Judge Lee S. Arian, Case Number: 21STCV03458, Date: 2025-03-28 Tentative Ruling

Plaintiff brings this personal injury lawsuit against Defendant City of Pasadena (“Defendant” or “City”) arising from an incident on January 9, 2020, at Brookside Park in Pasadena, California. Plaintiff alleges he sustained injury when the latch on the harness of a molded bucket seat swing came up as he was pushing his daughter. Plaintiff asserts a single cause of action for dangerous condition of public property under Government Code section 835. Defendant now moves the Court for summary judgment on the grounds that Plaintiff did not present a claim to the City prior to filing suit, and that the City had no notice of the alleged dangerous condition nor did the City create the condition at issue.

In reviewing a motion for summary judgment or adjudication, 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).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

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.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court overrules Plaintiff’s objections Nos. 1-2. The Parties did not make any other objections to evidence that were material to the Court’s ruling. (CCP § 437c(q).)

"Except as provided in Sections 946.4 and 946.6, no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected..." (Gov. Code, § 945.4.)

It is undisputed that the incident occurred on January 9, 2020, at Brookside Park in Pasadena, California. Defendant has presented evidence showing that, on January 21, 2020, Plaintiff’s counsel sent correspondence to the City with an attached letter of attorney designation authorizing release of information concerning Plaintiff. (UMF No. 2.) However, that document did not describe the incident or the alleged dangerous condition that caused Plaintiff’s injuries.

On January 29, 2020, a City insurance and claims analyst contacted Plaintiff’s counsel to inquire whether the correspondence was intended to constitute a claim. (UMF No. 57.) Plaintiff’s counsel responded that it was only a notice of representation and not a claim. (Ibid.)

On July 27, 2020, Plaintiff’s counsel sent an electronic communication to the City requesting a follow-up on the earlier notice of representation. The City’s claims analyst responded by confirming receipt of the notice of legal representation and again confirmed that the correspondence was not considered a claim by either parties. (UMF No. 58.)

Additionally, the City conducted a search of its records and found no claim for damages or application for leave to present a late claim relating to Plaintiff and the January 9, 2020 incident. (UMF Nos. 34, 36.)

Defendant has presented evidence showing that the complaint was filed on January 28, 2021, without first submitting a claim to the City, and has met its initial burden.

Plaintiff introduced a claim form (Ex. 3) dated July 27, 2020, and asserts that a claim was submitted prior to filing the present complaint. However, Plaintiff merely produced a signed and dated claim form, without any evidence showing that the form was actually mailed or sent to the City. The only evidence offered regarding mailing is Plaintiff’s counsel Malek’s declaration, which states: “Attached hereto as Exhibit 3 is a true and correct copy of Plaintiff’s completed and mailed City of Pasadena Claim Form.” (Malek ¶ 5.) The declaration does not state to whom the form was mailed or when it was mailed. There is no proof of service or certificate of mailing demonstrating that the form was ever sent to the City.

This evidentiary gap is significant because Defendant, in the moving papers, asserts that it never received any claim from Plaintiff. Additionally, in the First Amended Complaint, Plaintiff alleges that the claim was sent to the City of Los Angeles, not the City of Pasadena. (FAC ¶ 6.) Thus, whether the claim was actually mailed and properly served is critical to establishing a triable issue of fact, but Plaintiff has presented no evidence showing that the claim was ever mailed to the City. Accordingly, in the absence of admissible evidence showing that a claim was ever submitted to the proper entity, Plaintiff has failed to raise a triable issue of fact on the issue of claim presentation.

“Except as otherwise 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 meet its initial burden under Government Code section 835, subdivision (a), Defendant submitted undisputed evidence showing that no negligent or wrongful act or omission by a City employee created the alleged dangerous condition. The swing was installed by T.D. Grogin Construction according to manufacturer specifications, and the warranty remained in full force and effect. (UMF No. 14.) City employees conducted routine inspections twice per month, which included inspection of the harness latch. (UMF Nos. 19–22.) The last inspection prior to the incident was conducted on December 23, 2019, and no defects were reported in the swing or latch. (UMF Nos. 27–28.) These facts show the swing was properly maintained and that no City employee affirmatively created the alleged dangerous condition.

To meet its burden under Government Code section 835, subdivision (b), Defendant also submitted undisputed evidence that the City has no record of prior claims, complaints, or work orders regarding the swing or latch between 2012 and the date of the incident. (UMF Nos. 38, 39.) Additionally, the City conducted routine inspections of playground areas and equipment twice per month during the time of the incident. (UMF No. 20.) On December 23, 2019, the City inspected the swing, including the latch, and found no visible defect. (UMF Nos. 22, 27–28.) Accordingly, Defendant has met its initial burden to negate liability under both Government Code section 835, subdivisions (a) and (b).

To raise a triable issue of fact, Plaintiff cites to the deposition of city employee Isai Gonzalez, asserting: (1) that if an accurate inspection of the playground had been conducted, the dangerous condition would have been seen, and (2) that any omission from the inspection logs indicates the inspection was inaccurate. However, the opposition did not cite to any specific evidence in the record and instead states only, “(ADD Exhibit of Isai’s DEPO here).” Nowhere in Gonzalez’s deposition does he state or suggest that a defect such as a loose latch would definitely have been detected if the inspection had been properly performed, or that the absence of notes in the inspection logs proves the inspection was inaccurate.

Plaintiff also argues that Ivan Swinney, despite working for the City for several years, was unqualified to perform unsupervised inspections of the City’s playgrounds because he failed the Certified Playground Inspector test in 2017. However, Plaintiff has not established why such certification was required. No expert declaration has been submitted to support this contention. In fact, Gonzalez himself testified that he trained Swinney on how to conduct inspections at Reese’s Retreat, the City playground area where the alleged incident occurred. (Gonzalez Depo. 50:5–7.) Furthermore, to establish constructive notice under Government Code section 835.2, subdivision (b), Plaintiff must show that (a) the condition existed for such a period of time and (b) the condition was of such an obvious nature. For this purpose, the Court sees no reason why certification is required to detect a defect of an obvious nature. Plaintiff’s argument might carry weight if the alleged defect were latent or required specialized knowledge to identify, but that is not the case here.

Plaintiff further contends that Gonzalez “does not allow other employees who do not have this certification to perform unsupervised inspections of the playground.” Nowhere in Gonzalez’s deposition does he state this. In fact, the assertion is contradicted by Gonzalez’s own testimony, where he confirmed that he directed Swinney to conduct inspections of Reese’s Retreat without his presence. (Gonzalez Depo. 22:11–14.)

As to the alleged negligence of a City employee in creating the dangerous condition under Government Code section 835(a), Plaintiff provides no evidence showing that the alleged defect in the latches was created by a City employee. Plaintiff argues that the Court should find the City liable based on its control over Reese’s Retreat, primarily through its maintenance responsibilities and supervision of Parks and Recreation staff. However, Plaintiff cites no authority supporting the leap from control over the property to a finding that City employees negligently caused the alleged defect. Under Plaintiff’s reasoning, governmental entities would be deemed to have negligently created any alleged defect on public property merely by virtue of exercising control, which is not the standard under Government Code section 835, subdivision (a).

Accordingly, Plaintiff failed to raise a triable issue of fact as to both claim presentation and notice, and summary judgment is granted.

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’s 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. Lee S. Arian

Judge of the Superior Court