Judge: Lisa R. Jaskol, Case: 21STCV40259, Date: 2024-01-29 Tentative Ruling
Case Number: 21STCV40259 Hearing Date: January 29, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On November 2, 2021, Plaintiff Candelaria Ortega Melendez (“Plaintiff”) filed this action against Defendants City of Pasadena, CalTrans/State of California, City of Los Angeles, County of Los Angeles, and Does 1-25 for general negligence and premises liability.
On November 29, 2021, the Court dismissed the County of Los Angeles without prejudice at Plaintiff’s request. On December 10, 2021, the Court dismissed CalTrans/State of California with prejudice at Plaintiff’s request. On January 13, 2022, the Court dismissed the City of Los Angeles without prejudice at Plaintiff’s request.
On December 13, 2021, the City of Pasadena (“City”) filed an answer.
On July 18, 2023, the City filed a motion for summary judgment or, in the alternative, summary adjudication to be heard on January 26, 2024. The Court continued the hearing to January 29, 2024. On January 12, 2024, Plaintiff filed an opposition. On January 19, 2024, the City filed a reply.
On January 9, 2024, the Court denied Plaintiff’s ex parte application to continue the hearing on the motion for summary judgment or, in the alternative, summary adjudication and the trial.
Trial is currently scheduled for May 6, 2024.
PARTIES’ REQUESTS
The City requests that the Court grant summary judgment or, in the alternative, summary adjudication.
Plaintiff requests that the Court deny the motion.
EVIDENTIARY OBJECTIONS
The Court sustains the City’s evidentiary objections.
LEGAL STANDARD
A. Summary judgment and summary adjudication
“‘[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.)
“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 ruling on the motion, the court must consider all of the evidence and all of 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. Negligence and premises liability
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
C. Government entity liability for dangerous condition of public property
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.”
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 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 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.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On November 15, 2020, while walking at the premises owned, occupied, operated, maintained, leased, used, controlled, managed, directed, inspected, repaired, cleaned, supervised, and operated by Defendants, located at 729 Sunset Avenue, in the City of Pasadena, County of Los Angeles, State of California (“premises”), Plaintiff came into contact with a dangerous condition, a hole in a speed bump, which caused Plaintiff to fall and sustain severe and permanent injuries and damages.
Defendants negligently and carelessly owned, occupied, operated, maintained, inspected, supervised, controlled, managed, cleaned, used, repaired, directed, designed, and superintended the premises. As a direct and proximate result of Defendants’ negligence and carelessness, Plaintiff sustained severe and permanent injuries and damages.
Defendants (1) negligently owned, maintained, managed and operated the described premises, (2) willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity, and (3) owned public property on which a dangerous condition existed.
B. Undisputed facts
1. The incident
On November 15, 2020, Plaintiff left her home between 1:00 p.m. and 2:00 p.m. and drove to her sister’s house on Sunset Avenue in Pasadena. When Plaintiff arrived at Sunset Avenue, she parked her car in front of her sister’s house, exited the driver’s side of the car and walked down the road on Sunset Avenue towards where her sister’s car was parked, on the same side of the street. Rather than walk on the sidewalk, Plaintiff chose to walk in the road along the edge of the cars. Plaintiff took 20 steps down the road and was walking across a speed bump when she tripped and fell. Plaintiff did not notice she was stepping on to a speed bump and did not see the pothole before she tripped and fell. The weather was “pretty” and nothing blocked Plaintiff’s view of the ground just before she fell.
Plaintiff’s sister had lived on Sunset Avenue for eight years, since approximately 2015, and Plaintiff lived between two and five blocks away. Plaintiff’s last visit to her sister’s house was approximately four months before the incident. Plaintiff does not recall having seen the pothole that she fell in prior to the time of the incident. Plaintiff has no information about how long the pothole existed before her fall. Following the incident, Plaintiff returned to the location and took several photos of the pothole. The photos taken by Plaintiff are the only photos of the alleged dangerous condition that have been produced in discovery.
Plaintiff checked the box on her form complaint’s cause of action for Premises Liability/Dangerous Condition to allege that the City had constructive notice of the existence of the alleged dangerous condition prior to her incident, but she did not check the boxes to allege that the City had actual notice of the condition or that the alleged dangerous condition was created by a City employee.
2. The City’s Service Center and database
The City is a public entity and a municipal corporation.
The City’s Citizen Service Center (“Service Center”) is a centralized 311-type service that allows people to report issues and submit requests, including reports about potholes and requests to repair them. The Service Center maintains a database of requests and reports.
It is the practice of the City’s Public Works Department that if a pothole is reported by a member of the public or a city employee, the report should be handled via the Service Center so that a work order is generated before any repairs are done.
In July 2023, the City employee who manages the Service Center searched the database for all requests and work orders related to potholes for the intersection of Sunset Avenue and Orange Grove Boulevard and for the 700 block of Sunset Avenue in Pasadena from the database’s inception in 2012 through the date of the search. The employee located only one report of a pothole at 729 Sunset Avenue, which was entered into the database on February 2, 2021.
