Judge: Steven A. Ellis, Case: 21STCV44524, Date: 2024-05-08 Tentative Ruling
Case Number: 21STCV44524 Hearing Date: May 8, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant City of Montebello.
Tentative Ruling
The motion for summary judgment is DENIED.
Background
This action arises out of an incident on January
7, 2020, in which Plaintiff Alice Romero (“Plaintiff”) allegedly tripped and
fell while walking along a sidewalk near 109 W Lincoln Ave, Montebello,
California.
On December 7, 2021, Plaintiff filed a
complaint against Defendant City of Montebello (“City”) and Does 1 through 15, alleging
(among other things) that there was a dangerous condition of public property. On
March 28, 2022, City filed its answer.
On February 21, 2024, City filed this motion
for summary judgment. Plaintiff filed her opposition on April 22, 2024. City filed
its reply on May 1, 2024, along with objections to Plaintiff’s evidence.
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 Objection
City objects to certain portions of the evidence
submitted by Plaintiff. 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).)
City objects to Plaintiff’s Exhibit 1, two
photographs reportedly from Google. The Court SUSTAINS this objection based on
lack of proper foundation.
Discussion
A cause of action against a
public entity must be based on a statute.
(Gov. Code, § 815, subd. (a).)
Here, Plaintiff alleges in her Complaint that she was injured as a
result of a dangerous condition of 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 essentially
three grounds: (1) that the undisputed facts show that as a matter of law that there
was no dangerous condition; (2) that the undisputed facts show that
Plaintiff’s injuries were not caused by the allegedly dangerous condition; and
(3) that the undisputed facts show that Plaintiff cannot establish City’s
actual or constructive knowledge.
(City also makes an argument about “duty of
care,” but this is not a separate element of a claim under Government Code
section 835. In a colloquial sense, a
public entity that has actual or constructive knowledge of a dangerous
condition and but takes no action to address the condition may be said to have
breached its “duty of care,” but under the applicable statutes and case law,
that is not an independent requirement of a section 835 claim.)
Dangerous Condition/Trivial Defect
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, subd. (a);
see also Thimon, supra, 44 Cal.App.5th at p. 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.)
Plaintiff has the burden of proving the existence of a dangerous
condition and each element of a cause of action under Government Code 835. A
court may not presume that there was a dangerous condition merely because the
plaintiff was injured. (Sambrano v. City of San Diego (2001) 94
Cal.App.4th 225, 241 [describing such an argument as “reason[ing] backwards”].)
“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 pp. 109-110; Kasparian v.
AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) The Government Claims Act is not intended to
make public entities “insurers” against injuries arising from trivial
defects. (Stack, supra, 91
Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather, 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 p. 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 p. 1104.)
“In appropriate cases, the
trial court may determine ... whether a given walkway defect was trivial
as a matter of law.” (Ibid.) “‘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 pp. 1104-1105 (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.” (Huckey, supra, 37 Cal.App.5th at p. 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 p. 111;
see also, e.g., Huckey, supra, 37 Cal.App.5th at p. 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 p. 1105 [emphasis in original].)
“[A] tape measure alone cannot be used to determine whether the defect
was trivial.” (Caloroso, supra, 122
Cal.App.4th at p. 927.) Rather, a “court
should consider other circumstances which might have rendered the defect a
dangerous condition at the time of the accident.” (Huckey, supra, 37
Cal.App.5th at p. 1105.) “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.” (Ibid.)
“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.’” (Ibid. [quoting Caloroso,
supra, 122 Cal.App.4th at p. 927].)
Here, Plaintiff alleges
that she tripped and fell over broken or raised asphalt on a sidewalk near 109
West Lincoln Avenue in Montebello on January 7, 2020. (Defendant’s Statement of Undisputed Facts
[“DSUMF”], Nos. 1, 4.) Plaintiff was
walking in a neighborhood that was familiar to her and was part of her regular
exercise routine. (DSUMF, Nos. 4-5, 9.) The weather was clear and sunny. (DSUMF, No. 12.) Nothing was obstructing Plaintiff’s
view. (DSUMF, No. 25.)
Plaintiff testified that as
she was walking down Lincoln Avenue, her foot hit a raised portion of the
sidewalk that she did not see. (DSUMF,
No. 10.) “I just fell; I went flying.” (Ibid.) After she fell, she noticed that the sidewalk
is “raised” and “uneven.” (Ibid.)
After the accident, the
City took photographs of the scene.
(DSUMF, No. 11.) The size of the
height differential is at least approximately one inch. (Ibid.; see also DSUMF, No. 26; Murray
Decl., Exh. 3.) The raised portion is
plainly visible in the photographs.
(DSUMF, No. 11; Murray Decl., Exh. 3.)
