This case was last updated from Los Angeles County Superior Courts on 10/26/2020 at 05:13:42 (UTC).

PHILLIP IBRAHIM VS CITY OF LOS ANGELES ET AL

Case Summary

On 01/11/2018 PHILLIP IBRAHIM filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARC D. GROSS, JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0045

  • Filing Date:

    01/11/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARC D. GROSS

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

IBRAHIM PHILLIP

Defendants and Respondents

CITY OF LOS ANGELES

DOES 1 TO 50

LOS ANGELES WORLD AIRPORTS

HW MAINTENANCE LAX LLC

HW MAINTENANCE LLC

ABM INDUSTRIES INCORPORATED

HW MAINTENANCE LAX LLC DOE 5

ABM AVIATION INC.

HW MAINTENANCE LLC DOE 6

Cross Plaintiffs

GUTIERREZ JOSE DBA HW MAINTENANCE LAX INC.

ABM AVIATION INC.

Defendants and Cross Defendants

HW MAINTENANCE LAX LLC DOE 5

1-100 INCLUSIVE ROES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

COUNTS STEPHEN D. ESQ.

LAZARUS MARC

GALLO JOSEPH CHARLES

Defendant and Respondent Attorneys

RUIZ RODOLFO F. ESQ.

KABANI ZEESHAN

WAYNE ERIC JEFFREY

RUIZ RODOLFO FLORENTINO

LAWLESS KEVIN

MEEHAN JOHN ROBERT

Defendant and Cross Plaintiff Attorneys

WAYNE ERIC JEFFREY

LAWLESS KEVIN

 

Court Documents

Declaration - DECLARATION DECLARATION OF ZEESHAN KABANI IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES REPLY TO HWS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

9/17/2020: Declaration - DECLARATION DECLARATION OF ZEESHAN KABANI IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES REPLY TO HWS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF ...)

9/22/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF ...)

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF LOS ANGELES MOTION OF SUMMARY JUDGMENT

9/9/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT CITY OF LOS ANGELES MOTION OF SUMMARY JUDGMENT

Separate Statement

9/9/2020: Separate Statement

Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER TO CONTINUE DEFENDANT, LOS ANGELES WORLD AIRPORTS' MOTION FOR SUMMARY JUDGMENT

6/22/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION AND PROPOSED ORDER TO CONTINUE DEFENDANT, LOS ANGELES WORLD AIRPORTS' MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (COURT ORDER RE RESCHEDULING MOTION FOR SUMMARY JUDGMENT;)

6/9/2020: Minute Order - MINUTE ORDER (COURT ORDER RE RESCHEDULING MOTION FOR SUMMARY JUDGMENT;)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF MOTION PURSUANT TO EMERGENCY OR...) OF 04/22/2020

4/22/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF MOTION PURSUANT TO EMERGENCY OR...) OF 04/22/2020

Cross-Complaint

4/27/2020: Cross-Complaint

Proof of Service by Substituted Service

1/31/2020: Proof of Service by Substituted Service

Amended Complaint - AMENDED COMPLAINT (4TH)

12/13/2019: Amended Complaint - AMENDED COMPLAINT (4TH)

Separate Statement

10/9/2019: Separate Statement

Request for Judicial Notice

10/9/2019: Request for Judicial Notice

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

11/21/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Demurrer - without Motion to Strike

4/18/2019: Demurrer - without Motion to Strike

Declaration - DECLARATION OF ZEESHAN KABANI IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

4/18/2019: Declaration - DECLARATION OF ZEESHAN KABANI IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES' DEMURRER TO PLAINTIFF'S SECOND AMENDED COMPLAINT

Notice of Ruling

5/30/2019: Notice of Ruling

STIPULATION TO PLAINTIFF'S FIRST AMENDED COMPLAINT

9/21/2018: STIPULATION TO PLAINTIFF'S FIRST AMENDED COMPLAINT

DEFENDANT LOS ANGELES WORLD AIRPORTS' NOTICE OF DEMURRER AD DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF IFEOMA ENENMOH AND EXHIBITS

8/1/2018: DEFENDANT LOS ANGELES WORLD AIRPORTS' NOTICE OF DEMURRER AD DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF IFEOMA ENENMOH AND EXHIBITS

60 More Documents Available

 

Docket Entries

  • 05/17/2022
  • Hearing05/17/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 05/03/2022
  • Hearing05/03/2022 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 09/22/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment (By Defendants City of Los Angeles and Los Angeles World Airports) - Not Held - Rescheduled by Court

    Read MoreRead Less
  • 09/22/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Rescheduled by Court

    Read MoreRead Less
  • 09/22/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment (By Defendants City of Los Angeles and Los Angeles World Airports)

    Read MoreRead Less
  • 09/22/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Held

