Judge: Steven A. Ellis, Case: 22STCV32098, Date: 2025-03-04 Tentative Ruling

Case Number: 22STCV32098    Hearing Date: March 4, 2025    Dept: 29

Vann v. City of San Fernando
22STCV32098
Defendant’s Motion for Summary Judgment

Tentative

The motion for summary judgment is denied.

Background 

On September
30, 2022, Joey Vann (“Plaintiff”) filed a complaint against Defendant City of San
Fernando (“City”), County of Los Angeles (“County”), California Department of
Transportation, and Does 1 through 50, asserting a cause of action for premises
liability/dangerous condition of public property arising out of an alleged trip
and fall on the roadway located near 908 Harding Avenue in San Fernando on
October 9, 2021.

On November
9, 2022, City filed an answer to Plaintiff’s complaint.

On the
same day, November 9, 2022, The People of the State of California, acting by
and through the Department of Transportation (“Caltrans”), filed an answer to
Plaintiff’s complaint.

On
November 14, 2022, Plaintiff filed a request to dismiss County.

On May 18,
2023, Plaintiff filed a request to dismiss Caltrans.

On December
13, 2023, City filed its motion for summary judgment.

On February
18, 2025, Plaintiff filed an opposition, along with objections to some of City’s
evidence. 

On February
25, 2025, City filed a reply, along with objections to some of 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.)

Objections to Evidence

Each side asserts objections to the other’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).)

Plaintiff objects to the entirety of
the declaration of Rodrigo Mora. The objection is overruled.

City asserts 18 objections to
Plaintiff’s evidence. The objections are overruled.

Discussion

On
October 9, 2021, Plaintiff stepped out of a car parked near 908 Harding Avenue
in San Fernando and stepped into a pothole, causing him to fall and sustain
injuries. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No.
1.) 

Plaintiff
was with his girlfriend.  (DSUMF, No. 4.)
After leaving a party, Plaintiff and his girlfriend entered the car. (DSUMF, Nos.
4. 9.) The passenger side door was stuck on the curb and would not close, however,
and so Plaintiff exited the car, walked around the front of the car, lifted up
and closed the passenger door.  (DSUMF,
Nos. 10, 13.)

Plaintiff
then walked around the back of the car and stepped off the curb and into the
street.  (DSUMF, Nos. 13, 15.)

In
his deposition, Plaintiff described what happened next:

“Q. … Did you stop at the
curb before stepping on the street, or were you just walking after closing the
door behind the car and stepped out without stopping?

A. I was just walking
around the vehicle.

Q. Okay. So you didn't,
like, stop?

A. No.

Q. All right. What happened
when you stepped down on the street with your left foot?

A. As I stepped with my
left foot onto the street, I stepped in -- well, stepped onto a loose piece of asphalt
that was attached to that pothole, and as my weight was beginning to press on
that piece, it shifted loose causing my ankle to turn sideways, causing me to lose
balance, fall, and causing the incident.

…

Q. When you say it was
"loose," what do you mean? Was it, like, little pieces of gravel, or
how would you describe it?

A. I would say
deteriorating, cracked asphalt.

…

Q. … Did your foot go down
into the hole, or did it just stay on top of the asphalt?

A. When the chunk shift,
yes, it went into the pothole.

Q. … Did the asphalt
collapse into the pothole as you stepped on it?

A. Yes.

Q. Okay. And how deep did
it go?

A. The pothole or my foot?

Q. Your foot into the
pothole.

A. Entirely into the
pothole.

Q. Just to be clear, you're
talking about a pothole itself versus a crack?

A. Yes.

Q. Okay. So it wasn't a
crack. It was not a crack?

A. No. It was a pothole.”

(Plaintiff’s
Depo., at 34:15-35:15, 37:2-20.) (Excerpts from the transcript of Plaintiff’s
deposition are in the record as Defendant’s Exhibit C and Plaintiff’s Exhibit
1.)

At
his deposition, Plaintiff estimated that the pothole was between one and three
inches deep, ten inches to a foot wide, and in a round shape.  (DSUMF, No. 20.; see also Plaintiff’s Depo.,
at 83:7-18, 85:6-13; Defendant’s Exh. D.) 

The
accident happened at night, between 10 and 11 pm.  (DSUMF, No. 3.)  Plaintiff testified at his deposition that
there was “minimal” lighting in the area from a street light.  (Plaintiff’s Depo., at 21:4-5.)

In his
complaint, 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.) 

Here, City moves
for summary judgment on essentially two grounds: (1) that City did not create the dangerous condition and
did not have actual or constructive notice of the dangerous condition prior to
Plaintiff’s accident; and (2) the pothole was an open and obvious dangerous
condition.

Actual or
Constructive Notice

City
argues that it did not have actual or constructive notice of the dangerous
condition prior to Plaintiff’s accident.

On the issue of constructive notice, Government
Code section 835.2, subdivision (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’t Code,
§ 835.2, subd. (b).)  

