Judge: Frank M. Tavelman, Case: 23BBCV01861, Date: 2024-11-15 Tentative Ruling

Case Number: 23BBCV01861    Hearing Date: November 15, 2024    Dept: A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Lilit Azarian (Plaintiff) brings this action against the City of Burbank (Burbank) and Lexham Burbank, LLC. Plaintiff alleges she was injured when she fell on a sidewalk located at 3808 Riverside Drive in Burbank, CA (the Subject Premises). Plaintiff maintains a singular cause of action against Burbank for Dangerous Condition of Public Property pursuant to Gov. Code § 835.

Before the Court is a Motion for Summary Judgment brought by Burbank. Burbank argues that no triable issue of fact exists as to the following issues:

1.      Plaintiff cannot establish that the City was on either actual or constructive notice of any supposed dangerous condition.

2.      Plaintiff cannot establish that any supposed dangerous condition was created by a negligent or wrongful act or omission of a City employee acting in the scope of their employment.

3.      The condition of the pavement that allegedly caused Plaintiff injury was trivial and insignificant as a matter of law.

Plaintiff opposes the motion and Burbank replies.

ANALYSIS: 

I.                    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.) C.C.P.¿§ 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.)¿ 

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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. (C.C.P.¿§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.)¿ 

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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.)¿ 

II.                 EVIDENTIARY OBJECTIONS

Burbank’s evidentiary objections to the declaration of Plaintiff’s counsel Brent Gerome are OVERRULED. The Court finds Plaintiff’s counsel has appropriately laid the foundations for presenting Exhibits 3 through 6 by stating that those Exhibits are “Google Images” screenshots he personally obtained depicting the location of the incident. Burbank’s arguments that the images are more properly classified as Google Street View images and do not provide context of the Subject Premises are not without merit. Regardless, the Court understands that these Exhibits are meant to portray the Subject Premises in a general manner and not in the exact way it appeared on the date of the incident. The sworn statement of Plaintiff’s counsel that these images generally depict the sidewalk at the Subject Premises as it appears in an image search from the years 2011, 2014 and 2021 is sufficient for this purpose.

III.              MERITS

To prevail on its motion, Burbank must demonstrate that no triable issue of fact exists as to any essential element of Plaintiff’s claim for Dangerous Condition. A public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes:

(1)   that the property was in a dangerous condition at the time of the injury,

(2)   that the injury was proximately caused by the dangerous condition,

(3)   that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and

(4)   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) [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 [numeration of elements added].)

Notice

The Court begins the analysis with the issue of notice, as it is a threshold issue to Plaintiff’s Dangerous Condition action. Regardless of whether a dangerous condition existed at the Subject Premises, Burbank cannot be liable unless Plaintiff demonstrates it had actual or constructive notice. As will be explained below, the Court finds that Burbank has sufficiently demonstrated no triable issue of fact as to either.  

Notice, in the context of Gov. Code § 835 liability, is defined in Gov. Code § 835.2 as follows:

(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.

Thus, the first question presented by this motion is if a triable issue of fact exists as to whether Burbank had notice of the defective condition which Plaintiff claims. Answering this question requires an understanding of what the “defective condition” at issue is.

The operative Complaint in the matter does not specify the nature of the alleged defective condition. The Complaint merely states Plaintiff “came into contact with a dangerous and hazardous condition.” (Compl. p. 5.) Plaintiff’s opposition describes the alleged defect as “a jagged hole in the sidewalk surface where a piece of concrete had broken away.” (Oppo. p. 1.) Further, the questioning by Plaintiff’s counsel in the deposition of Assistant Public Works Director John Molinar (Molinar) makes clear that the alleged defect is “minor spalling” in the sidewalk surface. (Gerome Decl., Exh. 1 [hereinafter Molinar Depo.] at p. 47, line 3.)

Here, the undisputed facts demonstrate that Burbank had no actual knowledge of the spalling. Burbank states that the Subject Premises was part of a 2015 sidewalk repair initiative known as Schedule No. 1411. (Molinar Decl. ¶ 14, Exh. G.) Burbank states that only those areas of the sidewalk which needed repair were logged as part of this initiative. (Molinar Decl. ¶ 15.) The log for Schedule No. 1411 (hereinafter 2015 Sidewalk Repair Report) reveals that “grinding” of the sidewalk occurred at the Subject Premises on May 29, 2015. (Molinar Decl., Exh. H, p. 23.) Burbank also submits that no work was done at the location at any time after the May 29, 2015 grinding and that Burbank received no complaints from 2015 to the time of Plaintiff’s incident. (Molinar Decl. ¶¶ 12-16.)