    Read MoreRead Less
  • 09/22/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment (By Defendants City of Los Angeles and Los Angeles World Airports) - Held - Motion Denied

    Read MoreRead Less
  • 09/22/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment By Defendants City of ...)); Filed by Clerk

    Read MoreRead Less
  • 09/17/2020
  • DocketReply (DEFENDANT CITY OF LOS ANGELES? REPLY TO PLAINTIFF?S OPPOSITION TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT); Filed by City of Los Angeles (Defendant); Los Angeles World Airports (Defendant)

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  • 09/17/2020
  • DocketDeclaration (DECLARATION OF ZEESHAN KABANI IN SUPPORT OF DEFENDANT CITY OF LOS ANGELES? REPLY TO HW?S OPPOSITION TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT); Filed by City of Los Angeles (Defendant); Los Angeles World Airports (Defendant)

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97 More Docket Entries
  • 05/25/2018
  • DocketDEFENDANT LOS ANGELES WORLD AIRPORTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT;

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  • 04/27/2018
  • DocketDeclaration; Filed by LOS ANGELES WORLD AIRPORTS (Defendant)

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  • 04/27/2018
  • DocketDECLARATION OF IFEOMA ENENMOH RE INABILTY TO COMPLY WITH MEET AND CONFER REQUIREMENT (PURSUANT TO C.C.P. 430.41)

    Read MoreRead Less
  • 04/11/2018
  • DocketProof-Service/Summons; Filed by Phillip Ibrahim (Plaintiff)

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  • 04/11/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/04/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/04/2018
  • DocketProof-Service/Summons; Filed by Phillip Ibrahim (Plaintiff)

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  • 01/11/2018
  • DocketComplaint; Filed by Phillip Ibrahim (Plaintiff)

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  • 01/11/2018
  • DocketSUMMONS

    Read MoreRead Less
  • 01/11/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC690045    Hearing Date: September 22, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

PHILLIP IBRAHIM,

Plaintiff(s),

vs.

CITY OF LOS ANGELES, ET AL.,

Defendant(s).

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CASE NO: BC690045

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

September 22, 2020

 

  1. Background

    Plaintiff, Phillip Ibrahim (“Plaintiff”) filed this action against Defendant, City of Los Angeles and Los Angeles World Airports for damages arising out of a fall on a staircase in a parking structure on 2/6/17. Plaintiff’s complaint includes a sole cause of action for dangerous condition of public property against the City and is premised on the contention that the defendant’s staircase was in a defective condition and caused Plaintiff to fall. Plaintiff alleges he was walking down the stairs when his shoe got caught on a damaged stair in disrepair that caused him to fall.

    On 11/19/19, Plaintiff filed an Amendment to Complaint naming Doe 3 as Defendant HW Maintenance LAX, LLC (“HW”). On 4/27/20, Defendant ABM Aviation, Inc. filed a cross-complaint against HW, and on 4/29/20 HW filed a cross-complaint against Roes 1-100.

    Defendant City of Los Angeles and Los Angeles World Airports (collectively, the “City”) now moves for summary judgment. Plaintiff and co-defendant HW have each filed an opposition. The City untimely filed a reply on 9/17/20.

  2. Motion for Summary Judgment

  1. Moving Argument

The City argues that Plaintiff does not have evidence to create a triable issue that the City had actual or constructive notice of the alleged dangerous condition. The City asserts that on the morning of the incident, its maintenance workers and contractors inspected each parking lot, including the parking lot where Plaintiff fell, and the maintenance workers and contractors found no dangerous condition before the fall occurred. The City argues Plaintiff’s discovery responses are devoid of any evidence that the City had actual or constructive knowledge, and this is sufficient to satisfy the City’s burden to show Plaintiff does not possess and cannot reasonably obtain evidence that Defendant had knowledge of the dangerous condition.

  1. Plaintiff’s Opposing Argument

Plaintiff avers the City failed to take reasonable steps to make sure the treads on the stairs of the second stair case at the subject parking structure where the incident occurred were safe, as the black tread lining on the stairs eroded and exposed the metal of the treads. Plaintiff argues the testimony of the City’s employee, Annette Goffney (“Goffney”), establishes the City had notice of the dangerous condition of the stairs, as prior to the incident, Goffney, who inspects the parking structures for dangerous conditions, noticed chips of the stairs and areas of black tread missing on the stairs. Additionally, Plaintiff argues that the City in demanding its vendor power wash the stairs, caused the damage to the treads that resulted in the incident. Plaintiff contends that as a result, the City knew or should have known of the dangerous condition of the stairs.

