Judge: Michael J. Strickroth, Case: 2021-01222791, Date: 2023-07-31 Tentative Ruling
Motion for Summary Judgment and/or Adjudication
Defendant, City of Huntington Beach’s (Defendant) Motion for Summary Judgment, Or, In The Alternative, Summary Adjudication (Motion) is DENIED.
The Court overrules objections 1-5 and 11 to Plaintiff’s Objections to Defendant’s Evidence in Support of Motion. Objections 6-10 are sustained.
The Court overrules objections 3, 4 and 11 to the Declaration of Enrique Rivera in Support of Opposition. Objections 2, 5-8 and 10 are sustained. Objections 1 and 9 are sustained in part as follows:
· Objection 1: sustained in part as to first sentence of paragraph 10 and Figure 1. Lacks personal knowledge as to figure 1, lacks authentication.
· Objection 9 sustained in part as to “It is well known that large trees near sidewalks cause damage resulting in uplifts that pose a danger to pedestrians. The City knew or should have known about the change in elevation that caused Plaintiff’s fall and injuries due to the tree being located near the incident area. The City had employees respond to the incident area prior to the subject incident. The incident area had been repaired in the past prior to the Plaintiff’s fall incident..”
A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. Code of Civil Procedure, § 437c, subd. (c). “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘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.’ [Citation.].” Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.
Defendant moves for summary judgment, or, in the alternative, summary adjudication as follows:
1. Plaintiff’s dangerous condition of public property claim fails as a matter of law because she cannot establish that a dangerous condition existed on the Subject Property
2. Plaintiff’s dangerous condition of public property claim fails as a matter of law because the City did not have either actual or constructive notice of the condition or its allegedly dangerous character.
3. Plaintiff’s dangerous condition of public property claim fails as a matter of law because Plaintiff cannot establish that a negligent act of a City employee created the allegedly dangerous condition.
Compliance with Code of Civil Procedure section 437c(f)(1)
Preliminarily, the Court notes Defendant’s Notice of Motion does not comply with Code of Civil Procedure section 437c(f)(1).
Code of Civil Procedure, section 437c(f)(1) provides that “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.”
Here, Plaintiff’s Complaint only alleges one cause of action for premises liability based on dangerous condition of public property against Defendant. Each of Defendant’s noticed issues pertain to this single cause of action. The Court may not grant summary adjudication on any of the issues alone as they do not dispose of a single cause of action.
Based on the above, the Court will treat this motion as one for summary judgment.
Merits
“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. Government Code § 835; People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484–1485.
“Generally, whether a given set of facts and circumstances amounts to a dangerous condition presents a question of fact.” County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460,469. “Public property is in a dangerous condition within the meaning of section 835 if it is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105, citations omitted.
1. Whether defect in sidewalk was trivial
Defendant first contends summary judgment is warranted because the condition of the sidewalk at the time of Plaintiff’s incident is trivial as a matter of law. (Motion, 7:22-10:22.) Specifically, the sidewalk was a trivial defect because it only posed a minor risk of injury to pedestrians exercising due care. (Id.)
In ruling on summary judgment motions on a claim for dangerous conditions of public property, the Court first determines whether a condition meets the statutory definition of a “dangerous condition” pursuant to Government Code section 830.
An exception to the definition of “dangerous condition” under Government Code section 830 is when a condition may be considered “trivial” under Government Code section 830.2; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234. Government Code section 830.2 provides a condition is “trivial” when the 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.”
“The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove… “Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.” [citation omitted]” Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104-1105.
In Opposition, Plaintiff contends the sidewalk at the time of the incident was not a trivial defect because Defendant did not submit admissible evidence in support of this argument. (Opposition, 12:10-17.) Alternatively, Plaintiff contends that even if Defendant’s evidence is admissible, the competing declaration from Enrique Rivera creates a triable issue regarding whether the sidewalk defect was trivial. (14:15-16:15.)
Here, it is undisputed the incident occurred in front of the Subject Property, which was in Defendant’s Maintenance Zone 5 and scheduled to be surveyed 2021-2022. (Separate Statement of Material Facts (SUMF), No. 16; Declaration of Dereck Livermore, ¶ 7.) Defendant submits the declaration of Dereck Livermore (Livermore) in support of the argument the sidewalk defect was trivial.
