Judge: Daniel M. Crowley, Case: 20STCV24339, Date: 2022-12-06 Tentative Ruling

Case Number: 20STCV24339    Hearing Date: December 6, 2022    Dept: 28

Defendant City of Commerce’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On June 26, 2020, Plaintiff Frances Acosta (“Plaintiff”) filed this action against Defendants County of Los Angeles (“County”) and City of Commerce (“City”) for general negligence and premises liability. 

On August 28, 2020, the Court dismissed the County, without prejudice, pursuant to Plaintiff’s request. 

On April 21, 2021, Plaintiff filed the First Amended Complaint against the City for premise liability, dangerous condition of public property, failure to warn and negligent undertaking. On April 26, 2021, the City filed an answer. 

On April 29, 2022, the City filed a Motion for Summary Judgment to be heard on December 6, 2022. On November 22, 2022, Plaintiff filed an opposition. On December 1, 2022, the City filed a reply.

Trial is currently scheduled for May 11, 2023.

PARTY’S REQUESTS

The City requests the Court grant summary judgment on the basis that there are no triable issues of material fact.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Plaintiff’s Objections

Sustained: 1

Overruled: 2

The City’s Objections

Sustained: 1, 7

Overruled: 2, 3, 4, 5, 6, 8, 9

LEGAL STANDARD

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.) CCP § 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) 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 has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Government Code § 835 provides “[e]xcept 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.”

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.” GC § 830.

“A person is bound to use ordinary care for his own safety and to observe and take notice of all such dangers as could have been discovered by the observation of a person using ordinary care and caution, and possessed of ordinary sight and hearing... The city is under no duty to warn a pedestrian of something he or she already knows or of a danger (if there be one) obvious to everybody.” (Belcher v. City and County of San Francisco (1945) 69 Cal.App.2d 457, 463.)

Government Code § 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” To impose a mandatory duty on a public entity, the “mandatory nature of the duty must be phrased in explicit and forceful language;” it is not sufficient to contain just some mandatory language. (Guzman v. County of Monterey (2009) 46 Cal. 4th 887, 910-911.)

A totality of circumstances approach should be applied in evaluating whether there is a dangerous condition of public property; the Court should account for physical characteristics of the defect, history of the site and the parties, and the setting at the time of the incident. (Caloroso v. Hathaway (2004) I22 Cal.App.4th 922, 927.)

“Because alleys, unlike sidewalks, are designed and primarily used for purposes other than walking, and because the cost to municipalities of inspecting alleys with the same vigilance as inspecting sidewalks would be astronomical relative to the benefit of doing so, we hold that what is an obvious defect in the condition of an alley is not the same as for a sidewalk. Because reasonable minds can reach only one conclusion—namely, that the less-than-two-inch-deep divot in the asphalt abutting a drainage vein in the alley is not an obvious defect...” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 509.) “Alleys are different. To be sure, people sometimes walk in alleys (typically, to access parking or the rear entrances of buildings). This makes such use foreseeable, as it was in this case. But that is not “the use ... for which the public entity ... intended others to use” the alley. Instead, the alleys are intended for heavy vehicles—from trash trucks to delivery trucks and everything in between—to access and provide services to the abutting businesses and residences.” (Id. at 524.)

DISCUSSION

The City’s Argument

Plaintiff alleges that Plaintiff trip and fell while walking in an alley, when she tripped over a divot in the alley surface, next to a manhole cover. (UMF 1.) As of April 2022, the divot was approximately 12 inches wide, 7 inches long, and had a depth that ranged from .5 to 1.5 inches deep. (UMF 7.) No work was performed between December 2019 and April 2022 that would have affected the size of the defect. (UMF 8.) The weather was overcast, but not rainy. (UMF 6.) Nothing was obscuring the divot and the alley itself was dry. (Id.) There were no claims or complaints made about the divot in the 10 years prior to the incident; the City only inspects alleys if there are service requests. (UMF 9, 11.)

The City alleges that because the alley is primarily used by commercial vehicles, trucks and other large equipment, the subject divot would be trivial defect not subject to repair or notice. (UMF 11-12.) It claims that the divot would not have been noted in an inspection, and thus it is impossible to tell when it first came into existence. (UMF 12.)

In order for a party to be liable for premises liability, it must have actual or constructive notice. The City alleges it had neither. First, because there is no indication that the City was ever put on actual notice as to the subject condition. The Court finds that evidence supports the City’s claim, as all facts indicate that there were never reports or inspections made that would have put the City on notice. Second, because the subject condition was non-obvious as a matter of law, meaning the City was not on constructive notice.

A non-obvious defect differs between an alley and a sidewalk, as alleys are intended generally for heavy vehicle usage, while sidewalks are intended for pedestrian usage. A government entity is entitled to apply less rigorous scrutiny when inspecting alleys for defects, as they are more likely to experience wear over time and are less likely to cause injury to pedestrians. (Martinez at 524.) In Martinez, the Appellate Court upheld that a 2-inch divot in an alley was considered to be non-obvious as a matter of law, as there had been no claims or complaints about said divot prior to the subject injury. (Id. at 515.) Even when a crew had been called specifically to fill potholes around the subject divot prior to the incident, the Court still held that the City was not on notice as to a dangerous condition, due to the small size of the actual divot. (Id. at 516.)

Similar to Martinez, there is no indication of the City having any notice of the allegedly defective condition. The divot in this case was smaller than the divot in Martinez and similarly was located in an alley intended for heavy vehicle usage. There is no evidence to indicate that the subject defect was ever brought to the City’s attention. The City has met its burden. The burden now shifts to Plaintiff.

Plaintiff’s Opposition

Plaintiff argues that the facts in this case are not equivalent to the facts in Martinez. Plaintiff notes that the measurements provided were taken by the City’s counsel, and not an expert. Plaintiff’s own expert attested that the defect in question was 12 inches long, 2 to 6 inches wide, and varied in depth up to 2.6875 inches. (PUMF 4.) The particular portion that tripped Plaintiff is estimated to have a depth of, maximum, 1.8125 inches. This would make the subject condition deeper than the one at question in Martinez. Additionally, in Martinez, the government entity noted that it had a ‘pavement management program,’ meaning that every two years, the entity hired a contractor to inspect all alleys and prepare a report of the subject conditions. (Id. at 515.) The entity then used these reports to prioritize which streets and alleys to repave. (Id.) The City, here, has made no such claim—it only states that it performed inspections upon service calls by users of the alley.

While the Court agrees that the City’s review system is not as thorough as the one identified in Martinez, this is only relevant should the subject condition be found to be obvious. The Court finds the alleged defect to be non-obvious, as a matter of law. Although the City was aware that pedestrians used the subject location, the intent of the area was for vehicle usage. Case law addressing sidewalks’ defective conditions is not relevant to determining the defective condition of such an alley. Even if the subject divot is deeper than the one in Martinez, the Court does not find that a 2.7-inch divot is sufficient to justify an obvious defect on a road intended for vehicle usage. Especially when accounting for the fact Plaintiff’s expert identified that the actual depth Plaintiff tripped over was only 1.8125 inches, barely deeper than the divot in Martinez. For example, in Martinez, the identified ‘defective conditions’ that were repaired were all at least 2 feet wide—substantially larger and more dangerous than the subject defect. (Id. at 516.) A sub-3-inch divot is not sufficient to be considered an obvious dangerous condition for an alley not intended for primarily pedestrian usage. The Court grants the motion.

CONCLUSION

Defendant City of Commerce’s Motion for Summary Judgment is GRANTED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.