Judge: Lisa R. Jaskol, Case: 21STCV35174, Date: 2025-03-05 Tentative Ruling
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Case Number: 21STCV35174 Hearing Date: March 5, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 22, 2021, Plaintiff Dedra Broadnax (“Plaintiff”) filed this action against Defendants City of Hawthorne (“Defendant”) and Does 1-50 for statutory liability/dangerous condition of public property and negligence.
On February 8, 2023, Defendant filed an answer.
On June 10, 2024, Defendant filed a motion for summary judgment. The motion was set for hearing on October 7, 2024. On June 17, 2024, the Court continued the hearing to January 7, 2025. On December 23, 2024, Plaintiff filed an opposition. On December 23, 2024, Plaintiff filed an opposition. On January 2, 2025, Defendant filed a reply. The Court continued the hearing to March 5, 2025.
On January 3, 2025, Plaintiff filed a “supplemental” opposition, a “supplemental” separate statement, and the declaration of Eris Barillas. On January 7, 2025, Defendant filed an objection to the Barillas declaration. The Court has not considered these unauthorized filings.
Trial is scheduled for April 8, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
PLAINTIFF’S EVIDENTIARY OBJECTIONS
Overruled: 1-7
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Dangerous condition of public property
Government Code section 835 provides:
“Except as 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.)
Government Code section 830 provides:
“As used in this chapter:
“(a) ‘Dangerous condition’ means 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.
“(b) ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
“(c) ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”
(Gov. Code, § 830.)
Government Code section 830.2 provides:
“A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”
(Gov. Code, § 830.2.)
Government Code section 835.2 provides:
“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
(Gov. Code, § 835.2.)
Government Code section 835 “ ‘sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.’ ” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 108 (Stack), quoting Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) “To recover under section 835, a plaintiff must prove that a “ ‘dangerous condition proximately caused his or her injury; that the condition created a reasonably foreseeable risk of the type of injury that was actually incurred; and that the public entity either created the dangerous condition through a negligent or wrongful act or omission of its employee, or had actual or constructive notice of the dangerous condition sufficiently in advance of the accident as to have had time to remedy it.’ ” (Id. at pp. 108-109, quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 155.) “ ‘An initial and essential element ... is proof a dangerous condition existed.’ ” (Id. at p. 109, quoting Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)
For purposes of Government Code section 835, “ ‘ “[d]angerous condition” means 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.’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Gov. Code, § 830, subd. (a).) Conversely, “ ‘a condition is not a dangerous condition ... if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.’ ” (Ibid., quoting Gov. Code, § 830.2, footnote omitted.)
“These statutory parameters are meant to ‘ “guarantee that cities do not become insurers against the injuries arising from trivial defects.” ’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755.) “Together with the surrounding case law, they form what is known as the ‘trivial defect doctrine,’ shielding public entities from liability for defects that a court deems trivial as a matter of law.” (Ibid.)
DISCUSSION
The complaint includes the following allegations:
On June 22, 2020, at approximately 11:00 a.m., Plaintiff was walking southbound on the sidewalk on Hawthorne Boulevard in the City of Hawthorne. As she approached the intersection with 135th Street she intended to make a right turn and cross 135th Street. A planter at this intersection protrudes into the sidewalk and is in the way of pedestrians preparing to cross the street. Plaintiff came into contact with the planter, causing her to trip and fall into it. As a result, Plaintiff was injured.
Defendants owned, operated, managed, designed, planned, engineered, and maintained the sidewalk at Hawthorne Boulevard in the city of Hawthorne, County of Los Angeles, California.
B. Undisputed facts
The incident occurred on the morning of June 22, 2020, on a sidewalk located at the northeast corner of the intersection of Hawthorne Boulevard and 135th Street in Hawthorne, California. Plaintiff parked in the median (or island) of Hawthorne Boulevard, exited her vehicle, and walked eastbound towards her dentist’s office, Schnierow Dental Care, located at 13450 Hawthorne Boulevard in Hawthorne. It was not raining, it was clear, Plaintiff was not carrying anything, and Plaintiff did not have to avoid any other pedestrians as she walked to her dentist’s office. Plaintiff had seen her dentist on and off for 20 years.
While walking to her dentist’s office, Plaintiff tripped and fell at a corner of a planter (“planter”) located in the northeastern sidewalk of Hawthorne Boulevard and 135th Street, falling on her left knee. The sidewalk around the planter is made of concrete and is generally grey in color. The south edge of the planter is approximately in line with the north boundary line of the crosswalk and measures from the near and far corners of the planter to the curbline, 4 feet 6 ½ inches and 8 feet 2 inches, respectively.
There were no witnesses.
The color of the planter materials is predominantly brown compared to the surrounding grey colored concrete sidewalk. The planter has an oblique shape with pointed corners compared to the surrounding grey colored flat concrete sidewalk. The planter consists of woodchips and dirt which is random and variable compared to the generally uniform concrete sidewalk. The northern grooved border of the curb ramp that connects the crosswalk to the east sidewalk abuts the subject planter.
