Judge: William A. Crowfoot, Case: 19STCV26888, Date: 2022-12-06 Tentative Ruling

Case Number: 19STCV26888    Hearing Date: December 6, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On July 31, 2019, plaintiff Timothy Andrew Northup (“Plaintiff”) filed this action against defendants City of Los Angeles (“City”), County of Los Angeles (“County”), and City of Pico Rivera (“Defendant”).  Plaintiff alleges that he tripped and fell on a sidewalk surface on February 8, 2019. 

          On October 16, 2019, Plaintiff dismissed County.  On April 22, 2021, Plaintiff dismissed City.  On May 27, 2021, Plaintiff named Naomi Arias as Doe 1. 

          On September 1, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication.  Defendant contends that: (1) Plaintiff fails to state statutory causes of action for premises liability and general negligence, (2) Plaintiff cannot establish that the sidewalk was in a dangerous condition at the time of the incident, (3) Plaintiff cannot establish that it had actual or constructive notice of the alleged condition, and (4) Plaintiff has “admitted” that he has no knowledge of what caused the alleged dangerous condition. 

          On November 4, 2022, Plaintiff filed an opposition brief and supporting papers.

          On November 10, 2022, Defendant filed its reply papers. 

          On November 17, 2022, the Court continued the hearing on this motion to December 6, 2022.  On November 23, 2022, Plaintiff submitted the Amended Declaration of Kay Greeley with certain exhibits.  On November 30, 2022, Defendant filed a response and objection to the Amended Declaration.  

II.      FACTUAL BACKGROUND

          On February 8, 2019, Plaintiff went to visit his aunt at her residence located at 5318 Bridgeview Street in the City of Pico Rivera.  (Defendant’s Undisputed Material Fact (“UMF”) No. 3.)  Plaintiff was dropped off at his aunt's house on Bridgeview by his girlfriend.  (UMF No. 4.)  Plaintiff's intention when he left his aunt's house was to use a Razor scooter which was located at his aunt's house to return home.  (UMF No. 5.)  The scooter was a full-size scooter for an adult, about two feet in length, with two wheels, and weighed about 3 to 5 pounds.  (UMF Nos. 6-7.)  The scooter was made of aluminum alloy in great condition.  (UMF No. 8.)  The brakes on the scooter were located on the back tire.  (UMF No. 9.) 

On the date of the incident, Plaintiff was 5'5" and weighed between 125 and 130 lbs.  (UMF NO. 10.)  Plaintiff visited at his aunt's house for about an hour or so before he left with the scooter.  (UMF No. 11.)  Plaintiff exited his aunt's house and got on the scooter and began to ride down the driveway.  (UMF No. 12.)  It was dark outside when Plaintiff started down the driveway on his scooter.  (UMF No. 13.)  Plaintiff rode his scooter down the driveway, reached the bottom of the driveway and made a left turn travelling approximately 5 to 10 miles per hour.  (UMF No. 16.)  After making a left turn onto the sidewalk, Plaintiff travelled approximately 15 to 20 feet before he fell off the scooter.  (UMF No. 17.)  When Plaintiff got up after the fall, Plaintiff saw that he hit the sidewalk.  (UMF No. 20.)  Plaintiff hit a raised part of the sidewalk but did not see the raised portion of the sidewalk before his scooter hit it.  (UMF No. 21.) 

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.)

“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 that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . 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 for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

“[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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

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, supra, 25 Cal.4th at p. 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

          Pursuant to Code of Civil Procedure section 437c (q), the Court rules on Defendant’s original evidentiary objections as follows:

          Objection No. 1: Overruled. 

          Objection No. 3: Sustained.

          Objection No. 4: Sustained.

          The Court notes that Defendant filed a response and objection to the Amended Declaration of Kay Greeley on the grounds that the changes of the Amended Declaration exceeded those allowed by the Court at the hearing on November 17, 2022, the Google images are not properly authenticated, and the declaration only attaches some of exhibits relied upon by Greeley to form her opinion.  Due to Plaintiff’s failure to authenticate the images and attach the exhibits that Greeley relied upon, the Court sustains Defendant’s objection to the Amended Declaration. 

