SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

Temple City argues that in the five years prior to Plaintiff’s incident, there were no complaints, service requests, or claims to Temple City about any slippery substances at the In-N-Out parking lot/driveway apron at 10601 E. Lower Azusa Road in Temple City. Therefore, Temple City had no actual notice of the existence of the alleged dangerous condition of a 3.5-inch diameter greasy substance, nor any constructive notice of a transitory substance that existed only in the afternoon of Plaintiff’s fall.  

 

B. Opposing Argument 

Plaintiff argues that because the Court found triable issues of material fact as to the issue of causation in Defendant In-N-Out’s motion for summary judgment, that the Court must therefore find the same as to Temple city. Plaintiff argues Temple City did not have a reasonable inspection system in place to inspect the area, and therefore Plaintiff is entitled to the inference that the greasy substance on the ground was long enough to give Temple city an opportunity to discover and remedy it.  

 

C. Reply Argument 

Temple City reiterates the arguments in its moving papers that it had no actual or constructive notice, and that both Plaintiff and Plaintiff’s expert speculate to the existence of facts.  

 

II. Evidentiary Objections 

Plaintiff’s Objections 

Plaintiff submits two objections to the Declaration of Karen Johnson (Objections 1-2), and one objection to the Declaration of Yansy Monroy (Objection 3). The objections are overruled.  

 

Temple City’s Objections 

Temple City submits 28 objections to Plaintiff’s evidence. As the objections to the Declaration of Enrique Rivera (Objections 1-27), Objection 1 regarding the qualification of the expert in relation to the incident is sustained. Rivera’s declaration does not establish that he has “special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.”  (Evid. Code § 720(a).)  Rivera lists his qualifications concerning construction methods, pedestrian locomotion, and gait mechanics. As In-N-Out contends, Rivera’s declaration does not establish that he has any expertise on issues concerning wheeled vehicles on sidewalk surfaces. Given this ruling, the Court does not need to rule on objections 2-26 made to portions of Rivera’s declaration. (See CCP § 437c(q).)     

Objection 28 is sustained.  

 

III. Request for Judicial Notice 

Temple City requests the Court take judicial notice of its June 7, 2023 tentative decision as to co-defendant In-N-Out Burger's Motion for Summary Judgment against Plaintiff.  

The request is denied. 

 

IV. Motion for Summary Judgment 

A Burdens on Summary Judgment 

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….”  (Aguilar, supra, 25 Cal.4th at 865-66.) 

 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

A public entity had actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  (Gov. Code § 835.2(a).)  “To establish actual notice, ‘[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question’; ‘it is not enough to show that the [public entity's] employees had a general knowledge’ that the condition can sometimes occur. [Citation.]”  (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.) 

A public entity had constructive notice of a dangerous condition 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 (b).)  On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition.  (Gov. Code § 835.2 (b)(1)-(2).)  “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.”  (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.)  “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.”  (Ibid.)     

Here, Plaintiff alleges her scooter slipped in the entrance to the In-N-Out parking lot, on the driveway apron between the sidewalk and parking lot. Plaintiff filed a claim with Temple City, which Temple City rejected. Plaintiff described the substance as thin, dark, and greasy in appearance, in a small puddle no larger than the top of an eight-ounce coffee cup. During a typical week, Plaintiff walked and/or rode the scooter past the area of the incident at least six times a day, thirty times a week, to drop off and/or pick up her two sons from school. (UMF 10.) From 2015 to 2019, Plaintiff was very familiar with the In-N-Out as she and her sons ate there approximately every other day. (UMF 11.) In the hundreds or thousands of times that Plaintiff travelled by the area of the incident, either walking or on a scooter, neither she nor her sons slipped on anything. Plaintiff never noticed anyone else slip, trip, or fall on the sidewalk or parking lot/driveway apron. (UMF 13.) In the five years prior to Plaintiff’s September 2019 incident, Temple City did not receive any complaint, service request or claim regarding any slippery substances at the In-N-Out parking lot/driveway apron where Plaintiff fell. (UMF 14.) At the time of the alleged incident, Plaintiff travelled over the same path four times, and on the prior three trips, Plaintiff did not notice any substance in the area where she claims to have slipped and fell. (UMF 3.) 

This evidence is sufficient to meet Temple City’s moving burden. Therefore, the burden shifts to Plaintiff to produce evidence showing that a triable issue of one or more material facts. 

First, the Court rejects Plaintiff’s argument that the Court must analyze Temple City’s motion in the same manner as In-N-Out’s motion for summary judgment. The Court took In-N-Out’s motion for summary judgment under submission and has yet to rule on it. Additionally, Defendants In-N-Out and Temple City are not similarly situated. Temple City is a public entity, whereas In-N-Out is not. The Legislature expressly sought to limit a public entity’s liability by setting out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Stack v. City of Lemoore (2023) 91 Cal. App. 5th 102, 108.) Under section 835 of the act, public entities are directly liable “for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventive measures.” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347-348.) 

Second, Plaintiff’s argument that the lack of prior complaints about a greasy or slippery substance at the In-N-Out driveway should not be considered as admissible evidence is not supported. The authority Plaintiff relies upon pertains to a physical defect or physical condition of a structure owned, managed, or maintained by a public entity. Here, there is no evidence that there was any inherent defect of the sidewalk. Furthermore, there is no evidence that any act or omission by Temple City or its employees caused a slippery substance to form on the ground, or any supporting authority that a public entity should be responsible for transitory conditions it did not create. Plaintiff’s contention of a lack of inspection system is not persuasive. The Court rejects the notion that the Legislature intended a public entity to be found constructively on notice for transitory conditions on pavements and roads, wherein there was no additional act from the public entity or its employees that contributed to or caused the condition. To hold so would open a public entity’s liability to encompass a broad swath of potential elements on the pavement and road from third parties, which cuts against the intent of the Government Claims Act to not expand the rights of plaintiffs against governmental entities; rather, the intent of the Act is to confine potential governmental tort liability to rigidly delineated circumstances. (Hernandez v. City of Stockton (2023) 90 Cal. App. 5th 1222, 1229.) 

Because there is no evidence that any of Temple City’s employees created the slippery substance, which Plaintiff speculates came from idling cars, nor is there any evidence that Temple City had actual or constructive notice of the alleged condition, Plaintiff has not demonstrated an issue of material fact. (Gov. Code § 835(b) [to prevail on a claim for dangerous condition of public property, plaintiff must prove that public entity created the condition or had actual or constructive notice of it in sufficient time to take protective measures]; see Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 826-27 [judgment for defendant affirmed because plaintiff failed to establish that park district had actual or constructive notice of alleged dangerous condition].) Plaintiff has not proven Temple City created the condition, nor has Plaintiff proven that Temple City had actual or constructive notice of a 3.5-inch diameter slippery substance, especially when Plaintiff’s evidence suggests that the condition existed for less than a single day. The Court need not reach causation when there has been no breach of duty.   

 

Based on the foregoing, Temple City’s motion for summary judgment is GRANTED.