Judge: Lisa R. Jaskol, Case: 22STCV11228, Date: 2025-06-12 Tentative Ruling
Case Number: 22STCV11228 Hearing Date: June 12, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On April 1, 2022, Plaintiff Daniel Garcia filed this action against Defendants City of South Gate (“South Gate”), City of Los Angeles, County of Los Angeles (“County”), AML Trust, Armando Mendez, and Does 1-25 for general negligence and premises liability. The premise liability claim included counts for negligence, willful failure to warn, dangerous condition of public property, and allegations about other defendants.
On September 1, 2023, the County filed an answer.
On October 24, 2023, South Gate filed a demurrer to Plaintiff’s first amended complaint. However, Plaintiff had not filed the first amended complaint but merely served it on Defendants. Plaintiff opposed South Gate’s demurrer.
On November 20, 2023, the Court overruled South Gate’s demurrer to the first amended complaint. In its order, the Court observed that Plaintiff had not filed the first amended complaint with the Court. Nonetheless, the Court took judicial notice of the first amended complaint attached to the demurrer because Plaintiff did not dispute that it was true and accurate. The Court ordered Plaintiff to file and serve the first amended complaint within 10 days.
Despite the Court’s November 20, 2023 order, Plaintiff did not file the first amended complaint.
On December 22, 2023, South Gate filed an answer to Plaintiff’s first amended complaint.
On February 1, 2024, the County filed an answer to the first amended complaint. On February 8, 2024, the Court dismissed the County without prejudice at Plaintiff’s request.
B. This motion
On May 24, 2024, South Gate filed a motion for summary judgment. The motion was set for hearing on December 4, 2024. On November 18, 2024, Plaintiff filed an opposition. On November 26, 2024, South Gate filed a reply. The Court continued the hearing to June 12, 2025.
PARTIES’ REQUESTS
South Gate asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
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 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 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, 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.)
C. Vehicle Code section 21235
Vehicle Code section 21235 provides in part:
“The operator of a motorized scooter shall not do any of the following:
* * *
“(d) Operate a motorized scooter without a valid driver’s license or instruction permit.
* * *
(Veh. Code, § 21235, subds. (c), (d), (g).)
DISCUSSION
A. The first amended complaint
The unfiled first amended complaint, whose existence the Court judicially noticed on November 20, 2023, includes the following allegations:
On June 18, 2021, while at the premises which Defendants owned, occupied, maintained, leased, used, controlled, managed, directed, inspected, repaired, cleaned, supervised, and operated, located at [the] sidewalk abutting 8930 Hunt Avenue in the City of South Gate, Plaintiff came into contact with a dangerous and hazardous condition which caused Plaintiff to slip and fall, sustaining injuries and damages.
Defendants and/or its management, administrative, designers, planners, engineers, maintenance personnel, inspectors and/or other employees, staff, agents or contractors, acting within the course and scope of their duties and through negligent or wrongful acts or omissions created, or allowed to be created, a dangerous condition under the Government Code.
The first amended complaint asserts a premises liability claim against South Gate.
B. Undisputed facts
Plaintiff presented a Liability Claim Form to the City Clerk's Office by U.S. Mail on November 13, 2021 (the "Liability Claim. According to Plaintiff’s Liability Claim, the incident occurred at 5 p.m. on June 18, 2021. Plaintiff attached photographs to his Liability Claim which purport to depict the uplifted sidewalk at 8930 Hunt Avenue.
Plaintiff was riding a motorized scooter at the time of the incident. The motorized scooter Plaintiff was riding belonged to his then girlfriend.
Immediately before the incident, Plaintiff had left his girlfriend’s house at 9600 Hunt Avenue. Plaintiff’s destination was the Starbucks located on Firestone Boulevard. Plaintiff’s trip ended when he fell off the scooter on the sidewalk abutting 8930 Hunt Avenue in South Gate.
Plaintiff was under 18 years of age at the time of the alleged incident. He was not wearing a bicycle helmet. He did not have a driver’s license or an instruction permit. Plaintiff had not previously ridden a motorized scooter on the private property at 8930 Hunt Avenue, South Gate.
Plaintiff was not using the sidewalk to enter or leave the adjacent private property at 8930 Hunt Avenue in South Gate.
C. South Gate has not carried its initial burden on summary judgment
South Gate contends that it is entitled to summary judgment because Plaintiff unlawfully operated a motor scooter on a sidewalk. As a result, South Gate contends, Plaintiff cannot prove that he was using the sidewalk “with due care in a manner in which it is reasonably foreseeable that it will be used” (Gov. Code, § 830, subd. (a)), a requirement for finding a dangerous condition existed.
To support this argument, South Gate points to Plaintiff’s discovery responses admitting that he was operating a motor scooter on a sidewalk when the accident took place. (See Plaintiff’s responses to RFA 1 & 2 [admitting Plaintiff was riding a motorized scooter on the sidewalk when the incident took place], attached to Jett declaration as exh A-3.)
Plaintiff responds that he is not required to establish that he used the allegedly dangerous public property with due care at the time of the accident. Plaintiff relies on Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337 (Lane), where the plaintiffs brought suit against the City after one of the plaintiffs’ cars struck a concrete divider on a city street. The trial court granted the City’s motion for summary judgment, concluding that the plaintiffs had failed to raise a triable issue of fact concerning whether the divider constituted a dangerous condition of public property. (Lane, supra, 183 Cal.App.4th at pp. 1339, 1342.)
The Court of Appeal reversed, rejecting the City’s argument that it was entitled to summary judgment because the plaintiff did not exercise due care or act in a reasonably foreseeable manner when he drove his car into the divider. (Lane, supra, 183 Cal.App.4th at pp. 1339, 1345-1347.) The Court observed:
“When a plaintiff seeks to recover for injury caused by a dangerous condition of public property, ‘ “The Tort Claims Act does not require [the] plaintiff to prove that the property was actually being used with due care at the time of the injury, either by himself or by a third party (e.g., driver of automobile in which plaintiff was riding as a passenger).” ’ [Citation.] Thus, proof that [the plaintiff] was not using due care is insufficient to show that plaintiffs cannot establish their claims in this case.”
(Id. at p. 1347.)
In its reply, South Gate doubles down on its argument that Plaintiff cannot prove the existence of a dangerous condition because he rode a motorized scooter on a sidewalk in violation of the Vehicle Code. South Gate's evidence does not, however, show that, as a matter of law, the sidewalk was not in a condition that “create[d] a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property [was] used with due care in a manner in which it is reasonably foreseeable that it [would] be used.” (See Gov. Code, § 830, subd. (a).)
The Court finds that South Gate has not carried its initial burden on summary judgment of showing that no dangerous condition existed. The Court therefore denies South Gate’s motion for summary judgment.
CONCLUSION
The Court DENIES Defendant City of South Gate’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.