FARAMARZ GILARDI VS CITY OF BEVERLY HILLS ET AL

Tentative Rulings

Case Number: BC696986    Hearing Date: November 12, 2019    Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Faramarz Gilardi alleges that on February 2, 2017, he tripped and fell when his foot caught in a spalling in the sidewalk. (Defendant’s Undisputed Material Fact (“UMF”) No. 1.) On March 16, 2018, Plaintiff filed this action against defendant City of Beverly Hills for negligence and premises liability. Defendant moves for summary judgment on the grounds it did not create or have notice of the allegedly dangerous condition.

II. 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.)

III. EVIDENTIARY OBJECTIONS

Objection No. 1 to the Declaration of Bret Beattie is SUSTAINED.

Objection Nos. 1-4, 7-12 to the Declaration of Gary Gsell are OVERRULED. Objection Nos. 5-6, 13-15 are SUSTAINED.

IV. 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.)

Defendant contends it did not have actual notice of the condition of the sidewalk. Defendant presents the Declaration of Sharon L’Hereux Dressel, stating no claims, complaints, or requests for repairs were submitted to the City and no lawsuits were filed alleging a dangerous condition at the particular sidewalk location. Defendant submits sidewalk inspection logs from September 2012 and February 2014, which did not show any spalling. Defendant has satisfied its burden of showing no actual notice. Plaintiff does not contend Defendant had actual notice.

Defendant also argues it had no constructive notice. A public entity has constructive notice of a dangerous condition if the condition had existed for a period of time and was of such an obvious nature that in exercising due care, Defendant 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.)

Defendant argues that the condition was not obvious because Defendant received no complaints about it. However, Defendant also submits photographs showing a large hole in the sidewalk that looks obvious. (Exh. A.) Thus, Defendant has not shown that Plaintiff cannot establish obviousness.

In addition, Plaintiff’s expert states he saw evidence of the defective condition as early as January 2015 based on Google Maps street images. Defendant replies that the existence of cracks in the sidewalk, as existed in March 2016 according to Defendant’s Exhibit C, is not sufficient to constitute a dangerous condition or require repairs because a crack may not turn into a spall or hole as happened here. Plaintiff’s expert contends otherwise, saying that such cracks are evidence of spalling that can occur quickly and should be repaired. (Gsell Decl., ¶¶ 13-15.) Plaintiff has shown a disputed issue about obviousness.

Defendant argues at most Plaintiff can show the spalling was present for eleven months, based on Google Earth images. (Motion, p. 13.) Defendant asserts that eleven months “is less time than any reasonable inspection system requires for regular, proactive sidewalk inspections, and therefore insufficient time to put City on constructive notice.” (Ibid.) Defendant compares its policy of inspecting one a year with policies of other cities who inspect less frequently and concludes that therefore Defendant’s policy is reasonable. Plaintiff argues Defendant did not follow its own policy, and the last time Defendant inspected the particular sidewalk before the February 2, 2017 incident was February 2014. Defendant does not dispute this, but instead argues that what matters is whether the policy, even if not followed, was reasonable.

Where there is evidence of the length of time a condition existed, whether that period was sufficient for the entity to have discovered the condition in the exercise of due care is typically for the trier of fact to determine. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 843 [“The questions of whether a dangerous condition could have been discovered by reasonable inspection and whether there was adequate time for preventative measures are properly left to the jury”].) By the time of the February 2, 2017 incident, Defendant had not inspected that portion of the sidewalk in three years. The triangle area had a high volume of pedestrian traffic and was supposed to be inspected every year. (Beattie Decl., Exh. 1, p. 41.) The Court cannot say that a program of inspecting high volume areas annually is reasonable as a matter of law, or that an unofficial policy of not following the official policy and only inspecting every two to three years is reasonable as a matter of law. These are questions for the jury.

V. 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 SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.