The above evidence indicates that Burbank lacked actual notice of the defective condition. Plaintiff has put forward no evidence in contravention showing that Burbank received complaints related to spalling in the sidewalk. Instead, Plaintiff argues that she cannot demonstrate actual notice prior to five years because Burbank’s records of sidewalk defects are not retained beyond that. (Molinar Depo. at p.35.) While this may be the case, the argument does not function to negate Burbank’s showing that it did not receive actual notice. Once Burbank has demonstrated it received no complaints constituting actual notice, the burden shifts to Plaintiff to produce evidence showing actual notice. None of Plaintiff’s exhibits accomplish this.

The constructive notice analysis is not so straightforward. Gov. Code § 835.2(b) states that constructive notice can be shown only if (1) the condition had existed for some period of time prior to the plaintiff's accident, and (2) the condition was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508.) “The second element - that the defect be so obvious, conspicuous, or notorious that it should have been discovered by the public entity - is critical because it is the public entity's failure to discover and repair an obvious defect that makes it appropriate to impute knowledge of that defect to the entity, which is what renders that entity negligent for failing to correct a defect despite that imputed knowledge.” (Id. [internal quotation marks and citations omitted].)

A determination that a dangerous condition was obvious for purposes of constructive notice is separate from a determination that a defect was trivial. (Id. at 520 citing Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290–291.) Nontriviality, without more, does not mean that that the defect is obvious. (Id. citing State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 956.) Nor is a defect obvious merely because it is visible. (Id. citing Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320–321.) Instead, whether a nontrivial defect is sufficiently obvious, depends upon all of the existing circumstances, including (1) the location, extent, and character of the use of the walk or, more generally, the public property in question and (2) the magnitude of the problem of inspection. (Id. at 521 citing Nicholson v. Los Angeles (1936) 5 Cal.2d 361 at 367.)

Given the foregoing, the question here narrows to whether a triable issue of fact exists as to Burbank’s constructive notice of an obvious defective condition. As will be explained below, the Court finds the evidence in the case demonstrates no triable issue of fact.

As concerns Burbank’s evidence, Gov. Code § 835.2(b) clarifies that admissible evidence speaking to ordinary care includes but is not limited to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

To this end Burbank has offered evidence that it had a system in place which was designed to detect and repair sidewalk defects. (Molinar Decl. ¶ 14, Exh. G.) Burbank argues that had the spalling been so obvious as to put them on constructive notice, the spalling would have been noted in the 2015 Sidewalk Repair Report and then repaired. Indeed, the 2015 Sidewalk Repair Report for the Subject Premises shows no note of spalling and merely shows the area received concrete grinding on May 29, 2015. (Molinar Decl., Exh. H at p. 23.) Molinar’s deposition makes clear that “grind” in the context of the 2015 Sidewalk Repair Report is a repair method employed to even the elevation between two sidewalk panels. (Molinar Depo. at p. 24.) This is in contrast to “AC” in the 2015 Sidewalk Repair Report which indicates the need to lay more asphalt to make repairs. (Id. at p. 25.)

From the 2015 Sidewalk Repair Report and Molinar’s explanation of it at his deposition, the Court finds Burbank has demonstrated no triable issue of fact as to its constructive notice of the sidewalk spalling. Burbank has demonstrated that its sidewalk repair program did not detect any obvious spalling at the Subject Premises.   

In opposition, Plaintiff states “The sidewalk defect that caused Plaintiff’s accident existed in 2015 at the time of the last formal citywide sidewalk inspection that covered the area.” (Additional UMF No. 32) In support of this fact, Plaintiff cites the following evidence:

·         Exhibit 1 Molinar Depo. at page 21, line 23 – page 22, line 14.

·         Exhibit 2 Deposition of Michael Smith at page 15, line 12 – page 16, line 25 & page 44, line 1 – page 45 line 21.  

