On 01/26/2018 LINDA FEINSTEIN filed a Personal Injury - Other Personal Injury lawsuit against CITY OF BEVERLY HILLS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
BEVERLY HILLS CITY OF
PACIFIC WEST BUILDERS INC
LOS ANGELES COUNTY OF
CALIFORNIA DEPARTMENT OF TRANSPORTATION
DOES 1 TO 50
GC & MANAGEMENT INC.
CITY OF BEVERLY HILLS
PACIFIC WEST BUILDERS INC
GC & MANAGEMENT INC.
ROES 1-25 INCLUSIVE
VAZIRI SIAMAK ESQ.
NEBENZAHL MICHAEL R. ESQ.
RUWE W. EDWIN
NEBENZAHL MICHAEL RALPH
NIEMANN ANNA JEANNE
9/19/2018: SUBSTITUTION OF ATTORNEY
9/19/2018: NOTICE OF CHANGE OF FIRM AND ADDRESS
9/26/2018: Legacy Document
10/17/2018: Proof of Personal Service
10/17/2018: Proof of Personal Service
4/18/2019: Notice of Deposit - Jury
5/14/2019: Notice of Posting of Jury Fees
5/29/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
3/19/2018: ANSWER OF DEFENDANT CITY OF BEVERLY HILLS TO PLAINTIFF'S COMPLAINT
3/26/2018: Summons on Cross Complaint
3/26/2018: CROSS-COMPLAINT OF CITY OF BFVERLY HILLS FOR INDEMNITY, APPORTIONMENT, DECLARATORY RELIEF AND EXPRESS INDEMNITY
2/13/2018: PLAINTIFF'S DEMAND FOR JURY TRIAL
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Los Angeles, County of (Defendant)Read MoreRead Less
Answer; Filed by GC & MANAGEMENT, INC. (Defendant)Read MoreRead Less
Notice of Posting of Jury Fees; Filed by GC & MANAGEMENT, INC. (Defendant)Read MoreRead Less
Summons (on Cross Complaint); Filed by GC & MANAGEMENT, INC. (Cross-Defendant)Read MoreRead Less
Answer; Filed by GC & MANAGEMENT, INC. (Cross-Defendant)Read MoreRead Less
Answer; Filed by GC & MANAGEMENT, INC. (Defendant)Read MoreRead Less
Cross-Complaint; Filed by GC & MANAGEMENT, INC. (Cross-Complainant)Read MoreRead Less
Answer; Filed by Pacific West Builders,Inc (Defendant)Read MoreRead Less
Notice of Deposit - Jury; Filed by Pacific west Builders Inc (Defendant)Read MoreRead Less
Answer (to Cross-Complaint); Filed by Pacific west Builders Inc (Defendant)Read MoreRead Less
CROSS-COMPLAINT OF CITY OF BFVERLY HILLS FOR INDEMNITY, APPORTIONMENT, DECLARATORY RELIEF AND EXPRESS INDEMNITYRead MoreRead Less
Answer; Filed by Beverly Hills, City of (Legacy Party)Read MoreRead Less
ANSWER OF DEFENDANT CITY OF BEVERLY HILLS TO PLAINTIFF'S COMPLAINTRead MoreRead Less
Proof-Service/Summons; Filed by Linda Feinstein (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Demand for Jury Trial; Filed by Linda Feinstein (Plaintiff)Read MoreRead Less
PLAINTIFF'S DEMAND FOR JURY TRIALRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Linda Feinstein (Plaintiff)Read MoreRead Less
UNLIMITED COMPLAINT FOR DAMAGES: 1. GOVERNMENT LIABILITY DANGEROUS CONDITION OF PUBLIC PROPERTY - CALIFORNIA GOVERNMENT CODE SEC 8.O, 835 CET SEQ.,;ETCRead MoreRead Less
Case Number: BC691873 Hearing Date: November 06, 2019 Dept: 2
Feinstein v. City of Beverly Hills, et al.
Defendant City of Beverly Hills’ Motion for Summary Judgment, filed on 8/16/2019, is DENIED.
In her Complaint, Plaintiff alleges she was injured as a result of the defective condition of a sidewalk in Beverly Hills. She asserts a single cause of action against Defendant City of Beverly Hills (“Defendant”) for Government Liability—Dangerous Condition of Public Property pursuant to Government Code section 830 and 835. Defendant has moved for summary judgment on that claim.
