Judge Michelle C. Kim, Case 22STCV00776 2023-05-16 Tentative Ruling

Plaintiff Itzchel Sabarantnam (“Plaintiff”) filed this action against Defendants City of Inglewood (“City”) and Doty Bros. Equipment Co. (“Doty Bros”) for damages relating to Plaintiff’s alleged trip and fall on a sidewalk. Plaintiff alleges there was a metal rod sticking out onto the sidewalk, and as a direct result Plaintiff tripped, fell, and sustained serious injury. (Complaint, ¶11.) The complaint alleges causes of action for (1) Statutory Liability pursuant to Government Code Section 835 2, (2) General Negligence, and (3) Premises Liability.

Defendant City now moves for summary judgment, or alternatively, summary adjudication, as to Plaintiffs claims. Plaintiff opposes the motion, and City filed a reply.

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.” (CCP § 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.4^th 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.)

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. (CCP § 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.) However, “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of these stern requirements applicable in a normal case are relaxed or altered in their operation.” (Ibid.) “The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220–1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at 22.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

To meet its burden of proof, a “ ‘plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ ” [Citation].

“The owner of a premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

“A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Id. at 1206-1207.) Where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Id. at 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 888 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id. at 1205-1206.) The Ortega court also observed that in its review of the case authority, the owner's inspection practice is one of several factors in determining the length of time a condition existed prior to an accident, and none of the cases they considered held that failure to inspect alone could satisfy the plaintiff's burden to prove constructive knowledge. (Ortega, supra, 26 Cal. 4th at 1208.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

Defendant argues that it did not create the dangerous condition, did not have control over the area where the dangerous condition existed, and that it did not have notice of any dangerous condition.

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either 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 the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.)

Here, it appears from the allegations and the papers submitted regarding this motion that Plaintiff alleges that City created the condition through the negligence of its employee, inspector Mr. Ramirez.

Defendant City presents evidence that on the morning prior to the date of Plaintiff’s incident, City Inspector Jose Ramirez inspected the project site; however, at the time of his inspection, no rebar was located at the area where Plaintiff’s trip-and-fall incident occurred the following morning. (Defendant’s UMF 21.) Based upon that, any rebar at the location was placed there sometime after Mr. Ramirez’ morning inspection on January 11, 2021 and prior to the date and time of Plaintiff’s alleged incident. Thus, defendant argues there is no notice of the dangerous condition. Defendant further argues that Doty was responsible for the job site, not the City.

In opposition, Plaintiff presents evidence that Ramirez observed and took pictures on January 11, 12, and 13 of grey pipe in grass area and rebar. (Plaintiff’s UMF Nos. 13, 16.) Plaintiff also presents evidence that it was Ramirez’s job to ensure that construction materials were not left at the construction site overnight. (Plaintiff’s UMF 15.)

In reply, Defendant argues that Plaintiff focuses on pipes and a ladder at the site, but that the issue in this case is about the presence of rebar.

The Court finds defendant’s arguments unavailing. The Court recognizes that the deposition of Inspector Jose Ramirez was not taken until after the filing of the motion. As to Defendant’s reply argument that this case is about the presence of rebar, not pipes and a ladder, Defendant’s own separate statement indicates that Plaintiff alleges “metal piping” was “laid out and sticking out on the sidewalk” at or near “156 Buckhorn Ave, Inglewood,” and that Plaintiff “tripped and fell thereby severely injuring herself.” Further, that “[t]here was a metal rod sticking out onto the sidewalk, and as a direct result Plaintiff tripped, fell, and sustained serious injury.” (Defendant’s UMF Nos. 1, 3.) However, the Court believes the outcome of this motion does not turn on the distinction between piping and rebar. Ultimately, the Plaintiff presents evidence (in the form of Ramirez’s deposition testimony and documentary evidence of the permit) that the City had a responsibility to ensure construction materials were not left at the construction site overnight, and the photographs provided by the Plaintiff establish by circumstantial evidence that construction materials were indeed left at the site overnight such that there was notice. Accordingly, there are triable issues of material fact as to Defendant City’s liability.

Hon. Michelle C. Kim

Judge of the Superior Court