Judge Elaine W. Mandel, Case Number: 22SMCV01799, Date: 2023-10-06 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01799, Date: 2023-10-06 Tentative Ruling

Case Number: 22SMCV01799 Hearing Date: October 6, 2023 Dept: P

Tentative Ruling

Shimshi v. City of Santa Monica, et al., Case No. 22SMCV01799

Hearing Date October 6, 2023

Defendant City of Santa Monica’s Motion for Summary Judgment

Plaintiff Shimshi suffered injuries after tripping on a sidewalk uplift allegedly caused by tree roots and a “shoddy” asphalt ramp defendant City of Santa Monica poured over the uplift. The City moves for summary judgment on Shimshi’s dangerous condition/negligence and premises liability claims.

Evidentiary Objections

City’s Objections: 1 and 2 SUSTAINED (lack of authentication), 3 SUSTAINED (legal conclusion), 4-9 OVERRULED.

Santa Monica Municipal Code Section 713

When a public entity is under a mandatory duty imposed designed to prevent against the risk of a particular kind of injury, that entity is liable for an injury of the kind proximately caused by its failure to discharge that duty. Cal. Gov. Code §815.6. Santa Monica Municipal Code §713 establishes the position of Street Superintendent, whose duties are to inspect, supervise and enforce laws related to “streets, sewers, and drains of the City.” The Superintendent is responsible for investigating complaints related to street conditions.

Shimshi argues the Superintendent breached this duty by failing to adequately inspect and maintain the sidewalk.

The City argues “streets,” as used in §713, does not include “sidewalks,” and the Supervisor’s alleged failure to maintain a sidewalk does not give rise to a mandatory duty claim under §713. The City argues the word “sidewalk” appears throughout the Municipal Code separately from the word “street,” and argues if drafters intended the Superintendent’s duties to include maintaining sidewalks, the statute would have included “sidewalk.”

“Sidewalk” is defined in SM Municipal Code §9.52.020.2250 as a “paved, surfaced, or leveled area, paralleling and usually separated from the street...” Emphasis added. “Street” is defined separately. See SMMC 9.052.020.2330. The court notes these definitions occur in the article of the Municipal Code dealing with zoning. Section 713 is part of the City Charter Article VII, which deals with appointive officers. The Charter does not explicitly define “streets” or “sidewalks.”

SMMC 7.04.180, Article 7: Public Works states “no driveway shall cross a public street, parkway, or sidewalk without written approval of the Superintendent of Streets.” Emphasis added. This suggests the Superintendent’s supervisory authority under §713 extends to sidewalks. The City produced Street Superintendent Allen Issagholian as person most knowledgeable regarding “inspection, maintenance, and repairs to the sidewalk in question located at 2302 Pearl Street.”

The City cannot present the Street Superintendent as its PMK regarding sidewalk maintenance, then state his duties do not include sidewalk maintenance. Issagholian became Street Services Superintendent in 2022, and his duties include “inspecting sidewalks, streets, alleyways and pathways,” and “responding to citizen complaints regarding the condition of sidewalks.” Issagholian decl. ¶¶4-5. When the declaration is read in conjunction with §713, which requires the Superintendent to inspect streets and respond to citizen complaints regarding streets, it is clear that “sidewalks” fall within the category of “streets” within §713. DENIED.

Premises Liability/Dangerous Condition

To hold a public entity liable for a dangerous condition on its property, plaintiff must prove “(a) a negligent or wrongful act or omission of the public entity within the scope of his employment created a dangerous condition” or “(b) the public entity had actual or constructive notice of the dangerous condition under section 835.2 and a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” Cal. Gov. Code §832.

The City argues no evidence suggests a City employee caused the dangerous condition. Shimshi admits the uplift was caused by tree roots. Complaint ¶11. The City cites the declaration of Chris Jones, who poured the patch over the sidewalk in September 2017. Jones applied the asphalt according to the manner prescribed by the Department of Public Works, per Jones declaration ¶¶4-5. This is sufficient to establish a negligent or wrongful act by a public employee did not cause the defect, shifting the summary judgment burden as section 832(a).

As section 832(b), Issagholian declares he had no actual notice of a dangerous condition, as no one complained about the sidewalk between the 2017 patching and Shimshi’s injury in 2022. Defendants’ Separate Statement No. 6, Issagholian decl. ¶¶9-10. The City argues it cannot be charged with constructive notice, as Shimshi has no evidence as to how long the uplift existed and presented no evidence the uplift was obviously dangerous. This is sufficient to shift the burden as to §832(b).

Regarding 832(a), Shimshi presents testimony from municipal infrastructure assessment consultant Gary M. Gsell, who opines an asphalt ramp is a “temporary” solution to a bulging or uplifted sidewalk, and the asphalt will inevitably deteriorate and become dangerous. Gsell decl. ¶8, 16. Based on this opinion, Shimshi argues the City’s employees caused the dangerous condition by repeatedly applying temporary patches or ramps, rather than repairing the underlying uplift.

Neither Gsell nor Shimshi disputes the underlying “condition” was the uplift caused by roots, not a act or omission by the City. As Shimshi presented no evidence indicating the City caused the uplift, a claim under 832(a) fails.

As to 832(b), Shimshi provides evidence of actual notice in April 2013 when the City determined the sidewalk required repair, placing the first asphalt ramp in May 2017. Plaintiff’s separate statement at 3. Gsell opines it was unreasonable for the City, knowing there was an unsafe condition, to continue applying temporary patches which would eventually deteriorate, rather than fixing the underlying uplift. Gsell decl. 10-18. This is sufficient to create a triable issue of fact as to whether, under §832(b), the City was aware of a dangerous condition, and whether its continued use of asphalt patches constituted a failure to remediate it.

Summary adjudication GRANTED to a claim under Cal. Gov. Code §832(a) (entity caused the condition); DENIED to the extent it arises out of 832(b) (entity was aware of but failed to remediate condition).

Negligence Under §815

The City argues as a matter of law, a public entity cannot be liable for common-law negligence absent an act or omission by a public employee that would have given rise to a negligence cause of action against that employee individually. Cal. Gov. Code §815.2(a). As stated, Shimshi provided evidence City employees acted negligently by continuing to apply temporary patches, rather than implementing a long-term solution. This is sufficient to create a triable issue of fact as to the negligence cause of action. DENIED.