Judge Kerry Bensinger, Case 19STCV02070 2023-02-02 Tentative Ruling

On January 23, 2019, Plaintiff Latasha Bracks (“Plaintiff”), filed this action against the City of Los Angeles, County of Los Angeles, Los Angeles Unified School District (“Defendant/LAUSD”), and the Department of General Services. The Complaint alleges that Plaintiff “was walking on the floor of the hallway at/or near 1963 E. 103^rd Street, Los Angeles, CA 90002” and she “slipped and fell, causing Plaintiff severe injuries.” (Complaint ¶ 14.). The Complaint asserts causes of action for negligence and premises liability.

In March and April 2021, Plaintiff dismissed City of Los Angeles, County of Los Angeles, and Department of General Services.

On August 30, 2022, Defendant LAUSD filed a motion for summary judgment, or in the alternative, summary adjudication.

On October 14, 2022, this Court granted Plaintiff’s ex parte application to continue the summary judgment hearing date. Plaintiff filed another ex parte application seeking to continue the hearing again because Plaintiff had not taken necessary depositions to oppose the motion. However, on January 5, 2023, the Court denied Plaintiff’s ex parte motion. On January 23, 2023, the Court also denied Plaintiff’s joint stipulation to continue the motion for summary judgment.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Defendant argues that summary judgment should be granted as to both causes of action. Defendant argues that Plaintiff’s causes of action fail because: (1) Plaintiff cannot establish the existence of a dangerous condition of public property; (2) Plaintiff cannot establish that LAUSD has actual or constructive notice of a dangerous condition; (3) Plaintiff cannot establish that an LAUSD employee negligently or wrongfully created a dangerous condition; and (4) Plaintiff cannot establish that any condition of property was a substantial factor in causing the subject incident giving rise to this lawsuit.

As framed by the Complaint, Plaintiff’s allegation is that she “was walking on the floor of the hallway at/or near 1963 E. 103^rd Street, Los Angeles, CA 90002. As she was walking at or near the premises Plaintiff slipped and fell, causing Plaintiff severe injuries and damages.” (Complaint ¶ 14.) Plaintiff alleges that the area on which Plaintiff fell was in a “dangerous, defective, and unsafe condition” and that Defendant had actual or constructive notice of the dangerous condition for a sufficient time prior to the accident but failed to protect against the condition. (Complaint ¶ 16, 25.) Plaintiff alleges that Defendant “failed to warn Plaintiff of said dangerous, defective, and unsafe condition.” (Complaint ¶ 26.) Plaintiff alleges liability under Government Code § 835. (Complaint ¶ 16.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) A public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that (1) 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) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.)

A public entity had actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. (Gov. Code, § 835.2, subd. (a).) A public entity had constructive notice of a dangerous condition only if the plaintiff establishes 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. Code, § 835.2, subd. (b).)

Defendant argues that Plaintiff has no evidence of a dangerous condition on the property. Defendant puts forward Plaintiff’s deposition testimony showing that Plaintiff did not see anything on the floor at the location where she fell prior to the fall. (Exh. H. Bracks Depo. 55:20-22, 64:6-8.) Additionally, Defendant argues that Plaintiff has no evidence of the dangerous condition because Plaintiff testified she did not take any pictures of the location of her fall. (Exh. H Bracks Depo. 66:23-67:3.)

Defendant additionally provides evidence that shows that Defendant did not have actual or constructive notice of any dangerous condition. Defendant provides evidence in the form of declarations that show that, on the date of the incident, two separate inspections of the subject hallway were completed and neither person discovered anything on the hallway floor that could have been a hazard. (Carrillo Decl. ¶¶ 6, 9; Jordan Decl. ¶ 13.) Additionally, the staff had no previous complaints of anything on the hallway floor and there had been no previous reports of falls or incidents in the hallway that day. (Jordan Decl. ¶¶ 12, 15-17; Carrillo Decl. ¶¶12, 14, 15.)

Mr. Carrillo, the Building and Grounds employee on duty at the school at the time of the incident, stated that he inspected the campus, including the hallway where the fall occurred, and stated that he did not see any water, or any other substance that could be a slip, trip, and/or fall hazard on the main hallway floor. (Carrillo Decl. ¶¶ 6, 9.) Additionally, Mr. Carrillo states that his regular duties included responding to radio calls, complaints, or reports of any clean up issues that needed his attention on the campus, and on the date of the incident, he states that he did not receive any calls about any substance on the floor that could be a slip, trip, and/or fall hazard. (Carrillo Decl. ¶¶ 5, 12.)

Ms. Jordan, the principal of the school at the time of the incident, stated that she walked through the subject hallway fifteen minutes prior to the incident, and Ms. Jordan states she did not see any water or any other substance on the hallway floor that could have been a hazard. (Jordan Decl. ¶ 13.)

Additionally, Defendant argues that Plaintiff’s deposition testimony that she did not see anything on the floor prior to the fall shows that the alleged dangerous condition was not sufficiently obvious to put Defendant on constructive notice of any condition. (Exh. H Plaintiff’s Depo. 55:16-22.)

Additionally, in response to discovery, when Plaintiff was asked to produce all documents and offer facts to support the allegation that LAUSD had actual or constructive knowledge of the dangerous condition or that Defendant knew of said condition, Plaintiff had two separate responses: “[a]fter a reasonable, good faith and diligent search, Plaintiff does not possess, or have custody of, or control of said documents because none exist” and “[t]his information is presently unknown to Plaintiff.” (Exh. D. Special Interrogatories Set One (Nos. 15, 16, 18-20, 22, 49, 51); Exh. G. Plaintiff’s Response to Special Interrogatories; Exh. C. Request for Production Set One (Nos. 24-26, 31); Exh. E. Plaintiff’s Response to Request for Production (Nos.24, 25); Exh. F Plaintiff’s Amended Responses to Request for Production (Nos. 26 & 31).)

Further, Defendant puts forward discovery responses showing that Plaintiff does not know how the dangerous condition was created. In response to Special Interrogatory Set One No. 9, stating “Please IDENTIFY each factor which YOU contend created the dangerous condition of public property that caused or contributed to the INCIDENT,” Plaintiff responded “it is unknown to Plaintiff how the dangerous condition occurred. Plaintiff believes this information may be in the hands of Defendant.” (Exh. D, Exh. G.) Additionally, Plaintiff responded in deposition that she did not know if Defendant had created the condition on the hallway floor. (Exh. H Plaintiff’s Depo 149:18-20.)

The evidence meets Defendant’s burden of showing that there was no dangerous condition and that, if there was a dangerous condition, Defendant did not have actual or constructive notice, and could not have had notice because the condition was not sufficiently obvious. Defendant has shifted the burden to Plaintiff to raise a triable issue of material fact. However, Plaintiff has not opposed this motion. As such, Plaintiff has not met her burden.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court