Judge: Serena R. Murillo, Case: 20STCV07601, Date: 2023-01-10 Tentative Ruling

Case Number: 20STCV07601    Hearing Date: January 10, 2023    Dept: 29

TENTATIVE

Defendant Los Angeles Unified School District’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

 Plaintiff’s Objections to Defendant’s Evidence:

·         The following objections are overruled: 2

·         The following objections are sustained: 1

Judicial Notice

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court.  (Code Civ. Proc., § 437c(c).)  Therefore, Defendant’s request is unnecessary and the Court declines to rule on the request. 

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 that there were regular inspections and daily cleaning, and argues that the presence of a small amount water on the floor that day was not a dangerous condition. (UMFs 14-16.) Further, Plaintiff testified that he did not observe a leak in the gymnasium that day or prior to the date of the incident; that it was raining on the day of the incident; he did not observe the presence of water on the floor until after he fell; that the water amounted to about one-fourth (1/4 ) of a water bottle; that no other students were injured or fell that day; and that the incident occurred during the middle of his PE period – indeed, the leak occurred suddenly and unexpectedly that day. (UMFs 4; 8-12; 14-23.)

However, Defendant presents no supporting authority for its proposition that “a small amount of water on the floor” is not a dangerous condition. And the Court is aware of no such authority. Thus, this argument fails. Further, whether Plaintiff observed water on the floor, observed a leak, or whether it was raining that day are not relevant to show that there was no dangerous condition, and Defendant has not offered any explanation to this point. Moreover, evidence of regular inspections are only relevant to the notice element of this statute. Additionally, the fact that there were no other incidents alone is not sufficient for Defendant to meet its burden on summary judgment. 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 other accidents relating to the water on the floor. 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.  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 not dangerous and its only material 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 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 Plaintiff cannot prove actual notice because there have been no prior incidents due to a water leak in the gymnasium where the Incident took place that would have put LAUSD on notice that the water leak that day was dangerous. (UMF 23.) Additionally, no other students were injured due to the water leak in the gymnasium where Plaintiff was injured on the day of the Incident. (UMFs 20 & 23.)

As to constructive notice, Defendant presents evidence that on the day the incident, Plant Manager Jorge Saucedo conducted a “walk-through” survey inspection of the entire Nimitz Middle School campus, including the school gymnasium where Plaintiff claims the alleged incident giving rise to this lawsuit occurred, as is his custom and practice. (UMF 15.) During his “walk-through” survey inspection prior to the start of the school day on January 11, 2019, he did not see any water, liquid substance, leaks, or any other material that could be a slip, trip, and/or fall hazard on the floor in the school gymnasium at Nimitz Middle School. (UMF 16.) Defendant regularly inspects the gymnasium, including where the incident occurred, cleans the gymnasium daily, and has a policy of inspecting and barricading an affected area if a complaint is made or if a leak is reported. LAUSD will then place a service call and/or work order to request to address and fix the problem, which was done here. Further, Plaintiff’s deposition testimony established that the water on the floor that day was minimal, that there were over approximately over fifty (50) students in the gymnasium that day, that no other students were injured that day, that Plaintiff did not observe the presence of the small amount of water until after his fall, and that the fall occurred in the middle of the PE period after other students had also played basketball. (UMFs 4; 8-12; 14-23.)

While Defendant has shown that it did not have actual notice of the condition, Defendant has not met its initial burden on summary judgment to show that it did not have constructive notice of the alleged dangerous condition. Defendant sets forth evidence that Saucedo conducted an inspection of the gymnasium at the start of the school day. However, the incident occurred some time after Plaintiff’s lunch break at 12:30 p.m. (UMF 3). Thus, Defendant has to failed to show that, as a matter of law, the four and a half to five-hour period of time between the inspection of the subject area and Plaintiff’s fall is too short a time for constructive knowledge to be found. 

Defendant also argues that Plaintiff fails to offer any evidence relating to how long the water had been on the floor prior to the incident. But this is an element that Plaintiff must prove at trial. Here, Defendant is moving for summary judgment. Therefore, the burden is on the defendant.

Plaintiff has established that he fell on the gym floor that had water on it as he observed water after his fall. This evidence creates an inference that the water was on the floor prior to the fall. In the context of this motion for summary judgment, Defendant has the burden of establishing that an element of Plaintiff’s case cannot be met. The burden is on Defendant to show that Defendant did not have constructive notice of the alleged dangerous condition. Defendant has not established that in this motion. Accordingly, Defendant’s motion must be denied.

Conclusion

Based on the foregoing, Defendant Los Angeles Unified School District’s motion for summary judgment is DENIED.

Moving party is ordered to give notice.