Judge: Steven A. Ellis, Case: 21STCV18268, Date: 2024-03-12 Tentative Ruling
Case Number: 21STCV18268 Hearing Date: March 12, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant City of Pasadena.
Tentative
The hearing on the motion is continued.
Background
Plaintiff Sarah Davenport (“Plaintiff”) alleges
that while she was jobbing in a public park at or near 1365 North Raymond
Avenue in Pasadena on September 16, 2020, her right foot sank into a concealed
hole that was covered with grass, causing her to sustain a severe injury to her
right ankle. According to Plaintiff, the hole was created when a tree stump was
removed, and the resulting hole was not filled but simply covered with grass.
On May 14, 2021, Plaintiff filed the Complaint
in this action asserting a cause of action for dangerous condition on public
property against The City of Pasadena (“City”), The County of Los Angeles (“County”),
and Does 1 through 20.
On June 18, 2021, Plaintiff filed a request
for dismissal, without prejudice, of her claims against County.
On July 13, 2021, City filed its answer.
On December 26, 2023, City filed its motion
for summary judgment and supporting evidence. On February 27, 2024, Plaintiff
filed her opposition. On March 7, 2024, Defendant filed its reply.
Legal Standard
“The purpose of the law of summary judgment
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.) “The function of the pleadings in a motion for summary
judgment is to delimit the scope of the issues; the function of the affidavits
or declarations is to disclose whether there is any triable issue of fact
within the issues delimited by the pleadings.” (Juge v. County of Sacramento
(1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima
(1991) 231 Cal.App.3d 367, 381-382.)
As to each cause of action as framed by the
complaint, a defendant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “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, subd.
(p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar,
supra, 25 Cal.4th at pp. 850-851.)
A plaintiff or cross-complainant moving for
summary judgment or summary adjudication must satisfy the initial burden of
proof by presenting facts to show “that there is no defense to a cause of
action if that party has proved each element of the cause of action entitling
the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(1).) Once the plaintiff or cross-complainant has met that burden, the
burden shift to the defendant or cross-defendant to show that a “triable issue
of one or more material facts exists as to the cause of action or a defense
thereto.” (Ibid.)
The party opposing a motion for summary
judgment or summary adjudication may not simply “rely upon the allegations or
denials of its pleadings” but must instead “set forth the specific facts
showing that a triable issue of material fact exists.” (Code Civ. Proc., §
437c, subds. (p)(1) & (p)(2). To establish a triable issue of material
fact, the party opposing the motion must produce substantial responsive
evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
Courts “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.)
Evidentiary Objections
Evidence presented in support of, or in opposition to, a
motion for summary judgment must be admissible. (Code Civ. Proc., § 437c,
subd. (d); Perry v.
Bakewell Hawthorne LLC
(2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained.” (Code
Civ. Proc., § 437c, subd. (c).)
The Court has received no written
objections to evidence in compliance with California Rules of Court, rule
3.1354.
Discussion
Plaintiff asserts a cause of action for a dangerous
condition on public property under Government Code section 835. As set forth in
the statute, there are four elements for such a claim:
“[A] public entity is liable for injury
caused by a dangerous condition of its property if the plaintiff establishes
[1] that the property was in a dangerous condition at the time of the injury,
[2] that the injury was proximately caused by the dangerous condition, [3] that
the dangerous condition created a reasonably foreseeable risk of the kind of
injury which was incurred, and [4] 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.”
(Gov’t Code, § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14
Cal.5th 639, 653; Thimon v. City
of Newark (2020) 44 Cal.App.5th 745, 753.)
City moves for summary judgment on the fourth element, asserting that Plaintiff
lacks evidence that City had actual or constructive knowledge of the dangerous
condition at issue and that Plaintiff lacks evidence that a City employee negligently
or wrongfully created the dangerous condition. In its Opposition, Plaintiff
contends (among other things) that there are disputed issues of fact as to
actual knowledge, constructive knowledge, and whether the condition was negligently
or wrongfully created by a City employee.
Before examining the facts and applicable law, the Court notes that
Plaintiff asks (as alternative relief) for a continuance so that certain
discovery may be completed. Plaintiff appears at one point to request this
relief conditionally – only “[s]hould the Court be inclined to grant the motion”
– but that is not how it works. Either Plaintiff is requesting a continuance or
Plaintiff is not. Plaintiff is not entitled to a tentative ruling on the merits
before deciding whether to request a continuance.
The Court treats the request for a continuance as an unconditional
request. The Court addresses it without providing any tentative ruling on
whether the Court is or is not “inclined to grant the motion.”
