Judge Lynne M. Hobbs, Case Number: 20STCV27864, Date: 2023-10-09 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV27864, Date: 2023-10-09 Tentative Ruling

Case Number: 20STCV27864 Hearing Date: November 13, 2023 Dept: 30

VICKI SHAFFER, AN INDIVIDUAL vs CITY OF SANTA MONICA, A PUBLIC ENTITY, et al.

Motion for Summary Judgment

TENTATIVE

Defendant's Motion for Summary Judgment is DENIED. Plaintiff to give notice.

DISCUSSION

Request for Judicial Notice

Plaintiff requests judicial notice of the following: (1) Mission Gorge Road between Jackson Street and Echo Dell Road in San Diego, California was a 6-lane through highway with a speed limit of 55 miles per hour in 2009, which was when the subject incident occurred in Heskel v. City of San Diego (2014) 227 Cal.App.4th 313; and (2) The block on the southern side of Bay Street between the two sections of 6th Street in Santa Monica, California is slightly more than 100 feet long and is part of a residential district. Stop signs are present at both ends of the block to control traffic traveling in both directions.

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c). Therefore, Plaintiff’s request is unnecessary and the Court declines to rule on the request.

Evidentiary Objections

The Court declines to rule on Defendants’ objections to Plaintiff’s evidence as the evidence was not relied upon by the Court. While the Court “must” rule on all evidentiary objections made at the summary judgment stage, it is permitted to focus its attention on those which are “important.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; see also Code Civ. Proc., § 437c, subd. (q) [the court need only rule those objections to evidence that were material in the disposition of the MSJ].)

Discussion

Defendant moves for summary judgment on the grounds that there is no evidence that an employee of the City created the condition(s) through a negligent, wrongful act or omission, and there is also no evidence that the City knew or should have known of the alleged conditions and their allegedly dangerous character.

Defendant argues that the City had no actual notice of the metal remnant or depression in the brick parkway, and that it cannot be charged with constructive notice.

Notice, in the context of Section 835 liability, is defined in Government Code § 835.2 as follows:

“(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(a)-(b).)

“Admissible evidence for establishing constructive notice is defined by statute as including whether a reasonably adequate inspection system would have informed the public entity, and whether it maintained and operated such an inspection system with due care. (§ 835.2, subd. (b)(1), (2).)” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) A public entity may create “a reasonable inference that the condition was not obvious” by, for example, “show[ing] that [its] workers had been in the area and did not see the condition within at least the one-year period leading up to [an] accident ....” (Id. at p. 318.)

Defendant argues it had no actual notice of any dangerous condition involving the metal remnant in the driveway wing or depression in the brick parkway. The City maintains a sidewalk inspection program and inspects sidewalks for damage, displacements and significant deterioration. (Issagholian Decl., ¶ 5.) The City inspectors will identify defects in both the parkways and driveways. (Id., ¶ 11.) Allen Issagholian, the inspector who performed the inspection on October 2, 2017 made notations regarding his findings, and did not identify the metal remnants in the driveway or defects in the brick parkway. (Id., ¶ 12.) While parkways are typically the maintenance responsibility of property owners, City inspectors will note defects found in the parkways including significant depressions and missing pieces. There is no record that the depression in the brick parkway was reported to the City or otherwise noticed by the City. (Issagholian Decl., ¶¶ 12-17.)

If problems in the sidewalk, driveway or parkway are reported within the City, the reports are referred to the Streets Division, where an inspection would then be conducted. The records of the Streets Division contain no record of any such report. No identification of the metal remnant or sunken brick area was ever made. (See Decl. Castle ¶ 5.) If the Streets Services Division received information from any other City divisions regarding defects in the area of the driveway or parkway, the defects would be noted in the City inspector’s records. No such notations exist, indicating the metal remnant and depression in the brick parkway have never been noticeable or noticed by City employees and reported to the Streets Services Division which handles inspections and maintenance of the public right of way. (Issagholian Decl., ¶¶ 5-7, 16-17.)

A search of City citizen complaint records yielded no complaints about the area in the five years prior to the incident. There have been no other government claims submitted regarding injuries at that location in the five years prior to the incident. (Zabala Decl., Ex. 6; Mack Decl., ¶ 8.)

