Judge: Lee S. Arian, Case: 22STCV02016, Date: 2024-02-02 Tentative Ruling

Case Number: 22STCV02016    Hearing Date: February 5, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

The Court would like to hear further argument in this case and specifically wants the parties to address the following:

Evidentiary issues:

Google maps photos are not self-authenticating.  Is there a basis for the court to consider Defendant’s google maps exhibits?

What is the basis for the court to consider the trail map; it also is not self-authenticating, correct?

Legal issues:

Assuming for sake of argument that the path in question is a Class IV Bikeway, does that mean it is not a trail under Government Code 831.4?  Is there clear authority on this issue?

How does Plaintiff address the following paragraph in Defendant’s brief:

Although Ocean Avenue Protected Bikeway parallels the street, it is separated and protected from the street and forms its own distinct trailway. “The Legislature did not exempt from immunity any trails that might be part of the street and highway system in general.” (Farnham v. City of L.A. 1998) 68 Cal.App.4th 1097, 1101.) “Courts have … concluded section 831.4 applies to any trail or path specifically put aside and developed for recreational uses, without regard to its unnatural condition or urban location, and have consistently defined paved, multipurpose paths located in metropolitan areas as ‘recreational trails’ for purposes of section 831.4, subdivision (b) immunity.” Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 931.) “[T]he nature of a trail’s surface is irrelevant to questions of immunity.” (Prokop v. City of Los Angeles (2007) 150 Cal.App.4th 332, 1342.)

Is the issue of what constitutes a trail under Section 831.4 usually

an issue of law or fact?

Even if this were a trail, does the conduct here really fit the purpose of immunity.  In other words, could the purpose of the statute really have been to shield a city from liability when a clear dangerous condition exists on its property and, despite notice, it does nothing to protect the public?

To be fully transparent, the Court’s present thinking on this case is as follows, but its position is not settled:

I.            INTRODUCTION

On January 18, 2022, Plaintiff Scott Harber (“Plaintiff”) filed a Complaint against Defendant City of Santa Monica (“Defendant”) and DOES 1 to 50, alleging causes of action (1) premises liability and (2) general negligence. The Complaint alleges that on May 30, 2021, Defendant created and/or allowed to exist an unreasonably dangerous condition on its property causing Plaintiff to crash while riding his bicycle and suffer severe injuries.

On October 3, 2023, Defendant filed a Motion for Summary Judgment or Summary Adjudication. Plaintiff filed his opposition on January 18, 2024. The optional reply was due January 29, 2024.  On January 31, 2024, Defendant filed a reply.

II.          LEGAL STANDARD

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.)

III.        EVIDENTIARY OBJECTIONS

Plaintiff’s Objections

In support of its Motion, Defendant advances its Exhibit List and the declaration of Jason Kligier.

Plaintiff objects to portions of Defendant’s Exhibit List and the declaration of Jason Kligier. The objections to Exhibit F photograph and Exhibits M-N are OVERRULED.  The objections to Exhibit F narrative and Exhibits K-L are SUSTAINED. 

          Defendant’s Objections

          In support of its Opposition. Plaintiff advances various declarations and exhibits thereto.  Defendant has objected to various of the statements in these declarations and exhibits, objections 1-19.  Objections 1-19 are OVERRULED.  Defendant also objects in objection 20,to the Court taking judicial notice of a specific document, which is SUSTAINED. 

JUDICIAL NOTICE

Defendant’s request for judicial notice of (1) October 13, 2020, City Council Report attached as Exhibit I; (2) City of Santa Monica Capital Improvement Program FY 2018-20 Adopted Biennial Budget attached as Exhibit J; and (3) City of Santa Monica Notice of Completion of the Ocean Avenue Protected Bikeway attached as Exhibit M is GRANTED.

