Pending - Other Pending
Personal Injury - Other Personal Injury
CHRISTOPHER K. LUI
LONG BEACH CITY OF
DOES 1 TO 100
ALL AMERICAN ASPHALT
THE MASON LAW FIRM
CORRY LATASHA N. DEPUTY ATTORNEY
MACHIT MONTE H. ESQ.
3/9/2018: NOTICE OF POSTING JURY FEES
3/28/2018: SEPARATE STATEMENT OF DISPUTED FORM INTERROGATORY RESPONSES
3/28/2018: SEPARATE STATEMENT OF DISPUTED REQUEST FOR IDENTIFICATION AND PRODUCTION OF DOCUMENTS
3/28/2018: SEPARATE STATEMENT OF DISPUTED SPECIAL INTERROGATORIES
3/28/2018: NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES;
3/28/2018: NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES;
3/28/2018: NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR PRODUCTION;
5/8/2018: INFORMAL DISCOVERY CONFERENCE FORM FOR PERSONAL INJURY COURTS
11/19/2018: Amendment to Complaint (Fictitious/Incorrect Name)
2/4/2019: Notice of Ruling
2/4/2019: Minute Order
2/4/2019: Ex Parte Application
12/12/2017: ANSWER BY DEFENDANT, CITY OF LONG BEACH TO PLAINTIFF'S FIRST AMENDED COMPLAINT
11/9/2017: FIRST AMENDED COMPLAINT FOR DAMAGES 1. PREMISES LIABILITY
10/19/2017: PROOF OF SERVICE SUMMONS
Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (for order continuing trial and final status conference and all related cut off dates) - Held - Motion Granted[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by All American Asphalt (Defendant)[+] Read More [-] Read Less
DocketEx Parte Application (for order continuing trial and final status conference and all related cut off dates); Filed by All American Asphalt (Defendant)[+] Read More [-] Read Less
DocketMinute Order ( (Hearing on Ex Parte Application for order continuing trial an...)); Filed by Clerk[+] Read More [-] Read Less
DocketNotice of Deposit - Jury; Filed by All American Asphalt (Defendant)[+] Read More [-] Read Less
DocketAnswer (To First Amended Complaint Of Plaintiff Christie Reppart); Filed by All American Asphalt (Defendant)[+] Read More [-] Read Less
DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Christie Reppart (Plaintiff)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 4; Hearing on Motion to Compel ((Off Calendar)) -[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketAnswer; Filed by Long Beach, City of (Defendant)[+] Read More [-] Read Less
DocketANSWER BY DEFENDANT, CITY OF LONG BEACH TO PLAINTIFF'S FIRST AMENDED COMPLAINT[+] Read More [-] Read Less
DocketFIRST AMENDED COMPLAINT FOR DAMAGES 1. PREMISES LIABILITY[+] Read More [-] Read Less
DocketFirst Amended Complaint; Filed by Christie Reppart (Plaintiff)[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT FOR DAMAGES 1. PREMISES LIABILITY 2. NEGLIGENCE.[+] Read More [-] Read Less
DocketComplaint; Filed by Christie Reppart (Plaintiff)[+] Read More [-] Read Less
Case Number: ****7638 Hearing Date: November 19, 2019 Dept: 4A
Motion for Summary Judgment
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On September 29, 2017, Plaintiff Christie Reppart (“Plaintiff”) filed a complaint against Defendant City of Long Beach alleging premises liability and negligence for stepping on broken, uneven, and open asphalt and/or pavement, causing her to fall on March 3, 2017.
On November 9, 2017, Plaintiff filed a first amended complaint omitting her negligence cause of action.
On November 19, 2018, Plaintiff filed an amended to her complaint renaming Doe 1 as Defendant All American Asphalt.
On June 17, 2019, Defendant City of Long Beach filed a motion for summary judgment pursuant to California Code of Civil Procedure section 473c for a hearing date of September 4, 2019, which was rescheduled to November 19, 2019.
On July 30, 2019, Defendant City of Long Beach filed a motion for summary judgment and separate statement that was substantively identical to documents filed on June 17, 2019.
On September 26, 2019, the Court dismissed the complaint as to Defendant All American Asphalt.
Trial is set for December 18, 2019.
Defendant City of Long Beach (“Moving Defendant”) asks the Court to grant summary judgment in Moving Defendant’s favor and against Plaintiff because: (1) Plaintiff cannot identify the alleged dangerous condition, (2) Plaintiff cannot establish that her injuries were proximately caused by the alleged dangerous condition, and (3) Moving Defendant did not have notice of the alleged dangerous condition.