Defendant also argues it did not have constructive notice of the alleged dangerous condition. Defendant cites to the case Heskel v. City of San Diego (2014) 227 Cal.App.4th 313 to support the contention that the condition was not an obvious defect. In Heskel, the plaintiff tripped over a dangerous condition in the sidewalk consisting of the protruding base of a hollow metal post cemented into the sidewalk. (Id. at p. 315-316.) The Court of Appeal upheld the trial court’s grant of summary judgment finding that the defendant city had met its burden of proof and the plaintiff had failed to meet his burden of proof on the issue of the obvious nature of the condition. (Id. p. 321.) The Heskel Court found that the several declarations from the city workers showed that the condition was not obvious and thus there was no constructive notice of the condition as a matter of law. (Id. at p. 319.) The defendant had presented two declarations from city employees to show that none of the city databases showed reports of the condition, nor were there any reports of a downed street sign. (Ibid.) The city further provided the declaration of a supervisor of work crews who had recently been in the area of the condition twice before the plaintiff’s incident, and none of those workers reported a downed street sign or the condition over which the plaintiff tripped. (Ibid.) The Heskel court found that this was substantial evidence to show that the condition was not obvious and thus the burden shifted to the plaintiff. In opposition, the plaintiff provided declarations from himself and another witness showing that the condition had been there for two years as well as pictures of the condition. (Id. p. 320.) The court found that this evidence was insufficient to show a triable issue of material fact as to the obviousness of the condition. (Ibid.) The declarations offered by plaintiff merely explained how long the structure had been present and how the plaintiff’s fall had occurred. (Ibid.) Nothing in the evidence showed how visible the condition was from the public street nor the size of the condition. (Ibid.) Although the plaintiff provided pictures of the condition, the pictures were of poor quality and the court concluded that “[t]he pictures show a condition that was roughly a few inches in height. Evidence of a condition of that nature, without more, is not a prima facie showing that the condition was obvious.” (Ibid.) As such, the Heskel court found that the trial court’s grant of summary judgment for the defendant city was proper on the basis of lack of obviousness of the condition. (Id. p. 321.)

Defendant argues that thus, based on the declarations provided above, that city workers were in the area and did not notice any dangerous condition, and that the City has a sidewalk inspection program in which inspectors survey the right of way to identify defects, the condition was not obvious. Defendant also argues that just like in Heskel, the piece of metal upon which Plaintiff contends she tripped measured approximately 1.5 to 1.7 inches based on photographs provided by Plaintiff. (Ford Decl., Ex. 11.) Since the metal pole in Heskel which was “a few inches” high on the sidewalk was not obvious, then the metal remnant in this case which was located off of the walkway measuring less than two inches was also not obvious. Defendant additionally argues that in Heskel, the metal piece was in the sidewalk, and the Court still found it was not obvious. Here, neither metal remnant nor the brick area are part of the sidewalk, where pedestrians are expected to walk. There would be a reduced expectation for the City to notice them, and their presence would less obvious to inspectors assigned to inspect pedestrian walkways. In Martinez v. City of Beverly Hills, 71 Cal. App. 5th 508, 523 (2021) in determining whether the government entity had constructive notice, it was relevant that the purported defect did not exist in an area where pedestrians were expected to frequently walk, “we conclude that the divot in this case, which was less than two inches in depth and located in an alley where the alley's asphalt abuts its concrete drainage swale, is, as a matter of law, not a defect that is ‘of such an obvious nature that [the City], in the exercise of due care, should have discovered the condition and its dangerous character.’” “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.” (Id. at 514.)

In opposition, Plaintiff argues that there are triable issues of material facts that Defendant City had constructive notice of the dangerous condition of the sidewalk. The dangerous condition in Heskel was the remaining base of a single metal post, whereas in the instant case, there were two metal post bases within a couple feet of each other here. What’s more, the defective condition in this case included a depression in the walkway immediately adjacent to those metal posts.

The Court finds there are triable issues of fact as to whether the condition was obvious. First, as Plaintiff points out here there are two metal post bases within a couple feet of each other, and the defective condition in this case includes a depression in the walkway immediately adjacent to those metal posts. Moreover, the photos submitted also present triable issues as to whether the condition is obvious. In Heskel, although the plaintiff provided pictures of the condition, the pictures were of poor quality and the court concluded that “[t]he pictures show a condition that was roughly a few inches in height. Evidence of a condition of that nature, without more, is not a prima facie showing that the condition was obvious.” (Heskel, supra, 227 Cal.App.4th at 319.) Here, there is more, there are two metal post bases and a depression in the pathway. Further, even assuming that the alleged dangerous condition was located on a “non-sidewalk surface,” it was still part of a walkway, and immediately adjacent to the sidewalk. This case is not like Martinez, which discussed generally how alleyways are traveled by heavy vehicles, not pedestrians, and thus are more likely to degrade than sidewalks. (Martinez, supra, 71 Cal.App.5th 508, 523-524.)

Similarly, a reasonable jury could find that the City’s inspection system was not adequate. Issagholian’s statement regarding the inspection of parkways and driveways states that he makes note of defects in the parkway, such as notable depressions, missing bricks or offsets, and that he did not identify the metal pieces as a defect in his report when he inspected the area. (Issagholian Decl., ¶ 12.) He further states that he marks displacements that are ¾ of an inch to 3 inches as Priority 3. (Id.) Yet the evidence presented in this motion shows that the metal posts were between 1.5 and 1.7 inches, but they were not marked. Thus, the jury may very well find that the inspection system was not adequate.

In reply, Defendant mischaracterizes the extent of Plaintiff’s burden on this motion for summary judgment, by arguing that Plaintiff must now show the condition was not obvious and that it existed for an adequate period of time. However, Defendant only moved for summary judgment on the issue of whether the condition was obvious, and not whether the condition existed for an adequate period of time. As such, Plaintiff’s burden of proof as to whether it can prove the condition existed for an adequate period of time is not at issue in this motion, as that is something Plaintiff must prove at trial.