Judge: Richard S. Whitney, Case: 37-2021-00037216-CU-PO-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00037216-CU-PO-CTL BRADLEY VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT CITY OF SAN DIEGO'S MOTION FOR SUMMARY JUDGMENT is DENIED.

Defendant City San Diego ('Defendant') seeks summary judgment as to Plaintiff Matthew Bradley's ('Plaintiff') sole cause of action for dangerous condition on a 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.) 'A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute. (§ 815.) Section 835 is the sole statutory basis for a claim imposing liability on a public entity based on the condition of public property.' (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438.) To prove a cause of action against a public entity under section 835, a plaintiff must prove: '(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.' (Id. at 439.) Defendant first argues Plaintiff changed his complaint as to the cause of his injury by describing the condition as being in a different location when questioned at his deposition. 'Compliance with the claim requirement is a condition precedent to suing the public entity.' (Rubenstein v. Doe No. 1 (2017) 3 Cal.5th 903, 906.) One of the purposes of the claims statutes is to 'enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.' (Id. at 908 [Citation omitted].) The purpose of these statutes is 'to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.' (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 455, 115 Cal.Rptr. 797, 525 P.2d 701.) Consequently, Calendar No.: Event ID:  TENTATIVE RULINGS

3043894  50 CASE NUMBER: CASE TITLE:  BRADLEY VS CITY OF SAN DIEGO [IMAGED]  37-2021-00037216-CU-PO-CTL a claim need not contain the detail and specificity required of a pleading, but need only 'fairly describe what [the] entity is alleged to have done.' (Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1426, 4 Cal.Rptr.2d 203; Turner v. State of California (1991) 232 Cal.App.3d 883, 888, 284 Cal.Rptr. 349.) As the purpose of the claim is to give the government entity notice sufficient for it to investigate and evaluate the claim, not to eliminate meritorious actions (Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225, 267 Cal.Rptr. 13), the claims statute 'should not be applied to snare the unwary where its purpose has been satisfied' (Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70, 74, 135 Cal.Rptr. 621).

(Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) 'The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation] A complaint's fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an 'entirely different set of facts.'' (Id. at 447 [Citation omitted].) Defendant cites Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, for support. In Hernandez 'Plaintiff's government claim specifically and solely identified an 'uplifted sidewalk' as the dangerous condition that caused his injuries. By contrast, in this action, liability is premised on a different dangerous condition--a hole created by an empty tree well.' (Id. at 1232.) This case is not analogous. Plaintiff did not testify in deposition that the condition was entirely different in kind nor that his injury arose from an entirely different set of facts. Rather, Plaintiff has essentially maintained that the cause of his injuries was a crack in the crosswalk at the intersection of Brighton Ave. and Abbott St. (Defendant's Separate Statement of Undisputed Material Facts [SSUMF] Nos. 2-8 and Plaintiff's responses thereto.) In Hernandez the governmental entity would have been looking for an upheaved sidewalk, not a hole.

Here, Defendant would have been looking for a crack in the roadway to evaluate Plaintiff's claim. That would have remained consistent during discovery in this action.

The variance in Plaintiff's claim and allegations versus his testimony is mostly the description of the location of the condition. Plaintiff described it as being directly adjacent to the yellow ADA pad with truncated domes, but in testimony described it as being located one-third of the way into the roadway along a seam in the roadway. (SSUMF Nos. 6 and 8.) The Court agrees the testimony arose in circumstances where the questioning and responses indicate some confusion. (See Plaintiff's response to SSUMF No. 8.) Differences in how he described the location came after explaining he 'made it a short way into this intersection' before he 'came to an alarmingly immediate halt and went flying.' (Defendant's Exhibit E, pg. 131.) Plaintiff also testified he did not see the crack he hit before he fell.

(Defendant's Exhibit E, pg. 132.) It appears Plaintiff was estimating the location of the defect.

(Defendant's Exhibit E, pg. 144.) However, Plaintiff consistently described the condition as a crack in the road. Plaintiff's description of the defect in deposition is not 'entirely different' than what is depicted in the photographs Plaintiff took and submitted with his claim to Defendant. (See Plaintiff's response to SSUMF No. 8.) It appears a trier of fact could potentially conclude Defendant had sufficient notice for it to investigate and evaluate the claim. The Court cannot conclude that Plaintiff's cause of action is based on an entirely different set of facts from the facts included in Plaintiff's claim to Defendant.

Next, Defendant argues Plaintiff cannot prove causation because it was not foreseeable that Plaintiff would ride a skateboard on the roadway in violation of San Diego Municipal Codes ('SDMC').

It is unlawful for any person riding on roller skates or by means of a coaster, skateboard, toy vehicle, or similar device to go upon an open roadway in the City of San Diego, or upon the sidewalk or public plaza in any business district, or upon any inclined surface area of any City–owned or privately owned parkade where signs forbidding such activity are displayed at the ground level elevator entrance and at each vehicular entrance to the parkade.

(SDMC § 84.12(a).) Plaintiff asserts this SDMC section is inapplicable because the language stating 'where signs forbidding such activity are displayed' makes it inapplicable to this situation where there is no evidence of any signs forbidding skateboarding in the area.