V.      DISCUSSION

As an initial matter, the only cause of action which is properly pleaded in the Complaint is the first cause of action for dangerous condition of public property under Government Code section 835.  In fact, in his response to Undisputed Material Fact No. 2 in Defendant’s separate statement, Plaintiff states that he withdraws the third and fourth common law causes of action.  Accordingly, summary adjudication of the second, third, and fourth causes of action is GRANTED. 

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.)

First, Defendant argues that Plaintiff is speculating about the cause of his fall because Plaintiff does not have any measurements or estimates of the raised sidewalk, and therefore cannot prove that the sidewalk was in a dangerous condition.  (Motion, 11:5-6.)  Defendant contends that Plaintiff does not know what portion of the sidewalk caused his fall.  However, Plaintiff repeatedly testified that his scooter hit the “raised part of the sidewalk.”  (Colvin Decl., Ex. B, 36:8-17; 37:2-4.)  Even if Plaintiff did not see the raised or uneven portion of the sidewalk before he fell, it does not mean that he does not know what caused him to fall. 

Second, Defendant argues that Plaintiff cannot establish that it had actual or constructive notice of the alleged dangerous condition.  A public entity had actual or constructive 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).)  To establish constructive notice, a plaintiff must establish 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).)  “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.”  (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.)  “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.”  (Ibid.)

In support, Defendant cites to Plaintiff’s responses, served on May 25, 2021, to its special interrogatories, which asked Plaintiff to “state all the facts” which support the contention that Defendant had actual or constructive notice. (Colvin Decl., Exs. E-F, Response to SROG Nos. 13-14.)  In response to both interrogatories, Plaintiff stated:

Defendant and defendant's employees allowed the uneven sidewalk surface to remain in such dangerous condition that [sic] created a tripping hazard and caused the plaintiff to trip and fall. It was due to the negligence and carelessness of defendant and defendant's employees that plaintiff sustained such severe and permanent injuries. Such dangerous conditions had existed for such time that defendant should have discovered it and corrected it. Discovery and investigation continue. Plaintiff reserves the right to supplement and/or amend this response. (Ibid.) 

Defendant also cites to Plaintiff’s admission that he does not know for how long the alleged dangerous condition existed prior to the date of his incident.  (Colvin Decl., Exs. C-D, Response to RFA No. 9.)  Based on Plaintiff’s factually devoid discovery responses, Defendant has shifted the burden of production onto Plaintiff to show that a triable issue of material fact exists.

          In opposition, Plaintiff argues that triable issues of material fact concerning notice exist.  Plaintiff relies on the declaration of Kay Greeley, PE, RLA, BCMA, who is a civil engineer, arborist, and landscape architect and argues that Canary Island pine trees growing in the parkway caused the offset in the sidewalk and that it is widely known that these trees are problematic and cause sidewalk damage.  However, this declaration is riddled with errors.  First, Greeley fails to declare “under penalty of perjury” under the laws of the State of California that the contents of her declaration are true and correct.  Instead, she states that she declares “under penalty of lying under oath under the laws of the State of California.”  Second, in forming her opinion, Greeley relies on images that are not authenticated.  Therefore, the Court excludes Greeley’s declaration from consideration. 

Also, as stated above, the Court declines to consider Greeley’s Amended Declaration filed on November 23, 2022.  Greeley’s Amended Declaration again fails to authenticate the images attached as Exhibit C or include all the documents that she purportedly relied on when forming her opinion. 

          Without Greeley’s expert testimony, Plaintiff is again left with: (1) an Excel spreadsheet titled “Sidewalk Repair List for 2018” which lists the address of Plaintiff’s aunt’s residence, 5318 Bridgeview Drive, and (2) the deposition testimony of Defendant’s employees, Martin Rios and Nadia Carrasco.  However, as stated in the Court’s previous tentative ruling, the testimony of Defendant’s employees reveals that Plaintiff is only speculating that the spreadsheet is referring to a need to repair the specific uplift that caused Plaintiff’s injury.  This speculation is insufficient to establish actual notice.  To establish actual notice, “[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question”; it is not enough to show that the [public entity’s] employees had a general knowledge” that the condition can sometimes occur.  (State of California v. Superior Court (1968) 263 Cal.App.2d 396, 399.)  Plaintiff also fails to provide evidence that would substantiate whether the defect was “obvious” or how long the defect existed, which would raise triable issues of fact regarding constructive notice. 

VI.     CONCLUSION

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

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.