Judge: Lisa R. Jaskol, Case: 21STCV43167, Date: 2024-09-17 Tentative Ruling
Case Number: 21STCV43167 Hearing Date: September 17, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On November 23, 2021, Plaintiff Arianna Marie Calderilla (“Plaintiff”) filed this action against Defendants City of Santa Monica (“Defendant”) and Does 1-50 for premises liability. In the Judicial Council form attachment for premises liability, Plaintiff checked the boxes for negligence and dangerous condition of public property.
On March 17, 2022, Defendant filed an answer.
On February 26, 2024, Defendant filed a motion for summary judgment or, in the alternative, summary adjudication. The motion was set for hearing on July 26, 2024. The Court continued the hearing to September 17, 2024. On September 3, 2024, Plaintiff filed a stipulated partial opposition to the motion in which Plaintiff withdrew her negligence claim. On September 10, 2024, Defendant filed a reply.
Trial is scheduled for March 26, 2025.
PARTIES’ REQUESTS
Defendant asks the Court to grant summary judgment or, in the alternative, summary adjudication.
Plaintiff asks the Court to deny the motion.
DEFENDANT’S EVIDENTIARY OBJECTIONS
Overruled:
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11
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.)
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. Public entity liability for 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:
“(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.)
Government Code section 830.2 provides:
“‘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 . . . is used with due care in
a manner in which it is reasonably foreseeable that it will be used.” (Gov.
Code, § 830, subd. (a).) “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 . . . was
used with due care in a manner in which it was reasonably foreseeable that it
would be used.”
(Gov. Code, § 830.2.)
DISCUSSION
A. The complaint
The complaint alleges the following:
Defendant owned, maintained, managed, and operated the Santa Monica Pier in Santa Monica, California (“premises”). On November 12, 2020, Plaintiff was walking down the stairs at the premises when she tripped on a nail protruding from the stairs. As a result, Plaintiff fell and was injured. The nail protruding from the stairs constituted a dangerous condition due to lack of maintenance, repair, inspection, training and/or supervision. Defendant had actual notice of the dangerous condition in sufficient time prior to the injury to have corrected it.
B. Undisputed facts
Plaintiff contends that on November 12, 2020 a nail protruding from stairs at the Santa Monica Pier caused her to fall. Plaintiff has no photographs of the alleged protruding nail. Plaintiff does not know how long the nail was raised on the step.
Plaintiff did not see any other nails which she believed were protruding.
Defendant received no claims involving trip and falls on the specific steps in the three years preceding the incident.
Prior to and at the time of Plaintiff’s alleged incident, Defendant had a policy in which Defendant’s pier maintenance crew inspects the pier for protruding nails, bolts and screws. The pier is divided into zones for purposes of organizing the inspection schedule. Each zone is inspected at least once a month, and typically much more frequently. Inspections start at one corner of the zone. The inspector moves in a back-and-forth pattern as they walk along a row of nails while scanning to their immediate left and right, to ensure that every part of each zone is inspected. Under Defendant’s policy, any nail that is protruding more than one half inch (1/2) above the deck board is to be hammered down. Any nail that is protruding more than one inch above the deck board is to be removed and replaced.
The nail inspection program included the steps where Plaintiff contends she tripped, which are located in zone one.
Nail inspection logs for 2020 identify the various zones and number of nails remediated and report completion of the inspection protocol for each month. In the approximate month time period prior to Plaintiff’s incident, the pier zone (and the stairs) where Plaintiff contends she fell was inspected and the logs report that any protruding nails were remediated on October 12, October 28, and then again on November 11, 2020, the day before Plaintiff’s alleged incident.
In addition to the monthly nail inspection program, pier maintenance staff are onsite daily during weekdays and inspect the pier on a daily basis during the week to identify and remediate nail protrusions.
After Plaintiff’s fall, James Weening (who had accompanied Plaintiff to the pier) walked up the stairs to look for what caused Plaintiff to fall. In a declaration, Weening stated: “I clearly remember that in the area from where [Plaintiff] fell, I saw a nail sticking up from one of the wooden steps. The nail was located towards the middle back area of the step. The nail looked like the other nails on the Pier boardwalk but was sticking up from the wood. The wood around the nail was scraped. I recall thinking that it looked like someone had tried pulling the nail out but didn’t, and instead tried hammering it back into the wood. This was because the head of the nail was bent downward creating a type of hook. I did not pull out the nail, so I do not know how long it was. There was no liquid or debris on the stairs.”
