Judge Robert P. Dahlquist, Case 37-2022-00020098-CU-PO-NC 2023-11-03 Tentative Ruling

Judge: Robert P. Dahlquist, Case: 37-2022-00020098-CU-PO-NC, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - October 13, 2023

10/13/2023 01:30:00 PM N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00020098-CU-PO-NC VELLANDI VS CITY OF CARLSBAD [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/27/2023

Defendant City of Carlsbad's motion for summary judgment (ROA # 81) is granted.

Defendant's evidentiary objections (ROA # 104) are sustained.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party has shown facts justifying a judgment in movant's favor; and (3) determine whether the opposing party has demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.

In ruling on a summary judgment motion, the Court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

On July 14, 2022, plaintiff Ria Vellandi filed a first amended complaint asserting a sole cause of action for dangerous condition of public property against City of Carlsbad arising from allegations that defendant negligently designed, built, constructed and/or maintained the premises in that the sidewalk's height, slope, vertical displacement, and/or placement exceeded reasonable design guidelines and practices. ROA # 13, ¶ 17. Plaintiff further alleges that defendant failed to failed to design, build, construct and/or maintain the premises in accordance with reasonable design guidelines and/or failed to remedy the dangerous condition. Id. at ¶ 20. Plaintiff alleges that the dangerous condition created a substantial and reasonably foreseeable risk of the type of injury when the premises were used with due care in a manner in which it was reasonably foreseeable that they would be used. Id. at ¶ 21. Plaintiff was injured as a result of the dangerous condition. Id. at ¶ 24.

Defendant moves for summary judgment based on the arguments that: (1) the curb at issue presented only a trivial risk of injury and therefore, a dangerous condition did not exist; (2) the City of Carlsbad did not create the alleged dangerous condition; and (3) the City of Carlsbad did not have notice of the alleged dangerous condition. ROA # 81.

As to (1), California courts have long recognized that motions for summary judgment in premises liability cases involving an alleged trivial defect is an acceptable and appropriate method for adjudicating these Calendar No.: Event ID: TENTATIVE RULINGS

3001394 CASE NUMBER: CASE TITLE: VELLANDI VS CITY OF CARLSBAD [IMAGED] 37-2022-00020098-CU-PO-NC types of cases. Although courts and litigants sometimes refer to these motions as raising a purported 'trivial defect defense,' the 'defense' is not really an affirmative defense but instead is 'an aspect of duty that plaintiff must plead and prove.' Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.

In this case, defendant argues that the curb at issue presented only a trivial risk of injury and therefore, a dangerous condition did not exist.

Defendant has presented admissible evidence establishing that '[i]n terms of engineering practices and design at the time, curbs were higher on average to contain drainage, dirt, and debris within the street section and away from the sidewalks and building frontage. Underground drainage systems were not common in this time frame and the streets carried all the storm flow. The 11.5-inch curb height was consistent with the prevalent standard and practices of that era [1928].' Geldert Decl. (ROA # 85) ¶ 4.

Plaintiff has failed to present admissible evidence rebutting the declaration of Jason Geldert.

The court agrees with the city's contention that the curb presented only a trivial risk of injury when encountered by a person acting with reasonable care.

As to (2), defendant has presented admissible evidence establishing that it did not create the alleged dangerous condition. The curb was built 95 years ago in 1928 as part of the initial development of the area. Geldert Decl. ¶ 4. Defendant was incorporated in 1952. Id. at ¶ 5.

Again, plaintiff has failed to present admissible evidence rebutting the declaration of Jason Geldert.

The court finds that the city has shown that it did not create the alleged dangerous condition, and plaintiff has not presented admissible evidence to the contrary.

As to (3), defendant has presented evidence establishing that it did not have notice of the alleged dangerous condition. Geldert Decl. ¶ 5. No reports of injuries related to the curb at issue were ever reported to the defendant prior to the incident and no complaints or injuries related to the curb at issue, other than those at issue in this lawsuit, have been reported to the defendant since the incident. Id. The evidence presented by the city indicates that defendant did not have actual notice of a dangerous condition. Plaintiff has not presented contrary evidence. Instead, plaintiff argues that defendant was on constructive notice of a dangerous condition. Constructive notice of a dangerous condition exists '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.' § 835.2(b).

Plaintiff has presented a street sweeping schedule which shows that defendant's employees swept the street where the incident took place every Monday, Wednesday and Friday. PSSUMF (ROA # 101), No.

17 (citing to the City's website containing the Carlsbad street sweeping schedule). But this evidence does not show the existence of a dangerous condition or that any purported dangerousness was obvious.

For these reasons, the motion for summary judgment is granted.

This is the tentative ruling for an appearance hearing (in person or remote) at 1:30 p.m. on Friday, October 13, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 13, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

3001394