Judge: Michael E. Whitaker, Case: 20STCV46502, Date: 2023-01-09 Tentative Ruling

Case Number: 20STCV46502    Hearing Date: January 9, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Flynn C. Marine in Support of Motion for Summary Judgment
3. Declaration of Aisha L. Thompson in Support of Motion for Summary Judgment
4. Declaration of George L. Mallory, Jr. in Support of Motion for Summary Judgment
5. Exhibits in Support of Motion for Summary Judgement
6. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment
2. Response to Defendant’s Separate Statement of Undisputed Facts in Opposition to Motion for Summary Judgment
3. Plaintiff’s Separate Statement of Undisputed Facts in Opposition to Motion for Summary Judgment
4. Declaration of Mark J. Burns, B.S.M.E., J.D. in Opposition to Motion for Summary Judgment
5. Declaration of Eber Bayona in Opposition to Motion for Summary Judgment
6. Declaration of Eber Bayona, with Exhibit 1 (Deposition of Steve Ycute) in Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply to the Opposition to Motion for Summary Judgement

2. Objection and Response to Plaintiff’s Separate Statement of Undisputed Facts

3. Objection to the Declaration of Mark J. Burns, BSME, JD, GC, CCBI, CXLT, CPSI

4. Objection to Plaintiff’s Response to Defendant’s Separate Statement of Material Facts

BACKGROUND

Plaintiff Maria Estela Menjivar (Plaintiff) sued Defendant City of Inglewood (Defendant) based on an incident in which Plaintiff allegedly was walking over a sidewalk vault cover when the vault cover popped open causing her to fall and sustain injuries.  Plaintiff is alleging premises liability based on dangerous condition of public property against Defendant. 

Defendant moves for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion. Defendant replies. 

LEGAL STANDARDS –SUMMARY JUDGMENT

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[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.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

EVIDENCE

            With respect to the evidentiary objections set forth in “Defendant City of Inglewood’s Objection and Response to Plaintiff’s Separate Statement of Undisputed Facts in Opposition to Defendant’s (sic) Motion for Summary Judgment,” the Court finds Defendant’s objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354. Rules 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

Written objections to evidence must follow one of the following two formats:   [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats:  [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.)  Here, the Defendant did not follow one of the permitted formats, and Defendant did not submit a proposed order following one of the prescribed formats. As such, the Court declines to rule on Defendant’s evidentiary objections.

            With respect to Defendant’s evidentiary objections to the declaration of Mark J. Burns, (Burns), [1]  the Court finds Defendant failed to submit a proposed order following one of the prescribed formats in violation of California Rules of Court, rule 3.1354 (see above).  However, the Court finds Defendant has substantially complied with Rule 3.1354 and exercises its discretion to rule as follows:

1. Sustained – Inadmissible hearsay

2. Sustained – Foundation

3. Sustained - Foundation

4. Sustained - Foundation

5. Sustained - Foundation

6. Sustained - Foundation

7. Sustained - Foundation

8. Sustained - Foundation

DISCUSSION

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute.  (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[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.)

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.) 

Per Government Code section 835, “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 . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  (Gov. Code, § 835, emphasis added.) 

A “dangerous condition” is a condition of public property that “create[s] 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 was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.) 

Moreover, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.  (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)  To that end, Government Code section 835.2 states that “(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.”  (Gov. Code, § 835.2, subds. (a)-(b), emphasis added.) 

Defendant argues that it did not have actual or constructive knowledge of alleged dangerous condition at issue.  Defendant advances the following Undisputed Material Facts (hereafter UMFs) with supporting evidence in support of its contention:

• In response to Plaintiff’s claim against the City, diligent and thorough searches of the City’s Public Works Department and the City Clerk's Office records were conducted to determine whether any repair requests, complaints, claims, lawsuits and reports of trip and fall incidents relating to the subject incident location were made before Plaintiff’s September 2, 2019 trip and fall incident.

   

• Said searches revealed that except for Plaintiff's claim, neither the Public Works Department nor the City Clerk’s Office had any record of any repair requests, complaints, claims, lawsuits, or reports of trip and fall incidents pertaining to the subject location.

• The City received no notification of any purported dangerous condition at the subject location prior to Plaintiff’s trip and fall incident.

• There were no records of repair requests or repairs made to the subject location prior to Plaintiff’s trip and fall incident.

• There were no prior claims or notices of lawsuits regarding a dangerous condition relating to the subject incident location.

• Further, there is no record of any City Public Works Department employee or anyone else reporting any problem they observed relating to the subject incident location.

• Further, the City's Public Works Department records indicate that prior to Plaintiff’s trip and fall incident, the meter at the subject location was read on August 12th, 2019.