“A claim for constructive notice has two threshold elements.” (Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 320.) First, “a plaintiff
must establish that the dangerous condition has existed for a sufficient period
of time.” (Ibid.) Second, a plaintiff must show “that the dangerous
condition was obvious.” (Ibid.; see also, e.g., Martinez v. City of
Beverly Hills (2021) 71 Cal.App.5th 508, 514, 519.)

“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 Ct. (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. (Ibid.)

Rodrigo
Mora, Operations Manager for the City’s Department of Public Works, submitted a
declaration stating that City maintains a database of “complaints, incidents,
and work orders regarding alleged dangerous conditions on City streets.”  (Mora Decl., ¶ 4.)  Mr. Mora states he or others at his direction
have researched the database, and “There are no reports of injuries or prior
incidents involving a pothole at the subject location since at least 2013.”  (Ibid.)  One prior request for pothole repair was received
on December 11, 2018, and the repair was made that same day.  (Ibid.)  “There were no other complaints or repair
requests regarding that address between that date and the subject
incident.  (Ibid.)

In opposition, Plaintiff presents the
expert opinion testimony of Boyce Oandasan. 
Mr. Oandasan conducted a site inspection and reviewed a variety of documents,
including but not limited to discovery materials, photographs, and Google
Street View and Historical Images of the site. 
(Oandasan Decl., ¶¶ 4, 6-7.) 
Based on that review, Mr. Oandasan states that the asphalt on Harding Avenue
was more than 14 years old at the time of the accident, that roadway pavement typically
has a 20-year design life, that guidance from Caltrans indicates that
preventative maintenance including sealing cracks should occur every seven
years (if not more frequently), and that extensive cracking was present during
the period of April 2019 through December 2020 (months or more before Plaintiff’s
accident).  (Id., ¶ 9; see also Defendant’s
Exh. D; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], Nos. 6,
8-18.)

Viewing the evidence in the light most
favorable to the non-moving party, and drawing all reasonable inferences in his
favor, the Court concludes that there are triable issues regarding whether the
City had constructive notice of the allegedly dangerous condition at
issue.  On this record, a finder of fact
could reasonably determine that the City had constructive notice.  A finder of fact could also reasonably
determine the opposite, but on summary judgment the role of the Court is
limited, and the Court is not to weigh the evidence or choose between
competing, reasonable inferences.

Open and Obvious

If a dangerous condition exists, the
property owner is “under a duty to exercise ordinary care either to make the
condition reasonably safe …. or to give a warning adequate to enable them to avoid
the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446; see
also, e.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659,
672-73.) In some cases, and subject to certain exceptions, however, a dangerous
condition may be so obvious that the condition itself serves as a warning, and
the landowner may have no further duty to remedy or warn of the condition. (See
Kinsman, supra, 37 Cal.4th at p. 673; Montes v. YMCA of Glendale
(2022) 81 Cal.App.5th 1134, 1142; Christoff v. Union Pacific Railroad Co.
(2005) 134 Cal.App.4th 118, 126; Krongos v. Pacific Gas Electric Co.
(1992) 7 Cal.App.4th 387, 393.)

As the Court of Appeal has recently
explained:

“Foreseeability of harm is typically absent when a dangerous
condition is open and obvious. Generally, if a danger is so obvious that a
person could reasonably be expected to see it, the condition itself serves as a
warning, and the landowner is under no further duty to remedy or warn of the
condition. In that situation, owners and possessors of land are entitled to
assume others will perceive the obvious and take action to avoid the dangerous
condition.”

(Jacobs v. Coldwell Banker Residential
Brokerage Co. (2017) 14 Cal.App.5th 438, 447 [citations omitted].)

Here,
City contends that the pothole was open and obvious. City cites to Plaintiff’s
deposition testimony, in which Plaintiff describes the pothole as one to three
inches deep and ten to twelve inches wide. (Plaintiff’s Depo., at 37:24-38:12.)
City also cites the photographs taken by Plaintiff of the allegedly dangerous
condition, in which the cracking and uneven nature of the pavement is
visible.  (Defendant’s Exh. D.)

The
accident occurred at night, however, and Plaintiff testified that the street
lighting was “minimal.”  (Plaintiff’s
Depo., at 21:4-5.)  Plaintiff’s expert provided
opinion testimony that the lighting was inadequate, that “[d]ark black asphalt potholes
… require adequate illumination for a pedestrian to avoid,” and that the “lack
of illumination obscured and exacerbated the hazard.”  (Oandasan Decl., ¶ 10.)  Moreover, Plaintiff testified that he stepped
on to asphalt that shifted into the pothole, not the pothole itself. (Plaintiff’s
Depo., at 34:15-35:4.)

Viewing the evidence in the light most favorable to the
non-moving party, and drawing all reasonable inferences in his favor, the Court
concludes that on this record there are triable issues regarding whether the dangerous
condition was so open and obvious as to serve as an adequate warning itself. 

Conclusion

The Court
DENIES Defendant’s motion for summary judgment.

Moving
party is ordered to give notice.