On the evening of March 12, 2017, Plaintiff was walking along a street in Beverly Hills when her shoe got caught in a crack in the pavement, causing her ankle to twist and then break, and causing Plaintiff to fall. Photographic evidence shows that the incident occurred in a construction zone where the sidewalks had been blocked and a pedestrian accessway was created on the street using stanchions. Plaintiff fell at the transition area where pedestrians were directed from the street back onto the sidewalk by stanchions placed in a curving diagonal. At that transition point, there a driveway apron that was separated from the street by a one-inch-high driveway lip. Photographs of the area show a jagged gash in the concrete in the area where Plaintiff fell. The photographs are not clear; the gash appears to be either at the edge of the driveway lip where the lip meets the gutter, or further up the driveway apron. The record does not reveal the width or depth of the jagged crack, but it is clearly visible from the photographs. From the photographic evidence, it appears that other portions of the driveway lip in the area may have divots and patches of worn concrete.
Plaintiff testified that the incident occurred at around 7:00 p.m., or just after. She testified that the area in which she was walking was covered by a temporary construction canopy structure, and that it was dark under the canopy. Defendant presented evidence on the date the accident occurred, sunset was at 7:59 p.m., with “civil twilight” lasting until 7:24 p.m. and “astronomical twilight” lasting until after 8:00 p.m. According to a city engineer, there would have been a “significant amount of ambient light intensity” at 7:00 p.m. Defendant has presented no evidence regarding the effect that the canopy would have had on the lighting conditions.
Defendant presented evidence that prior to this incident there were no prior tort claims or lawsuits involving this particular driveway lip. Further, there were no service requests or work orders made to the maintenance department for the driveway lip. The standard non-residential driveway lip in Beverly Hills was one inch in height and the driveway lip here was one inch in height.
Plaintiff contends that there is evidence that the City was on notice of the condition of the sidewalks in the area. The copy of the evidence that Plaintiff purports to rely on for this point in the Court file is not legible. The Court will permit Plaintiff to supplement the record with legible copies of the exhibits on which it relies at the hearing.
II. SUMMARY JUDGMENT STANDARD
In reviewing a motion for summary judgment, the Court must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has met his or her initial burden; 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 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 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 may satisfy the initial burden to show that one or more elements cannot be established by “presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element.” Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.
“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 in 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.)
Plaintiff asserts a claim under Government Code section 835. That section provides: “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 that 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.”
Here, Defendant argues that the undisputed evidence establishes that there was no “dangerous condition” on its property and, even if it was a dangerous condition, the City had no actual or constructive notice of the condition.
A. DANGEROUS CONDITION
The term “dangerous condition” is defined in Government Code section 830, subdivision (a) as “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Gov. Code § 830, subd. (a). “The existence of a dangerous condition is ordinarily a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one condition.” Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal. 3d 799, 810.
“The condition of the property involved [must] create a ‘substantial risk’ or injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility may be.” Fredette v. City of Long Beach (1986) 187 Cal. App. 3d 122, 130 fn.5. Under the trivial defect doctrine, a condition does not constitute a “dangerous condition” under section 830 where the condition creates a risk “of such a minor, trivial or insignificant nature in view of the surrounding circumstances [that] no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. “ Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092, 1104.
“In appropriate cases,” the Court may determine “whether a given walkway defect was trivial as a matter of law.” Id. at 1104-05. “Where reasonable minds can reach only one conclusion – that there was no substantial risk of injury – the issue is a question of law properly resolved by way of summary judgment.” Id. Íf, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” Id.
“The court’s analysis of whether a walkway defect is trivial involves as a matter of law two essential steps. First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors bearing on whether the defect presented a substantial risk of injury. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law.” Id. (internal quotation marks and brackets omitted).
The Court should decide whether a defect was dangerous “only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” Id. Among the factors to be considered are the size, placement, “whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident and whether the defect has caused any other accidents.” Id.
Defendant argues that the condition here is a one-inch-high driveway lip that is standard for all non-residential properties in the City of Beverly Hills and that there were no other accidents reported at that location. If there were no other relevant conditions, Defendant likely would be entitled to judgment as a matter of law. Huckey v. City of Temecula (2019) 37 Cal. App. 5th 1092. But Defendant fails to address the significant jagged crack or gash in the concrete that is clearly visible in the photographs and in which Plaintiff contends her shoe got caught There has been no evidence presented regarding the size or the depth of the crack, the relationship of the crack to the temporary path demarcated by the stanchions, the effect of the jagged edges of the crack and the crumbling concrete around it on the safety of the walkway, the effect of the canopy on the lighting conditions at twilight, or several other relevant factors. Instead, Defendant merely argues that this was just a standard driveway lip. This argument that is contradicted by the photographic evidence on which both parties rely.