·         Exhibit 3 Google Image from 2011

·         Exhibit 4 Google Image from 2014

·         Exhibit 5 Google Image from 2021

·         Exhibit 6 Google Image from 2024

·         Exhibit I to Defendant’s Moving Papers Photographs Before and After Repairs

The Court notes that the cited deposition pages appear to be incorrect. Page 21 Line 23 through Page 22 Line 14 of the Molinar deposition appears to just be Plaintiff’s counsel asking Molinar to identify the various columns in log for the 2015 Sidewalk Repair Report. The cited excerpts of the Deposition of Public Works Supervisor Michael Smith (Smith) also appear to be incorrect.

Upon review, the Molinar deposition contains no statement that the defect existed in 2015. When Molinar was asked whether he knew if the defect existed back in 2015, his response was actually “No, I don’t.” (Molinar Depo., p. 42 line 16.) Plaintiff’s counsel then showed Molinar a number of Google Street View images, presumably the same images that are attached as Exhibits 3-6. (Id. at pgs. 38-47.) Having shown these images, Plaintiff’s counsel once again asked if the minor spalling was present in 2015. (Id. at p. 47.) Molinar replied “I’ll agree there was something there, but the size and everything else about it could have been completely different. There's no way to tell how big it was or anything about it. (Id. at p. 47, lines 6-9.) Plaintiff’s counsel then proceeded to ask Molinar whether supervisor Michael Smith would have seen the minor spalling in 2015, to which Molinar responded “He would have seen something. But what was there then in those pictures is impossible to tell what it looked like in 2015.” (Id. at p. 53.) When asked for a final time whether the spalling was apparent in 2015, Molinar replied “I will agree that there was something there in the picture that you depicted. I can't even tell if that's a spall or not in those pictures, but it appears to be a bigger shadow than the other parts.” (Id. at p. 55.)

Having reviewed the entire Molinar deposition transcript, the Court finds it does not serve as evidence of Burbank’s constructive notice. Molinar’s testimony is clear that (1) he could not tell if the spalling was present from the report or the photos, and (2), even if the spalling was present, it was so diminutive as to not trigger the need for repair. In short, Molinar’s testimony does not create a triable issue of fact as to Burbank’s constructive knowledge of an obvious defect in need of repair.

The Smith deposition also presents no evidence as to Burbank’s constructive notice. When shown the same images, Smith responded that he could not see any spalling from the images, nor how deep the alleged spalling would be. (Gerome Decl., Exh. 2 [hereinafter Smith Depo.] at p. 36, lines 16-19.)

As concerns the images themselves, the Court finds them insufficient to create a triable issue of fact. Each of the photos is taken from a different angle. Exhibit 3, a Google Street View image of the sidewalk from 2011, is too unclear to demonstrate any spalling, much less spalling that is so obvious it would put Burbank on constructive notice. Exhibit 4, a Google Street View image of the sidewalk from 2014 appears to depict no spalling whatsoever. These two images constitute the only images of the Subject Premises before the 2015 repair.

Exhibit 5, a Google Street View image of the sidewalk from 2021, depicts a darker portion along two sidewalk panels at the Subject Premises. Regardless, the photo contains no information that the dark spot is the spalling which caused Plaintiff’s fall.  In looking at the 2024 pre and post repair images attached by Burbank as Exhibit I to this motion, the Court notes that there are two sidewalk panels with visible spalling. One of these panels is located in the center of the sidewalk and is abutted by another panel in which the words “H.E. Dearman Contractor” are engraved. (Exh. I, COB-ARA-0006.) In contrast, Exhibit 5’s sidewalk panels bear no such engraving. The same applies to the other panel in Exhibit I, which is located directly next to a planter. (Exh. I, COB-ARA-0009.) Plaintiff has presented no evidence that the panels in Exhibit 5 are the same as those in Exhibit I.

In short, Plaintiff’s evidence does not demonstrate that there is a triable issue of fact as to whether Burbank had constructive notice of the alleged dangerous condition. Plaintiff’s photo evidence does not depict any defective condition which is identifiable as the minor spalling on which Plaintiff allegedly tripped, nor that this alleged spalling was so obvious as to put Burbank on constructive notice. It follows that Plaintiff has failed to demonstrate a triable issue of fact as to the key element of notice. Accordingly, the motion for summary judgment is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Burbank’s Motion for Summary Judgment came on regularly for hearing on November 15, 2024, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE CITY OF BURBANK’S MOTION FOR SUMMARY JUDGMENT IS GRANTED.

THE CITY OF BURBANK TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:       November 15, 2024                     _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles