Judge Lynne M. Hobbs, Case Number: 22STCV03752, Date: 2024-01-24 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV03752, Date: 2024-01-24 Tentative Ruling

Case Number: 22STCV03752 Hearing Date: January 24, 2024 Dept: 30

MERVIN SHANNON vs LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY

TENTATIVE

Defendant’s motion for summary adjudication is GRANTED in part and DENIED in part. The motion for summary adjudication is granted as to the negligence cause of action, but denied as to the cause of action for dangerous condition of public property. The motion for summary judgment is denied. Plaintiff to give notice.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Request for Judicial Notice

Plaintiff requests judicial notice of the pleadings in this matter. 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 as to Nos. 1-4 is unnecessary and the Court declines to rule on the request.

As to item 5: Plaintiff requests the Court to take judicial notice that in the City of Los Angeles people commonly ride bicycles on the sidewalks. Evidence Code section 452(g) permits the court to take judicial notice of “[f]acts and propositions that are of such

common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute.”

The request is denied. Fact of which court may take judicial notice must be matter of common and general knowledge, well established and authoritatively settled, and not doubtful or uncertain. (Weitzenkorn v. Lesser (1953) 40 Cal.2d 778.) Doctrine of judicial notice of matters claimed to be of common and general knowledge should be cautiously exercised. (Elford v. Hiltabrand (1944) 63 Cal.App.2d 65.) The power of judicial notice is, as to matters claimed to be matters of general knowledge, one to be used with caution, and if there is any doubt, either as to the fact itself or as to its being a matter of common knowledge, evidence should be required. (Communist Party of U.S. of America v. Peek (1942) 20 Cal.2d 536.)

Evidentiary Objections

iv. Plaintiff’s Objections to Defendant’s Evidence

· The following objections are SUSTAINED: 1-2 – hearsay as to unidentified witness’ and security officers’ statements.

· The following objections are OVERRULED: 3

v. Defendant’s Objections to Plaintiff’s Evidence

Defendant’s Objections to the declaration of Philip L. Rosescu are OVERRULED.

vi. Objections made in Separate Statements

Both parties’ objections made within the separate statement are improper and the Court declines to rule on them. (See Hodjat v. State Farm Mutual Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 7-9 (finding that the trial court did not abuse its discretion in refusing to rule on the plaintiff’s evidentiary objections made in plaintiff’s separate statement, to overlook plaintiff’s deficiency, or to permit plaintiff the opportunity to reformat his opposing papers).)

Discussion

Defendant moves for summary judgment, or summary adjudication, as to Plaintiff’s causes of action for negligence and premises liability/dangerous condition of public property. displacement.

I. Cause of Action for Negligence

Defendant first contends that Plaintiff has not cited any statutory basis to assert the negligence cause of action against a public entity.

A public entity is not liable for an injury unless that liability is provided for by statute. (Gov. Code, § 815(a).) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

“[T]o state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.]” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Ibid.)

In response, Plaintiff argues he is suing under Government Code section 835 for a dangerous condition of public property. 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. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)

In Longfellow v. San Luis Obispo County (1983) 144 Cal.App.3d 379, the Court of Appeal affirmed that claims against public entities arising from property defects must be based on that condition—and cannot be based on theories of vicarious liability:

With respect to Plaintiffs’ cause of action pursuant to section 815.2 of the Government Code, the law was settled by Van Kempen v. Hayward Area Park Etc. (1972) 23 Cal.App.3d 822, that public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in sections 830 to 835.4 of the Government Code. A public employee is not liable for injuries caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of employment.

Here, Defendant is a public entity. A review of the Complaint shows that Plaintiff has failed to specify the statute on which the negligence cause of action is based, other than Government Code section 835. Plaintiff’s cause of action for negligence thus fails against Defendant as a matter of law.

Defendant is thus entitled to summary adjudication on Plaintiff’s cause of action for negligence.

II. Cause of Action for Premises Liability/Dangerous Condition of Public Property

Defendant also moves for summary adjudication on this cause of action on the grounds that: (1) Defendant is entitled to design immunity; (2) the hatch door is not a dangerous

condition; and (3) Defendant did not have actual or constructive notice of the sidewalk displacement.