Code of Civil Procedure section
437c, subdivision (h), provides that: “If it
appears from the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential to justify opposition may exist
but cannot, for reasons stated, be
presented, the court shall deny the motion, order a continuance to permit
affidavits to be obtained or discovery to be had, or make any other order as
may be just. The application to continue the motion to obtain necessary discovery
may also be made by ex parte motion at any time on or before the date the
opposition response to the motion is due.” (Code Civ. Proc., § 437c,
subd. (h).) A summary judgment is a drastic measure which deprives the
losing party of trial on the merits. (Bahl v. Bank of America
(2001) 89 Cal.App.4th 389, 395.) To mitigate this harshness, the drafters
of Code of Civil Procedure section 437c included a provision making
continuances virtually mandated under certain circumstances. (Id.)
“The
nonmoving party seeking a continuance must show: (1) the facts to be obtained
are essential to opposing the motion; (2) there is reason to believe such facts
may exist; and (3) the reasons why additional time is needed to obtain
these facts.” (Wachs v. Curry (1993) 13 Cal.App.4th 616,
623.) Where the opposing party submits an adequate affidavit showing that
essential facts may exist but cannot be presented in a timely manner, the Court
must either deny summary judgment or grant a continuance. (Dee v.
Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30,
34-35.)
Here,
Plaintiff’s counsel has not submitted any declaration or affidavit under
section 437c, subdivision (h). Accordingly, Plaintiff’s request for a statutory
continuance is denied.
Even when a party has failed to establish a statutory right to
a continuance under Code of Civil Procedure section 437c, however, the Court has
discretion to grant a continuance on a showing of good cause. (Cooksey v.
Alexakis (2004) 123 Cal.App.4th 246, 254); Hamilton v. Orange County
Sheriff’s Dept. (2017) 8 Cal.App.5th 759; 765; Lerma v. County of Orange
(2004) 120 Cal.App.4th 709, 711-712; Chavez v. 24 Hour Fitness USA, Inc. (2015)
238 Cal.App.4th 632, 643-644.) In ruling on a request for a continuance, the Court can consider a variety
of factors, including (1) how long the case has been pending; (2) how
long the requesting party had to oppose the motion; (3) whether the continuance
motion could have been made earlier; (4) the proximity of the trial date
or the 30-day discovery cutoff before trial; (5) any prior continuances for the
same reason; and (6) the question whether the evidence sought is truly
essential to the motion. (Chavez, supra, 238 Cal.App.4th at p. 644; 3 Weil & Brown, California Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2023) ¶ 10:208.1.)
The Court has considered these factors and
determines, on balance, that they weigh in favor of granting Plaintiff’s request
for a continuance in this matter. In particular, the Court notes that the
records to be produced pursuant to a subpoena to George Salinas Tree
Preservation may be particularly important to the motion.
Plaintiff alleges that she was injured when she stepped into a hole at La Pintoresca Park, a
public park located in City. (Complaint, ¶¶ 16-21; Defendant’s Statement of
Undisputed Material Facts [“DSUMF”], No. 1; Plaintiff’s Statement of Additional
Material Facts [“PSAMF”], No. 5.). The hole was created, Plaintiff alleges, by
City (or others) through “negligently removing a tree stump.” (Complaint, ¶ 18.)
Plaintiff’s experts measured the hole (or “depression”) as more than 6 inches
deep and 41 inches wide. (PSAMF, No. 15; Soltanmoradi Decl., Exh. 5 [“Avrit
Decl.”], ¶ 8 & Exh. 11 [“Barillas Decl.”], ¶ 6.)
Plaintiff also presents evidence: (1) that in 2011, there was a tree
at the location where Plaintiff stepped into the hole; (2) that by 2014 and
2015, there was a tree stump at the location; (3) the tree stump was removed by
July 2017; and (4) in July 2017, an orange cone was placed at or near the
location of the hole. (PSAMF, Nos. 9-13; Soltanmoradi Decl., Exhs. 6-10; Avrit
Decl., ¶ 11.)
In or about January 2014, City entered into a contract with George
Salinas Tree Preservation for tree maintenance services. (PSAMF, No. 42.)
Records from George Salinas Tree Preservation may (or may not) shed light on the
cutting of the tree, the subsequent removal of the tree stump, the apparent
failure to fill in the hole when the stump was removed, and what (if anything) City
did or did not know or do regarding these events.
Conclusion
The hearing on City’s motion for summary judgment is continued for
approximately 30-45 days. Supplemental oppositions and replies may be filed, within
the times set forth in Code of Civil Procedure section 437c, subdivision (b),
with reference to the new hearing date.
City to give notice.