Judge: Carolyn M. Caietti, Case: 37-2022-00033987-CU-PO-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 14, 2023

09/15/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00033987-CU-PO-CTL WILHITE VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/10/2023

Defendant City of San Diego's Motion for Summary Judgment or Summary Adjudication is DENIED.

City's reply objection to the Declaration of Mark Burns is overruled.

Background Defendant City of San Diego moves for summary judgment or, alternatively, adjudication on the Complaint, which alleges on May 23, 2021, at around 12:30 p.m., Plaintiff stepped in a hole at a picnic area at Liberty Station NTC Park and was injured. The hole was on the edge of a concrete flooring underneath a picnic table. This condition was dangerous and Defendant was responsible for keeping the property in a safe condition. The Complaint asserts causes of action for (i) dangerous condition of public property; and (ii) negligence.

City's motion is on grounds natural conditions immunity, trail immunity and immunity for failure to warn are complete defenses to the action. Further, City maintains there was no dangerous condition as the hole was open and obvious and the City did not have notice of it.

Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must '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.) City Did Not Waive Immunity Defenses As an initial matter, the Court disagrees with Plaintiff the motion should be denied because City did not allege immunity under Government Code sections 831.2, 831.21 and 831.4 Ordinarily, an affirmative defense must be alleged in the answer or it is waived; however, the failure to plead an affirmative Calendar No.: Event ID:  TENTATIVE RULINGS

2975731  47 CASE NUMBER: CASE TITLE:  WILHITE VS CITY OF SAN DIEGO [IMAGED]  37-2022-00033987-CU-PO-CTL defense in the answer does not necessarily preclude a defendant from raising it in a motion for summary judgment. (Atkins v. St. Cecilia Catholic School (2023) 90 Cal.App.5th 1328, 1341.) Courts allow an affirmative defense to be asserted for the first time in a motion for summary judgment absent a showing of prejudice. (Ibid.) In Atkins, the defendant-school did not waive an affirmative defense to a FEHA complaint when the plaintiff-employee did not establish prejudice, the school gave notice it intended to raise the defense, the employee had an opportunity to oppose the defense and received a continuance to conduct discovery. (ROA 34 – Stipulation.) Here, City does not dispute in reply it did not specifically allege these defenses (rather, City maintains it was enough to allege government immunity under Government Code section 815 and section 810, et seq.). But Plaintiff has not articulated any prejudice, opposed the motion on the merits and has not sought a discovery-continuance beyond the parties' stipulation to continue this motion for further discovery to be conducted. (ROA 34 – Joint Stipulation and Order to Continue Motion Hearing Date.) The Court will rule on the merits.

Natural Conditions Immunity City has not met its burden natural conditions immunity applies because the evidence does not show the property is 'unimproved' public property. Government Code section 831.2 states, 'Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.' (Emphasis added; see also, County of San Mateo v. Sup. Ct (2017) 13 Cal.App.5th 724, 731.) 'The statute does not define the phrase 'unimproved public property,' nor does it establish any standard for determining when public property ceases to be 'unimproved' as the result of development activity.' City argues Plaintiff was 'on the concrete floor for the picnic table, which is an improved area of the park, but the adjacent dirt path was an unimproved area.' (Memo., at p. 4:22-23.) The evidence in support does not show a 'dirt path.' Rather, the evidence shows the hole is underneath and/or beside the concrete floor, a sign of development activity. And City does not argue this property is in its 'natural condition.' (County of San Mateo, supra, 13 Cal.App.5th at p. 739, fn. 9 ['the improvements must change the physical nature or characteristics of the property at the location of the injury to the extent that it can no longer be considered in a natural condition'].) Notwithstanding, disputed facts exist. (ROA 36 - Declaration of Taylor Gaines, at Ex. 1 [Declaration of Mark Burns], at ¶ 10-11 & Ex. B-E; ROA 36 - Gaines Decl., at Ex. 2, 3.).) Trail Immunity Similarly, City has not met its initial burden trail immunity applies. Under Government Code section 831.4(a)–(b), a public entity is not liable for an injury caused by the condition of any trail, or certain unpaved roads, which provides 'access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports,' and other types of 'recreational or scenic areas.' Whether a property is considered a 'trail' turns on a number of considerations including: (i) the accepted definitions of the property; (ii) the purpose for which the property is designed and used; and (iii) the purpose of the immunity statute. (Loeb v. County of San Diego (2019) 43 Cal.App.5th 421, 431–432.) This is an issue of fact unless only one conclusion is possible. (Ibid.) Here, again, the evidence in support does not show a path and, even based on the photographs alone, the property cannot be characterized as a 'trail.' City acknowledges the injury occurred at a park with picnic tables and the hole is at or beside the concrete flooring of a picnic table, which is within a circle of material within grass. The purpose of the property is for the public to gather and use the picnic tables – not for access to a use like fishing, hunting, hiking, etc. Moreover, City's evidence shows an inspection report four days before the injury where the inspector marked 'N/A' for the section concerning, 'Trails.' (ROA 26 – Declaration of Michelle Neff, at Ex. D [COSD 000007].) It would also not serve the purpose of the statute to encourage public entities to keep recreational areas open, sparing the expense of putting 'undeveloped areas' in a safe condition. (Loeb, supra, at p. 435-46.) Notwithstanding, as discussed Calendar No.: Event ID:  TENTATIVE RULINGS

