Judge: Serena R. Murillo, Case: 19STCV43047, Date: 2022-09-14 Tentative Ruling

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Case Number: 19STCV43047    Hearing Date: September 14, 2022    Dept: 29

TENTATIVE

Defendant City of Torrance’s Motion for Summary Judgment is DENIED.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c(p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

Evidentiary Objections

 Defendant’s Objections to Plaintiff’s Evidence:

·         The following objections are overruled: 5, 6, 7

·         The following objections are sustained: 1, 2, 3 (sustained only as to the second portion of the declaration which states: “the subject apron slope (of 22.8%) is nearly two times steeper than the standard apron slope of 12.5%”), 4 (sustained only has to the first sentence of the declaration which states: "The slope of the subject driveway apron is nearly 2 times steeper than the Standard Plan”).

Discussion

                        Existence of Dangerous Condition

Defendant moves for summary judgment, arguing that Plaintiff’s cause of action for dangerous condition of public property fails because the alleged condition is not “dangerous.”

Government Code¿section¿835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:¿ 

(a) 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¿¿ 

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿¿ 

The term “dangerous condition” means a “condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or¿adjacent property is used with due care in¿a manner in which¿it is reasonably foreseeable that it¿will be used.”¿ (Gov. Code § 830(a).)¿ “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)¿¿“A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care.¿ Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.)¿ “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)¿ 

Here, Defendant puts forth evidence in the form of a declaration by its Deputy Public Works Director that it is not responsible for the maintenance of driveway aprons leading to private driveways. (Finton Decl., ¶ 4.) However, if it was, Defendant argues there is nothing about the condition of this driveway apron that would have required City intervention as there are no reported defects and it is utilized daily with ease. (Undisputed Fact (UF) Nos. 22, 24, 26, 28.) Defendant also argues that any risk created by the slope of the driveway apron is minor at best. Defendant argues that for those exercising due care in utilizing the driveway apron in a reasonable foreseeable manner, the driveway apron presented no issues, as the homeowner at the subject location confirmed the driveway is utilized on a daily basis and has presented no challenges since they bought the property in 2013. (UF No. 28.) Further, Defendant argues it was not raining on the date of the incident, and it was sunny outside as Plaintiff recalled. (UF No. 10.) Finally, there is no evidence that any other pedestrian or bicyclist ever fell on this driveway apron prior to the date Plaintiff allegedly fell. (UF Nos. 24, 26, 28, 29.)

In opposition, Plaintiff presents evidence that the driveway apron has sat on public property owned and controlled by the City. (Opposing Party’s Undisputed Facts (OUF) No. 33.)

In Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346 (Lane), the trial court concluded that the city's evidence regarding the lack of other claims relating to the alleged dangerous condition was “sufficient to meet the City's initial burden of showing that the [alleged defect] was not in a dangerous condition,” and ultimately granted summary judgment to the City. The court of appeal reversed, and held this evidence was insufficient to show that the alleged dangerous condition did not create a substantial risk of injury. (Id.) The court stated:

“It is true…that the absence of other similar accidents is ‘relevant to the determination of whether a condition is dangerous.’ (See, e.g., Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477 [inquiry into the question of dangerousness involves consideration of such matters as whether the condition has been the cause of other accidents]; Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243 [evidence of the lack of prior accidents is relevant to the definition of a dangerous condition under section 830, subdivision (a)].) But the city cites no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of nondangerousness absent other evidence.”

(Lane v. City of Sacramento, 183 Cal.App.4th at 1346.) 

