Judge Steven A. Ellis, Case Number: 21STCV24663, Date: 2023-07-21 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV24663, Date: 2023-07-21 Tentative Ruling

Case Number: 21STCV24663 Hearing Date: August 8, 2023 Dept: 29

TENTATIVE

Defendant City of Huntington Park’s motion for summary judgment is DENIED.

Background

Plaintiff Jairo Leyva (“Plaintiff”) alleges that he was seriously injured on August 30, 2020, while riding a scooter on a public sidewalk running parallel to Middleton Street in Huntington Park, California. In his complaint, filed on July 6, 2021, Plaintiff asserted causes of action for premises liability and general negligence against Defendants City of Huntington Park (“Defendant”), City of Los Angeles, County of Los Angeles, Huntario LLC (“Huntario”), and Does 1 through 25.

The County of Los Angeles and Huntario filed answers to the complaint on August 6, 2021.

Plaintiff dismissed Defendant County of Los Angeles on October 6, 2021.

On January 3, 2022, Plaintiff filed an amended complaint (the “FAC”). In the FAC, Plaintiff asserts a cause of action for dangerous condition of public property against Defendant, City of Los Angeles, and Does 1 through 20, and a cause of action for negligence against Defendant Huntario, LLC and Does 21 through 25.

Defendant filed its answer to the FAC on February 4, 2022. Huntario filed its answer on September 13, 2022.

On April 27, 2023, Defendant filed the instant motion for summary judgment. Plaintiff filed his opposition on July 3, 2023. Defendant filed a reply, along with objections to Plaintiff’s Separate Statement and to some of Plaintiff’s evidence, on July 7, 2023.

On July 14, 2023, the Court, on its own motion, continued the hearing on Defendant’s summary judgment motion to July 17, 2023.

On July 17, 2023, the Court issued an order directing Plaintiff to file and serve, by July 24, a corrected Separate Statement that complies with Code of Civil Procedure section 437c(b)(3) and California Rule of Court 3.1350(f) & (h). The Court granted Defendant leave to file a further reply by July 31. The Court, on its own motion, continued the hearing on Defendant’s summary judgment motion to August 8, 2023.

Plaintiff filed a revised Separate Statement on July 24, 2023. Defendant filed a reply and objections on July 28, 2023.

On July 27, 2023, the Court granted Huntario’s motion for summary judgment.

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(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 850-51; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)

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 850-51.) 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.)

Evidentiary Objections

Defendant objects to certain portions of Plaintiff’s evidence. 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).)

Defendant’s objections are contained in two separate documents: (a) objections (numbered 1-3) in a filing on July 7, 2023; and (b) objections in Defendant’s response, filed on July 28, 2023, to Plaintiff’s Statement of Additional Material Facts (items numbered 38-52).

The Court OVERRULES the objections numbered 1-3 in Defendant’s filing on July 7, 2023. Plaintiff’s expert Philip L. Rosescu, P.E., M.S., has appropriate credentials and his testimony relates to a subject that is sufficiently beyond common experience that the opinion of an expert witness would assist the trier of act; is based on information of the type on which an expert may reasonably rely; is based on reasons supported by the information on which the expert relies; and is not speculative (Evid. Code, §§ 801-02; Sargon Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.). As to the challenge to expert opinion testimony on the issue of whether a significant risk or dangerous condition exists, the Court agrees that such testimony is not binding on the Court and does not, in itself, create a disputed issue of material fact in connection with a motion for summary judgment. “The fact that a witness can be found to opine that … a condition constitutes a significant risk and a dangerous condition does not eliminate this court’s statutory task pursuant to Government Code section 830.2, of independently evaluating the circumstances.” (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755; accord Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) But expert opinion may be admissible, relevant, and helpful to the Court, even if it is not determinative. The Court will consider all of the admissible evidence (including expert opinion evidence) in conducting its independent obligation (in which expert opinion evidence is not determinative) to evaluate whether the existence of a dangerous condition may be resolved on this record as a matter of law. Finally, Mr. Rosescu’s description of the size of the defect or “drop off” is based on his inspection of the site of the incident.

