Judge: H. Jay Ford, III, Case: 22SMCV02779, Date: 2024-09-17 Tentative Ruling

Case Number: 22SMCV02779    Hearing Date: September 17, 2024    Dept: O

Case Name:  Lobanov v. City of Santa Monica

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant City of Santa Monica

RESP. PARTY:         Plaintiff Victoria Lobanov

TENTATIVE RULING

            Defendant City of Santa Monica’s Motion for Summary Judgment is DENIED. Plaintiff meets her burden to prove the existence of a triable issue of material fact as to the existence of a dangerous condition..

            Plaintiff Victoria Lobanov’s Objections to the Wolfe Declaration are OVERRULED as to No. 1–4, and SUSTAINED as to No. 5 (legal conclusion), 6, 7.

            Plaintiff Victoria Lobanov’s Objections to the Flores Declaration are OVERRULED as to No. 1, 2.

Plaintiff Victoria Lobanov’s Objections to the Luna Declaration are OVERRULED as to No. 1–4.

Plaintiff Victoria Lobanov’s Objections to the Defendant’s Exhibits are OVERRULED as to No. 1–8, and SUSTAINED as to No. 9–12 (lack of foundation, authentication)

Defendant’s objections to the declaration of Mark J. Burns nos. 1-15 and nos. 16 and 17 (ex. 6 and 7) are OVERULLED.  At the summary judgment stage, courts must construe the opposing party's evidence liberally. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) “In light of the rule of liberal construction, a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial.” (Ibid.; see also Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512, 524 [“a reasoned explanation required in an expert declaration filed in opposition to a summary judgment motion need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion or at trial”]

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

I.                Defendants Meet Their Burden to Show that Plaintiff cannot establish the Dangerous Condition Element of the causes of action

            Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code Civ. Proc. §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

Defendant City Santa Monica (the “City”) moves for summary judgment Plaintiff Victoria Lobanov’s (“Lobanov”) entire complaint arguing that the dangerous condition element cannot be met and thus the complaint fails as matter of law. The Complaint contains two causes of action including: 1. Dangerous Conditions of Public Property in violation of Government Code § 835 et seq, and 2. Negligence, assumed to be based on a violation of Government Code § 835 due the incorporation of all previous allegations within the cause of action. (See generally FAC.)

Section 835 provides as follows:

Except 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.

(Gov. Code, § 835.)

            To prevail on this type of claim, Lobanov must establish four elements: (1) the existence of dangerous condition; (2) proximate cause; (3) foreseeability of type of harm; and (4) negligence in the creation of, or notice of, the dangerous condition. (See Frazier v. County of Sonoma (1990) 218 Cal.App.3d 454, 458.)

            Government Code § 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.) “A public entity is not liable for minor or trivial property defects that do not create a substantial risk of injury when the property is used with due care.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457, citing Gov. Code, § 835.2.) “The existence of a dangerous condition is ordinarily a question of fact but can be decided as a matter of law if reasonable minds can come to only one conclusion. (Id. at p. 1458.)

            “The rule which permits a court to determine “triviality” as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 399.)

            “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, collecting cases.) “The court's analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.” (Id. at p. 1105.) Such other factors the courts may consider are the following: "whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian's view of the defect, the plaintiff's knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident and whether the defect has caused any other accident." (Ibid.)

Size of the defect is “[t]he most important of these factors—for determining whether a given defect may be deemed trivial as a matter of law.”(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 568.) “[I]t is also true that as the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Ibid.)

            The City argues that Lobanov testified, and the evidence shows, that Lobanov’s “shoe got stuck under the [. . .] plate” of a delineator/sign base (“base”) 15 inches outside and east of a marked cross-walk while crossing California Avenue causing Lobanov’s alleged injury. (SSUF, ¶¶ 15–22; ; Chung Decl., ¶ 3, Ex. 18, Lobanov Depo., 26:24-27:21, 30:4-22, 43:23-44:19, 53:15- 57:8) The City argues that from the Lobanov’s testimony, the plate to which Lobanov refers to is just the plastic housing of the base, which “is only one inch in height,” with the tallest screw on the base sitting at “1.25 inches from the asphalts surface.” (SSUF, ¶¶ 7–8; Wolfe Decl., ¶¶ 9, 10; Ex. 20, Haro Dep., 59:1-7, 59:25-61:16.)

The City argues that the Court should only look at the base height of one inch, and not the height of the screws protruding from the base, citing to Huckey to explain that the height differential between the base and the screws is not a tripping hazard since the place where Lobanov tripped was no more than 1 inch high.” (See Huckey, supra, 37 Cal.App.5th at p. 1108 [“The City met its initial burden by making a prima facie showing that the height differential was not a tripping hazard, because plaintiff likely tripped on it where it was no more than one inch high, that there were no broken concrete pieces or jagged concrete edges in the height differential or seam between the two concrete panels at the time plaintiff fell, and that, as far as the City knew, no other persons other than plaintiff had tripped or fallen on the height differential.”].) The City argues that even if the Court were to consider the full height of the base with the screws, the maximum height is “less than an inch and half in height” thus still considered trivial by some trial courts. (SSUF, 4–9, 22.)

The City argues the additional factors show the condition was trivial as well as the height of the base. The City argues and provides evidence including:

1.     “The plastic body of the base is intact and undamaged.” (SSUF, ¶ 9; Wolfe Decl., ¶ 9.)

2.     “In the year before the incident, Plaintiff had visited her mother at her residence at this location almost every day,” Plaintiff had parked in the same area previously, and had visited her mother the night before the incident. (SSUF, ¶¶ 17. 23; Chung Decl., ¶ 3, Ex. 18, Lobanov Depo., at pp. 20:18-20, 27:22-28:3–8.)

