Judge: Joel L. Lofton, Case: 23AHCV00258, Date: 2024-08-12 Tentative Ruling

Case Number: 23AHCV00258    Hearing Date: August 12, 2024    Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     August 12, 2024                                  TRIAL DATE:  January 21, 2025

CASE:                         SARAH EDELMAN V. CITY OF DUARTE, ET AL.

CASE NO.:                 23AHCV00258 

MOTION FOR SUMMARY JUDGMENT

MOVING PARTIES:          Defendant City of Duarte (the “City”)

RESPONDING PARTY:     Defendant Charter Communications, Inc. (“CCI” and also known as “Spectrum”) (Opposition)
Plaintiff Sarah Edelman (Joinder to Opposition)

SERVICE:                             Filed May 6, 2024

OPPOSITION:                      Filed July 24, 2024 (Spectrum)
Filed July 24, 2024 (Edelman)

REPLY:                                 Filed August 2, 2024

RELIEF REQUESTED

            City moves for summary judgment.

TENTATIVE RULING

            The City’s motion for summary judgment is DENIED.

BACKGROUND

            This complaint arises out of Plaintiff’s premises liability claim against the City and CCI. The complaint alleges on approximately August 20, 2022, Plaintiff was walking on a sidewalk when she fell through a damaged portion of the sidewalk and suffered severe injury. The damaged portion was part of a communications box. The causes of action include negligence and dangerous condition of public property. The complaint alleges Plaintiff has suffered wage loss, medical expenses, general damage, loss of earning capacity, and interest thereon.

LEGAL STANDARD

            A.    Motion for Summary Judgment

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.”  (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) 

“A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

DISCUSSION

            The City moves for summary judgment against Plaintiff, asserting there is no triable issue of material fact on Plaintiff’s claim against the City. Spectrum opposes. Plaintiff joins Spectrum’s opposition, and her joinder incorporates Spectrum’s arguments by reference and contains no substantive arguments of its own. 

Evidentiary Objections

Spectrum’s Evidentiary Objections to Overstreet Declaration:

            OVERRULED: 1-5

            SUSTAINED: None

Spectrum’s Evidentiary Objections to Sandoval Declaration:

OVERRULED: 6-8

                        SUSTAINED: None

Factual Background

Plaintiff alleges that she was injured on August 20, 2022, when she fell through a utility vault cover while walking westbound on the north side of the sidewalk on Huntington Drive in Duarte, California. (The City’s Separate Statement of Undisputed Facts (“SUF”) 1.) Plaintiff concedes that she has no specific timeline for how long the utility vault cover may have been damaged prior to her fall. (SUF 3.) Plaintiff called the City to inform it of her fall, and a City employee contacted the responsible utility provider, Spectrum. (SUF 8-10.) Spectrum confirmed it owned the vault cover and Spectrum had someone repair the vault cover the same day. (SUF 10.) Spectrum admits it owns and controls the utility vault cover. (Spectrum’s Separate Statement of Disputed Facts (“SSDF”) 11.) Spectrum disputes that it exclusively controls the subject cover. (SSDF 11.)

Analysis

Negligence

Government Code § 815(a) states that “[e]xcept as otherwise provided by statute: [¶] … [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.” (See also Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 899.) In other words, “Government Code section 815 … abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution.” (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1339 [internal grammatical marks and citation omitted].) Thus, “[i]n California, all government tort liability must be based on statute.” (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)

Premises Liability

An exception to the general rule of section 815(a) is created by Government Code § 835, which provides that a public entity can be liable for injury caused by a dangerous condition of its property. To prove a dangerous condition, Plaintiff is required by Government Code § 835, the relevant jury instruction, and prevailing authority to prove each of the following:

1. That the City owned or controlled the property;

2. That the property was in a dangerous condition at the time of the incident;

3. That the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred;

4. That negligent or wrongful conduct of the City’s employee acting within the scope of his or her employment created the dangerous condition or that the City had notice of the dangerous condition for a long enough time to have protected against it;

5. That Plaintiff was harmed; and

6. That the dangerous condition was a substantial factor in causing Plaintiff’s harm.

(Gov. Code § 835; CACI 1100; Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105 (emphasis added).) The Plaintiff need not prove both a negligent act and notice; only one ground is required. (Curtis v. State (1982) 128 Cal.App.3d 668, 693; see Flournoy v. State (1969) 275 Cal.App.2d 806 (court held that both theories of liability may be asserted simultaneously as alternate grounds of liability).) What distinguishes the two grounds in practice is who created the dangerous condition. When the public entity itself created it, the action is usually brought under § 835(a). When the dangerous condition is a result of the acts of third parties, § 835(b) supports the action. (Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 836.)

