Judge: Lisa R. Jaskol, Case: 22STCV10906, Date: 2025-01-14 Tentative Ruling

Case Number: 22STCV10906    Hearing Date: January 14, 2025    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On March 30, 2022, Plaintiff Ida Kirby (“Plaintiff”) filed this action against Defendants City of Cerritos (“Defendant”) and Does 1-50 for dangerous condition of public property. 

On November 17, 2022, Defendant filed an answer. 

On November 21, 2024, Defendant filed a motion for summary judgment or, alternatively, for summary adjudication.  The motion was set for hearing on May 15, 2024.  On April 26, 2024, the Court denied Plaintiff’s ex parte application to continue the hearing on the motion under Code of Civil Procedure section 437c, subdivision (h).  On May 1, 2024, Plaintiff filed an opposition.  On May 10, 2024, Defendant filed a reply.  The Court continued the hearing to January 14, 2025. 

Trial is currently scheduled for April 14, 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. 

REQUEST FOR JUDICIAL NOTICE 

Granted.

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 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.   Claim presentation requirement 

“The Government Claims Act ‘established a standardized procedure’ for bringing personal injury claims against local governmental entities.”  (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230 (Hernandez).) “As a general rule, no suit for money or damages may be brought against a public entity until a written claim, known as a government claim, is presented to and rejected by that entity.”  (Ibid.)  “The required contents of a government claim are set forth in section 910 of the Government Claims Act.”  (Ibid.)  “Among other mandatory contents, [Government Code] section 910 specifies that a claim ‘shall’ include ‘[t]he date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted,’ ‘[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,’ and ‘[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.’ ”  (Id. at pp. 1230-1231.)  “The failure to timely file a proper government claim is fatal to the maintenance of a civil action against a public entity.”  (Id. at p. 1231.) 

“The purpose of the Government Claims Act is ‘ “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” ’ ” (Hernandez, supra, 90 Cal.App.5th at p. 1231.) 

“Although a government claim need not contain the detail and specificity required of a pleading in a civil action, it nevertheless must ‘ “fairly describe what [the] entity is alleged to have done.” ’ ” (Hernandez, supra, 90 Cal.App.5th at p. 1231.)  “When a civil action is filed following the rejection of a government claim, it is acceptable for the complaint to elaborate or add further details to a government claim, but the complaint may not completely ‘shift [the] allegations’ and premise liability on facts that fundamentally differ from those specified in the government claim.” (Ibid.) “In other words, the factual basis for recovery in the complaint must be ‘fairly reflected’ in the government claim.”  (Ibid.; see Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 376 [“In order to comply with the claim presentation requirement, the facts alleged in a complaint ... must be consistent with the facts contained within the government claim”]; Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1060 [“the factual circumstances set forth in the [government] claim must correspond with the facts alleged in the complaint”].) 

“A complaint is subject to dismissal if it alleges a factual basis for recovery which is not ‘fairly reflected’ in the government claim.” (Hernandez, supra, 90 Cal.App.5th at p. 1231.)  

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

On April 4, 2020, Plaintiff was walking her dogs on the sidewalk at Defendants’ premises located on the corner of Bos Street and Roseton Avenue, Cerritos, California 90703 (“premises”) when she tripped over a section of raised/broken sidewalk concrete, fell, and was injured. Plaintiff contends that the raised/broken sidewalk at the premises constituted a dangerous condition due to lack of maintenance, repair, inspection, training and/or supervision that injured Plaintiff. 

B.   Undisputed facts 

Plaintiff’s Governmental Claim for Damages states that on April 4, 2020, the following occurred: “Claimant was walking on Bos Street with her two dogs on two separate leashes on a west direction on the sidewalk when her dog to the left goes to the grass parkway area to relieve himself. Claimant then walks a couple of steps into the grass area to pick up after her dog, as she then turns and begins to walk back to the sidewalk, she trips over the substantial raised and uprooted sidewalk adjacent to the parkway, causing Claimant to fall forward onto the sidewalk.” 

