SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Saptarshi Majumdar (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”) and Candace Hanako Tanaka for injuries arising from a collision between a motor vehicle v. motorized wheelchair.  

Plaintiff alleges the sidewalk was raised, uneven, cracked, chipped, broken, improperly patched and improperly repaired, and not maintained in a safe condition, which forced Plaintiff to use the roadway and not the sidewalk. Consequently, Plaintiff alleges he was on the roadway when Candace Hanako Tanaka made a left turn and collided with Plaintiff and Plaintiff’s wheelchair. (Compl. at ¶¶ 28, 39-40.) Plaintiff sets forth three causes of action against the City for dangerous condition of public property (Gov. Code § 835), negligent act or omission of public entity/public employee (Gov. Code § 815.2), and failure to perform mandatory duty (Gov. Code § 815.6). 

The City now moves for summary judgment.  Plaintiff opposes the motion, and the City filed a reply.  

II. Judicial Notice 

Defendant requests the Court take judicial notice of Plaintiff’s Complaint in the instant action. The request is granted.  

 

III. Evidentiary Objections 

Plaintiff, with his opposition, submits 5 objections to the City’s evidence. Objections 1-5 are sustained.  

[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.) 

 

The Act defines a “ ‘[d]angerous condition’ ” as “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.” (§ 830.) 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.” [Citation.] A condition is not dangerous “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.” (§ 830.2.)   

(Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.)  

 

In this case, Plaintiff was s riding his motorized wheelchair south on Colby  on August 6, 2020. Plaintiff alleges he was unable to traverse the sidewalk, causing Plaintiff to leave the sidewalk and continue along the roadway of southbound Colby Avenue. (UMF 7.) Plaintiff recalled that he was traveling southbound on the west sidewalk of Colby Avenue, intending to make the delivery to “2100-something Colby.” (UMF 10.) Plaintiff chose to enter the roadway of southbound Colby Avenue at a driveway apron of 1851 Colby Avenue due to a sidewalk condition he had encountered approximately one month prior to the date of the subject incident between the properties of 1851 and 1855 Colby Avenue. (UMF 11.) Plaintiff testified that he continued to travel southbound on the roadway of Colby Avenue, intending to cross straight through the intersection of Missouri Avenue and then enter the sidewalk again continuing to travel southbound on Colby Avenue. Plaintiff was not attempting to make a left turn. (UMF 12.) Prior to entering the intersection, Mr. Majumdar “briefly” saw the Toyota turning left from eastbound Missouri Avenue towards northbound Colby Avenue when he was impacted by the Toyota. (UMF 13.) Plaintiff entered the roadway of southbound Colby Avenue via the driveway apron of 1851 Colby Avenue due to the sidewalk condition between the properties of 1851 and 1855 Colby Avenue. (UMF 14.)  

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.)    

In this case, the City presents no relevant evidence that it did not have constructive notice of the dangerous condition. The City avers that the collision history summary reports prepared by the Los Angeles Department of Transportation for the vicinity of the collision demonstrated only two collisions within a 10 year time frame. However, the Court fails to see the relevance of prior collisions, traffic controls and volume of vehicles passing through the intersection of Missouri Avenue and Colby Avenue when the issue here is not the intersection in itself, but the dangerous condition of the sidewalk on Colby Avenue. As framed by the Complaint, Plaintiff alleges his wheelchair could not traverse the dangerous condition on the sidewalk, and as a result, Plaintiff exited the sidewalk to enter the roadway, wherein Plaintiff was struck by a vehicle. The City fails to directly address the subject sidewalk at issue, and provides no evidence of any sidewalk inspection system in place. 

Consequently, the City fails to meet its moving burden of showing it did not have constructive notice of the subject sidewalk uplift. Moreover, even if the City’s evidence was sufficient to meet its burden, Plaintiff’s evidence is sufficient to raise a triable issue of material fact as to the issue of notice of a dangerous condition.   

The height of the sidewalk deviation ranged from 3-3/8” to 7-1/8”. (Avrit. Decl. ¶ 10.) Moreover, the photos of the condition are such that the defect appears clearly visible, and the City does not provide any evidence showing that it ever inspected the subject sidewalk, nor does the City provide evidence that it had a reasonably adequate inspection system or operated such an inspection system with due care.   

Therefore, this raises a triable issue of fact as to whether an adequate inspection system would have discovered the condition. 

 

It takes less for a defect in a sidewalk to be obvious. The reasons for this are, well, obvious. As their very name implies, sidewalks are made for perambulation. Pedestrians on sidewalks accordingly have “the right to assume [that] the surface would be safe” without having to “ ‘ “keep [their] eyes fixed on the ground.” ’ ” (Garber v. Los Angeles (1964) 226 Cal.App.2d 349, 358, 38 Cal.Rptr. 157.) Given the very likely danger to pedestrians and others from all but the most trivial of defects in sidewalks, the “likelihood and magnitude of potential danger” due to failure to maintain sidewalks in good condition justifies a requirement that public entities apply more rigorous scrutiny to searching sidewalks for defects, even if that means greater cost. [Citations.] 

 

(Martinez, 71 Cal.App.5th at 523.) 

The City does not dispute that it owns the subject sidewalk, and that it was responsible for maintaining or controlling it. If the City failed to keep the sidewalk in a reasonably safe condition and use due care in eliminating the 3-3/8” to 7-1/8” uplift, the City’s act or omission can be determined to be a substantial factor in causing Plaintiff’s injuries.  (See Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [“To establish the element of actual causation, it must be shown that the defendant's act or omission was a substantial factor in bringing about the injury.”]; see also Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104.)   

In making every reasonable inference in Plaintiff’s favor, this is sufficient evidence to show that the existence of the sidewalk uplift caused Plaintiff to leave the sidewalk and ride his motorized wheelchair on the roadway, thereby sustaining injury from a turning vehicle. It is reasonable that a jury may find that the condition of the sidewalk, raised to such an extent that a wheelchair-user would not be able safely traverse the condition, would cause the pedestrian to use the adjacent roadway and thereby create a reasonably foreseeable risk that the pedestrian would be struck by an oncoming vehicle while on the roadway. The City, thus, fails to establish that it is entitled to summary judgment on the grounds that there is no evidence that the City caused Plaintiff’s injuries. (Aguilar, 25 Cal.4th at 854 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].)   

Because there are triable issues of material fact as to Plaintiff’s second cause of action for a dangerous condition of public property, the Court need not reach the City’s other arguments as to the remaining causes of action on a motion for summary judgment.  

 

V. Conclusion  

The City’s motion for summary judgment is DENIED.  

 

Moving party is ordered to give notice.   

 

 

Dated this 6th day of November 2023