Judge: Lynne M. Hobbs, Case: 22STCV30964, Date: 2024-01-12 Tentative Ruling

Case Number: 22STCV30964    Hearing Date: February 5, 2024    Dept: 30

JULIAN CAMPOS, et al. vs LOS ANGELES UNIFIED SCHOOL DISTRICT

TENTATIVE

Defendant’s 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.)

Evidentiary Objections

i. Plaintiff’s Objections to Defendant’s Evidence

· The following objections are SUSTAINED: n/a

· The following objections are OVERRULED: 1-2

ii. Defendant’s Objections to Plaintiff’s Evidence

Defendant’s Objections to the declaration of Mark J. Burns are OVERRULED.

· The following objections are SUSTAINED: n/a

· The following objections are OVERRULED: 1, 2, 3, 4, 5

Discussion

Defendant moves for summary judgment as to Plaintiff’s sole cause of action for premises liability/dangerous condition of public property on the grounds that Plaintiff cannot establish: (1) the existence of a dangerous condition; (2) that LAUSD has actual or constructive notice of a dangerous condition; and (3) that an LAUSD employee negligently or wrongfully created 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.”

i. Existence of a 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.)

Here, Plaintiff was playing on one of school’s tetherballs court by himself during his morning P.E. class (Defendant’s Separate Statement of Undisputed Facts (“SS”) Nos. 2, 3.) Plaintiff testified that he was playing tetherball for at least ten minutes prior to his injury. (SS No. 4.) Plaintiff testified that he hit the tetherball, and the tetherball became disconnected from the rope. (SS No. 6.) Plaintiff further testified that after the tetherball became disconnected from the rope, he went to reach for the tetherball and then realized that a hook was stuck in his left thumb. (SS No. 6, 7.) The hook was also still attached to the rope. (SS No. 7.) Plaintiff identified the alleged dangerous condition as a “protruding hook” on the tetherball he was playing with at the time of the incident. (SS No. 9.)

Defendant contends that Plaintiff has no evidence there was indeed a “protruding hook” on the tetherball that would constitute a dangerous condition. The Assistant Principal, Agustin Garcia, checked the tetherballs daily for wear and/or damage during the 2021-22 school year. (Garcia Decl., ¶¶ 5, 8.) Garcia checked each tetherball and did not see a “protruding hook” on any tetherball prior to attaching each tetherball to a post before school started on the day of the incident. (SS Nos. 12, 13.) Plaintiff testified that he did not see a hook sticking out of the tetherball at any time during the ten minutes he was playing tetherball before the injury occurred. (SS Nos. 4, 8). He further testified that he did not notice anything different about the tetherball prior to his injury. (SS No. 5.) Moreover, there were no other complaints raised regarding the condition of any of the tetherballs prior to Plaintiff’s incident. (SS No. 10, 11.)

The Court finds that Defendant has not carried its burden to present evidence sufficient to show there are no triable issues of material fact that a dangerous condition existed. The reasonable inferences drawn from the evidence is that the hook came from inside the ball, because the hook that was stuck in Plaintiff’s finger still had the rope attached to it, and the rope was previously attached to the ball. This shows that the hook came from inside the ball. Defendant’s evidence that there were no prior complaints, alone, is insufficient to meet its burden. (See Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346 [“[T]he city cites no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of nondangerousness absent other evidence.”].) In any event, even if Defendant met its burden, Plaintiff has presented sufficient evidence to present triable issues of fact.

To meet his burden to show a triable issue of material fact exists as to whether the condition was dangerous, Plaintiff presents photographic evidence, which shows the ball was substantially worn down, discolored, and bulging; and it appears as if it exploded and burst open. (Berome Decl., Exh. H.) An isolated game of tetherball is not enough alone to cause the tetherball to break and cause the accident. (AMF No. 22.) The failure of the tetherball was due to long-term wear and deterioration that Plaintiff argues should have been noticed by Defendant when handling the tetherballs every day. (AMF No. 23.) Prior to the accident when inspecting tetherballs, Garcia would not pull on the rope attached to the hook because he was not aware that the tetherball was designed with a hook embedded in the rubber on the top. (AMF No. 18.)