  1. HW’s Opposition and Standing

HW argues it has standing to oppose the City’s motion for summary judgment because if the City prevails, HW would be barred from commenting on the City’s absence from trial or shifting risk to it, and if the City prevails, it would be established as a matter of law that the City did not have actual or constructive knowledge of the alleged dangerous condition. The court notes the City’s instant motion is directed only at Plaintiff’s complaint, and there is not cross-complaint asserted between the City and HW.

The court has not located specific California authority directly addressing whether a co-defendant can oppose another co-defendant’s motion for summary judgment. However, the court finds the California district court case of Eckert v. City of Sacramento (E.D. Cal. 2009) 2009 WL 3211278, instructive. In Eckert, the Court stated:

Union Pacific raises a procedural question that has been infrequently addressed: “[i]n the absence of cross-claims, may one co-defendant be the sole ... opposition to another co-defendant's motion for summary judgment?” Blonder v. Casco Inn Residential Care, Inc., 2000 WL 761895, at *1 (D.Me. May 4, 2000). The Blonder Court answered the question in the negative, concluding that in the absence of a crossclaim, a co-defendant lacks standing to oppose his co-defendant's motion for summary judgment. Id.

The Blonder court looked to the “principles underlying Rule 56,” when concluding that the non-moving co-defendants lacked standing to oppose the motion, stating:

Rule 56 is intended to avoid trial when appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to prosecute her claims against [Defendants] ... when she no longer believes such claims to be viable would be contrary to the principle of Rule 56 that trials ... should be avoided when appropriate.

Id. The rationale of Blonder is persuasive, and other courts have come to the same conclusion. See Fraioli v. Lemcke, 328 F.Supp.2d 250, 263 n. 4 (D.R.I.2004) (“[S]ince none of the defendants in this case have filed cross claims against each other, the defendants are not adverse parties who are entitled to object to each others' motions for summary judgment.”); Dixon v. County of Alameda, 1997 WL 220311, at *6 n. 8 (N.D.Cal. Apr.18, 1997) (noting that co-defendant did not have standing to oppose co-defendant's motion for summary judgment); C.F. Bean Corp. v. Clayton Indus. Ltd., 1996 WL 470644, at *1(E.D.La. Aug.19, 1996) (same).

Under the rationale of Blonder, since there is no crossclaim between the Defendants, Union Pacific and the City are not adverse parties and the City therefore does not have standing to oppose Union Pacific's motion for summary judgment. The City's arguments opposing Union Pacific's motion will therefore not be considered.

(Id. at 3.) The court finds the rationale set forth, and referred to in, Eckert are persuasive. Furthermore, CCP § 437c does not provide standing for a co-defendant to oppose a motion for summary judgment that does not that does not seek relief against it. (See CP § 437c(p)(2) [If the defendant meets its burden to show that a cause of action has no merit by showing that an element of the cause of action cannot be established, “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.”].)

Accordingly, the court declines to consider HW’s opposition to the City’s motion for summary judgment.

  1. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  1. Request for Judicial Notice

The City submitted a request for judicial notice of an Exhibit 1 attached to the City’s Compendium of Evidence. However, the court cannot locate any Compendium of Evidence or Exhibit 1 attached to the City’s moving papers, and thus, declines to take judicial notice of the referenced exhibit.

  1. Evidentiary Objections

Plaintiff, in opposition to the motion, submits four objections to Goffney’s declaration. The objections to paragraphs 3, 4, and 5 of Goffney’s declaration are overruled, as Goffney establishes she has personal knowledge of the statements asserted. The Objection to paragraph 6 is sustained, as it is an improper legal conclusion.

In its reply, the City submits eight objections to the declaration of Mark Burns attached to the opposition. The court references the objections in the order they are made. Objections 1-3 are overruled, as the statements are not vague and ambiguous. Objections 4 and 5 are sustained, as Burns does not provide a proper foundation for the statements asserted concerning the condition of the stairs at the time of the incident. The photographs relied upon by Burns, which are dated 11/7/19, where taken more than two years after the incident, there is no indication these photos accurately represent the condition of the stairs at or near the time of the incident, and Burns does not explain why the measurements from the 11/7/19 photos are consistent with the condition of the stairs at the time of the incident. Objections 6-8 are overruled, as Burns provides sufficient foundation and personal knowledge for the statements.

  1. Dangerous Condition of Public Property

A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. (Govt. Code §830(a).) 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 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(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 (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 (b)(1)-(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.)

  1. Analysis

In this case, the City avers that it did not have actual or constructive knowledge of the alleged dangerous condition of the stairs. The City asserts it did not receive any reports of any deformity on the subject staircase around the time of the incident. Further, the City contends Plaintiff has no facts or documents to support his contentions that the City had any knowledge of the condition of the stairs.