Calendar No.: Event ID:  TENTATIVE RULINGS

3043894  50 CASE NUMBER: CASE TITLE:  BRADLEY VS CITY OF SAN DIEGO [IMAGED]  37-2021-00037216-CU-PO-CTL The Court reads this modifying language as applying to 'any inclined surface area of any City–owned or privately owned parkade.' It does not modify the prohibition as to skateboarding 'upon an open roadway in the City of San Diego.' The SDMC section lists areas where, inter alia, skateboarding is prohibited.

One of the areas is specifically defined as where signs are posted. The sign language does not modify every area in the list. Reading the SDMC section in that manner would unduly narrow the purpose of the section and render the specificity meaningless. The SDMC simply could have limited it to a prohibition on skateboarding wherever there is signage to that effect. That was clearly not the aim of the SDMC section.

Contrary to Plaintiff's suggestion that the term pedestrian should be understood based on California Vehicle Code (where definitions apply in the absence of those within the SDMC), the SDMC defines 'pedestrian' to mean 'any person who goes or travels on foot.' (SDMC § 81.0102.) Plaintiff did not meet his definition.

Plaintiff cites Acosta v. Los Angeles County (1961) 56 Cal.2d 208, for support that even if there were a violation of a SDMC section, it did not relieve Defendant of its duty to maintain its property free of dangerous defects. However, the court in Acosta addressed whether a local ordinance could 'absolve[] itself of its liability resulting from negligent maintenance of the sidewalk.' (Id. at 210.) Specifically, the court described that issue as follows: '[t]he question is immediately raised as to the nature of the duty owed the minor by the county as relates to the maintenance of its sidewalks.' (Id.) Acosta addressed whether the county had a duty, not whether there was causation based on foreseeability.

Notwithstanding, Acosta supports Plaintiff's argument that Defendant could have foreseen the incident since a duty could exist even where there was a statute that prohibited the injury-causing activity (bicycles on the sidewalk).

While the Court agrees Defendant may not have anticipated that citizens would violate the SDMC, that does not mean Defendant could not have foreseen some skateboarders would use the roadway, notwithstanding the SDMC. As Defendant is presumed to know the law, Defendant should have known that violations of a local code would not necessarily relieve it of its duty to maintain the roadway under Acosta. More importantly, Plaintiff has raised an issue of fact as to whether Plaintiff's injury was foreseeable based on a citizen's complaint to Defendant about the roadway's condition. (Plaintiff's response to SSUMF No. 10.) While the prior incident involved a cyclist, Defendant has not demonstrated the accident was not similar nor that it did not occur under substantially the same circumstances.

''Where the circumstances are similar, and the happenings are not too remote in time, other accidents may be proved to show a defective or dangerous condition, knowledge or notice of it, or to establish the cause of an accident.' [Citation] The rule applies where the accidents are similar and occurred under substantially the same circumstances.' (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236–237 [Citation omitted].) Plaintiff has raised an issue of fact as to foreseeability.

Finally, Defendant asserts Plaintiff's cause of action is precluded by application of the primary assumption of the risk doctrine.

'The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where 'conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself' and their removal would alter the nature of the sport. [Citation.]' (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69–70, 8 Cal.Rptr.3d 823.) Secondary assumption of risk arises where 'the defendant owes a duty to a plaintiff who is careless in encountering a known risk created by the defendant's breach of its duty. [Citation.] Primary assumption of risk is a complete bar to recovery. Secondary assumption of risk 'is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.' [Citation.]' (Id. at p. 69, 8 Cal.Rptr.3d 823.) (Garcia v. American Golf Corp. (2017) 11 Cal.App.5th 532, 547.) Calendar No.: Event ID:  TENTATIVE RULINGS

3043894  50 CASE NUMBER: CASE TITLE:  BRADLEY VS CITY OF SAN DIEGO [IMAGED]  37-2021-00037216-CU-PO-CTL '[A]n activity falls within the meaning of 'sport' if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.' (Record v. Reason (1999) 73 Cal.App.4th 472, 482.) Primary assumption of the risk has applied to a plaintiff cruising down a hill on a skateboard, even where the plaintiff was not 'participating in an organized skateboarding activity nor attempting any 'high risk maneuvers' on the board.' (Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, 1209.) However, in Bertsch the plaintiff was skateboarding 'for fun.' (Id. at 1204.) While the Court would agree that skateboarding can, in various scenarios, fall within the doctrine of primary assumption of the risk, the Court finds Plaintiff has raised issues of fact as to whether he was riding the skateboard solely for travelling purposes, and not for enjoyment, thrill, or a challenge.

(Plaintiff's response to SSUMF Nos. 9, 11, 13, 15.) While Plaintiff did not slow down to traverse the yellow ADA pad with truncated domes, this does not necessarily indicate that Plaintiff was skateboarding for fun rather than as a means of transportation. (Plaintiff's response to SSUMF Nos. 9, 11, 13, 15.) Plaintiff was an experienced skateboarder such that traversing the yellow ADA pad with truncated domes may not have been too much of a challenge for Plaintiff. Further, Plaintiff lived three blocks away from the area and had been by the area before the incident. (Defendant's Exhibit E, pgs. 82-83.) Plaintiff was travelling slower than 10 mph. (Defendant's Exhibit E, pgs. 126-127.) The Court finds there are triable issues of fact as to whether the doctrine of primary assumption of the risk applies.

In sum, Plaintiff has raised triable issues of fact. The motion is denied.

Plaintiff's Objections to Evidence: Objections 1-4: Overruled Defendant's Objections to Evidence: Objections 1-11: Overruled Calendar No.: Event ID:  TENTATIVE RULINGS

3043894  50