Judge Audra Mori, Case 19STCV14606 2023-01-03 Tentative Ruling

Plaintiff Veronica Soleimani (“Plaintiff”) filed this action against Defendants Cheviot Hills Recreation Park, Rancho Park Golf Course, City of Los Angeles (the “City”) for damages relating to injuries Plaintiff sustained when she was struck with a golf ball while on defendants’ premises. The operative First Amended Complaint (“FAC”) alleges causes of action for negligence and premises liability against defendants. The premises liability claim includes counts for negligence, willful failure to warn, and dangerous condition of public property.

Defendant the City now moves for summary judgment as to the dangerous condition of public property claim asserted against it in the FAC, which is the only claim against the City. The FAC alleges that “Defendants breached their duty to Plaintiff by failing to address, alleviate, maintain, remove and/or remedy the dangerous condition on Defendants’ premises, and by failing to warn their customers, including Plaintiff, of the presence of such a dangerous condition.” (FAC at p. 4.) Any opposition to the motion was due on or before December 9, 2022. To date, no opposition has been filed.

The City provides that the incident occurred at Cheviot Hills Recreation Center, which is adjacent to the Rancho Park Golf Course, located in the city of Los Angeles. Plaintiff was sitting in the bleachers of a baseball diamond when she was allegedly hit in the back of the head by a golf ball. The City argues it is entitled to summary judgment because there is no evidence the City had notice of, nor is it alleged that it created, a dangerous condition at the subject property. The City asserts there is no history of similar incidents at or near the subject location in the ten years prior to Plaintiff’s incident, and Plaintiff and her husband admitted that neither of them was aware of any other instance of a golf ball landing near a baseball diamond.

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

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).)

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.)

In this case, Plaintiff went to the Cheviot Hills Recreation Center to watch her son participate in a baseball game on May 17, 2017. (Mot. Undisputed Material Fact (“UMF”) 1.) The Recreation Center contains four baseball diamonds, is adjacent to the Rancho Park Golf Course, and Plaintiff had been to the Recreation Center at least ten times prior to the incident to watch her son play baseball. (Mot. UMF 3-4.) Each time Plaintiff watched her son play, it was at the same baseball diamond where the incident occurred. (Mot. UMF 5.) Prior to the incident, Plaintiff had never seen a golf ball leave the golf course and land in the vicinity of the baseball diamond, and she was never concerned she might be hit by a golf ball. (Mot. UMF 10-11.) On the date of the incident, Plaintiff was sitting in the bleachers of the subject baseball diamond, and as Plaintiff was watching the baseball game, she suddenly felt pressure on her head. (Mot. UMF 7, 9, 12.) A golf ball bounced off Plaintiff’s head. (Mot. UMF 12.) Plaintiff does not know the direction the golf ball came from and did not see it prior to it hitting her, nor does Plaintiff know the identity of any person who saw the golf ball before it struck her. (Mot. UMF 13-14.) Plaintiff’s husband, who was at the game with her, also did not see the golf ball prior to it striking Plaintiff, did not see it make contact with Plaintiff, and had never seen a golf ball in the vicinity of the subject baseball diamond in the five to ten times he was previously at the baseball diamond. (Mot. UMF 15-16.)

In the ten years prior to the incident, the City did not receive any report of injuries or incidents related to golf balls landing in, or in the vicinity of, the baseball diamonds at the Recreation Center, nor did the City receive any other claim for personal injury caused by being struck by a golf ball at or near the Recreation Center during that time. (Mot. UMF 23-24.)

This evidence is sufficient to meet the City’s moving burden to show it did not have actual or constructive notice of a dangerous condition at the Recreation Center as alleged by Plaintiff. (Gov. Code § 835(b) [to prevail on a claim for dangerous condition of public property, plaintiff must prove that public entity created the condition or had actual or constructive notice of it in sufficient time to take protective measures]; see Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 826-27 [judgment for defendant affirmed because plaintiff failed to establish that park district had actual or constructive notice of alleged dangerous condition].) Because the motion is unopposed, Plaintiff necessarily fails to meet the shifted burden.

Hon. Audra Mori

Judge of the Superior Court