Plaintiff deposed Cesar Roldan,
the City’s Director of Public Works and the person most qualified designated by
City. Mr. Roldan testified that a height
differential of more than three quarters of an inch is “considered to present a
hazard to pedestrians.” (Matusek Decl.,
Exh. 2 [Roldan Depo.”], at p. 11:2-5.)
In this case, the height differential was approximately one inch, and so
after the accident the City “determined that there was an issue that required
ramping.” (Id., at p. 15:7-9.) The sidewalk was determined by the City “to
present a hazard to pedestrian traffic as of January 7, 2020.” (Id., at p. 17:1-7.)
The Court has considered
all of the evidence submitted by the parties (except the evidence as to which
an objection was sustained) and has evaluated that evidence based upon the
extensive case law (including, but not limited to, that cited above and that
cited by the parties) regarding dangerous conditions and trivial defects. Based on a consideration of the evidence, the
law, and the applicable factors, the
Court does not find that the defect in this case was trivial as a matter of
law. Drawing all reasonable inferences
in favor of the non-moving party, as is required, the Court concludes that the
trier of fact could find that the size of the uplift was at least one
inch. There do not appear to be any
aggravating factors, as the weather was clear on the day of the accident, Plaintiff
was familiar with the area, and nothing obstructed Plaintiff’s view. The City regarded the uplift as a hazard to
pedestrians. On these facts, reasonable minds could differ as to
whether the sidewalk constituted a dangerous condition under Government Code
section 835. There is a triable issue on
this element of Plaintiff’s cause of action.
Proximate Causation
City argues that the
accident happened because Plaintiff was not looking at the sidewalk and may
have been distracted, not because of any dangerous condition of the
sidewalk. (E.g., DSUMF, Nos. 30, 48-50.) On this record, however, causation is an
issue of fact that the jury must decide.
Pedestrians using sidewalks with due care and in an ordinary manner are
not expected to be looking down at all times and inspecting the sidewalk for
potential defects. Drawing all
reasonable inferences in favor of Plaintiff, the trier of fact could find that
the dangerous condition of the sidewalk was a substantial factor in causing
Plaintiff’s injuries.
Actual or Constructive
Notice
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.)
There is no evidence in the
record that the allegedly dangerous condition was created by one of City’s
employees.
There is no evidence in the
record that City had actual knowledge of the defect prior to Plaintiff’s
accident. Plaintiff does not contend
otherwise. (DSUMF, Nos. 17, 36, 38.)
The parties disagree,
however, on the question of whether there is evidence in the record that would
support a reasonable inference of constructive notice. Government Code section 835.2, subdivision
(b), directly addresses the test for constructive notice and 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).)
The parties agree that the
defect was visible. (DSUMF, Nos. 11, 29.) A finder of fact could reasonably draw the
inference from the facts in the record that the defect 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” within the meaning of Government Code section 835.2,
subdivision (b).
There is no (admissible) evidence of how long the defect was in
existence. At least potentially, a finder
of fact could reasonably draw the inference on this record that the defect in
the sidewalk was caused by a tree root or other slow and gradual process, and
therefore did not appear overnight but rather existed for a long enough time that
it could have been, and should have been, discovered by a reasonable
inspection.
In addition, and independently, section 835.2, subdivision (b),
expressly provides that admissible evidence on the issue of constructive notice
includes (but is not limited to) evidence that the public entity did, or did
not, maintain and operate a reasonable inspection program. Here, the evidence shows that the City’s
inspection program was limited to responding to citizen complaints. (DSUMF, No. 19.) Independent of responding to citizen
complaints, the City does not have a program in place for inspecting sidewalks. (Roldan Depo. at p. 7:1-8.) A trier of fact might reasonably find that that
is reasonable, given the size of the City and the expense associated with
operating an inspection program. But the
trier of fact might also reasonably find the opposite, that the City did not
have a reasonable inspection in place before the time of the accident. Relying on the admissible evidence in the record,
and drawing all reasonable inferences in favor of the non-moving party, the
jury might rely on a finding that the City did not have a reasonable inspection
program in place at the time of the accident to draw an inference of
constructive notice. Thus, there is a triable issue on this element of
Plaintiff’s cause of action.
Summary
The
Court has carefully considered the evidence and argument presented by both
sides. On this record, the Court concludes that there are triable issues as to
each of the elements of Plaintiff’s claim for a dangerous condition on public
property under Government Code section 835.
On this record, a trier of fact could reasonably find that there was a
dangerous condition, that Plaintiff’s injury was proximately caused by the
dangerous condition, and that the City had constructive notice of the dangerous
condition.
Plaintiff’s request for
sanctions is denied. There is no
evidence that City has presented any affidavit in bad faith or solely for the
purpose of delay. (Code Civ. Proc., §
437, subd. (j).)
Conclusion
Defendant’s
motion for summary judgment is DENIED.
Moving
party to give notice.