Weening also stated: “I did not measure how far up from the wooden step the nail was raised. I do remember thinking it was high because [Plaintiff] was wearing Doctor Marten’s shoes which had a tall thick sole with traction. I didn’t measure the sole on her shoes, but they were more than two inches tall from bottom to shoe. [¶] Because of the way the fall occurred, the nail had to have been sticking up from the wood at least the height of the sole, even with the head of the nail bent downwards. There was no other thing on the steps that could have caused her to fall. It was the nail which she stepped on, which got caught in her sole, causing her to pivot and fall. In my best estimate and memory, from what I saw on that day, the nail was sticking up from the wooden step of the stairs, anywhere between 1.5 to 2+ inches.”
Plaintiff’s expert Phil Rosescu submitted a declaration stating: “It is more likely than not that a Santa Monica Pier employee had noticed the nail, attempted to hammer the nail back down into the deck, but failed and bent the nail instead, creating the dangerous condition. The Santa Monica Pier is a wooden-deck pier that is fastened with nails. Due to weather conditions, vibrations due to vehicles/pedestrians, and other such factors, the nails can become dislodged and protrude from the walkway surface. As a result, the Santa Monica Pier has pier inspections for potential nail issues. Any nail that is protruding more than 1/2" above the deck is to be hammered down. Any nail that is protruding more than 1” above the deck is removed and replaced with a twister nail. Given that the nail was protruding approximately 1”, it is more likely than not that Defendant Employees attempted to remove the nail but failed to fully remove the nail. Defendant Employees then attempted to hammer the nail back down but were unsuccessful and bent the nail down into the “hook” position instead.”
Rosescu also stated: “Defendant was more likely than not aware of the nail and aware of the hazard created by the nail yet failed to remedy the hazard. Defendant more likely than not caused the nail to be bent by failing to either remove or properly hammer down the nail. Defendant has inspection policies and procedures for protruding nails to ensure that guests do not trip on nails, however, Defendant failed to follow their own policies and procedures, and remedy the hazard created by the protruding nail.”
C. Defendant’s motion for summary judgment or summary adjudication
1. Whether Defendant’s employees created a dangerous condition
Defendant argues that Plaintiff can present no evidence that “[a] negligent or wrongful act or omission of an employee of [Defendant] within the scope of his employment” caused the nail to protrude from the step. (See Gov. Code, § 835, subd. (a).)
Defendant has not carried its initial burden on summary judgment on this issue. Based on the testimony of percipient witness Weening about what he observed after Plaintiff fell and evidence about Defendant’s inspection policy, Plaintiff’s expert Phil Rosescu has opined that it is more likely than not that Defendant’s employees – after attempting to remove the nail and hammer it down – bent the nail into a “hook” position, on which Plaintiff tripped.
The Court has considered Defendant’s objections to the declarations of Ween and Rosescu and overrules them.
Because Defendant has not negated the possibility of liability under Government Code section 835, subdivision (a), the Court need not address Defendant’s arguments concerning liability under Government Code section 835, subdivision (b).
2. Whether the defect was trivial
Defendant argues that the protruding nail constituted a trivial defect as a matter of law because “the height of the nail protrusion (if any) would have been 1/2 inch or less because any greater defects would have been removed or remediated the day before during the pier maintenance inspection that took place on November 11, 2020.” (Reply p. 9.)
As noted, however, Weening estimated that the nail was protruding between 1.5 and 2+ inches from the step. While Weening did not measure the nail and his estimate may be subject to challenge, the Court does not find that it lacks foundation. As a result, Defendant has not carried its initial burden on summary judgment of showing the defect was trivial.
CONCLUSION
The Court DENIES Defendant City of Santa Monica’s motion for summary judgment or, in the alternative, summary adjudication.
The Court DISMISSES Plaintiff Arianna Marie Calderilla's negligence claim without prejudice based on her stipulation.
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.