Livermore declares as follows regarding the sidewalk defect: “I am currently the Supervisor of the Street Maintenance Division for the Public Works Department of the City of Huntington Beach ("City"), and have held this position since May 2009. I have been employed by the City of Huntington Beach since 1995, hired first as a Maintenance Service Worker and then promoted to Equipment Operator, Lead Worker, and Crew 28 Leader, all in the Street Maintenance Division of the City's Public Works Department. [¶] My duties as the Supervisor of the Street Maintenance Division include, among other things, the planning, coordinating, and supervising of the City's programs and policies for all the City's right of way (including City streets, sidewalks, and City owned parking lots) and supervising City employees in the Street Maintenance Division. [¶] As the Supervisor of the Street Maintenance Division, I have access to City records regarding the inspection, construction, maintenance, and repair of City owned streets and sidewalks. In addition, I have access to records of citizen complaints and claims reported to the City that concern the City's streets and sidewalks. [¶] The City also keeps and maintains records of prior complaints and/or claims of hazardous conditions in the Huntington Beach Service Management System, which fields complaints from both internal and external customers. Various search criteria is utilized to search prior claims, including the street name, maintenance work in the area, the reporting district and range of dates. After a diligent search and inquiry, the City is not aware of, nor did it have any record of, any complaint, lawsuit, or claim for injury arising from the use of the sidewalk located at the Subject Property, prior to August 3, 2020, the date of the incident. [¶]Using the same Huntington Beach Service Management System, I was able to locate two Public Works Service Inspection Requests concerning the Subject Property that were made prior to August 3, 2020, the date of the incident. The first request was made on June 19, 2012, and concerned a lifted sidewalk located at or near the Subject Property. The second request was made on June 8, 2015, and concerned a lifted sidewalk at or near the Subject Property. Neither request indicated that the lifted sidewalk was dangerous, hazardous, or that a pedestrian had tripped and fallen at the Subject Property. On both occasions, the City responded to the Subject Property and remedied the sidewalk lifts using an asphalt ramp. The City has not received any additional Service Inspection Requests since the asphalt ramp was installed in 2015. Attached hereto as Exhibit "B" is a true and correct copy of the Public Works Service Inspection Requests related to the Subject Property.” (Livermore Decl., ¶¶ 2, 3, 5, 8, 9.)
As discussed above, the Court has overruled Plaintiff’s objections to the Livermore Declaration. Therefore, based on the Livermore declaration, the Court finds Defendant has met its burden as the moving party that the sidewalk defect was trivial.
In support of her opposition, Plaintiff cites to the declaration of her expert, Enrique Rivera, that there is a triable issue regarding whether the condition of the sidewalk was a trivial defect. Mr. Rivera declares: “It is my opinion, based on my background, training, and experience analyzing numerous similar incidents involving trip and falls on sidewalks and walkways, that the subject sidewalk presented a dangerous condition for pedestrians on the day of Plaintiff’s incident. Although I was not able to measure the subject uplift during my inspection since the area was repaired prior to my inspection, based on my education, training and experience, it is my best estimate that the subject change in elevation was more than 1 inch. I have not relied on the measurements taken by Defendant since Mr. Livermore testified that the 2 measurements taken were not in the area Plaintiff identified as being where the subject incident occurred. (Livermore Deposition, pg. 51-52) Further exacerbating the condition is the fact that there is a missing piece of the asphalt patch within the area that Plaintiff identified as the area where she fell which has jagged, uneven and irregularly shaped edges. At its widest point, the missing pieces of the black asphalt patch measures approximately 24 inches, based on my measurement that the subject sidewalk slab is 60 inches wide. At its deepest, the missing pieces of the black asphalt patch measures approximately 1-5/8 inches, based on my measurement that the subject sidewalk slab is 3-1/2 inches deep. In totality, the condition of the subject sidewalk at the time of the incident would constitute a significant trip hazard to pedestrians traversing the sidewalk because it allowed for a pedestrian’s foot to catch or become entrapped.” (Rivera Decl., ¶ 11.)
Although the Court sustains objections to portions of the Rivera Declaration, Mr. Rivera’s opinion that the sidewalk presented a dangerous condition is based on his review of certain photographs of the sidewalk condition and is admissible. Mr. Rivera’s statement is sufficient to create a triable issue as to whether the sidewalk condition was a “trivial” condition because it demonstrates that reasonable minds can differ regarding whether the sidewalk posed a substantial risk of injury.
Therefore, the Court finds Plaintiff has met her burden of demonstrating the existence of a triable issue as to whether the condition of the sidewalk was a trivial defect.
2. Failure to Exercise Due Care
Next, Defendant argues Plaintiff cannot prove the sidewalk condition is dangerous within the meaning of Government Code section 830 because Plaintiff’s failure to exercise due care is the sole cause of her injury. (Motion, 10:24-12:7.) However, Defendant does not submit evidence in support of this argument. Instead, the motion argues without citing to evidence that if Plaintiff had been more careful, Plaintiff would have seen the raised portion of the sidewalk and not fallen.
Defendant does not meet its burden as the moving party with respect to this argument because Defendant failed to submit evidence. Therefore, Defendant’s second argument in support of its motion fails.