In accordance with Lane, the Court finds that it is not determinative that there were no prior accidents relating to the driveway prior to the accident. While this fact is relevant to a larger inquiry into the dangerous of the condition, this fact alone is not enough to make a determination that the condition was not dangerous as a matter of law.  Moreover, Defendant has not presented any evidence regarding whether the condition was minor, such as the measurements of the height differential in order for the Court to determine if it the alleged dangerous condition was minor. Defendant merely provides evidence that it was sunny. In analyzing whether the subject condition is a “trivial defect,” the court first reviews evidence regarding the type and size of the defect.  (Stathoulis v. City of Montebello (2008) 164 Cal. App. 4th 559, 567-568.)  The Court notes that Plaintiff’s expert has opined that the subject apron is 6”-7.” (Hughes Decl., ¶ 15.) This height differential is beyond the differential discussed in Court of Appeal decisions as being “trivial.”  (See, e.g., Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1107 [Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.])   As a result, Defendant has not met its burden on summary judgment to show that no triable issues exist as to Plaintiff’s claim for dangerous condition of public property as it has not presented evidence that the defect was trivial and its only evidence on this point that there were no prior incidents is not determinative.

            Notice

Defendant also moves for summary judgment on the ground that it did not create the alleged dangerous condition of public property and had no actual or constructive notice of the alleged dangerous condition.

Government Code section 835 provides that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) [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 (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”  (Govt. Code, § 835.) 

Notice, in the context of Section 835 liability, is defined in Government Code § 835.2 as follows:  

“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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.” On the issue of due care, admissible evidence includes but is not limited to evidence as to: 

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. 

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” 

(Gov. Code, § 835.2(a)-(b).)  

“Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident, and the secondary element is the method of inspection. (Ibid.) 

In Straughter v. State of California (1976) 89 Cal.App.3d 102, the court upheld a jury’s finding that the defendant public entity had constructive notice of the existence of ice on a highway. (Id. at p. 152) The California Supreme Court found that a jury could have imputed constructive knowledge to a city where a dangerous condition created by an encroaching sign had existed for seven months prior to the accident. (Carson v. Facilities Department Co. (1984) 36 Cal.3d. 830.) 

In Strongman v. Kern County (1967) 255 Cal.App.2d 308, the court held that the critical test for constructive notice is whether “the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence.” (Id. at p. 313.) A plaintiff can meet this burden with circumstantial evidence. (Id.)

Defendant argues that it had no actual notice of the alleged dangerous condition as one ever notified the City about the slope of the driveway apron until after Plaintiff’s fall. (UF Nos. 24, 26.) Plaintiff himself did not even notify the City of the slope of the apron until he filed a claim for damages that the City received four months after the fall. (UF Nos. 1, 26.) The City receives actual notice of defects through a variety of means including citizen complaints, staff observations, service requests, and claims against the City. (UF No. 27.) Defendant further argues that Plaintiff will presumably allege the City had actual notice of the existence of the condition of the driveway apron because as of 2004 the City was aware the apron was not constructed to current City of Torrance Standards. (UF No. 31). However, the City argues that its awareness that the apron was not built to City of Torrance Standards is not tantamount to actual notice of a dangerous condition. Although the driveway apron at issue is not in conformity with current standards, Plaintiff has not, and will not, be able to present any competent evidence that as a result the apron is a dangerous condition. As such, the City's mere knowledge of the existence of the driveway apron, does not put it on notice of the particular dangerous condition that caused the injury,

As to constructive notice, Defendant again presents the evidence that there have been no previous reports, complaints, or claims regarding the condition of the driveway apron at the subject location. (UF Nos. 24, 26.) Since there have been no documented reports, complaints, or claims regarding the condition of the driveway apron, Defendant contends that this tends to demonstrate that the condition of the driveway apron was not obviously dangerous in nature.

Defendant has not met its initial burden on summary judgment to show that it did not have constructive notice of the alleged dangerous condition. First, Defendant itself presents evidence that the subject condition of the driveway apron had existed since 2004, 15 years before the date of the incident (UMF. No. 31), yet provides no evidence of any inspections. Thus, based on the evidence, it can be inferred that the condition existed long enough to discover and remedy the situation had Defendant been operating under a reasonable plan of inspection.

Conclusion

Based on the foregoing, Defendant City of Torrance’s motion for summary judgment is DENIED.

Moving party is ordered to give notice.