Judge: Walter P. Schwarm, Case: 30-2020-01166473, Date: 2023-07-25 Tentative Ruling
Defendant’s Written Objections filed on 7-20-23 under ROA No. 113: The court SUSTAINS Objection No. 1 as hearsay.
Code of Civil Procedure section 437c, subdivision (p)(2) provides, “A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. 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 that cause of action or a defense thereto.”
Code of Civil Procedure section 437c, subdivision (f)(1), provides, “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has not merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim of damages, or an issue of duty.”
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, (Aguilar), states, “Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. Although not expressly, the 1992 and 1993 amendments impliedly provide in this regard for a burden of production as opposed to a burden of persuasion. A burden of production entails only the presentation of ‘evidence.’ (Evid. Code, § 110.) A burden of persuasion, however, entails the ‘establish[ment]’ through such evidence of a ‘requisite degree of belief.’ (Id., § 115.) It would make little, if any, sense to allow for the shifting of a burden of persuasion. For if the moving party carries a burden of persuasion, the opposing party can do nothing other than concede. Further, although not expressly, the 1992 and 1993 amendments impliedly provide for a burden of production to make a prima facie showing. A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Italics in Aguilar; Footnotes 13 and 14 omitted.)
Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 (Binder) states, “Although summary judgment might no longer be considered a ‘disfavored’ procedure, [citation], the rule continues that the moving party's evidence must be strictly construed, while the opposing party's evidence must be liberally construed.” “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.]” (Id., at p. 839.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756-757, provides, “The plaintiff can defeat a defense motion for summary judgment by showing either that the defense evidence itself permits conflicting inferences as to the existence of the specified fact, or by presenting additional evidence of its existence. [Citation.] The dispositive question in all cases is whether the evidence before the court, viewed as a whole, permits only a finding favorable to the defendant with respect to one or more necessary elements of the plaintiff's claims—that is, whether it negates an element of the claim ‘as a matter of law.’ [Citation.]”
Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 12-13 (Hufft) states, “The determination whether triable facts exist must be made in light of the issues defined by the pleadings. [Citation.] If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory . . . permits that portion of the complaint to be unchallenged.’ [Citation.] Where, as in this case, no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. [Citation.]” (See also, Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (Consumer Cause).)
Plaintiff’s (Angie De La Paz) Complaint, filed on 10-21-20 under ROA No. 2, alleges causes of action for General Negligence and Premises Liability.
Initially, it appears that the some of the issues identified in the Motion are not the proper subjects for summary adjudication. (See Issue Nos. 1-6 in the Motion at p. 2:9-25.) Section 437c, subdivision (f)(1), permits adjudication of the first which is an issue of duty. It does not permit adjudication of the third through fifth issues because they do not seek adjudication of a cause of action, an affirmative defense, a claim of damages. Although it does not appear that Code of Civil Procedure section 437c, subdivision (f)(1), permits adjudication of those issues as phrased, it appears that they seek summary adjudication of the first and second causes of action. Therefore, the court will construe the first, second, and sixth issues as seeking summary adjudication of the first and second causes of action.
First Cause of Action—General Negligence:
Issue No. 1 states, “The negligence cause of action must be dismissed as the California Supreme Court has held that a person who was injured by a dangerous condition of public property is prohibited from bringing a negligence cause of action (Cause of Action No. 1).” (Motion; 2:21-25.) “Plaintiff’s Opposition to Defendant(s) Motion for Summary Judgment (Opposition), filed on 7-11-23 under ROA No. 106, states, “Plaintiff concedes the defense is correct on this. . . . Plaintiff believes it is proper for this cause of action to be dismissed.” (Opposition; 2:19-23.) Therefore, the court GRANTS the Motion for Summary Adjudication as to the first cause of action.
Second Cause of Action—Premises Liability:
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ [Citations.] (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; See also CACI Nos. 400, 1000, and 1001.)
Government Code section 835.2 states, “(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.”
Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517-518 (Martinez), explains, “Plaintiff's claims for premises liability and negligence rest on the same elements—namely, (1) a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in injury. [Citations.] When a person is injured on public property, the public entity's duty of care and the circumstances under which it is breached turn on (1) whether ‘the property was in a dangerous condition’; (2) whether ‘the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred’; and (3) whether the public entity was negligent. (§ 835.)” “A public entity is liable for injuries caused by a ‘dangerous condition’ on public property if the entity either creates that condition itself or is otherwise negligent because it had actual or constructive notice of the condition but did not repair it. (Gov. Code, §§ 835, 835.2.) A public entity will be charged with constructive notice of a dangerous condition only if (1) the dangerous condition existed for a sufficient period of time before the plaintiff's injury, and (2) it was sufficiently obvious that the entity acted negligently in not discovering and repairing it. [Citations.]” (Id., at p. 513; Footnote 1 omitted.)