3.     “there were no shadows or any debris blocking [Lobanov’s] view of the base.” (SSUF, ¶ 28; Chung Decl., ¶ 3, Ex. 18, Lobanov Dep. at p. 26:18-23.)

4.     The intersection was illuminated by a streetlight, however “Lobanov does not recall the lighting in the intersection at the time.” (SSUF, ¶ 30; Chung Decl., ¶ 3, Ex. 18, Lobanov Depo., at pp. 64:6–65:25, 67:15–18.)

5.     “The City has no record or information of any prior complaints of any trip and falls involving the sign base at 7th and California,” the site of the incident. (SSUF, ¶ 14; Mack Decl., ¶ 3; Bagnard Decl., ¶ 4; Peterson Decl., ¶ 4; Issagholian Decl., ¶ 6.)

The Court finds that the Defendants have met their initial burden to show that the defect is trivial and that Lubanov cannot meet the dangerous condition element of her claims. The total height of the base at less than one and a half inches, plus the lack of other defects, the intersection was illuminated, Lubanov’s familiarity with the area, and the lack of prior complaints of any trip and falls, all weigh in favor of finding the defect was not a dangerous condition.

Additionally, The City argues that the 2^nd cause of action for Negligence fails as matter of law because only common law negligence is alleged, which is not actionable against a public entity. (See Gov. Code § 815, legislative committee comments [In the absence of a constitutional requirement, public entities may be held liable only if a statute (not an ordinance or regulation) is found declaring them to be liable.].) The City argues Lubanov fails to allege vicarious liability of the City’s employees, i.e there are no allegations of the City’s employees committing a tort or other actionable act within the scope of employment, or that there was some statutory basis for the claim. (Motion, pp. 15–16.)

The Court is not persuaded. It is true that the FAC does not include the specific statute within the negligence cause of action, however, the negligence cause of action incorporates all previous allegations and causes of action including the 1^st cause of action for violation of Gov. Code § 835. (See FAC, ¶ 17.) Thus, the City was put on notice of the statutory violation through incorporation of all allegations. Additionally, Lubanov alleges vicarious liability through the City’s employees’ actions, naming the employees as DOES 1–50, and, that the City had constructive or actual notice of the alleged defect. (See FAC, ¶¶ 11, 12, 17–24.) Thus, the City’s argument that the FAC fails to properly allege a negligence cause of action fails. The FAC states a negligence claim against the City pursuant to a violation of Gov. Code § 835.

However, the City still met their burden showing that one element of an Gov. Code § 835 violation cannot be met. Thus, the burden now shifts to the Plaintiff to show a triable issue of fact as the dangerous condition element of their claims.

II.             Plaintiff Meets Their Burden To Show a Triable Issue of Material Fact as to the Dangerous Condition Element.

Lobanov argues and points to the same deposition the City provided to show that Lobanov stated she is ‘not a hundred percent sure” where her foot hit on the base and that she “can’t speculate,” and as to where her foot contacted the base. (See SSUF, ¶ 22; Plaintiff’s Compendium of Evidence (“Plaintiff’s Evidence”), Binder Decl., ¶ 3, Ex. 13 (“Lobanov Depo”) at pp. 57:10-25; 58:9-14.) Lobanov points to testimony within the deposition where she states she did not recall how bright the lights were at the intersection, the “lightbulb was not as bright” as shown in the picture of the intersection at the deposition, and stated where she fell was “dark” and “[t]here was no lights there.” (SSUF, ¶ 30, 31; Lobanov Depo., at pp. 26:18-23; 64:18-21.)

Lobanov provides expert testimony that the subject delineator base was not flush with the street, and “as high as 1- 3/8 inch” in height differential, disputing the City’s testimony that the base was 1.25 inches high. (SSUF, ¶¶ 6, 8; Plaintiff’s Evidence, Burns Decl., ¶ 8, Ex. 2, 8; Binder Decl., ¶ 4, Ex. 14 (“Haro Depo”) at pp. 27:10–25, 29:21–25, 30:1–8.)

Lobanov provides additional disputed facts via admissible expert testimony that the City bolted the subject delineator to the ground at the incident intersection, normally a procedure reserved for major roadways not near pedestrian walkways in residential areas, when it is standard procedure for the City to epoxy the delineator base to the ground in residential areas. (Additional Disputed Facts (“ADF”), ¶¶ 8–10; Plaintiff’s Evidence, Burns Decl., ¶ 10; Binder Decl., ¶ 4, Haro Depo., at pp. 11:16-25, 31:5-12, 26:9-10, 27:5-21, 40:1- 13, 43:12-17; 56:8-12, 62:22-25, 63:1-12, 64:10-16.

Lobanov provides enough admissible evidence to show a dispute of material fact as to the dangerous condition element of the alleged defect. The Court cannot as a matter of law state that the delineator base was trival and thus not a dangerous condition. The over one-inch base height, the possible lighting issue at the intersection, and the fact that the base should have been epoxied instead of bolted, could lead a reasonable juror to decide the defect was not trivial. Lubanov also disputes the City’s heigh measurement argument, since Lubanov’s testimony does not definitively state she tripped on the base plate which measures only one inch high. Lubanov stated that she does not recall where her shoe made contact with the place and thus, Lubanov may have made contact with the bolts measuring between 1.25 and 1-3/8’s inches high. Since most trial courts are reluctant to state a defect over one inch is trivial as a matter of law, this Court cannot as well.

            The City’s Motion for Summary Judgment is DENIED.