In Defendant’s separate statement, Defendant included the following fact: “The subject condition was a driveway lip that was one inch in height, where the driveway apron abuts the street gutter.” UF 4. Plaintiff did not dispute that statement. Viewed in isolation, the fact that this statement is undisputed supports Defendant’s argument that the driveway lip itself is the relevant defect. But Plaintiff’s other responses and evidence make clear that the Undisputed Fact #4 is ambiguous and that the alleged defect is a crack in the pavement near the lip.
Plaintiff’s responses make a distinction between the term “condition” and the term “defect” in responding to the Separate Statement. For example, in response to Defendant’s Fact #3, Plaintiff states: “Plaintiff does not contend that she tripped over the condition, but rather, her shoe stepped into the defect and caused her ankle to twist.” Response to UF #3. That statement would make no sense if the alleged defect was the height of the driveway lip; Plaintiff is clearly referring to the crack that is visible in the photographs. Similarly, in Defendant’s Fact #5, Defendant stated “there were no defects on the ground at the incident site.” Plaintiff disputes the fact, stating “[t]here were defects on the ground” and citing photographs of the gash in the concrete. Further, in Plaintiff’s Fact #10, Plaintiff states: “The way Plaintiff twisted her left ankle was that her shoe went sideways into the crack. The side of her left foot caught in the crack. The examining attorney stated he was looking at Exhibit 2 and then he asked if Feinstein’s left foot catch [sic] perpendicular to this crack. Feinstein responded, ‘Straight with it’.”
These responses and affirmative facts make clear that Plaintiff is contending that the alleged defect includes the crack in the pavement near the edge of the driveway lip, and is not based on -- or not solely based on -- the height of the driveway lip. Defendant cannot rely on Plaintiff’s response to the ambiguous fact #4 to contend that the sole alleged defect is the height of the lip.
Defendant’s entire motion focuses on the height of the driveway lip, and simply ignores the crack in which Plaintiff’s shoe allegedly got caught. Based on the evidence and argument presented by Defendant, the Court cannot conclude that the alleged defect in the walkway is trivial as a matter of law.
C. ACTUAL OR CONSTRUCTIVE NOTICE
Defendant also argues that the undisputed facts establish that it did not have actual notice of the alleged defect in the walkway. In support of this argument, Defendant presents evidence that there were no prior claims, lawsuits or complaints regarding that specific driveway lip. But liability may be imposed on the public entity if it had actual or constructive notice of the dangerous condition. Defendant’s moving papers have not presented a prima facie case that the City lacked constructive notice of the defect.
Government Code section 835.2, subd. b sets forth the conditions under which a public entity will be found to have had constructive notice of a dangerous condition. That section provides in relevant part:
“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.” Gov. Code § 835.2(b).
“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 weighted against the likelihood and magnitude of the potential danger to which the 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.”
Defendant, as the moving party, had the burden to present prima facie evidence sufficient either (1) to negate the constructive notice element or (2) to establish that plaintiff does not possess and cannot reasonably obtain evidence to establish that element. Defendant has presented no such evidence. Indeed, the facts presented in the separate statement do not pertain to constructive notice at all.
Specifically, Defendant has not presented any evidence that the alleged defect was not obvious. The photographic evidence shows a jagged gash in the concrete. As previously mentioned, there has been no evidence presented regarding the size of the gash and the position of the gash or crack along the temporary path. Defendant’s argument on constructive notice ignores this photographic evidence and Plaintiff’s testimony that she was injured when her shoe got caught in the crack. Instead, Defendant reiterates its argument that a one-inch-high driveway lip is not a dangerous condition.
Nor is there any evidence that Defendant could not have discovered the condition and its purported dangerous character in the exercise of due care. Defendant did not present evidence that it maintained an inspection system, that the inspection system was reasonably adequate, and that the City did not discover the relevant crack through its inspection system. Instead, Defendant again merely argues that no inspection system was necessary because a one-inch-high driveway lip was not a defective or dangerous condition.
In sum, Defendant has not met its burden as moving party, and the burden did not shift to Plaintiff to present controverting evidence on this element.
Accordingly, the motion for summary judgment is denied.
The moving party is ordered to give notice.
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