Judge John J. Kralik, Case Number: 22BBCV01180, Date: 2024-11-01 Tentative Ruling

Plaintiff Javier Mejia (“Plaintiff”) alleges that on February 26, 2022, he was a fare-paying passenger, boarded on Defendant Los Angeles County Metropolitan Transit Authority’s (“Defendant”) “orange line” bus. He alleges that as he was exiting the bus at 5341 Lankershim Blvd. in North Hollywood, he slipped and fell on the steps of the exit as a result of an unspecified liquid substance, causing him to fall on his body and face.

The complaint, filed December 12, 2022, alleges causes of action for: (1) public entity liability (Gov’t Code, §§ 815.2, 815.4); and (2) dangerous condition of public property (Gov’t Code, § 835.)

On July 18, 2024, Defendant Los Angeles County Metropolitan Transportation Authority filed a motion for summary judgment. On October 1, 2024, Defendant filed the supplemental declaration of Raja Singh. In the alternative, Defendant moves for summary adjudication on the following issues:

· Issue 1: Is Plaintiff’s cause of action for dangerous condition of public property precluded since Plaintiff is unable to establish the existence of any dangerous condition of public property?

· Issue 2: Is Plaintiff’s cause of action for dangerous condition of public property precluded since Defendant did not have actual or constructive notice of any alleged dangerous condition of public property?

With the opposition papers, Plaintiff submitted evidentiary objections to Defendant’s evidence. To the extent that Plaintiff objects to the evidence that the separate statement does not comply with the CRC code, the Court recognizes that while Defendant’s separate statement does not comply with the format of separate statements as required under CRC Rule 3.1350, this will not be aground to sustain the objections to the evidence. The objections to Plaintiff’s Claims for Damages and the deposition transcript of Plaintiff are overruled.

Defendant moves for summary judgment or summary adjudication against Plaintiff, arguing that Plaintiff has no evidence that the claimed dangerous condition existed, he has admitted that he did not notice anything on the floor of the bus when he entered nor did he witness anyone spilling anything on the floor during transit, and Plaintiff lacks evidence that Defendant was on notice of any dangerous condition.

“A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) 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 condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition.” (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 123; Gov’t Code, § 835.)

The following facts are undisputed. The alleged incident occurred on February 26, 2022 around 2:10 p.m. (Def.’s Fact 1.) The incident occurred when the bus was stopped at the North Hollywood station stop. (Def.’s Fact 2.) Plaintiff sat in the back of the bus on route to his destination in North Hollywood. (Def.’s Fact 3.) When Plaintiff first boarded the bus and walked towards his seat in the back, he did not identify any hazards or spilt water cups on the floor. (Def.’s Fact 4.) Plaintiff testified that slipping on the steps or platform caused his fall. (Def.’s Fact 5.) Plaintiff testified that he did not know what color the substance was on the floor despite taking a picture of it. (Def.’s Fact 6.) Plaintiff testified that he did not see anything wrong with the step when he was exiting the bus. (Def.’s Fact 7.) Prior to exiting, Plaintiff observed approximately 4 people leave the bus before him through the back exit. (Def.’s Fact 9.) Plaintiff did not know how long the alleged liquid substance was on the floor or how it got there. (Def.’s Fact 10.) Plaintiff did not observe anybody spilling liquid on the floor after getting on the bus but before the incident. (Def.’s Fact 12.) At the time of the deposition, Plaintiff did not know if there was anything to indicate the cause of his fall within the pictures he took on the day of the incident. (Def.’s Fact 13.) On December 12, 2022, Plaintiff filed suit against Defendant alleging a dangerous condition of public property.

Defendant argues that Plaintiff cannot establish that a dangerous condition existed because he was only able to produce one photograph of steps from the bus to support his claim. (Mot., Ex. 4.) Defendant argues, at most, this picture only shows where the incident happened but does not illustrate a puddle of water or any identifiable liquid. Defendant argues that Plaintiff has admitted in his deposition that he did not see any hazardous issues, split water cups, or issues with the bus floor when he boarded the bus; and that he did not notice any debris or water on the floor.