1. Design Immunity from Plaintiff’s Dangerous Condition of Public Property Claim

As an initial matter, Plaintiff argues that Defendant never pled design immunity as an affirmative defense in its answer. Accordingly, it has been waived.

Defendant “must raise in the answer any new matter, that is, anything he or she relies on that is not put in issue by the plaintiff,” or it may be waived. Title Insurance Company of Minnesota v. State Board of Equalization, 4 Cal.4th 715, 731 (1992). However, as set forth in Cruey v. Gannett Co., 64 Cal.App.4th 356, 367 (1998):

“California authority suggests that there is an exception [to the rule of waiver for failure to allege an affirmative defense] where the complaint alleges facts indicating applicability of a defense or where the affirmative defense is raised during a summary judgment proceeding. [Citations omitted.] This view is in accord with federal case law, which permits an affirmative defense to be raised for the first time in a summary judgment motion in the absence of a showing of prejudice. (Camarillo v. McCarthy (9th Cir. 1993) 998 F.2d 638, 639 [California state prison officials permitted to raise affirmative defense of qualified immunity in summary judgment motion].)”

As such, because Defendant raised the defense in this Motion for Summary Judgment, under Cruey, the exception applies, and Plaintiff has not argued he suffered prejudice. The Court turns to the merits.

Design immunity is an affirmative defense often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940.) Generally, Government Code section 830.6 provides that a public entity is not liable for injury caused by the plan or design of a construction or improvement to public property where the plan or design was approved in advance of the construction or improvement by the legislative body or employee exercising discretionary authority to give such approval.

A public entity claiming design immunity must establish: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction, or that the plan or design was prepared in conformity with standards previously so approved; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68-69.) To demonstrate a loss of design immunity, a plaintiff must establish three elements: “(1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan,

or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Id. at p. 66.)

i. Causation

The first question is whether there is undisputed evidence that the accident was caused by a design defect, and not some other cause. (Grenier, supra, 57 Cal.App.4th at p. 940.)

Defendant has not addressed this factor at all. In addition, the Court notes that in other parts of the motion Defendant argues that Plaintiff’s injuries were caused by criminal trespassing onto the area of LACMTA’s property. Further, in the complaint, Plaintiff alleges that the dangerous condition that caused the incident was due to a number of things, including negligent possession, design, construction, building, operating, repairing, servicing, installation, maintenance, management, inspection, supervision and control.

Defendant contends that “The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939–940.) However, if Defendant has made no arguments as to this element, then the Court cannot determine if it is undisputed. As such, Defendant failed to satisfy its burden on the element of causation.

ii. Discretionary Approval

The second element of design immunity is whether there was approval for the plan or design prior to construction. Discretionary approval “simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.” (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526.) Design immunity does not immunize decisions that were not made. (Cameron v. State of California (1972) 7 Cal.3d 318, 326.) Therefore, the injury-producing feature must have been part of the approved plan. (Grenier, supra, 57 Cal.App.4th at p. 941.)

As to the second element, Defendant does not argue, nor provides evidence that there was approval for the plan or design prior to construction. In fact, Defendant only provides one piece of evidence in support of this defense, which is LACMTA’s Operations and Maintenance Plan, which provides more information about Los Angeles Metro. However, Defendant fails to cite to anything in this Maintenance Plan that would show there was approval of the exit hatch design. The injury-producing feature must have been part of the approved plan. (Grenier, supra, 57 Cal.App.4th at p. 941.) Defendant then argues, without any evidence, that the Metro system is designed and operated under established industry guidelines as well as Federal and State regulations. Defendant contends that all Metro Rail tracks are inspected and maintained in accordance with the Federal Railroad Administration Track Safety Standards as contained in Title 49 CFR Part 213. Lastly, Defendant contends that the Federal Transit Administration (FTA) is the regulatory agency with jurisdiction over transit systems in the United States. Again, as there is no evidence cited for these assertions, the Court cannot accept this argument. In any event, even if there

was evidence, it would be insufficient because there is no mention of any plan or design of the actual exit hatch at issue here, which is the injury producing feature.

