SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

On January 18, 2022, Plaintiff, Bruce Law (“Plaintiff”) filed this action against Defendants County of Los Angeles (“County”) and Robert Brkich Construction Corp (“Brkich Construction”) (collectively, “Defendants”) alleging causes of action for negligence and premises liability. The complaint alleges that Defendants performed construction work between 428 & 414 E. Mariposa Street in Altadena, wherein Plaintiff tripped and fell into an open trench with no cover or warning sides while walking on Mariposa Street. (Compl. pages 4, 7.) Plaintiff alleges there was no warning signs posted and that the open trench had no covering. (Ibid.) 

Defendants now move for summary judgment.  Plaintiff opposes the motion, and Defendant filed a reply.  

As a preliminary matter, the Court notes that neither Defendants nor Plaintiff conformed with California Rules of Court, rule 3.1350. The parties’ Separate Statements are missing reference to the exhibit number and proper title, and thus fails to conform with the California Rules of Court, rule 3.1350. “The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc. § 437c (b)(1).) Specifically, the separate 

statement shall include “citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(d)(3).) 

The purpose of the separate statement is to assist the court in determining quickly and efficiently 

whether material facts are disputed. The failure to file a separate statement that conforms to Rule 3.1350 impedes this purpose. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) Where the separate statement does not comply, the court has discretion to continue the motion to permit the party to file a conforming statement. (United Community Church, supra, 231 Cal.App.3d at 337.) Furthermore, the Court notes that Plaintiff’s opposition and related papers are poor in quality, and the typeface barely legible.  

However, in the interests of time and efficiency, the Court will exercise its discretion and consider the separate statements despite the deficiencies. 

  

2. Motion for Summary Judgment 

a. Moving Argument  

Defendants argue they are entitled to summary judgment because they were not negligent in causing the incident and that no condition of the property created an unreasonable risk of harm.  Defendants assert that Plaintiff walked into a marked construction zone and into a coned-off open and obvious utility excavation trench.  Defendants argue that because they abided by MUTCD standards, and because Plaintiff knowingly walked into a construction zone, Plaintiff is the sole cause of his own incident.   

 

b. Opposing Argument 

Plaintiff asserts that Defendants failed to exercise reasonable care by providing adequate warning signs, sufficient traffic cones spacing, and barricades or covers to prevent Plaintiff from falling into the trench. Plaintiff contends that the 2-foot-wide trench was inconspicuous and not easily recognizable. Furthermore, Plaintiff contends that the open trench was in a residential area, and that Mariposa Street lacks sidewalks in most areas, wherein it is foreseeable that pedestrians will walk on the street. Plaintiff argues that Defendants did not properly delineate the work area by MUTCD standards.   

 

c. Reply Argument 

Defendant reasserts that Plaintiff chose to walk across a coned-off construction zone, and that no amount of signs or warnings would be enough for Plaintiff, who would have ignored it all to cross the street.  

d. Evidentiary Objections 

Plaintiff submits 16 objections to Defendants’ evidence. Objections 1-2 are sustained, objections 3-4 are overruled, objections 5-6 are sustained, objection 7 is overruled, objections 9-14 are sustained, objection 15 is overruled, and objection 16 is sustained.  

 

Defendant submits 46 objections to Plaintiff’s evidence. Objections 1-12 are overruled, objections 13-15 sustained as not material to the disposition of the motion, objections 16-23 are overruled, objections 24-25 are sustained, objections 26-36 are overruled, objections 37-46 are sustained. 

 

e. Request for Judicial Notice 

Defendants request judicial notice be taken of Plaintiff’s Complaint filed in this matter. The request for judicial notice of Plaintiffs’ Complaint is granted to the extent that courts can take judicial notice of the fact that complaints were filed, but not of the truth of the statements contained in those.  (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 483.) 

 

Defendants provide a supplemental request for judicial notice to be taken of (1) Occupational Safety and Health Administration (“OSHA”) Section 1926.20; (2) Manual on Uniform Traffic Control Devices (“MUTCD”) Figure 2B-24; (3) MUTCD Figure 2B-24 (Sheet 2 of 2); (4) MUTCD Section 2B.51 and Figure 2B-26, R9-3; and (5) MUTCD Section 6F.68 and Figure 6F-7, Type 3 Barricade. Defendants request judicial notice be taken of the documents pursuant to California Evidence Code §452(d), which provides that a court may take judicial notice of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. Sections of OSHA and the MUTCD are not court records. Therefore, the requests are denied.  

 

f. 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).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

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.) 

 

g. Analysis: Negligence and Premises Liability  

As framed by the pleadings, Plaintiff alleges Defendants negligently owned and maintained the premises, wherein Plaintiff fell into an open trench due to a lack of posted warning signs and the presence of an open trench with no covering.  