• Following Plaintiff’s trip and fall incident, the meter at the subject location was read on September 12, 2019.

• On both occasions, said City Public Works Department records further indicated that the meter reader confirmed that the metal grate covering the water meter at the subject location was secure and in good condition.

• Prior to the occurrence of Plaintiff’s trip and fall incident, the City was unaware of the condition of the subject water metal great and never received any complaints that the metal grate was open or unsecured prior to Plaintiff’s trip and fall incident.

• On July 12, 2022, Plaintiff’s deposition was taken wherein she admitted that before the date of the incident, (1) she was unaware of any problems in the area where she fell; (2) she never made any reports of problems in the area where she fell to the City; (3) she was unaware of anyone who had reported problems in the area where she fell to the City.

• Plaintiff also testified that she did not know how long the alleged dangerous condition where she fell existed before the subject incident.

• Plaintiff testified that she did not know who created the alleged dangerous condition that she believes caused her to trip and fall.

   

  (See UMFs 5-17.)  Plaintiff does not dispute UMFs 5-14, but Plaintiff disputes UMFs 15-17 without any evidentiary support which does not comply with Code of Civil Procedure section 437c, subd. (b)(3) and California Rules of Court, rule 3.1350(f)(2).  Consequently, the Court will not consider Plaintiff’s purported disputes regarding UMFs 15-17.  (See Bacoka v. Best Buy Stores, L.P. (2021) 71 Cal.App.5th 126, 131, fn. 1 [“Opposition separate statements must cite to facts and evidence for the evidence to be considered by the court”].) 

   

  Defendant’s evidence shows that Defendant did not have actual or constructive notice of any dangerous condition associated with the sidewalk vault cover.  Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether Defendant had notice, actual or constructive, of a dangerous condition regarding the sidewalk vault cover before Plaintiff allegedly fell and suffered injuries. 

   

              In opposition, Plaintiff advances the declaration of Burns in which he states in pertinent part (subject to the Court’s evidentiary rulings):

   

• Photographs from the date of incident clearly show the vault box was open after the Plaintiff’s fall (attached hereto as Exhibit ‘2’). [2] At Aperture’s inspection, the subject vault cover would sit level with the adjacent sidewalk unless the vault was unlocked with a socket wrench. After unlocked with a socket wrench, the subject vault cover would spring up to a height of 11-5/16 inches. Video from Aperture’s inspection shows about 55 pounds of force is required to keep the vault cover flush with the sidewalk when unlocked. (true and correct copy of photographs attached hereto as Exhibit ‘3’). This force could easily cause a pedestrian to fall. The walking surface provided by the subject vault cover was unstable on the date of incident. Unstable walking are dangerous conditions for pedestrians.

• Ms. Menjivar states in her deposition that the subject vault cover lifted after her stepping on it. The subject vault was flush and level with the adjacent sidewalk prior to Ms. Menjivar stepping on it. The subject vault box has no warning signs indicating it may be an unstable walking surface.

• There were no issues with the lock mechanism at Aperture’s inspection.

• In conclusion, the unsecured locks on the subject vault box created an unstable walking surface and dangerous condition for pedestrians on the date of incident.

(Declaration of Mark J. Burns, ¶¶ 9-12.)   Further, Plaintiff proffers the deposition testimony of Steven Ycute, a public works water operations supervisor for Defendant, with a specific reference to the following (see Plaintiff’s Separate Statement of Undisputed Facts in Opposition to Motion for Summary Judgment, PSSF Nos. 1-4):

• A The vault was closed and it was -- I mean, I didn't -- I didn't think I had the need to do it.
• Q Right. I understand it was closed. But why did you feel the need that you didn't have to do it?
• A I don't know.
• Q In your position, in your supervisor position, did you have the capability to open and close it?
• A I had the capability, yes.
• Q And how would you execute opening and closing the lid?
• A I don't understand the question.
• Q Yeah. How would you go about -- if you wanted to open it, how would you go about opening it?
• A Using the right tools.
• Q And what tool is that?
• A To my knowledge, the meter readers use a ratchet or a socket set.

(Declaration of Eber Bayona, Exhibit 1, 37:1-20.) 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorably to Plaintiff, the Court finds that there are no triable issues of material fact regarding Defendant’s Undisputed Material Facts Nos. 1-17.  In short, Defendant has met its burden of production/persuasion that there is no triable issue of material fact as to whether it had actual or constructive notice of the allegedly dangerous condition associated with the sidewalk vault cover and that it is entitled to judgment as a matter of law.

Therefore, the Court grants Defendant’s motion for summary judgment.  Defendant shall give notice of the Court’s ruling and file a proof of service of such.