The purpose of a motion for 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. Atl. 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.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., ; 437c(p)(2).) “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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)
Dangerous Condition of Public Property
“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code ; 815.)
Government Code section 835 states: ;“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and 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.” ;
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 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 (consideration 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.”
Moving Defendant’s undisputed material facts establish the following. On March 3, 2017, Plaintiff allegedly stepped off a curb near 2625 East 3rd Street, rolled her ankle, fell, and sustained injuries. (UMF No. 1, p. 2:8-2:17.) Plaintiff is unable to identify the exact location of public property where her fall occurred despite Plaintiff alleging that broken and uneven asphalt caused her ankle to roll and for her to fall. (UMF No. 6, p. 3:16-3:27.)
The Court finds Moving Defendant has met its burden. Moving Defendant’s evidence shows that Plaintiff has failed to identify the exact location of public property where her fall occurred. Such an identification is necessary to establish that an alleged dangerous condition caused Plaintiff’s injuries. The lack of clarity regarding the location of also tends to show that Moving Defendant did not have actual notice of the dangerous condition. Further, Moving Defendant’s evidence shows that it had not been put on notice of any alleged dangerous condition in the vicinity of the accident for more than to establish that the notice requirement has not been met. As such, the burden shifts to Plaintiff.
Plaintiff’s undisputed material facts establish the following. The incident occurred in front of the only Cambodian church near 2625 East 3rd Street. (UMF No. 7, p. 3:2303:27.) On April 25, 2017, Plaintiff took photographs of the exact location where her foot landed, along with measurements of that location. (UMF No. 8, p. 4:4-4:21.) Moving Defendant has street sweepers sweep the subject location every Wednesday, which included the day prior to the incident. (UMF Nos. 12-13, p. 7:10-7:23.) Moving Defendant was repaving the street around the corner on 3rd Street. (UMF No. 14, p. 8:4-8:11.)
The Court finds Plaintiff has not met its burden. Admittedly, Plaintiff has sufficiently identified the alleged dangerous condition. But Plaintiff has not shown that Moving Defendant had notice of the alleged dangerous condition. Plaintiff argues Moving Defendant had actual and constructive notice of the dangerous condition for three reasons: (1) Moving Defendant was repaving the street around the corner from the incident, (2) Moving Defendant’s weekly street sweeper knew or should have known of the dangerous condition, and (3) Moving Defendant’s weekly street sweeping constituted an inspection system that failed to discover the unsafe condition. (Opposition, pp. 7:5- 9:22.) The Court addresses these arguments in turn.
First, there are no facts presented that have a tendency to show that the street repaving around the corner from the incident shows Moving Defendant had actual or constructive notice of the dangerous condition. Plaintiff refers to a subcontractor who surveyed the area for repaving purposes in Plaintiff’s opposition. (Opposition, p. 9:11-9:15.) However, there are no facts presented showing that such an inspection took place, much less the scope of the inspection. Rather, the only fact before the Court relating to the repaving is that it took place around the corner, removed from the incident. Thus, this does not show that Moving Defendant had either actual or constructive notice of the dangerous condition.
Second, Plaintiff lodges no evidence demonstrating that Moving Defendant’s street sweepers are responsible for inspecting gutters for dangerous conditions as they clean them. The obvious task of a street sweeper is to clean a gutter. It is not obvious that a street sweeper is charged with inspecting clean gutters after sweeping them so as to report to their superiors any potential dangerous conditions found in the gutters. Many of Moving Defendant’s employees, including police officers and firefighters, pass through Moving Defendant’s streets daily. It is not a reasonable to draw an inference that, because they are Moving Defendant’s agents and they passed by the alleged dangerous condition, Moving Defendant should be charged with notice of the dangerous condition. Absent facts showing a responsibility to look for a dangerous condition such as the one at bar, evidence of weekly street sweeping does not show that Moving Defendant had the requisite notice.
Third, similar to the second argument, Moving Defendant’s weekly street sweeping does not constitute an inspection system that failed to discover the dangerous condition because there is no evidence that the street sweepers were tasked with inspecting the gutters. The finding urged by Plaintiff would lead to the untenable result that cities will be held responsible for dangerous road conditions simply because of their salutary undertaking of weekly street cleanings. The Court declines to entertain such a finding.
The motion for summary judgment is GRANTED.
Moving Defendant is ordered to give notice of this ruling.
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