Judge: Deborah C. Servino, Case: 30-2022-01240264, Date: 2023-05-19 Tentative Ruling

Defendant City of Brea’s motion for summary judgment as to Plaintiff Margaret Schaffer’s First Amended Complaint ("FAC") for dangerous condition on public property is denied.

Evidentiary Objections

The court overrules Defendant’s objection nos. 1 through 7 to Plaintiff’s deposition testimony presented in opposition.

Legal Standard

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question.”  (Id. at p. 851.)  A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action.  (Code Civ. Proc., § 437c, subd. (p)(2).)  The scope of this burden is determined by the allegations of the plaintiff’s complaint.  (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.  (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)  Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action.  (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

Merits

Plaintiff’s FAC alleges a single cause of action for dangerous condition of public property. The FAC alleges that on May 20, 2021, at approximately 1:30 p.m., Plaintiff was in the parking lot of Defendant’s Subject Premises for the purpose of attending a Soroptimist International meeting. “After attending the meeting, Plaintiff was accessing the trunk of her vehicle parked in Defendant’s parking lot when her foot became entangled in exposed irrigation lines and fell violently to the pavement, causing Plaintiff to sustain the serious injuries and damages described herein.” (FAC, at ¶ 17.) The premises was in a dangerous condition because, among other general allegations, Defendant “Allowed irrigation lines to remain exposed in the parking lot when Defendant knew, or in the exercise of reasonable care should have known, that the irrigation lines created an unreasonable risk of harm to invitees on the Subject Premises” and failed to warn of them. (FAC, at ¶¶ 18, 19.)

“A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (Gov. Code, § 815, subd. (a).)  Government Code section 835 creates an exception to this rule and provides in relevant part that

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 . . . [¶¶] [t]he 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; see Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1103–1104 [citing Gov. Code, §§ 830, 835].)

Government Code section 830 defines a “dangerous condition” to mean “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, subd. (a).)  Government Code section 830.2 provides: “[a] condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”  (Gov. Code, § 830.2.)  

The elements of a claim for dangerous condition of public property 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; Gov. Code, § 835; Toeppe v. City of San Diego (2017) 13 Cal.App.5th 921, 925–926.)

“Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384; see Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810 [summary judgment inappropriate where reasonable minds can differ as to existence of dangerous condition].) Assessing this question requires consideration of a totality of the circumstances including, but not limited to: the intrinsic nature and quality of the defect, any circumstances surrounding the accident that might have caused the defect to be more dangerous than usual (e.g., the time of day and lighting), and whether there is evidence of any prior injuries from the same defect. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.)

Here, even assuming Defendant has made a prima facie showing, Plaintiff has shown that there is a triable issue of material fact as to whether the premises were in a dangerous condition. Plaintiff offers facts to dispute the visibility of the irrigation lines. The pictures appear to show that the irrigation lines are the same color as the dirt surrounding them.  A jury would need to determine whether they created an unreasonable risk to persons traversing the verge in the parking at the premises when walking to and from their cars. (Plaintiff's Compendium of Evidence ["Plaintiff's COE"] Exh. 2, at pp. 70, 81-82, 87-89, 90, 97-99 & Depo. Exh. 2; Exh. 3, at p. 15; Exh. 4 at p. 18.)

Defendant asks the court to adjudicate that there was no substantial danger if Plaintiff had been using the property with due care in a reasonably foreseeable manner. (See Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 558.)  The court cannot make this adjudication because it requires a factual determination as to whether the irrigation lines were visible on the day of the fall.

On reply for the first time, Defendant argues that Plaintiff’s allegation that her foot became entangled in “exposed irrigation lines” (FAC, ¶17) was a judicial admission that a reasonable person could see the irrigation lines. Defendant’s reading of the FAC is not persuasive. A party may not contradict facts established by the party's own pleadings as judicial admissions in opposing summary judgment. (Mark Tanner Constr., Inc. v. HUB Int'l Ins. Servs., Inc., (2014) 224 Cal.App.4th 574, 587; Food Safety Net Servs. v. Eco Safe Sys. USA, Inc. (2012) 209 Cal.App.4th 1118, 1129 [plaintiff cannot create triable issue by declarations that contradict factual allegations of complaint].) Defendant reasons that Plaintiff did not allege that the irrigation lines were hidden or covered so that they could not be seen at the time of her fall, so “exposed” must mean open and obvious. Certainly, “exposed” could mean that the lines were sticking out of the ground and not fully subterranean, but still hidden. Plaintiff offers testimony that based on all of the facts and circumstances, she infers that her foot became entangled in the lines. This is not an improper assumption. Thus, the allegation is not a judicial admission. 

Thus, the court finds triable issues of material fact preventing summary judgment. The motion for summary judgment is denied.

Plaintiff shall give notice of the ruling.