Defendant also argues that Plaintiff’s discovery responses are devoid of any showing that Defendant was on notice of any alleged liquid substance because he lacked any pictures or videos that show that his clothes were wet on the date of the incident, he testified that there was no debris or water on the floor when he boarded the bus, and there was no showing how long the liquid substance was on the floor or how long it had been there. Defendant also provides the declaration of bus operator Raja Singh. In his July 18, 2024 declaration, Mr. Singh states that he was the bus operator at the time of the incident, he performed a pre-shift inspection of the bus which consisted of walking around the exterior and through the interior of the bus at the beginning of his shift to ensure that there were no hazards or other notable items, and he did not receive a complaint of a spill or liquid substance on the floor of the bus prior to Plaintiff’s fall. (7/18/24 Singh Decl., ¶¶3-5.) In his supplemental declaration, he states that in preparation for his September 20, 2024 deposition, he recalled that he relieved the previous bus operator on duty and only performed an exterior inspection of the bus, but not an interior inspection of the bus; he only performs an exterior and interior inspection when driving the bus out of the yard. (9/27/24 Singh Decl., ¶¶4-6.)

In opposition, Plaintiff argues that there are triable issues of material fact regarding whether a dangerous condition existed. He cites to his deposition testimony wherein he testified that he did not know what the liquid substance was and whether it was “piss,” but stated that it was all over his clothes, he got a cut on his elbow which he asked the paramedics to clean (in the event it was urine), and that the left side of his body and back, including his pants and shirt, were wet from the liquid. (Pl.’s Depo. at pp.30-31, 125-126.) Although he did not see any hazards, debris, or water on the floor while he first boarded, he stated generally that he had no particular recollection of the cleanliness of the bus. (Pl.’s Depo. at pp.26-27, 44.) He testified that he did not see anything wrong with the step when exiting the bus, but he knows the liquid caused his fall, stating, “I don’t fall. I have pretty good legs and feet.” (Pl.’s Depo. at p.33.) Plaintiff testified that he did not know how long the liquid was on the floor prior to the fall, how it got there, or how much of it there was (but he estimated it was about 1-2 feet in size—enough to cover his butt, shirt, left arm, left side, and arm). (Pl.’s Depo. at pp.44, 45, 127, 131.) He testified that he did not observe anyone spilling a liquid after getting on the bus and before the incident. (Pl.’s Depo. at p.70.) He testified that he did not know if he had facts to demonstrate how Defendant caused his fall, but that he was not there to examine the bus or see if it had a harsh terrain and that he believed Defendant contributed to his fall in the manner that they cared for the buses. (Pl.’s Depo. at pp.77-78.) Plaintiff also cites to the picture he took of the bus stairs with the liquid. (See Opp. at Ex. A [colored photograph].) Plaintiff also provides the deposition testimony of Mr. Singh. Mr. Singh testified that he inspected the exterior of the bus but could not recall inspecting the interior of the bus. (Opp. at Ex. 3 [Singh Depo. at p.13].) He states that after Plaintiff fell, he spoke with Plaintiff and walked to the back of the bus where he observed liquid on the floor. (Singh Depo. at pp.22-24.)

The Court finds that there are triable issues of material fact that preclude the entry of summary judgment or summary adjudication on the complaint. In the reply brief, Defendant now states that it does not dispute that there was liquid on the floor or that Plaintiff slipped and fell, but argues that Plaintiff cannot establish when a dangerous condition existed on the bus and whether Defendant had constructive notice of the spill long enough for Defendant to have noticed. (Reply at p.3.) According to the notice of the motion, Defendant’s Issue No. 1 asked if Plaintiff’s cause of action for dangerous condition of public property was precluded since Plaintiff is unable to establish the existence of any dangerous condition of public property. However, Defendant has now conceded this point. In addition, Plaintiff has shown by way of his deposition testimony, the deposition testimony of bus operator Mr. Singh, and the photograph of the bus aisle/steps that there was a liquid substance that existed at the time of Plaintiff’s fall. Even if Plaintiff does not know the color of the liquid or how the liquid got on the floor, Plaintiff has raised a triable issue of material fact showing that liquid was on the bus floor and that he slipped and fell on the liquid at the time of the subject incident. As such, the motion for summary adjudication is denied as to Issue No. 1.