2975731  47 CASE NUMBER: CASE TITLE:  WILHITE VS CITY OF SAN DIEGO [IMAGED]  37-2022-00033987-CU-PO-CTL above, disputed facts exist as to whether the injury location is a 'trail.' (Ex. 1 – Burns Decl., at ¶ 11 & Ex. B-E; ROA 36 - Gaines Decl., at Ex. 2, 3.) Warning Signs Immunity City also has not met its initial burden that Government Code sections 830.4 and 830.8 precludes liability. Government Code section 830.8 provides a qualification for public entities from liability for injuries caused by their failure to provide 'traffic or warning signals, signs, markings or devices described in the Vehicle Code.' (See also, Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 660 [Section 830.8 'precludes government liability for failure to provide 'traffic or warning signals' [] except when 'necessary to warn of a dangerous condition which would not be reasonably apparent to, and would not have been anticipated by, a person using the highway with due care.' (emphasis added)].) Here, the case does not concern facts related to roads and streets or signals and signs described in the Vehicle Code. As framed by the Complaint, Plaintiff is not alleging a lack of warning signs is a basis for finding a dangerous condition at NTC park, rather that insufficient warnings created a concealed trap for pedestrians using the location with due care. (Complaint, at ¶ 25.) Other basis for liability are also alleged. (Id., at ¶¶ 24, 26-31.) Dangerous Condition – Open and Obvious Defendant has not provided any legal authority that the open and obvious doctrine applies to a dangerous condition of public property cause of action. The Court also agrees with Plaintiff that it is inconsistent to argue City did not have notice of the condition under these facts and it was open and obvious. But to the extent it applies to Plaintiff's negligence cause of action and the foreseeability of harm, disputed facts exist as to whether the hole was open and obvious. The evidence that creates this dispute includes Plaintiff's declaration and the declaration of Mark Burns. Plaintiff had never been to NTC Park, the hole was located at a lower elevation that the surrounding picnic table, a shadow was present at the time of the incident due to a nearby tree. As Plaintiff's expert opined, the change in elevation presented by the hole would be difficult to perceive at the time of the incident. The adjacent tree casts a large shadow over the hole and conceals it on approach to the picnic table. (Burns Decl., at ¶ 12 & Ex. D & E.) Dangerous Condition – Notice Disputed facts exist as to whether City had actual or constructive notice of the alleged dangerous condition for sufficient time prior to the injury to have taken measures to protect against it. 'Actual notice' means the public entity knew the condition existed and knew or should have known of its dangerous character. (Gov. Code, § 835.2(a).) A claim for constructive notice requires a plaintiff to establish that the dangerous condition existed for a sufficient period of time and that the dangerous condition was obvious.

(Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320; Gov. Code, § 835.2(b).) Constructive notice may also exist if the hazard would have been discovered by a reasonable inspection, but the public entity failed to have a reasonable inspection system or failed to operate its inspection system with due care. (Gov. Code, § 835.2(b)(1), (2).) Here, the evidence that creates this dispute includes how City employees documented and reported the squirrel hole problem in the picnic area of NTC Park and approved an extermination contract with a third party. (Ex. 4 – Deposition of Jennifer Baez; Ex. 5 – Deposition of Anna Sonnenburg, at p. 14; Ex. 6 – Deposition of Narciso Valencia, at p. 20-23, 31, 34; Ex. 7 – Deposition of Jessica Gonzalez, at p. 38; Ex 12 – City Email dated May 11, 2021 ['We currently are not taking any actions at NTC Park to curb the squirrel population...'].) Further, City could not find certain inspection reports prior to May 19, 2021. (Ex.

5 – Sonnenburg Depo., at p. 27.) Duty to Warn Calendar No.: Event ID:  TENTATIVE RULINGS

2975731  47 CASE NUMBER: CASE TITLE:  WILHITE VS CITY OF SAN DIEGO [IMAGED]  37-2022-00033987-CU-PO-CTL City has not met its initial burden on its alternative argument Government Code section 831.2 provides immunity of a duty to warn of a dangerous condition of a natural condition on unimproved property. As discussed above, the evidence shows the location of the injury occurred in a developed area of a park, under concrete foundation, which lay a picnic table. Notwithstanding, disputed facts exist as to whether the immunity applies to this property.

Concluding Orders For these reasons, the motion is DENIED in its entirety.

If the Court's tentative ruling is confirmed without modification, the minute order will be the Court's final ruling. Defendant City of San Diego is ordered to serve written notice of the Court's final ruling on all appearing parties by September 19, 2023, unless all parties submit on the Court's tentative ruling or waive notice at the hearing.

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