If anyone had reported a pothole near 729 Sunset Avenue between 2012 and November 15, 2020, the Service Center database would contain a request for that location. The City does not have any record of receiving any complaints related to the condition of the street in the 700 block of Sunset Avenue prior to the day of Plaintiff’s fall.
3. Plaintiff’s Government Claims Act claim for damages
On May 11, 2021, Plaintiff, through her attorney, presented a claim for damages to the City. Plaintiff’s claim for damages describes a trip-and-fall accident that occurred on November 15, 2020 at 1:00 p.m. Section 3(a) of Plaintiff’s claim states that “the accident occurred in the intersection of Orange Grove Blvd. and Sunset Ave. in the City of Pasadena.” Section 3(d) of Plaintiff’s claim states that Plaintiff fell when her foot got stuck in “a hole in the middle of the crosswalk” while Plaintiff was “walking southbound, crossing the intersection of Sunset Blvd.” Section 3(f) of the claim states “Plaintiff was crossing the intersection of Sunset Ave. when her foot got stuck in a hole in the middle of the crosswalk….” A diagram of where the incident happened indicates it happened along the southside of the intersection of Orange Grove Blvd. and Sunset Ave. A photo included with the claim shows a closeup of a small pothole in an area with white striping.
The City’s Insurance and Claims Analyst, Razmik Serkisian (“Serkisian”), was assigned to investigate and evaluate Plaintiff’s claim. Serkisian asked City staff if the City had received any information about an incident occurring in the intersection of Orange Grove and Sunset Avenue in November 2020. Serkisian concluded that the City had no records of such an incident. On May 27, 2021, Serkisian sent a letter to Plaintiff’s counsel at the address listed on the claim asking for additional information including “the exact and specific location of the incident including diagram, map, photos.”
On September 3, 2021, more than three months after the City’s claims analyst sent a letter requesting additional information and more than two months after Plaintiff’s claim was rejected, the City received a letter from Plaintiff’s counsel providing additional information. Plaintiff’s counsel stated that the incident occurred “at the intersection of Sunset Ave. and Orange Grove Blvd.” and included an additional photo of a small pothole in an area with white striping and a second photo appearing to show a speed bump along Sunset Avenue.
C. The City has not carried its initial summary judgment burden on its argument that Plaintiff failed to comply with the claims presentation requirement
“Government Code section 945.4 provides that ‘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 in accordance with . . . section 910 . . . 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 by the board . . . .’ And the referenced section 910 requires that the claim state the ‘date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted’ and provide[ ] ‘[a] general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.’ ” (California-American, supra, 86 Cal.App.5th at p. 1290.)
“The public policies underlying the claims presentation requirement include that the claim affords the entity an opportunity to promptly remedy the condition giving rise to the inquiry, thus minimizing the risk of similar harm to others, and permits the entity to investigate while tangible evidence is still available, memories are fresh, and witnesses can be located. The requirement also permits early assessment by the public entity, allows its governing board to settle meritorious disputes without incurring the added cost of litigation, and gives it time to engage in appropriate budgetary planning.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1290 (California American).)
“[A] claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ ” (California-American, supra, 86 Cal.App.5th at pp. 1290-1291, quoting Stockett v. Association of California Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 (Stockett).) “The claim . . . need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’” (Id. at p. 1291, quoting Stockett, supra, 34 Cal.4th at p. 447.) “Only where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,’ have courts generally found the complaint barred.” (Ibid.) “Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Ibid. quoting Stockett, supra, 34 Cal.4th at p. 447.)
The Court finds that Plaintiff’s complaint is predicated on the same fundamental actions or failures to act by the City, even if the precise location of the incident is different. The complaint does not change the date or general description of the incident. Therefore, the differences between the claim and the complaint do not amount to a complete shift in allegations.
The City has not carried its initial summary judgment burden on the claims presentation issue.
D. Claim for dangerous condition of public property
1. The City has not carried its initial summary judgment burden on its argument that Plaintiff cannot prove the existence of a dangerous condition
The City argues the area where Plaintiff fell was not in a dangerous condition as a matter of law because any defect was minor, trivial, or insignificant for purposes of Government Code section 830.2.
The City concedes that “[t]here is no evidence of the pothole’s measurements,” but asserts that “it was small enough that Plaintiff did not see it before her fall and the City did not receive any reports regarding the pothole prior to Plaintiff’s fall.” (Motion pp. 12-13.) In addition, the City argues, the pothole’s location on the street rather than on a sidewalk shows the pothole was a trivial defect because “streets are primarily used for travel by vehicles and thus minor defects in an asphalt street do not create a substantial risk of injuries to pedestrians, particularly in a part of the street that is not a marked crosswalk or otherwise an area where pedestrian travel is expected or permitted.” (Motion p. 13.) Also, nothing blocked Plaintiff’s view of the ground, no one had previously complained about the pothole, and the weather (according to the City) was clear.
