendant, City of Glendale, alleging one cause of action for “Statutory Liability/Dangerous Condition of Public Property based on Gov. Code, § 835.”

Plaintiff’s action stems from allegations that she tripped and fell over a dangerous and defective sidewalk (open hole in the sidewalk) while walking.

Dangerous Condition of Public Property
Plaintiff brings one cause of action against Defendant titled “Statutory Liability/Dangerous Condition of Public Property based on Gov. Code, § 835.”

As Government Code § 835 defines the cause of action:

Except as provided by statute, 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) 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

(b) 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.

(Gov. Code § 835.)

The only aspect that Defendant attacks is § 835(b); Defendant argues that it did not have actual or constructive notice of the hole. Thus, Defendant argues that Plaintiff cannot successfully establish her cause of action because Plaintiff cannot satisfy an essential element of Plaintiff’s claim. Defendant submitted the declaration of Loren Klick, Urban Forester for the City, who did not find any complaints, service requests, or reports about the hole that pre-date the Plaintiff’s accident.

The Court does not find Defendant’s argument availing.

In Opposition, Plaintiff points out how, even if this Court assumes Defendant had shown that Plaintiff cannot establish § 835(b), Defendant still did meet its burden in negating an essential element of Plaintiff’s cause of action.

The Court finds Plaintiff’s argument availing because, as pointed out in the language of Gov. Code § 835, Plaintiff must establish either (a) or (b). Therefore, by Defendant arguing that it negated an essential element of the claim by negating (b) is incorrect, because (b) is not essential. Or to phrase it differently, Plaintiff can successfully bring a cause of action under § 835 under either (a) or (b); therefore, by Defendant negating (b), Defendant did not show that it negated an essential element of the cause of action, and thus Defendant did not meet its burden.

Here, Defendant did not negate an essential element, because Plaintiff could still succeed on its claim under § 835(a).

In Reply, Defendant attempts to argue that Plaintiff’s argument is unavailing.

Defendant’s theory as to how Plaintiff’s argument is unavailing goes something along the lines of: (1) There is case law that establishes that summary judgment proceedings are framed by the pleadings, and (2) based on Plaintiff’s pleadings, Plaintiff never alleged that Plaintiff created the hole, thus (3) arguing that Defendant could be liable under § 835(a) is improper because the Plaintiff’s complaint/allegations does not base liability on Defendant under 835(a).

The Court finds this argument unavailing because Defendant’s argument relies on a strained reading of the FAC.

In relevant part of the FAC, Plaintiff alleged:

8. On July 16, 2022, Plaintiff ELMIRA OGANYAN was walking on the sidewalk on 300 North Central Ave. Glendale, CA 91203, when she tripped and fell over a dangerous and defective sidewalk, causing her injury.

9. Defendants failed to maintain and repair the city owned sidewalk.

10. Plaintiff ELMIRA OGANYAN sustained injuries to her knee and hand.

11. Plaintiff is informed, believes and thereupon alleges that at all relevant times hereto, Defendant CITY OF GLENDALE and DOES 1 through 20, inclusive, failed to exercise reasonable care in controlling, inspecting, maintaining, repairing, and keeping safe the sidewalk, whereby causing Plaintiffs’ injuries.

12. Plaintiff is informed, believes and thereupon alleges that at all relevant times hereto, Defendant CITY OF GLENDALE and DOES 1 through 20, inclusive, failed to exercise reasonable care in the maintenance and repair of the sidewalk.

(FAC ¶¶ 8-12.)

Defendant’s argument in Reply fails because Defendant appears to be arguing that Defendant can be liable under subsection (a) of § 835 only if Plaintiff alleged the exact words in the statute under 835(a) in the FAC.

The Court finds this argument unavailing because Plaintiff sufficiently made allegations in the FAC to hold Defendant liable under 835(a).

Toeppe v. City of San Diego helps to explain the statutory scheme for causes of action for a dangerous condition of public property:

A dangerous condition of public property “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 elements for that cause of action are: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff's injuries; and (5) compensable damage sustained by the plaintiff.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757-758, 140 Cal.Rptr.3d 722; § 835.)

(Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 925-926.)

Here, although Defendant is correct to note that Plaintiff didn’t explicitly allege the magic words that Defendant created the hole or created the dangerous condition, Plaintiff alleged that Defendant failed to maintain and repair the sidewalk (FAC ¶ 9), and Plaintiff alleged that Defendant and DOES 1-20 failed to exercise reasonable care in keeping safe the sidewalk and repairing the sidewalk (FAC ¶ 11).

Thus, the allegations in the FAC are sufficient for Plaintiff to potentially hold Defendant liable under 835(a) or (b) as framed by the pleadings. Plaintiff alleged that Defendant failed to exercise reasonable care in keeping safe the sidewalk and failed to repair the sidewalk, thus this allegation seems almost indistinguishable from alleging that Defendant created the dangerous condition.

Therefore, by Defendant only attacking § 835(b), Defendant did not satisfy its initial burden because Defendant did not negate an essential element. Section 835(b) is not an essential element when the statute allows for liability under either § 835(a) or (b).

TENTATIVE RULING
Defendant’s motion for summary judgment is DENIED. Defendant did not satisfy its initial burden. Although Plaintiff submitted evidence in Opposition to rebut Defendant’s argument as to the notice portion under § 835(b), the Court notes that it is not evaluating those arguments. Both parties objected on various evidentiary grounds as to the evidence regarding the notice aspects of § 835(b); however, since the Court found Plaintiff’s argument availing with respect to § 835(a), this motion can be resolved by the fact that Defendant did not satisfy its initial burden because it failed to negate an essential element. Therefore, this Court need not examine the evidentiary issues and objections related to § 835(b).

Defendant’s motion for summary judgment is DENIED.