Plaintiff’s presented Governmental Claim for Damages further states that “(t)he dangerous offset on City property between the sidewalk and the adjacent parkway was greater than 4 inches.” 

Of the photographs attached by Plaintiff to Exhibit “E,” Plaintiff’s presented governmental Claim for Damages, the first is of the referenced 4-inch height differential between the grass parkway and the sidewalk. The second attached photograph is of the same area, with a red circle and arrow added between the grass parkway and the sidewalk. The third attached photograph is a close-up including a measuring tape of the 4-inch height differential between the grass parkway and the sidewalk edge. 

Plaintiff’s operative form complaint does not plead or make any reference to Plaintiff stepping into and/or back from the grass parkway adjacent to the sidewalk. 

Plaintiff’s Supplemental Responses to the Defendant’s Form Interrogatories, Set One, No. 17.1, verified by Plaintiff on May 5, 2023, allege that the dangerous condition at the accident location was the sidewalk. These verified responses state: “A slab of the sidewalk was raised above the adjoining slab by over 1½ inches, [sic]” 

Plaintiff’s Supplemental Responses to the City’s Form Interrogatories, Set One, No. 17.1, verified by Plaintiff on May 5, 2023, state as follows: “The CITY employees knew or should have known that due to growing tree roots and other causes the sidewalk slabs may become raised above the level of the adjoining slabs and create a dangerous condition, [sic]” 

Plaintiff testified at her deposition conducted on June 27, 2023, that the accident occurred on the sidewalk between the two sidewalk panels, not between the grass parkway and the sidewalk. 

At her deposition conducted on June 27, 2023, Plaintiff used a blue pen on photographs marked as Deposition Exhibits “A: 1 – 3,” testifying and confirming that her accident occurred on the sidewalk between the two sidewalk panels, not between the grass parkway and the sidewalk. 

At her deposition conducted on June 27, 2023, Plaintiff used a blue pen on photographs marked as Deposition Exhibit “B:2 - 10,” testifying and confirming that her accident occurred on the sidewalk between the two sidewalk panels, not between the grass parkway and the sidewalk. 

At the second session of her deposition conducted on August 9, 2023, Plaintiff testified that she no longer knew which height differential she fell on. 

On the date of loss, nothing obstructed Plaintiff’s view of the alleged dangerous height differential. 

C.   Defendant has carried its initial burden on summary judgment 

Defendant has presented evidence showing that Plaintiff’s governmental tort claim did not give Defendant notice of the allegedly defective condition of public property which Plaintiff now alleges caused her injuries.  In her governmental tort claim, Plaintiff asserted that the defective condition was a height differential measuring more than four inches between the sidewalk and the adjacent parkway.  In her complaint, however, Plaintiff alleged that the dangerous condition was raised/broken sidewalk concrete. 

Defendant has carried its initial burden on summary judgment of showing “the factual basis for recovery is not ‘fairly reflected’ in plaintiff's government claim.”  (See Hernandez, supra, 90 Cal.App.5th at p. 1226 [affirming summary judgment where plaintiff’s government claim stated that he fell on an uplifted sidewalk but plaintiff later disclosed that he fell when he stepped into an empty hole].)  The burden shifts to Plaintiff. 

D.   Plaintiff has not raised a triable issue of fact 

Plaintiff argues that her government claim and complaint are “based on the same factual foundation.” But Plaintiff has presented no evidence that contradicts Defendant’s showing that Plaintiff’s government claim directed Defendant to investigate a purported four-inch height differential between the parkway and the adjacent sidewalk.  In contrast, Plaintiff now alleges she was injured because “[a] slab of the sidewalk was raised above the adjoining slab by over 1½ inches.”  

Plaintiff has not raised a triable issue of fact.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Defendant City of Cerritos’s motion for summary judgment of Plaintiff Ida Kirby’s complaint. 

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.