The Court also OVERRULES the objections to Plaintiff’s Statement of Additional Material Facts, Nos. 38-52, except as follows:

· The Court SUSTAINS the Objections to No. 42 (entirety), No. 43 (as to “knew or”), No. 44 (as to the second sentence only), No. 46 (entirety). These statements are not a proper subject for expert witness testimony.

· The Court SUSTAINS the Objections to No. 50 (entirety) and No. 51 (entirety). There is no authentication or foundation for the cited documents and no request for judicial notice.

Discussion

In the FAC, Plaintiff asserts one cause of action against Defendant, asserting that he was injured as a result of 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, supra, 14 Cal.5th at 653; Thimon, supra, 44 Cal.App.5th at 753.)

Here, Defendant moves for summary judgment on four grounds: (1) that the undisputed facts show that as a matter of law that there was no “dangerous condition” on the sidewalk at the time of the incident, and therefore Plaintiff cannot establish the first element of his claim; (2) that Plaintiff admitted that Huntario, a private entity, owned or managed the sidewalk at issue; (3) that the undisputed facts show that as a matter of law, the City did not have actual or constructive notice of the condition of the sidewalk, and therefore Plaintiff cannot establish the fourth element of his claim; and (4) that, as a matter of law, the condition of the sidewalk was, at most, a trivial defect.

For ease of analysis, the Court will take these arguments in a different order. The Court will begin with the second argument (ownership/control), and then address the first and fourth arguments (dangerous condition/trivial defect), and then address the third argument (actual or constructive notice).

Ownership and Control of Sidewalk

In his discovery responses and at his deposition, Plaintiff stated that he believed a private entity, Huntario, LLC, owned or managed the sidewalk at the location of the incident. (SUMF No. 32.) In written discovery responses, Plaintiff stated that he did not have evidence that Defendant owned or controlled the sidewalk. (Colvin Decl., Exhs. C & D, response to special interrogatories 8, 16, 17, 19.) From these responses, Defendant argues that the undisputed facts show that as a matter of law that Plaintiff cannot establish an essential element of his claim – that Defendant owned or controlled the sidewalk.

The Court rejects this argument. The material issue is not what Plaintiff did or did not know or believe; the issue is whether Defendant has shown, based on the evidence in the record, that Plaintiff cannot establish that Defendant owned or controlled the sidewalk. The Court concludes that Defendant has not made this showing. Defendant did not present any affirmative evidence on this point, relying instead exclusively on Plaintiff’s own admissions of his lack of knowledge. But if Defendant did not own or control the sidewalk, it would have been easy enough for Defendant to produce a declaration to that effect, sworn under oath by a representative of Defendant with sufficient knowledge and capacity. Defendant did not do so. And Plaintiff did present evidence sufficient to establish, at the very least, a dispute on this material issue, viewing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in that party’s favor. (Ostoia Decl., Exh. B; Plaintiff’s SAMF, Nos. 47, 51.)

Accordingly, the Court concludes Defendant has not shown, for purposes of Code of Civil Procedure section 437c, that Plaintiff cannot establish that Defendant owned or controlled the sidewalk at issue.

Dangerous Condition and Trivial Defect Doctrine

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); see also Thimon, supra, 44 Cal.App.5th at 754.)¿ “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; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110.)

“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.)

Government Code section 830.2 provides that a condition is not a “dangerous condition” under the Government Claims Act “if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov’t Code § 830.2.) This statutory principle is sometimes referred to as “the trivial defect doctrine.”

It is impossible to maintain public walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at 109-10; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) The Government Code does not establish strict liability for public entities, and such entities are not insurers against all harm that may arise on their property. Accordingly, the trivial defect doctrine shields public entities from liability for “minor, trivial, or insignificant” defects. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at 27.) “The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove.” (Huckey, supra, 37 Cal.App.5th at 1104.)