Plaintiff’s request for judicial notice of (1) Santa Monica Bike Action Plan Amendment attached as Exhibit 6 to Plaintiff’s Evidence in Opposition; (2) Excerpt from the California Highway Design Manual, § 62.1(2)(d) attached as Exhibit 16 to Plaintiff’s Evidence in Opposition; (3) State of California Highway Design Information Bulleten 89-02 attached as Exhibit 17 to Plaintiff’s Evidence in Opposition; and (4) Excerpt from the California Highway Design Manual, § 62.3(5)(g) attached as Exhibit 21 to Plaintiff’s Evidence in Opposition is GRANTED. The request for judicial notice of  (5) 2021-06-07 Claim Against City of Santa Monica attached as Exhibit 22 to Plaintiff’s Evidence in Opposition is DENIED.

IV.         DISCUSSION

          Defendant moves for summary judgment of Plaintiff’s Complaint on the grounds that Plaintiff’s claims are barred pursuant to Government Code Section 831.4 (trail immunity). Alternatively, Defendant moves for summary adjudication on the grounds that: (1) Plaintiff’s first cause of action for premises liability is barred pursuant to Government Code Section 831.4 (trail immunity); (2) Plaintiff’s second cause of action for general negligence is barred pursuant to Government Code Section 831.4 (trail immunity); and (3) Plaintiff’s second cause of action for general negligence is barred pursuant to Government Code Section 815.

Issue Nos. 1-2: Government Code Section 831.4

“The elements of a cause of action for premises liability are the same as those for negligence.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) “To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

However, “[a] public entity, public employee, or a grantor of a public easement to a public entity for any of the following purposes, is not liable for an injury caused by a condition of:

(a) Any unpaved road which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a (1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.

(b) Any trail used for the above purposes.

(c) Any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety. Warnings required by this subdivision shall only be required where pathways are paved, and such requirement shall not be construed to be a standard of care for any unpaved pathways or roads.” (Gov. Code, § 831.4.)

Defendant argues the Ocean Avenue Protected Bikeway is a trail within the meaning of Government Code Section 831.4 that provides for the recreational activity of bicycling. Furthermore, Defendant argues the Ocean Avenue Protected Bikeway provides access to the ocean, the beach, the Marvin Braude Bike Path along the beach, and Palisades Park. Defendant also contends Plaintiff used the Ocean Avenue Protected Bikeway on the day of the incident both for the recreational activity of bicycling and to get to the beach.

Defendant has met its initial burden of proof that a genuine issue of material fact does not exist as to whether Ocean Avenue Protected Bikeway is a trail for purposes of immunity under Government Code Section 831.4. Defendant proffered a photograph of the purported signpost base, October 13, 2020 City Council Report; City of Santa Monica Adopted Biennial Budget; Notice of Completion; and Street Improvement Plan.  The City Council reports, budget plan, notice of completion, and street improvement plan indicate that Ocean Avenue Protected Bikeway was created and designed to be a trail for recreational activities listed in and protected under Government Code Section 831.4. Lastly, Defendant proffered Plaintiff’s Complaint and discovery request responses suggesting that Plaintiff used the purported trail on Ocean Avenue Protected Bikeway on the day of the subject incident.

The burden now shifts to Plaintiff to show that a triable issue of one or more material facts do exist as to whether Ocean Avenue Protected Bikeway is a trail for purposes of immunity under Government Code Section 831.4.

In opposition, Plaintiff argues Defendant is liable for an injury caused by a dangerous condition of public property under Government Code Section 835, namely, a metal sign slot or stub on the trail, which, Plaintiff contends Defendant conceded is a dangerous condition. [PAF No. 22.] Plaintiff further contends Defendant had notice of the dangerous condition created by the metal stub as required under Government Code Section 835.2. Plaintiff also asserts that City Police Officer Reyes responded to a May 29, 2021 injury incident involving the metal stub, which occurred approximately 36 hours before the metal stub injured Plaintiff. [PAF No. 37.] Most significantly, Plaintiff argues trail immunity does not apply because the dangerous condition was not in the bike lane and Ocean Avenue is not a trail. [PAF No. 21.] Additionally, Plaintiff contends Defendant did not plead trail immunity as an affirmative defense.[1] Finally, Plaintiff asserts courts have never applied Government Code Section 831.4 to a bike lane.

