Judge: Richard S. Whitney, Case: 37-2019-00045164-CU-PO-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 17, 2023

08/18/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2019-00045164-CU-PO-CTL HADDAD VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT CITY OF SAN DIEGO'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION is GRANTED.

Defendant City of San Diego ('City') challenges Plaintiff Raad Haddad's ('Plaintiff') sole cause of action for dangerous condition of public property. In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) '[L]andowners have no duty to warn of open and obvious dangers on their property because such dangers serve as warnings themselves.' (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207–1208.) '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.' (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [Citations and quotes omitted].) 'The existence of a dangerous condition is ordinarily a question of fact but 'can be decided as a matter of law if reasonable minds can come to only one conclusion.'' (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347 [Citation omitted].) First, the Court notes that Plaintiff failed to address the City's arguments as to the ADA arguments asserted by Plaintiff. The Court treats such failure as acquiescence that the City's arguments are meritorious. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288; California Rules of Court, Rule 8.54(c).) Second, the City argues, inter alia, that the curb was open and obvious. The Court agrees. Plaintiff admits the curb was visible to the naked eye, that Plaintiff saw the curb at the 'last millisecond' prior to Plaintiff's fall, and the photo of the curb corroborates that the curb was open and obvious. (City's Separate Statement of Undipsuted Material Facts ['SSUMF'] Nos. 4, 7, and 9; Plaintiff's Additional Material Facts ['AMF'] No. 9; Plaintiff's Opposition at pg. 11.) Further, Plaintiff does not dispute that it was a sunny day when the incident happened. (SSUMF No. 7.) Having considered the circumstances of the incident, the Court finds the curb was an open and obvious condition. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.) This finding alone is sufficient to grant the motion.

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2978670  66 CASE NUMBER: CASE TITLE:  HADDAD VS CITY OF SAN DIEGO [IMAGED]  37-2019-00045164-CU-PO-CTL Third, the City asserts the curb was not a dangerous condition because it did not pose a danger when foreseeable users used due care. It is undisputed that Plaintiff was operating an electric scooter on the sidewalk in violation of Vehicle Code section 21235 subsection (g).

The negligence of a plaintiff-user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a 'dangerous condition' in the first instance.

(See Callahan v. City and County of San Francisco (1967) 249 Cal.App.2d 696, 702-703 [57 Cal.Rptr. 639]; Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 3.12, pp. 198-201.) (5b)So long as a plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his personal lack of due care. If, however, it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not 'dangerous' within the meaning of section 830, subdivision (a). (See Fuller v. State of California (1975) 51 Cal.App.3d 926, 939-940 [125 Cal.Rptr. 586].) (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.) If Plaintiff were using due care, Plaintiff would not have been riding the scooter on the sidewalk in violation of Vehicle Code section 21235 subsection (g). The incident would not have occurred if Plaintiff had not been riding the scooter on the sidewalk. While Plaintiff's violation of a statute does not necessarily bar Plaintiff's claim, the Court finds the evidence supports that Plaintiff did not use due care.

Plaintiff fails to provide evidence or analogous case law that would support that a curb could constitute a dangerous condition even when foreseeable users use due care.

The Court need not consider whether Plaintiff has raised issues of fact as to whether the City had actual or constructive notice given the above analysis. For the reasons discussed above, the motion is granted.

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