Judge: David A. Hoffer, Case: 30-2021-1202744, Date: 2022-10-03 Tentative Ruling
Before the Court is a Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication filed by Defendant City of Cypress (the “City”) as to Plaintiff Jeannette Chaney’s Complaint. The Motion for Summary Judgment is GRANTED.
Plaintiff’s request for judicial notice is DENIED as the items requested are part of the court file or evidence in the case and need not be the subject of judicial notice.
Plaintiff’s evidentiary objections are OVERRULED as they are not set forth in a separate pleading. (CRC 3.1354(b); Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8-9—court did not abuse its discretion in refusing to consider objections not filed separately as required by rule).
The City’s evidentiary objections are OVERRULED.
Allegations in the Complaint: Plaintiff’s complaint asserts causes of action for premises liability and negligence based on general negligence and dangerous condition of public property. (Motion, Declaration of Michelle L. Villarreal (“Villarreal Decl.”) ¶ 2.b., Exh. 2, Complaint.) It alleges the City had constructive notice of the dangerous condition (id., Prem.L-4.a) and the City owed a duty under Civil Code § 1714 (id., GN-1).
General Negligence: “Under the Government Claims Act, ‘[a] public entity is not liable for an injury,’ ‘[e]xcept as otherwise provided by statute.’” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347, quoting Gov. Code § 815(a); accord, Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 [“there is no common law tort liability for public entities”].)
The City moves for summary judgment on the grounds it cannot be liable for general negligence. The City submits evidence that, at all times mentioned in the Complaint, the City was and is a public entity. (DSS ¶ 1.) Plaintiff, in opposition, does not dispute the City is a public entity or identify any statutory basis for the City’s liability. Plaintiff fails to raise a triable issue of fact as to the claim for general negligence.
Dangerous Condition of Public Property: Government Code Section 835 provides: “[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 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 . . . [and] a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)
Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion. (Salas v. Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1069.) It is for the court to determine whether, as a matter of law, a given defect is not dangerous. (Ibid.)
“[A] property owner is not liable for damages caused by a minor, trivial, or insignificant defect” on its property. (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388, (Cadam).) In the sidewalk-walkway context, “[t]he decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927; see also Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105 (Huckey) [“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”].) Rather, “[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. [Citation.] Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian’s view of the defect.” (Caloroso, at p. 927.) “[T]he plaintiff's knowledge of the area . . . the weather at the time of the accident, and whether the defect has caused any other accidents” are also factors courts have considered. (Huckey, at p. 1105.)
The City moves for summary judgment on the grounds the subject sidewalk was not in a dangerous condition and that, even if it was, the City did not have notice of the dangerous condition. The City submits a photo of the sidewalk and evidence that it did not have constructive notice of the dangerous condition. (DSS ¶¶ 2, 4, 18, 22, 25-50.)
The City fails to demonstrate the sidewalk was not in a dangerous condition. The City submits a picture of the sidewalk taken by Plaintiff’s friend a couple days after the incident to support its condition that the defect was trivial. (City’s Exh. 5.) However, the evidence, viewed in the light most favorable to Plaintiff, does not establish that the defect was trivial as a matter of law. Specifically, the court cannot determine the size of the defect, such as the height difference of the cement crack, and conditions of the walkway surrounding the defect, solely from the picture.
The City, however, has met its initial burden by demonstrating that it did not have constructive notice of the defect. (See DSS ¶¶ 30-51.) The city submits the declaration of Jose Guerra, the City’s Public Works Maintenance Supervisor, who discusses the City’s sidewalk Maintenance program, including annual inspection and repairs.
Plaintiff, in opposition, contends that the City had actual notice of the dangerous condition, and that the City did not repair the dangerous condition as alleged in the moving papers.
Plaintiff, however, did not allege in her complaint that the City had actual notice of the dangerous condition, but only that the City had constructive notice. (City’s Exh. 2, ¶ Prem.L-4.a.) The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74—“the pleadings determine the scope of relevant issues on a summary judgment motion”; Hutton v. Fidelity Nat'l Title Co. (2013) 213 Cal.App.4th 486, 493—summary judgment defendant need only “negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”)
If either party wants the trial court to consider a previously unpleaded issue in connection with a motion for summary judgment, it may request leave to amend at or prior to the hearing on the motion. (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663; Vulk v. State Farm Gen. Ins. Co. (2021) 69 Cal.App.5th 243, 256—plaintiff could not rely on unpleaded new theory to resist summary judgment, and should have sought leave to amend if he had evidence to support new theory.) The opposing party’s opposition papers cannot create issues outside the pleadings and are not a substitute for amendment. (Hutton v. Fidelity Nat'l Title Co., supra, 213 Cal.App.4th at 493.)
Plaintiff did not seek leave to amend her Complaint, but, even if Plaintiff had sought and obtained leave to amend to allege the City had actual notice of the dangerous condition, Plaintiff still fails to raise a triable issue.
The City submits evidence demonstrating an annual inspection conducted on or about October 29, 2018 revealed the sidewalk across from 8142 Acacia Street was raised ¾ of an inch or greater, and the City completed the grinding of the sidewalk on February 6, 2019. (DSS ¶¶ 38-39.) The City also submits evidence that during the time frame between the February 6, 2019 grind and the September 28, 2019 incident, the City did not receive any notice of any complaints or reports of concerns regarding the sidewalk located across from 8142 Acacia Street. (DSS ¶ 50.)
While Plaintiff, in opposition, contends the City did not repair the sidewalk on February 6, 2019, she fails to produce admissible evidence showing a triable issue of fact exists. Instead, Plaintiff questions the creditability Mr. Guerra’s Declaration. However, claims and theories not supported by admissible evidence do not raise a triable issue. (Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 219 (disapproved on other grounds by Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238)—courts should not hesitate to summarily dispose of meritless litigation based on nothing more than a “smoke and mirrors” presentation.) “Substantial” responsive evidence is required. Evidence that gives rise to no more than mere speculation is insufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151—bare assertion that moving party “fabricated” evidence insufficient to avoid summary judgment.)
Thus, the plaintiff fails to show a triable issue of fact, and the City’s Motion for Summary Judgment is granted.
Counsel for the City is ordered to give notice of this ruling and to submit a proposed order.