Plaintiff proffered photographs of the metal stub, as well as City of Santa Monica Highway Design Manual, Santa Monica Bike Action Plan Amendment, deposition transcripts, Design Information Bulleten, City of Santa Monica’s Answer to Complaint, City of Santa Monica’s response to Plaintiff’s Special Interrogatories (Set One), Axon Body Camera Footage, and Santa Monica Police Incident Report. This proffered evidence demonstrates beyond mere speculation that a genuine issue of material fact exists as to whether the Ocean Avenue Protected Bikeway is a trail. The proffered evidence also indicates there is a genuine issue of material fact as to whether Plaintiff’s incident occurred on the purported trail or bike lane.

Therefore, Defendant’s motion is denied as to this issue.

Issue No. 3: Government Code Section 815

“Except as otherwise provided by statute:

(a) 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.

(b) The liability of a public entity established by this part (commencing with Section 814) is subject to any immunity of the public entity provided by statute, including this part, and is subject to any defenses that would be available to the public entity if it were a private person.” (Gov. Code, § 815.)

Defendant argues it cannot be liable for common law negligence unless based a specific statute declaring it to be liable as a public entity. Defendant further argues Plaintiff identifies no statutory basis for a general negligence claim against it.

Defendant has met its initial burden of proof that a genuine issue of material facts does not exist as to whether Defendant is immune from liability for general negligence pursuant to Government Code Section 815. Defendant proffered Plaintiff’s Complaint, Plaintiff’s response to special interrogatories, Plaintiff’s response to request for admissions, Plaintiff’s response to form interrogatories, and Plaintiff’s response to request for production of documents. The proffered Complaint and responses to discovery requests for information and documents show that Plaintiff has not pled or cited any statutory basis for Defendant’s liability as a public entity for general negligence as required under Government Code Section 815.

The burden now shifts to Plaintiff to show that a triable issue of one or more material facts exist as to whether Defendant is immune from liability for general negligence pursuant to Government Code Section 815.

In opposition, Plaintiff argues Defendant is vicariously liable for its employees’ negligence, including Officer Reyes, under Government Code Section 815.2. Furthermore, Plaintiff argues Government Code Section 840.2 authorizes liability against a public entity employee liable for a dangerous condition of public property. As such, Plaintiff contends Officer Reyes knew or should have known the metal stub in the roadway was dangerous approximately 36 hours before Plaintiff was injured; Officer Reyes took photos and logged them into evidence but failed to take any action to warn others of the metal stub’s dangerous condition to make it safe. Moreover, Plaintiff contends as a direct and proximate result of Officer Reyes’ negligence he suffered severe injuries. Finally, Plaintiff argues Defendant failed to negate any of the elements of his second cause of action as discussed above.

Plaintiff’s proffered evidence as set forth above demonstrates that a genuine issue of material fact exists as to whether Defendant is immune from liability for general negligence pursuant to Government Code Section 815. The deposition transcript of Officer Reyes indicates he was aware of the metal stub approximately 36 hours before Plaintiff was injured from the same metal stub; Officer Reyes discovered the stub within the scope of his employment, photographed the metal stub, logged the photographs of the metal stub into police evidence, but did not warn others of the metal stub’s presence. The deposition transcripts of Ashley Allen suggest the metal stub was described to be a dangerous condition likely to cause injury to cyclists, motorists, scooter riders, pedestrians, etc.

Therefore, Defendant’s motion is denied as to this issue.

VI.     CONCLUSION

          In light of the foregoing, Defendant’s Motion for Summary Judgment is DENIED.