Thimon v. City of Newark (2020) 40 Cal.App.5th 745, 761 (Thimon), states, “Third, Thimon's expert opined that the crosswalk created a ‘trap’ because ‘pedestrians and motorists using Cherry Street are unaware of the factors that contribute to the dangerous nature of the subject crosswalk.’ This opinion also does not raise a triable issue of material fact, since undisputed evidence shows the conditions Thimon claims are dangerous were apparent to pedestrians. ‘The manifest intent of the Tort Claims Act is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.’ (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131, 231 Cal.Rptr. 598; see also Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 560, 69 Cal.Rptr.3d 825 [it is a ‘common sense proposition that premises liability may not be imposed on a public entity when the danger of its property is readily apparent’].)” (Italics in Thimon.)
CACI No. 1004 provides, “If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the [owner/occupier/one who controls the property] does not have to warn others about the dangerous condition. [¶] However, the [owner/occupier/one who controls the property] still must use reasonable care to protect against the risk of harm if it is foreseeable that the condition may cause injury to someone who because of necessity encounters the condition.”
Page 4 of the Complaint pleads in part, “On the date and at the location mentioned above Plaintiff, Angie De La Paz, (hereinafter referred to as ‘Plaintiff’) while exercising due care and caution for her safety, was at the swap meet and decided to take a seat on some benches in the area. Plaintiff proceeded to walk up the curb area, unknowingly Plaintiff reached the height differential area on the ramp and tripped and fell. Where the incident occurred, there were no warnings signs of the height differential at the very top of the ramp where it blends in with the sidewalk and the shading from a lamp post disguised the area so one was not able to see it as well. Further it is camouflage because the top of the ramp and the curb were the same color. Plaintiff fell forward onto her face and right side taking most of the impact on her right shoulder which was torn in a few places as a result.”
Here, Defendant has provided a photograph of the curb with its Motion. (Quiller Decl., ¶ 5 and Exhibit C.) At deposition, Plaintiff was asked, “So your path was sort of by that purple X. Towards the green X you tripped and your body fell somewhere where the red X is, but your intended designation is that orange X; is that right?” (Quiller Decl., ¶ 4 and Exhibit B (Plaintiff’s Depo.; 55:12-15.).) Plaintiff responded, “Yes.” (Quiller Decl., ¶ 4 and Exhibit B (Plaintiff’s Depo.; 55:12-16.).) Plaintiff was also asked, “. . . do you know why you were unable to recognize that you were about to step up on a curb before you fell?” (Quiller Decl., ¶ 4 and Exhibit B (Plaintiff’s Depo.; 60:19-21.).) Plaintiff responded, “It was an accident. I fell and then – I fell, and that’s that. . . .” (Quiller Decl., ¶ 4 and Exhibit B (Plaintiff’s Depo.; 60:19-23.).) (See also, Gibbons Decl., ¶¶ 1, 2, and Exhibits A and B.)
The court notes that the parties do not dispute that the time of Plaintiff’s accident was between 2:00 p.m. and 3:00 p.m., that the weather was “normal” and “not raining,” and it was “sunny.” (Defendant’s Separate Statement (DSS) filed on 5-11-23 under ROA No. 93, and Plaintiff’s Separate Statement (PSS) filed on 7-11-23 under ROA No. 104; DSS Nos. 3, 4, 5, 13, 14, 15, 20, 21, and 22,)
The court finds that Defendant has met its initial burden of demonstrating the nonexistence of a triable issue of material fact that the curb was not a dangerous condition because the danger presented by the curb was readily apparent to a pedestrian. Defendant has presented evidence of the appearance of the curb through the photograph used at Plaintiff’s deposition. (Quiller Decl., ¶ 5 and Exhibit C.)
The Opposition states, “The photographs demonstrate a consistent color of the concrete. Such that reasonable minds could conclude that it would be hard for a pedestrian to see the distinction between the street, curb and the sidewalk.” (Opposition; 5:11-14.) In considering the photograph attached to Plaintiff’s deposition, the photograph clearly shows a curb. Further, the painted yellow ramp and the painted blue lines highlight the distinction between the street and the curb. Thus, Defendant’s evidence does not permit conflicting inferences sufficient to raise a triable issue of material fact as to whether the danger of the curb was readily apparent to pedestrians.
As to notice, Defendant has presented the following evidence: “Within the past 19 years, the only claim or complaint made to the College regarding any trip and falls at or near the subject curb came from the plaintiff. Stated another way, there have been no known instances of trip and falls at the subject area.” (DSS Nos. 19, 26, 27, and 29. The PSS does not dispute DSS Nos. 19, 26, 27, and 29. Although the PSS does not dispute PSS Nos. 19, 26, 27, and 29, Defendant did not provide the court with the deposition of Joseph Dowling that supports DSS Nos. 19, 26, 27, and 29. Therefore, the court finds that Defendant has not carried its initial burden of demonstrating a triable issue of fact as to notice.
Plaintiff has not presented evidence to sufficient to create a triable issue of material fact as to the dangerous condition of the curb. Thus, the court GRANTS the Motion for Summary Adjudication as to the second cause of action. Since the court has GRANTED Summary Adjudication as to the first and second causes of action, the court GRANTS Summary Judgment.
Based on the above, the court GRANTS Defendant’s (Coast Community College District) Motion for Summary Judgment, or in the Alternative Summary Adjudication filed on 5-11-23 under ROA No. 97.
Defendant is to give notice.