3. Defendant’s Notice of Condition of Sidewalk
Defendant contends it did not have actual notice of the condition of the sidewalk because it did not have prior complaints regarding any other falls at the sidewalk by the Subject Property, or the condition of the sidewalk. (Motion, 12:27-13:23.) Additionally, Defendant contends it did not have constructive notice because none of Plaintiff, Defendant’s contractor WCA, and/or Defendant’s employees ever observed the subject sidewalk in a dangerous condition prior to the incident. (Motion, 13:26-16:24.)
“To establish “actual notice,” it is not enough to show that the state employees had a general knowledge that people do leave hot coals on public beaches. There must be some evidence that the employees had knowledge of the particular dangerous condition in question.” State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 399-400.
“A public entity will be charged with constructive notice of a dangerous condition only if (1) the dangerous condition existed for a sufficient period of time before the plaintiff's injury, and (2) it was sufficiently obvious that the entity acted negligently in not discovering and repairing it.” Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 513.
In Opposition, Plaintiff contends that triable issues exist regarding whether Defendant had constructive notice for the following reasons: (1) the condition of the sidewalk existed for approximately 8 years before the incident, and Defendant cannot say the last time it inspected the sidewalk between 2015 and the date of the incident, (2) Defendant should have discovered the existence of the sidewalk condition in the exercise of due care. Plaintiff also argues that the lack of prior incidents is inadmissible for the argument that no dangerous condition existed pursuant to Murphy v. County of Lake (1951) 106 Cal.App.2d 61, 65 (Murphy). Murphy states: “It is the rule that evidence of the absence of previous accidents to show that no dangerous condition existed is inadmissible.” (Id.)
Plaintiff’s Opposition also cites to several cases that constructive notice is a question of fact. For example, Maddern v. City and County of San Francisco (1946) 74 Cal.App.2d 742, 753 states: “there is no hard and fast rule as to the amount of time that must elapse before a court or jury will be justified in holding that a defendant had constructive notice of the dangerous and defective condition. What amounts to “long continued neglect,” “a considerable length of time” or “an unreasonable length of time” are matters which must be determined in accordance with all the facts and circumstances of the particular case under consideration.”
Here, Defendant submits the declaration of Gretchen Erickson (Erickson) for the argument the City did not have actual notice of any dangerous condition. Erickson states: “I am currently an Administrative Assistant in the Public Works Department for the Defendant in this case, the City of Huntington Beach. [¶] I utilize the Huntington Beach Work Order Management System to track requests from internal and external customers for maintenance operations. This includes requests regarding graffiti, street and sidewalk repairs, tree trimming, falls, hazards, etc. The City has utilized this tracking system since early 2010. [¶] According to the information contained in the Huntington Beach Work Order Management System, I determined that the City has no record of any pedestrian slipping, tripping, or falling on, at, or near the sidewalk located at 810 Main Street, Huntington Beach, California (location of Plaintiffs fall) prior to August 3, 2020 (the date of Plaintiffs fall).” (Erickson Decl., ¶¶ 2, 3, 5.)
Plaintiff does not argue Defendant did not have actual notice.
In support that Defendant knew there was a sidewalk defect for 5-8 years before the incident, Plaintiff points to the deposition of Livermore and paragraphs 10 and 16 of the Rivera Declaration. Mr. Livermore testified as follows:
“Q: In 2012, like we discussed, June 19, 2012, Brent Mirth identified some sort of sidewalk condition that needed to be repaired and it was ramped with asphalt and dusted by Jeff Slater about a week later correct?
A: Correct.
Q: And then it looks like the same thing happened almost three years to the dot in 2015; is that correct?
A: That’s correct.(Separate Statement of Additional Facts (PSF), No. 30; Fradkin Decl., Exhibit A, 18:10-18.)
Further, Mr. Livermore testified Defendant does not know when the last time that sidewalk was inspected before the incident was. (PSF No. 37; Fradkin Decl., Exhibit A, 8:3-6.)
Based on the above, Plaintiff’s submitted evidence demonstrates there was a problem with the sidewalk by the Subject Property sometime in 2012 or 2015, but that Defendant is not certain whether it was fixed immediately prior to the incident as Defendant is not sure the last time the sidewalk was inspected. Pursuant to Maddern the Court finds Plaintiff has met her burden of demonstrating the existence of a triable issue as to Defendant’s notice of the sidewalk condition.
Because the Court has found Plaintiff has demonstrated the existence of a triable issue with regard to (1) whether the sidewalk at the time of the incident was a trivial defect or was dangerous and (2) whether Defendant had constructive notice of the sidewalk condition, the Court therefore denies Defendant’s motion.
Plaintiff is to give notice.