“In appropriate cases, the trial court may determine . . . whether a given walkway defect was trivial as a matter of law.” (Id.) “‘Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.’” (Id. at 1104-05 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (Id. at 1105.)

Where a plaintiff alleges a cause of action based upon a dangerous condition in a sidewalk or other walkway, courts generally begin their analysis by considering the size of the defect. The size of the height differential, rise, or other defect is often the “most important” factor. (Stack, supra, 91 Cal.App.5th at 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at 1105 [stating that size of defect “may be one of the most relevant factors”].) As the Court of Appeal has explained, however, “[i]n determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect.” (Huckey, supra, 37 Cal.App.5th at 1105 [emphasis in original].) “The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.” (Id.) “These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents.” (Id.) “In sum, ‘[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.’” (Id. [quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927].)

The incident in this case occurred on August 30, 2020, at approximately 8:30 p.m. (SUMF No. 2.) Plaintiff alleges that he was riding a scooter on the sidewalk running alongside Middleton Street in the City of Huntington Park when he “encountered a dangerous condition,” namely a dirt patch where a piece of the sidewalk was missing. (FAC, ¶ 13.) The front tire of the scooter became stuck in the dirt patch, causing Plaintiff to fall and sustain severe injuries. (Id.)

The parties dispute whether it was dark at the time of the accident: Defendant asserts that it was, and Plaintiff so testified in his deposition, but he now argues that it was twilight. (SUMF Nos. 4 and 12 and responses thereto; Colvin Decl., Exh. B, at 14:24-25, 19:15-17, 67:18-19.) The parties dispute whether there were streetlights in the area: Defendant asserts that there no streetlights, and Plaintiffs testified in his deposition that the street lights were not on, but he now argues that they were. (SUMF No. 11 and response thereto; Colvin Decl., Exh. B, at 19:15-20:2.) At his deposition, Plaintiff testified that the scooter could travel at speeds of up to 10 miles per hour and that at the time of the accident he did not know how fast he was traveling but he was “going a bit fast.” (Colvin Decl., Exh. B, at 17:4-21, 20:3-19, 61:18-62:5.) Plaintiff also testified in his deposition that he did not see the dirt patch before he hit it. (Id. at 67:20-23, 70:21-23; see also SUMF Nos. 13 and 23 and response thereto.)

Plaintiff did not himself measure the height differential between the sidewalk and the patch of dirt. (SUMF No. 29.) Defendant produced no affirmative evidence on this issue. Mr. Rosescu, Plaintiff’s expert witness, testified that he conducted an inspection of the site and that the dirt patch was “recessed approximately 1-1/2 inches below the surrounding sidewalk.” (Rosescu Decl., ¶¶ 5(d), 8.) Mr. Rosescu also stated that a “drop-off of this magnitude can easily cause a scooter rider to lose control of their scooter” and that the dark conditions at the time of the accident made it difficult for Plaintiff to see, and to safely react to, the missing piece of the sidewalk. (Id., ¶ 8.)

The height differential of approximately 1.5 inches, although not independently dispositive, weighs against a determination that this was, as a matter of law, a trivial defect or otherwise not a dangerous condition. In the recent Stack case, supra, the Court of Appeal considered whether a height differential of 1.75 inches was trivial as a matter of law. (91 Cal.App.5th at 112.) The Court of Appeal noted just one case in which an equal or greater sidewalk height differential was deemed trivial. (Id., citing Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43–44 (Beck) [holding sidewalk height differential of one and seven-eighths inches at its maximum was trivial as a matter of law, and reversing bench trial judgment for plaintiff where no other aggravating circumstances were present].) The Court of Appeal also stated that “’when the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law,’ i.e., that it is minor or trivial.” (Id., quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.) Ultimately, the court concluded that the 1.75 inch height differential “weighs heavily” against finding the sidewalk condition trivial as a matter of law. (Id. at 114.) Although the court in Stack proceeded to consider additional factors, it stated that the height of the defect would require a “strong showing of other circumstances that made it not dangerous despite its height.” (Id. [emphasis in original].)