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) 

Defendants move for summary judgment on grounds it breached no duty of care to Plaintiff because Plaintiff should have discovered the existence of the trench on his own with observation, and that the trench was not inconspicuous and easily recognizable. Therefore, Defendants contend that Plaintiff walking into the trench was not foreseeable, and that Plaintiff assumed the risk of injury by entering the construction zone. 

On November 3, 2020, Brkich Construction was performing utility improvements for the County between 414 and 428 E. Mariposa Street in Altadena, California. The parties dispute the time traffic control was set up, whether it be 8:00 a.m. or 9:30 a.m. Regardless, Brkich Construction set up closure of traffic down the center of Mariposa, allowing one lane vehicular traffic on each side of the construction zone. The parties dispute as to whether there was a large orange dump truck west of the utility trench, and whether there was a backhoe and large white truck east of the utility trench. The parties also dispute whether Plaintiff had observed any construction vehicles ahead when Plaintiff parked his vehicle on the south side of Mariposa. The parties do not dispute the contents of California Manual on Uniform Traffic Control Devices (MUTCD), but dispute as to whether Brkich Construction properly followed the MUTCD. The parties further dispute the visibility of Brkich Construction’s employee inside the utility trench, how many feet away Plaintiff parked his vehicle from the construction zone, and whether Plaintiff saw any construction while crossing the street.  

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)  The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.  (Martinez, supra, 121 Cal.App.4th at p. 1184.)  In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer).  (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.) 

The Court finds Defendants have failed to meet its initial burden of showing there are no triable issues of fact. In terms of the presence of a large orange dump truck, backhoe, and white construction truck onsite, the presence of the vehicles may indicate a construction area, but do not necessarily indicate or provide any additional warning of the existence of a utility trench. The Court has reviewed the photos submitted with the motion, (Decl. Shatnawai; Exhibits. 2, 5), and while there appears to be orange traffic cones on the street, the only potential warning of the trench itself were two traffic cones, one placed on each end of the trench. Aside from the two traffic cones abutting the ends of the trench, the photos do not establish an indisputable obviousness of the condition such that Plaintiff should have seen the 24” wide x 27" deep x 30' long utility trench prior to his fall. “The submission of evidence which is equivocal or from which conflicting inferences may be drawn is insufficient to meet the movant's burden.”  (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal. App. 4th 284, 297.) 

In arguendo, even if Defendants had met their initial burden, Plaintiff raised triable issues of fact in opposition to this motion which prevents summary judgment. 

First, that Plaintiff had a duty to exercise reasonable care in his own actions does not negate Defendants’ duty to exercise care in maintaining a reasonably safe premises while performing construction.  Rather, evidence of Plaintiff’s own negligence may be considered by a trier of fact in apportioning liability.  Second, even if a condition is open and obvious, the obviousness only relieves the duty to warn of the condition.  “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)  The obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .”  (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)    

Further, the Court cannot determine from the photographs that, as a matter of law, the condition was open and obvious.  The court may determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition.  (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.)  Based on the photographs (Decl. Shatnawai; Exhibits. 2, 5), the Court cannot determine that the size of the trench was so open and obvious such that Defendants had no duty to warn of the condition, or that it was not foreseeable that the trench may cause injury to passing pedestrians crossing the street.  A reasonable trier of fact could conclude that even with the presence of traffic cones, and even with the exercise of reasonable care, a person could fail to see the open trench prior to tripping and falling inside. 

Third, Defendants’ contention that they followed MUTCD standards by using traffic cones to alert vehicles and pedestrians of construction activity, alone, does not establish that they provided sufficient warning of the open trench, or that it made the presence of the trench obvious. Brkich Construction’s employee Javier Alvarado (“Alvarado”), testified at his deposition that before construction, “we set up road service signs, and then we surround that area where we gonna work and proceed excavating. So make sure everything around us, nobody can go through our cones.” (Plf. Exh. 1; Alvarado Depo, 11:19-22). Clearly, Plaintiff was able to go through the cones. A reasonable trier of fact could conclude that due to the location and size of the trench, in addition to the use of only traffic cones placed at a distance from each other, that the existence of the trench was not open and obvious. 

In sum, Defendants have not provided evidence to conclusively show there was no dangerous condition, or that the condition was open and obvious and that they owed no duty to warn of or rectify the condition. Accordingly, Plaintiff sufficiently raises an issue of triable fact as to whether Plaintiff’s injuries could have been prevented if Defendants provided more effective warnings. Whether Plaintiff was exercising reasonable care and whether the harm was foreseeable under the circumstances are triable issues of fact.   

 

3. Conclusion  

Based on the foregoing, Defendants’ motion for summary judgment is denied.