In opposition, Plaintiff argues Goffney’s, who is the City’s employee and a custodial supervisor responsible maintaining the subject parking structure, establishes the City had actual or constructive notice of the condition. Goffney was responsible for inspecting the parking structures at the airport. (Opp. Gallo Decl. Exh. 3, pp. 33:7-11, 67-68:8-3.) Goffney inspects the stairwells of parking structures twice a month. (Id. at pp. 77-78:24-1.) At her deposition, Goffney testified in pertinent part:

… But in a lot of different ones, there are small chips in the stairwell.

Q. Okay. Besides the chip, did you notice any change to any of the stair treads in P3?

A. No. 10:24

Q. Okay. You did notice the chips, though, but think that they're trivial?

A. Yes.

Q. Okay. When did you -- did you notice them prior to the incident? 10:24

A. Yeah. I noticed them prior to the incident 'cause --

Q. Okay. Go ahead. I'm sorry.

A. No. I -- I was finished. I don't have – I said I noticed them prior to the incident.

(Id. at p. 90:1-15.)

Further, Goffney testified:

Q. Okay. So you -- do you -- do you – you have seen the black part of the tread missing of P3,

of any of the staircases in P3?

A. Yes. Yes, I -- I have. I have saw -- I don't -- I have saw 'em in -- I have saw 'em in a whole lot of different ones. Can you image you've got five and six stairwells in some of these structures out there. It's a lot of stairwells. But I know we're particular holding down to 3.

Q. Uh-huh.

A. So, yes, some of it is missing out of the stair -- out of stairwells.

Q. Okay. Out of the stair tread?

A. Out of the stair treads.

(Id. at pp.93-94:20-5.) Goffney admitted to seeing the black tread missing from the stairs prior to the incident. (Id. at pp.94-95:24-10.)

In making every reasonable inference in Plaintiff’s favor, this testimony suggests that the City’s custodial supervisor, who was responsible for inspecting the subject parking structure, observed and was aware of the chips and missing black tread in the stairs that allegedly created the dangerous condition that caused Plaintiff to fall. Furthermore, Defendant’s evidence shows Goffney knew the tread were in place to keep people from slipping, (Id. at 119: 5-21 [“Q. Okay. Do you know why the -- the stair tread contains the -- the black grout material? A. It's kind of like a strip… so you could, I guess, maintain your footing if you landed on there. Q. Like for traction? A. For traction, yeah…”]), and Goffney did not deny knowing water eroded the black tread on the stairs in the parking structures. (Id. at p. 97:3-8 [Q. Okay. And are you aware that the stair tread used in the staircase wears down faster when it's wet? A. I'm sure -- I'm sure it does. And we're close to the ocean. You got saltwater air, so, yeah, I'm sure it does, yeah.”].)

Accordingly, there is a triable issue of fact as to whether the City had actual notice of the alleged dangerous condition that caused Plaintiff to fall on the stairs.

What is more, to hold the City liable for a dangerous condition, Plaintiff must show either that the City created the condition or had actual or constructive notice of the condition. (Gov Code §835(b).) Not only is there a triable issue as to whether the City had actual notice of the purported dangerous condition, Defendant raises a triable issue of fact as to whether the City created the dangerous condition by having the stairs power washed. Goffney, in particular, testified concerning power washing:

Q. Is it in that -- is it on Exhibit 1?

A. Pressure wash. When he send this form (indicating) -- excuse me. This form (indicating). 3 would be on Thursday.

Q. So it would be pressure washed once a week?

A. Yes.

(Opp. Gallo Decl. Exh. 3, pp. 81-81:21-1.) Again, as stated above, Goffney did not deny knowing that there was black tread missing on the stairs, and that water could erode the black tread. In reply, the City argues there is no evidence the City required its contractor to do the power washing, or that the stairs were power washed with a direct stream. However, in making every reasonable inference in Plaintiff’s favor, Goffney’s testimony suggests the City at a minimum was aware of the power washing of the stairs and black treads, and the City either instructed or permitted its contractor to pressure wash the stairs. (See e.g., Id. at p. 81:12-20 [“Q. Okay. And what were the procedures for cleaning it that H and W has? The written procedures are the only procedures that they have? A. Yes. 10:16 Sweep the stairwells, de-gum it. Pressure wash the days that it's scheduled to be pressure washed. Q. Is there a pressure wash schedule? A. Yes.”].)

Finally, in its reply, the City asserts for the first time the alleged dangerous condition is at most a trivial defect. (See Dixon v. Board of Trustees (1989) 216 Cal.App.3d 1269, 1286 n. 26.) However, the City does not introduce any evidence concerning triviality of the defect, nor did the City assert any undisputed facts concerning the alleged triviality of the defect.

Based on the foregoing, the City’s motion for summary judgment is denied.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 22nd day of September, 2020

Hon. Thomas D. Long

Judge of the Superior Court