Existence of a Dangerous Condition

Government Code § 835 makes a public entity liable for the dangerous condition of its property. Government Code § 830(a) defines “dangerous condition” as “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.” To establish liability, the plaintiff must prove either that an employee of the public entity negligently created the dangerous condition or that the public entity had notice of it. (Government Code §§ 835(a)-(b).)

Negligent or Wrongful Conduct of City Employees

The City does not dispute Spectrum’s evidence that the City maintains certain procedures for the inspection, maintenance, and repair of damaged sidewalks and vault covers in Duarte. (The City’s Response to Spectrum’s Separate Statement of Undisputed Facts (“RSSUF”) 7.) The City does not dispute, and therefore admits, that the City’s custom and practice is to conduct inspections of its sidewalks when performing construction work or when notified, and the City will also conduct random inspections of sidewalks within city limits. (RSSUF 8-9.) The City also does not dispute that its protocols require it to report problems with utility vault covers on sidewalks to a service provider like Spectrum for repair. (RSSUF 10.) The City admits it must first approve any project that would cut into the sidewalk or require repairs to the sidewalk before third party work may commence. (RSSUF 12.) Considering that the damaged portion of the sidewalk is where City employees and/or contractors are to conduct inspections when performing construction work, when notified, or at random, Spectrum’s opposition has successfully shown a triable issue of material fact.

Notice of a Dangerous Condition

Under Government Code § 835(a), plaintiff is not required to prove that the public entity received either actual or constructive notice of the dangerous condition. The alleged basis of liability against the public entity for a dangerous property condition is the negligent or wrongful creation of the condition. The creation by the public entity of a "dangerous" condition dispenses with the necessity of notice because the entity presumably knows already that it has affirmatively created the condition and thus has notice that it is dangerous. (See Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 833.) As explained in Brown, an entity is liable for a dangerous condition created by a public employee under circumstances in which the employee's involvement makes it fair to presume that the entity had notice of the condition. (See id. at 834.)

Actual Notice

To prove that a public entity received actual notice of a dangerous condition within the meaning of Government Code § 835(b), the plaintiff must show evidence of the following two facts under Government Code § 835.2(a). First, that the public entity "had actual knowledge of the existence of the condition" and second, that the public entity "knew or should have known of its dangerous character." (See Hilts v. County of Solano (1968) 265 Cal.App.2d 161.) Neither Plaintiff nor Spectrum has met either of the two elements because Spectrum’s opposition does not argue that the City had actual notice.

Constructive Notice

Government Code § 835.2(b) provides that “[a] public entity had constructive notice of a dangerous condition . . . 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.” (See Carson v. Facilities Dev. Co. (1984) 36 Cal.3d 830 (constructive notice may be imputed to defendant if it can be shown that obvious danger existed for adequate period of time prior to accident and defendant, by reasonable inspection, should have discovered and remedied the situation); See also Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298.) The Code also declares that when the burden of proof is on the plaintiff, evidence may be adduced about whether (1) the condition and its dangerous character "would have been discovered by an inspection system that was reasonably adequate . . . to inform the public entity" about whether the property was safe for its intended and foreseeable uses (Gov. Code § 835.2(b)(1)), and (2) the entity "maintained and operated such an inspection system with due care and did not discover the condition" (Gov. Code § 835.2(b)(2)).

The City nests its argument in its contention that Spectrum cannot prove constructive notice. Spectrum has provided evidence, namely deposition testimony, that the City has an annual concrete repair project, and when the City is notified of a vault cover having an issue, the City will report the issue. (Sandoval Depo. 27:23-29:2; 31:6-17.) It is arguable that the damaged sidewalk condition had existed for such a period of time and was of such an obvious nature that the City should have discovered the condition and its dangerous character in the exercise of due care. Looking at Spectrum’s evidence in the light most favorable to Spectrum and the Plaintiff, a triable issue of material fact exists whether the City had constructive notice of a dangerous condition. A triable issue of material fact exists of whether the City should have learned of the subject defect if they had been appropriately inspecting the sidewalks in the City for hazards.

VII.     CONCLUSION

The City of Duarte’s motion for summary judgment is DENIED.

            Moving Party to give notice.

Dated:   August 12, 2024                               ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court