On January 5, 2021, Plaintiff filed a government claim form with the City of Hawthorne. After Plaintiff’s government tort claim was rejected, Plaintiff filed a complaint against Defendant on September 22, 2021, alleging causes of action for premises liability and negligence.
On February 23, 2024, biomechanics and safety consultant Mark Blanchette, PhD, performed a site inspection of the scene of the incident, which was the sidewalk of the northeastern corner of the intersection of 135th Street and Hawthorne Boulevard, southwest of the Schnierow Dental Office in Hawthorne, California.
C. Trivial defect
1. Defendant has carried its initial burden of showing
the defect was trivial
Defendant argues the Court should grant summary judgment because Plaintiff cannot show that the sidewalk where she tripped constitutes a dangerous condition of public property. According to Defendant, Plaintiff tripped on a planter which created a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (See Gov. Code, § 830.2.)
To support this argument, Defendant has presented evidence that:
· The sidewalk around the planter is made of concrete
and is generally grey in color.
· The south edge of the planter is approximately in line
with the north boundary line of the crosswalk and measures from the near and
far corners of the subject planter to the curb line, 4 feet 6 ½ inches and 8
feet 2 inches, respectively.
· The elevation change between the sidewalk and the planter
in the approximate location that Plaintiff allegedly fell is approximately 2
inches.
· The color of the planter materials is predominantly
brown compared to the surrounding grey colored concrete sidewalk.
· The planter has an oblique shape with pointed corners
compared to the surrounding grey colored flat concrete sidewalk.
· The planter consists of woodchips and dirt which is
random and variable compared to the generally uniform concrete sidewalk.
· The northern grooved border of the curb ramp that
connects the crosswalk to the east sidewalk abuts the planter, providing a
visual and tactile delineation between the sidewalk and planter.
· There are no visual obstructions which would have prevented
Plaintiff from seeing the elevation change.
2. Plaintiff has raised a triable issue of fact
Plaintiff has presented evidence that the planter extended into her walking path and intruded into the natural flow of pedestrian traffic (Plaintiff’s exh. A, ¶¶ 5-6), that Plaintiff was walking carefully, looking straight ahead as she turned, and did not deviate from the sidewalk (Plaintiff’s exh. A, ¶ 7), and that as Plaintiff turned left onto the sidewalk, her foot unexpectedly stepped into the planter that extended into her walking path (Plaintiff’s exh. A., ¶¶ 5, 7). “No warning signs, barriers, or markings were present to alert pedestrians of the planter’s protrusion into the walking path. The planter’s sharp corner and placement created a hidden hazard that was not obvious to [Plaintiff] as [she] turned onto the sidewalk.” (Plaintiff’s exh. A, ¶ 8.)
This evidence raises a triable issue of fact concerning whether the planter created a hidden tripping hazard for pedestrians who were using the sidewalk with due care in a manner in which it was reasonably foreseeable that it would be used. Therefore, Defendant has not shown that the planter constituted a trivial defect as a matter of law.
D. Open and obvious
Defendant
argues the allegedly dangerous condition was open and obvious. (Motion pp. 14-15.)
“As
a general rule, an owner or possessor of land owes no duty to warn of obvious
dangers on the property.” (Christoff
v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) “There is no duty to warn of an obvious danger but the possessor of land does
have a duty to warn an invitee not only of conditions known by him to be
dangerous but also of conditions which might have been found dangerous by the
exercise of ordinary care. [Citation.] The invitor may assume that an invitee will perceive that which would be
obvious to him through the ordinary use of his senses. [Citation.]” (Beauchamp v. Los Gatos Golf
Course (1969) 273 Cal.App.2d 20, 27.)
“Foreseeability
of harm is typically absent when a dangerous condition is open and obvious.
[Citation.] ‘Generally, if a danger is so obvious that a person could
reasonably be expected to see it, the condition itself serves as a warning, and
the landowner is under no further duty to remedy or warn of the condition.’
[Citation.] In that situation, owners and possessors of land are entitled to
assume others will ‘perceive the obvious’ and take action to avoid the
dangerous condition.” (Montes v. Young Men’s Christian Assn. of Glendale,
California (2022) 81 Cal.App.5th 1134, 1140, quoting Jacobs
v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.)
Even assuming that Defendant has carried its initial summary judgment burden of showing the dangerous condition was open and obvious, Plaintiff has raised a triable issue of fact concerning whether the planter constituted an open and obvious condition. (See Plaintiff’s exh. A, ¶¶ 5-8 (discussed in part C.2, ante).)
E. Actual or constructive notice
Defendant argues that Plaintiff cannot prove that it had actual or constructive notice of the dangerous condition. Defendant relies on its expert’s declaration that, “Based on the information available to me, I am not aware of any other complaints or claims regarding the subject sidewalk condition.” (Blanchette dec. ¶ 10.) However, the expert did not state that he had reviewed Defendant’s records or spoken with Defendant's employees concerning complaints or claims about the sidewalk. (See Blanchette dec. ¶ 4.) Defendant has not carried its initial burden on summary judgment of showing that it lacked actual or constructive notice of the dangerous condition.
CONCLUSION
The Court DENIES Defendant City of Hawthorne’s motion for summary judgment.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.