Judge: Lisa R. Jaskol, Case: 23STCV09135, Date: 2025-06-05 Tentative Ruling

Case Number: 23STCV09135    Hearing Date: June 5, 2025    Dept: 28

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

BACKGROUND 

On April 25, 2023, Plaintiff Willie Byron O’Neal (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”), County of Los Angeles (“County”), State of California, California Department of Transportation, Neutron Holdings, Inc. dba Limebike, Segway, Inc. (“Segway”), and Does 1-50 for dangerous condition of public property, premises liability, strict products liability, and negligence. 

On June 5, 2023, the County filed an answer. On August 21, 2023, the Court dismissed the County without prejudice at Plaintiff’s request. 

On June 12, 2023, Defendant The People of the State of California, acting by and through the Department of Transportation (“State”), erroneously sued as California Department of Transportation, filed an answer.  On October 20, 2023, the Court dismissed the State without prejudice at Plaintiff’s request. 

On June 23, 2023, Defendant Neutron Holdings, Inc. dba Lime (“Lime”) filed an answer. 

On July 24, 2023, Segway filed an answer.  On March 26, 2024, the Court dismissed Segway without prejudice at Plaintiff’s request. 

On August 16, 2023, the City filed an answer. 

On December 9, 2024, the City filed a motion for summary judgment or, in the alternative, summary adjudication.  The motion was set for hearing on June 5, 2025.  On May 16, 2025, Plaintiff filed an opposition.  On May 23, 2025, the City filed a reply. 

Trial is currently scheduled for October 27, 2025. 

PARTIES’ REQUESTS 

The City asks the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

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 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: 

“(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.) 

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.) 

DISCUSSION 

A.   The complaint 

The complaint includes the following allegations: 

Defendants were the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers and controllers of the premises located at or near 9th St. & Broadway, Los Angeles, CA 90015. 

On or about May 13, 2022 Plaintiff was riding a motorized scooter at or near 9th St. & Broadway, Los Angeles, CA 90015, when the wheel of Plaintiff’s motorized scooter struck an uneven portion of the roadway and/or street. This caused Plaintiff to fall and sustain serious injuries. 

On information and belief, the City had actual or constructive notice of the dangerous condition of the roadway for a sufficient time prior to the injury to have taken measures to protect against the dangerous conditions and failed to do so, in violation of Government Code section 835. 

B.   Undisputed facts 

The City’s procedures regarding receiving or obtaining notifications or any information as it relates to repair requests for City sidewalks or streets consist of: 1) calls for service, e.g., complaints or requests for service; and 2) inspection by City crewmembers and employees while in the field.  (UMF 18.) 

A person may submit a service request, such as a “pothole repair” into the City’s “My LA 311” database. Service requests can be submitted via phone, mobile app, e-mail, or personal computer. (UMF 19.) 

The procedure for submitting a service request is to select a service type and provide a location. The service type determines which City agency will receive the service request, and the address determines what area will receive the service request. The routing of the service requests is done by the database immediately upon the creation of the service requests. Anyone can submit a service request.  (UMF 20.) 

In response to Plaintiff’s claims, the City investigated whether any complaints, calls for service, or documents existed regarding any alleged uneven portion of the roadway at the location in question. A comprehensive search of the City’s My LA 311 database, covering the period from January 2014 to June 3, 2024, identified only two (2) service requests for small asphalt repairs to the roadway at the intersection during this period.  (UMF 21.) 

The first service request, made on May 24, 2018, was repaired by the Street Maintenance Division of the Bureau of Street Services the next day on May 25, 2018. (UMF 22.) 

The second service request, made on May 10, 2019, was repaired by the Street Maintenance Division on May 13, 2019.  (UMF 23.) 

The database includes no reports or service requests regarding the location where Plaintiff alleges to have sustained injur[i]es between June 2019 and May 13, 2022 (i.e., the date on which the subject incident allegedly occurred). (UMF 24.) 

C.   Dangerous condition 

1.    Existence of a dangerous condition 

The City argues that Plaintiff cannot show a dangerous condition existed for purposes of Government Code sections 830, subdivision (a), and 835.  To support this argument, the City points to Plaintiff’s discovery responses, which -- according to the City -- do not provide sufficient detail about the alleged condition.  (See Motion p. 11; City’s UMF 8; Pate dec., exhs. D, E, F.)  However, the lack of detail in Plaintiff’s discovery responses does not carry the City’s initial summary judgment burden of showing that Plaintiff will be unable to prove the existence of a dangerous condition at trial.

Similarly, the City’s evidence that a search of its My LA 311 database identified “no reports or service requests regarding the location where Plaintiff alleges to have sustained injur[i]es between June 2019 and May 13, 2022 (i.e., the date on which the subject incident allegedly occurred)” (UMF 24) does not carry the City’s initial summary judgment burden of showing that Plaintiff cannot prove the existence of a dangerous condition.

Defendant has not carried its initial summary judgment burden of showing that Plaintiff cannot prove the existence of a dangerous condition.   

2.    Notice of a dangerous condition 

The City has presented evidence that a search of its My LA 311 database identified “no reports or service requests regarding the location where Plaintiff allege[ly] . . . sustained injur[i]es between June 2019 and May 13, 2022 (i.e., the date on which the subject incident allegedly occurred).”  (See UMF 24.)  Plaintiff contends that the City’s database search was too narrow to satisfy the City’s initial summary judgment burden.  However, Plaintiff cites no evidence to support his contention.  

The City’s evidence carries its initial summary judgment burden of showing that Plaintiff cannot prove that the City had actual or constructive notice of a dangerous condition.  The burden on notice shifts to Plaintiff.  

In response, Plaintiff provides the declaration of its expert, Philip L. Rosescu.  In his declaration, Rosescu relies in part on “photographs and measurements from [Rosescu’s company] Aperture’s inspection on April 28, 2025, conducted approximately 3 years after the incident,” which “indicate the presence of various asphalt defects along 9th St. and Broadway Avenue.”  (Rosescu dec. ¶ 7.)  Based on the 2025 inspection, Rosescu states: “The subject defect near the eastern corner measured to be approximately 3 inches wide and ¾ inch in depth at the time of Aperture’s inspection. It is my understanding that the subject defect was in a substantially similar condition at the time of Plaintiff’s incident.” (Rosescu dec. ¶ 7.) 

Rosescu does not explain the basis for his “understanding” that the defect observed in 2025 was in a “substantially similar condition” when Plaintiff’s accident occurred.  This is despite Rosescu’s recognition that the intersection where the accident took place “is located in an area of Los Angeles where high pedestrian, cyclist, and scooter traffic are common.” (Rosescu dec. ¶ 10.)  Based on Rosescu’s failure to explain his “understanding” that the nearly three years of traffic after the May 2022 accident did not materially affect the intersection’s condition, the Court finds that Rosescu’s declaration does not raise a triable issue of fact. 

Plaintiff asks the Court to continue the hearing under Code of Civil Procedure section 437c, subdivision (h), to allow Plaintiff to depose the City’s person most knowledge or person most qualified “related to any and all governmental departments and/or employees who were in or near the vicinity of the intersection in question in the 3 years prior to the INCIDENT or to inquire as to why only a very narrow database was chosen to prove ‘no notice.’ ”  (Opposition p. 1.)  Plaintiff does not, however, explain why he did not previously depose the City’s person most knowledgeable on these issues.  The Court denies Plaintiff’s request to continue the hearing on Defendant’s motion. 

The Court grants Defendant’s motion. 

CONCLUSION 

The Court GRANTS Defendants City of Los Angeles’s motion for summary judgment or, in the alternative, summary adjudication. 

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.