Judge: William A. Crowfoot, Case: 19STCV11688, Date: 2022-10-18 Tentative Ruling

Case Number: 19STCV11688    Hearing Date: October 18, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 3, 2019, plaintiff Jane Rickert (“Plaintiff”) filed this action against defendant City of Pasadena (“Defendant”).  The initial form complaint was incomplete, so on August 23, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”).  Plaintiff asserts a cause of action for dangerous condition of public property and alleges that on March 9, 2018, she tripped on the pedestrian pathway around the Rose Bowl and Brookside Golf Course on Rosemont. 

          On July 28, 2022, Defendant filed this motion for summary judgment on the grounds that it did not create, nor did it have actual or constructive notice of, the alleged dangerous condition.  On October 3, 2022, Plaintiff filed her opposition brief and supporting papers. On October 13, 2022, Defendant filed its reply papers.

II.      FACTUAL BACKGROUND

          On March 9, 2018, at approximately 2 p.m., Plaintiff was walking near the Rose Bowl Stadium (“Stadium”) on Rosemont Avenue.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  Plaintiff was walking northbound on Rosemont Avenue by Gate C of the Stadium when she was approached by a group of pedestrians walking in the opposite direction as her path of travel.  (UMF No. 2.)  In response, Plaintiff stepped to the left of the group of pedestrians walking towards her.  (UMF No. 3.)  As she maneuvered to the left, she allegedly stepped into broken asphalt and fell.  (UMF No. 4.) 

III.     LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.     EVIDENTIARY OBJECTIONS

          Defendant filed objections to Plaintiff’s evidence submitted in opposition to its motion.  However, as the Court finds that Defendant did not meet its moving burden, the Court declines to rule on those evidentiary objections.  (Code Civ. Proc., § 437c, subd. (q).) 

V.      DISCUSSION

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was 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) that either 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 the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  (Gov. Code, § 835.)

A public entity had actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  (Gov. Code, § 835.2, subd. (a).)  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.  (Gov. Code, § 835.2, subd. (b).)  On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition.  (Gov. Code, § 835.2, subds. (b)(1)-(b)(2).) 

          Plaintiff does not contend that Defendant caused or created the alleged defect in the pavement.  Therefore, the only issue is whether Defendant had actual or constructive notice of the defect.  (See UMF No. 6.)  To prove that Plaintiff cannot establish that it had actual notice of the defect, Defendant submits the declaration of Mandy Templeton (“Templeton”), an employee of Defendant’s Department of Public Works, Citizen Service Center (“CSC”).  (Templeton Decl., ¶ 2.) Templeton is the CSC Manager and has held this position since June 2013.  (Ibid.)  As the CSC Manager, she oversees the intake and resolution of all work orders, calls or complaints, and requests for repairs performed on public walkways and roadways by Defendant’s Department of Public Works employees.  (Id., ¶ 3.)  Templeton is also responsible for maintaining the CSC database for work orders for repair and construction work performed on Defendant’s property.  (Ibid.)  Templeton explains that a complaint or request for service can come to the CSC in a variety of ways, including: verbal or written requests made directly to Defendant’s employees, phone calls to the CSC call center, emails, requests for service via the internet, and requests for service via a smartphone app.  (Id., ¶ 5.)  Templeton states that CSC staff members log a report and then contact Defendant’s Department of Public Works, Street Maintenance and Integrated Waste Management division (“City SMIWM”) to request a work order for any repairs needed.  (Ibid.)  City SMIWM is then charged with processing the request, making an evaluation of the request by inspecting the location and making any and all appropriate repairs and reporting back to CSC when the issue is resolved.  (Ibid.)  Templeton has searched the current CSC database for all work orders for the walkway and roadway on Rosemont Avenue outside of Gate C at the Stadium from the database’s inception in 2012 through the present.  (Templeton Decl., ¶ 7.)  The database has no record of any work orders generated at, or near the location described, before the date of the alleged incident of March 9, 2018.  (Ibid.) 

          To show that Plaintiff cannot establish that it had constructive notice of the defect, Defendant cites to Plaintiff’s responses to special interrogatories requesting Plaintiff state every fact in support of her contention that Defendant had “prior notice” and “identify all witnesses.”  (Lee Decl., Ex. D, p. 3.) In responses verified on February 12, 2020, Plaintiff stated: “At this time, plaintiff [sic] doesn’t know if the City had actual, as opposed to constructive notice of the dangerous condition/defect.”  (Lee Decl., Ex. E, p. 3.)  Plaintiff also stated: “Anyone who views the photographs can form the opinion both as to the dangerous condition, as well as the length of time it had been in existence.”  (Ibid.) 

These responses are insufficient to show that Plaintiff does not have and cannot reasonably obtain evidence that Defendant was placed on constructive notice.  Plaintiff’s discovery responses were served over two years ago and even though Defendant refers to the responses as proof that Plaintiff “does not know how long the alleged condition had been present or how it came to be”, the special interrogatories cited only ask Plaintiff to explain why she believes that Defendant had “prior notice.”  The interrogatory does not even ask about constructive notice specifically, nor does it even ask Plaintiff to state how long the defect had existed. 

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.