Next, Plaintiff has raised a triable issue of material fact regarding notice (Issue No. 2). While Plaintiff testified that he did not know how long the liquid was on the bus floor or how it got there, he also testified that he was not looking for hazards on the bus. In his deposition and declaration, Mr. Singh stated that he did not perform an inspection of the interior of the bus when he was relieved the prior bus driver.[1] Thus, while Defendant’s employee did not have actual notice of a dangerous condition, there are triable issues of material fact regarding whether he had constructive notice of the condition—i.e., whether the “condition 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.” (Gov’t Code, § 835.2(b); George v. City of Los Angeles (1942) 51 Cal.App.3d 311, 315 [stating that it is question of fact for the jury to determine whether the dangerous condition existed for a sufficient length of time to constitute constructive notice and whether a reasonable time to remedy the condition existed]; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1211 [“But in this case, the evidence of defendant's failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant's negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.”].) The motion is denied as to Issue No. 2 as well.

For these reasons, the Court finds that there are triable issues of material fact, such that the motion for summary judgment or, alternatively, for summary adjudication is denied.

Lastly, in the opposition brief, Plaintiff argues that the motion should be denied based on CCP § 437c(h) and (i) on the ground that Defendant failed to produce essential and necessary evidence and engaged in spoliation of evidence. Subsection (h) and (i) state:

(h) If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. …

(i) If, after granting a continuance to allow specified additional discovery, the court determines that the party seeking summary judgment has unreasonably failed to allow the discovery to be conducted, the court shall grant a continuance to permit the discovery to go forward or deny the motion for summary judgment or summary adjudication. …

(CCP § 437c(h), (i).) Plaintiff argues that while Defendant’s employee reported the incident to his supervisor on the day of the incident of February 26, 2022 (Singh Depo. at pp.26-27), Defendant did not place a work order request for the surveillance until almost 2 months later on April 20, 2022, at which time the video had already been deleted as surveillance is only stored for a maximum of 30 days. (Pl.’s AMF 11-16.) Plaintiff provides Defendant’s work order for the surveillance video (Opp. at Ex. 5) and provides Plaintiff’s counsel Igor Fradkin’s declaration. Mr. Fradkin states that on October 18, 2024, his office took the deposition of Defendant’s PMK, the PMK produced the work order that was placed on April 20, 2022, and Mr. Fradkin states that the PMK testified that the surveillance cameras were working properly on the day of the incident but the work order failed because the video had been deleted as surveillance is only stored for 30 days. (Fradkin Decl., ¶¶8-10.) The Court notes that a copy of the October 18, 2024 PMK’s deposition testimony was not provided to support Mr. Fradkin’s statements. At this time, the Court will not make a determination on whether spoliation of evidence occurred based on the evidence presented by Plaintiff in opposition to the motion, nor will this be a ground upon which the motion is denied. Rather, as stated above, the motion for summary judgment/adjudication is denied based on the triable issues of material fact presented by Plaintiff in the opposition brief.

Defendant Los Angeles County Metropolitan Transportation Authority’s motion for summary judgment or, alternatively, for summary adjudication is denied.

[1] Plaintiff provides the declaration of J. Robert Berkstresser, who has been in the commercial bus industry for almost 49 years and was retained as an expert witness. (Opp. at Ex. 2 [Berkstresser Decl.].) Mr. Berkstresser opines that there is a requirement for the bus driver to inspect the bus before he/she starts their shift regarding of starting their shift or relieving another driver from their shift. (Berkstresser Decl., ¶6.) He states that the bus driver is required to do an inspection of the interior and exterior of the bus for safety items and concerns, which include liquid substances on the floor. (Id.)

Superior Court of California

County of Los Angeles

Department B