As a result, Defendant has failed to meet its burden to show that there was approval for the plan or design prior to construction. Accordingly, the second element of the design immunity defense has not been established. The motion for summary adjudication based on design immunity is therefore denied.

The Court does not need to address the last element as the motion as to design immunity is denied on these bases.

2. Was there a Dangerous Condition?

Government Code section 835 states:¿“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 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.”

The term “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.”¿ (Gov. Code § 830(a).)¿ “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)

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 or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Government Code section 830.2.)

a. Was the Exit Hatch a Dangerous Condition?

Defendant contends that the hatch door did not create a substantial risk of injury when used with due care. It produces evidence that the purpose of the hatch door is to evacuate people quickly, who use the mass transit system, should there be an emergency. (Defendant’s Undisputed Material Fact (“UMF”) 14.) Defendant argues it has taken adequate steps to ensure that the emergency escape system is properly maintained. (UMF 31.) Alarms are installed to detect misuse of the system. (UMF 15, 18.) LACMTA has hired a security agency 24/7 to ensure that the emergency escape system is not abused. The name of the security agency is American Eagle Protective Services, Inc. (UMF 25.) Whenever someone opens the emergency doors to exit the station or the tunnel, there is a switch that notifies the Rail Operation Control. (UMF 21.) On October 28, 2021, there was no lapse on the part of LACMTA, because the American Eagle Protective Services officers Gonzalez and Aldana reached the location of the hatch opening immediately, yet they could not prevent the accident because the opening of the hatch and Plaintiff’s fall happened simultaneously. (UMF 28.)

Further, Defendant argues that there is a chain on one side of the hatch that acts as a barrier to keep anyone from falling into the hatch opening. Once the hatch doors open fully, the chain acts as a barrier to keep anyone from falling deep into the hatch. (UMF 19.) The chain is fastened to both sides. Each door gets a piece of the chain. Once the doors are open, the chain is fully extended. (UMF 20.) The photographs of the hatch door produced by Plaintiff in response to the Request for the Production of Documents indicate that warning signs were conspicuously posted on the door. The warning signs state, “Warning Door May Open Suddenly,” “Exit Keep Clear,” and “No Parking No Pedestrians.” (UMF 12.)

The Court finds that Defendant has carried its burden to present evidence sufficient to show there are no triable issues of material fact that the exit hatch door did not present a substantial risk of injury. Defendant’s evidence shows that there were warning signs on the ground indicating the doors could open and there is a chain that acts as a barrier to keep anyone from falling into the hatch. Further, security was hired to ensure the escape system is not abused in order to prevent the door from opening arbitrarily. Thus, the burden shifts to Plaintiff.

To meet his burden to show a triable issue of material fact exists as to whether the condition was dangerous, Plaintiff presents evidence that as he approached the exit hatch, the hatch doors opened right in front of him. (Plaintiff’s Undisputed Fact (“UF”) 9.) He did not have room or time to stop, hit the brakes, or take evasive action. (Id., 11, 12.) He had never noticed that exit hatch or seen it open before. (Id., 14.) Also, an alarm sounds but only at the subway level, not above ground. (Id., 50.) When hatch doors open, ROC is notified but no warning is given to anyone on the street level. (Id., 55). When asked, “Is there any warning provided to pedestrians or anyone else in the area that the sidewalk exit

doors are opening?,” Defendant’s PMK Elvis South responded, “Not to my knowledge” (Id., No. 56.)

Further, Plaintiff’s expert, a civil engineer who conducts safety investigations and analysis of premises, opines that the hatch door takes less than 1 second (~0.5–0.7 sec.) to move from a closed to fully opened position, once actuated. (Rosescu Decl., ¶ 9.) Moreover, the chain that Defendant acts as a barrier when the hatch opens is an unreasonable safety measure because it is insufficient to stop a sidewalk user from falling, and can also exacerbate the already dangerous nature of the hatch doors as it behaves as a low-lying impediment to approaching sidewalk users. (UF 77.) He further opines that the warnings present on the hatch doors are not perceivable until a person is positioned directly over them, making it unlikely a cyclist would be able to maneuver around the hatch after seeing them, and are at a skewed visual angle, rendering them imperceptible. (Id., 78, 80, 81, 84, 85.)