The City has not shown that Plaintiff cannot present evidence supporting her assertion that a dangerous condition existed. The City has not carried its initial summary judgment burden on this issue.
2. The City has not carried its initial summary judgment burden of showing the dangerous condition was open and obvious
“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.)
The City argues it had no duty to warn Plaintiff about the pothole because it was open and obvious and nothing obstructed her view of it.
The City has presented no evidence about the size, depth, or dimensions of the pothole or its placement on the speed bump that would support a conclusion that the pothole was an open and obvious danger as a matter of law. The City has failed to carry its initial summary judgment burden on this issue.
3. The City has not carried its initial summary judgment burden on its argument that Plaintiff cannot prove causation
The City argues that Plaintiff cannot prove the pothole caused her to fall. The City argues: “Plaintiff is merely assuming that the pothole in question caused her fall. Multiple times in her deposition she stated that all that she knows is that she fell when was on the speed bump. [Citation.] She could not confirm her foot caught in something or otherwise describe the mechanism of her fall. [Citation.] She did not see the speedbump or the pothole before falling. [Citations.] Based on the information available, it is just as likely that Plaintiff tripped as a result of unknowingly stepping on to the speed bump. . . . [T]he fact that a pothole was found near the location where Plaintiff fell is not sufficient to establish that the pothole cause[d] her fall.”
To support this argument, Plaintiff relies on Plaintiff’s deposition testimony.
At her deposition, Plaintiff testified that she “fell in that well.” (Exh. F, p. 25.) Asked what caused her to fall, Plaintiff stated, “I just walked and I felt that I fell there.” (Exh. F., p. 26.) Asked “do you recall if your right foot got caught in this well or if you -- or if there was some other way that you ended up falling?” Plaintiff answered: “I just fell there.” (Exh. F, p. 30.) Asked “Did you see the well before you tripped?” Plaintiff answered “No.” (Exh. F, p. 37.)
Nothing in Plaintiff’s deposition testimony precludes her from presenting evidence at trial that the pothole was a substantial cause of her injuries. The City has not carried its initial summary judgment burden on this issue.
4. The City has not carried its initial summary judgment burden on its argument that Plaintiff cannot prove the City had constructive notice of the dangerous condition
“[W]hether a nontrivial defect is sufficiently obvious, conspicuous, and notorious that a public entity should be charged with knowledge of the defect for its failure to discover it depends upon “ ‘all [of] the existing circumstances.’ ” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 521 (Martinez), quoting Nicholson v. Los Angeles (1936) 5 Cal.2d 361, 367 (Nicholson).) “Those circumstances include (1) ‘the location, extent, and character of the use of the walk [or, more generally, the public property] in question,’ which looks to both its intended use for travel as well as the actual ‘frequency of travel in the area’ (ibid., quoting Nicholson, supra, 5 Cal.2d at p. 367); and (2) ‘the magnitude of the problem of inspection’ (ibid., quoting Nicholson, supra, 5 Cal.2d at p. 367), and more specifically, ‘the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise’ (ibid., quoting Gov. Code, § 835.2, subd. (b)(1)).
In Martinez, the Court of Appeal held that the City did not have constructive notice of a 1.75 inch divot in an alley. The appellate court reasoned: “Because alleys, unlike sidewalks, are designed and primarily used for purposes other than walking, and because the cost to municipalities of inspecting alleys with the same vigilance as inspecting sidewalks would be astronomical relative to the benefit of doing so, we hold that what is an obvious defect in the condition of an alley is not the same as for a sidewalk.” (Martinez, supra, 71 Cal.App.5th at p. 514 [affirming summary judgment].)
The Court of Appeal observed: “A need for greater attention to pedestrian safety—and hence a more exacting standard for obviousness—may also apply to those portions of roadways that pedestrians cross (such as crosswalks or streets with sidewalks on both sides) and to parking lots heavily used by pedestrians. (Martinez, supra, 71 Cal.App.5th at p. 523.)
Here, it is undisputed that Plaintiff fell on a street with sidewalks on both sides. Martinez does not preclude a finding that the allegedly dangerous condition on the street was obvious.
The City also asserts that Plaintiff cannot show that the pothole “had existed for such a period of time . . . 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).) While Plaintiff has no personal knowledge of the length of time the pothole existed before her fall, the City has not carried its initial summary judgment burden of showing that Plaintiff cannot present any evidence on this point.
E. General negligence claim
A public entity like the City cannot be found liable on a common law negligence theory. The City has carried its initial summary judgment burden of showing that Plaintiff cannot present evidence to support this claim. Plaintiff has not raised a triable issue of material fact. The Court grants the City’s motion for summary adjudication of the general negligence claim.
CONCLUSION
The Court DENIES Defendant City of Pasadena’s motion for summary judgment.
The Court GRANTS in part Defendant City of Pasadena’s motion for summary adjudication and grants summary adjudication of Plaintiff Candelaria Ortega Melendez’s general negligence claim.
The Court DENIES Defendant City of Pasadena’s motion for summary adjudication with respect to all other claims.
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.