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 ball was worn down to the point where the hook came out and injured Plaintiff.

In reply, Defendant argues that Plaintiff has maintained from the outset that his injury was caused by a protruding metal hook from the tetherball, and his claim for damages presented to Defendant identifies a “protruding metal hook” from the tetherball as a dangerous condition. However, now Plaintiff alleges the injury was caused by an overused, worn down, deteriorating tetherball that was not suitable for use.” Defendant contends such factual basis was not fairly reflected in his government claim form, nor does the Complaint contain any such allegations.

The Court finds that the hook was still the cause of Plaintiff’s injuries, and the description used by Plaintiff in his opposition only explains how the dangerous condition came about. It is still the hook from the tetherball that constitutes the dangerous condition, however, an explanation was needed as the hook was contained inside the ball.

Government Code section 910 provides that the claim must include a general description of the injuries and the names of the public employees who caused them. In addition, the factual circumstances set forth in the written claim must correspond with the facts alleged in the complaint. A claim is in “substantial compliance” with claims presentation requirements if the government entity is apprised of the claim and has an opportunity to investigate and settle it and incur no prejudice resulting from Plaintiff’s failure to strictly comply. (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal. App. 3d 70, 75.) Here, Defendant had the opportunity to investigate the very same ball. The ball has a hole in it where the rope was, and the rope was attached to the hook. It would be ingenuine to claim Defendant was deprived of an opportunity to investigate the claim regarding the same ball. The act should not be applied to snare the unwary where its purpose has been satisfied (Cory v. City of Huntington Beach (1974) 43 Cal. App. 3d 131, 136.)

ii. Notice and Creation of Dangerous Condition

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, as to whether Defendant had actual or constructive notice of the alleged dangerous condition, Defendant presents evidence that there had been no previous incidents at State Street alleged to have been caused by a metal hook protruding from a tetherball. (SS# 11). The State Street administration had no previous complaints about a metal hook protruding from any tetherball prior to Plaintiff’s incident. (SS No. 10). Garcia was responsible for setting up the tetherball court daily before school starts. (Garcia Decl., ¶ 8.) It was his daily practice to check each tetherball for wear and/or structural damage that may pose a risk of injury to students at State Street prior to attaching each tetherball to a post. (Id.) In line with his regular practice, Garcia, on the day of the incident before the start of school, checked each tetherball for wear and/or structural damage and did not see a metal hook protruding from any tetherball he attached to a post. (SS No.13.) Garcia did not receive notification regarding a metal hook protruding from any tetherball after he finished setting up the tetherball courts and the moment he was alerted to Plaintiff’s injury on the day of the incident. (SS No. 10.)

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...”)

As to whether Defendant created the condition, it argues that Plaintiff does not possess, and cannot reasonably obtain, any evidence that an LAUSD employee acting within the course and scope of their employment negligently and/or wrongfully created the alleged dangerous condition. (SS No. 14.) Garcia will testify that no other hooks are used to attach the tetherballs to the rope because the tetherballs come packaged with the rope pre-tied to the hook mounted inside the top of the tetherball. (Garcia Decl., ¶ 6.)

First, Defendant’s evidence does not show that Plaintiff cannot reasonably obtain any evidence that an employee acting within the course and scope of their employment negligently and/or wrongfully created the alleged dangerous condition. Second, Defendant’s own evidence tends to show this. Defendant’s evidence shows that Garcia was in charge of inspecting the tetherballs for wear and/or structural damage that may pose a risk of injury to students prior to attaching each tetherball to a post. (Id., ¶ 8). Despite inspecting the tetherballs that morning, Garcia still put out for use the worn-down tetherball at issue (see Berome Decl., Exh. H). Therefore, this evidence shows that his act or failure to act by changing the ball, created the condition. Defendant’s evidence that the hooks are pre-tied to the hook mounted inside the top of the tetherball ignores that the tetherball was worn-down. It was this condition of this ball that caused it to pop open. As such, because Defendant has not met its burden to show no triable issues of material fact exist as to whether it created the condition, the burden does not shift to Plaintiff. Defendant is not entitled to summary judgment.