SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Albert Cohen (“Plaintiff”) filed this action against Defendant City of Beverly Hills (“City”) and Does 1-20 for injuries arising from an alleged pothole/gap in the road. Plaintiff alleges he was riding his bicycle down Coldwater Canyon Drive when his bicycle ran into a pothole/gap in the road, causing him to crash his bicycle and sustain injuries on August 21, 2020. (FAC at ¶ 9.) Plaintiff sets forth a single cause of action for dangerous condition of public property (Gov. Code § 835). 

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

 

 

[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.)  

 

A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable.  Ordinarily, the existence of a dangerous condition is a question of fact.  However, it can be resolved as a question of law if reasonable minds can come but to one conclusion.  It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects.  (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.)  

 

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.)  

 

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 Plaintiff did not notice the condition before, and that there have been no prior accidents or complaints related to the spalling. However, the City 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 defect. 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 the alleged dangerous condition.   

Plaintiff’s expert, civil engineer Shatnawi, inspected the spalling at issue on November 7, 2022, in which the dimension of this defect was measured at 1.3” to 1.5” in depth, 1.5” to 2.0” in width and 16” in length. (Shatnawi Decl. ¶ 16.) Shatnawi opined that the defect inspected in November 2022 was substantially in the same condition as the photograph of the accident in August 2020 (Id. at ¶ 19), and similarly the defect was substantially in the same condition in January 2018 based on his review of historic photographs from Google Maps of the location (Id. at ¶ 21.) Based on the foregoing, there is an issue of material fact regarding the period of time the spalling at issue existed, and whether a reasonably adequate inspection system would have discovered the condition.  

The City does not dispute that it is responsible for maintaining this portion of Coldwater Canyon Drive. Because there are no bike lanes on Coldwater Canyon Drive (UMF 3.), it is therefore foreseeable that bicyclists will ride on the road shared by motor vehicles. If the City failed to keep the street in a reasonably safe condition and use due care in eliminating the 1.3” to 1.5” in depth, 1.5” to 2.0” in width and 16” in length spalling, 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 the spalling created a reasonably foreseeable risk that a bicyclist using the road would lose control of their bicycle when encountering this defect. The City, thus, fails to establish that it is entitled to summary judgment on the grounds that there is no evidence that it lacked constructive notice of the condition, and that the City did not cause 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 . . .”].)   

 

IV. Conclusion  

The City’s motion for summary judgment is DENIED.