With regard to the other circumstances, Defendant correctly points outs that the accident occurred at night, in the dark, and Plaintiff could not see the gap in the sidewalk before he encountered it on the scooter. This appears to the Court to be an aggravating circumstance, as it is hardly surprising or unusual for people to use sidewalks at night.

Based on a consideration of all the applicable factors, the Court cannot find, as a matter of law, that the defect in this case was trivial or that the condition of the sidewalk was not dangerous. There was a significant gap in the sidewalk with a height differential of approximately 1.5 inches. Adding to the dangerousness, the gap was difficult to see in the dark. On these facts, reasonable minds could differ as to whether the sidewalk constituted a dangerous condition under Government Code section 835. The Court cannot, and does not, conclude that the defect was trivial as a matter of law.

Actual or Constructive Knowledge

Defendant also contends it had no actual or constructive notice of the allegedly dangerous condition.

A plaintiff bringing a claim under Government Code 835 must show either than the dangerous condition was created by one of defendant’s employees acting within the scope of his employment or that the defendant “had actual or constructive notice of the dangerous condition … a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov’t. Code, § 835.)

As to constructive notice, Government Code section 835.2(b) provides:

“A public entity had constructive notice of a dangerous condition … 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, subd. (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.)

Here, Plaintiff admitted that he does not himself have personal knowledge regarding how long the dirt patch has been there or whether anyone else had been injured in the same area. (SUMF Nos. 34-35.) Defendant produced no affirmative evidence on this issue – no evidence that it was unaware of the condition and no evidence regarding whether anyone had made a report to Defendant about the condition at any time.

Plaintiff’s expert reviewed Google images, however, and they showed that the condition existed and was apparent as early as 2007. (Rosescu Decl., ¶ 10.) The expert also testified that additional Google images showed that the curb immediately adjacent to the missing portion of the sidewalk had been repainted (from red to white) at some time between April 2015 and April 2017 and then repainted again (from white back to red) at some time between April 2017 and January 2018. (Id.) From this fact, the expert opines, it is likely that city employees (from the Defendant’s “Signs and Marketing” team) worked approximately three feet from the location at issue at least twice in the period from 2015 through 2018. (Id.)

A defendant moving for summary judgment must “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).) This requires the defendant to show both (1) “that the plaintiff does not possess … needed evidence” and (2) that that the plaintiff “cannot reasonably obtain … needed evidence.” (Aguilar, supra, 25 Cal.4th at 853-54; see also, e.g., Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)

Plaintiff has presented evidence that the defect existed since at least 2007, thirteen years before the incident, and that Defendant’s employees had worked within just a few feet of the location twice between 2015 and 2018. A finder of fact might reasonably conclude, on these facts, that Defendant either actually knew of the condition of the sidewalk or, alternatively, that there was a long enough period of time for Defendant, in the exercise of due care, to discover the dangerous condition of the sidewalk. That is sufficient to create a triable issue of fact on the issues of actual and constructive notice.

(The Court recognizes that Defendant objects to the expert’s testimony regarding the Google images. That objection, as noted above, is overruled, but even if it had been sustained, Defendant has not shown that Plaintiff “cannot reasonably obtain” evidence needed to raise an inference of actual or constructive notice; to the contrary, if it were needed, it appears that Plaintiff could reasonably obtain evidence regarding the Google images and the history of the condition, including through authentication by Google itself or by neighborhood residents.)

Conclusion

Based on the foregoing, the Court DENIES the motion for summary judgment of Defendant City of Huntington Park.

Moving party is ordered to give notice.

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.