The Court finds that there are triable issues of material fact as to whether the condition was dangerous because Plaintiff’s evidence shows that the warnings present on the hatch doors are not perceivable until a person is positioned directly over them, making it unlikely a cyclist would be able to maneuver around the hatch after seeing them, and are at a skewed visual angle, rendering them imperceptible. Moreover, the chain is not sufficient to stop a sidewalk user from falling, especially when someone is traveling at a quick speed. The Court notes that both of these opinions are supported by the photographs contained in Rosescu declaration, entitled figure 1 and figure 2. Further, there is evidence the alarm would not sound on the street level. As such, Defendant is not entitled to summary adjudication on this basis.

b. Plaintiff or Third Party Did Not Use Due Care?

Defendant also argues that Plaintiff’s use of the sidewalk was not reasonable. Defendant additionally also argues that a trespasser did not use due care.

It is well settled, however, that the negligence or lack of due care exhibited by a plaintiff-user of public property does not necessarily defeat his cause of action. The Law Revision Commission's Comment to section 830 provides: ‘Although the condition will not be considered dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care, [emphasis in original] this does not require that the injured person prove that he was free from contributory negligence…’” (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130.)

Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff's contributory negligence is a matter of defense. (Sambrano v. City of San Diego, 94 Cal. App. 4th at 239.) “That the evidence the city offered was sufficient to demonstrate, as a matter of

law, that [plaintiff] was not using due care when his car struck the [alleged dangerous condition of public property], that would not justify judgment in the city’s favor. 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).’ (Alexander v. State of California ex rel. Dept. of Transportation (1984) 159 Cal.App.3d 890, 899, 205.) Thus, proof that [plaintiff] was not using due care is insufficient to show that plaintiffs cannot establish their claims in this case.” (Lane v. City of Sacramento, 183 Cal.App.4th at 1347.)

Based on these authorities, Defendant’s argument and evidence that Plaintiff or a third party was not using due care is not sufficient to meet Defendant’s burden on summary judgment that there is no triable issue of fact that as to whether there was a dangerous condition of public property. As such, summary judgment is also denied on this basis. Moreover, the Court notes that any evidence regarding a trespasser opening the hatch is inadmissible as hearsay.

c. Foreseeable?

Defendant then argues with no evidence that Plaintiff has the burden to demonstrate that such types of accidents had happened in the past, and thus were reasonably foreseeable. Defendant argues Plaintiff has not produced evidence of similar occurrences in the past that put LACMTA on notice of any dangerous conditions. However, it is Defendant’s burden for purposes of this motion to present this evidence. Defendant has failed to.

d. Trespasser Arguments

Defendant makes several arguments based on the assertion that a trespasser opened the exit hatch. However, due to the objections to the evidence as to the statements regarding a trespasser being sustained, these arguments fail.

3. Creation of Dangerous Condition and Notice

Defendant contends that it had no actual or constructive notice of the alleged dangerous condition.

Government Code section 835 provides that “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) [t]he 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.” (Govt. Code, § 835.)

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).)

“Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident, and the secondary element is the method of inspection. (Ibid.)

In Strongman v. Kern County (1967) 255 Cal.App.2d 308, the court held that the critical test for constructive notice is whether “the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence.” (Id. at p. 313.) A plaintiff can meet this burden with circumstantial evidence. (Id.)

Here, Defendant presents evidence that it conducted a maintenance of the condition. Its records indicate that the emergency exit doors and the hatch were maintained in a proper manner. This included checking for any tripping hazards when doors are closed. Prior to the incident, the last time maintenance was carried out was on 8/12/2021. (UMF 31.)

However, the complaint also alleges Defendant’s employees created this dangerous condition. Defendant has not presented any evidence or argument that it did not create the dangerous condition. (Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal. App. 2d 246, 254 [“the fact that the city itself deliberately created the dangerous condition dispensed with the necessity of the notice...”)

Accordingly, Defendant’s motion for summary judgment is denied. The motion for summary adjudication is GRANTED in part and DENIED in part. The motion for summary adjudication is granted as to the negligence cause of action, but denied as to the cause of action for dangerous condition of public property.