SHARI BASH VS LOS ANGELES UNIFIED SCHOOL DISTRICT ET AL

Motion for Summary Adjudication

Having considered the moving and opposition papers, the Court rules as follows. No reply has been filed.

BACKGROUND

On January 24, 2017, Plaintiff Shari Bash (“Plaintiff”) filed a complaint against Defendants Los Angeles Unified School District (“LAUSD”) and Kevin Kuechel (“Kuechel”) (collectively “Defendants”) alleging (1) negligence and (2) premises liability. Plaintiff alleges in the complaint that Plaintiff was picking up her son from school and was standing near a gated entrance of the staff parking lot when Defendant Kuechel, a teacher, opened the gate without checking if anyone was in the vicinity. Plaintiff further alleges in the complaint that the gate slammed into Plaintiff’s arm causing it to become pinned between the fence and the gate. This caused injury to Plaintiff’s shoulder and arm.

On January 3, 2020, Defendants filed this motion for summary adjudication pursuant to California Code of Civil Procedure section 437c.

On March 17, 2020, the Court continued the hearing on Defendants’ motion for summary adjudication to May 8, 2020.

On April 3, 2020, the Court continued the hearing on Defendants’ motion for summary adjudication to May 8, 2020.

On June 25, 2020, the Court continued the hearing on Defendants’ motion for summary adjudication to November 5, 2020.

A trial setting conference is scheduled for November 5, 2020.

PARTIES’ REQUESTS

Defendants asks the Court to summarily adjudicate the second cause of action for a dangerous condition of public property in their favor because: (1) Defendants are immune from suit under Government Code section 830.6, (2) the property was not in a dangerous condition, (3) Defendants had no actual or constructive notice of the dangerous condition, and (4) no employee of Defendant LAUSD negligently or wrongfully created the alleged dangerous condition.

Plaintiff asks the Court to deny the motion and impose sanctions in the amount of $17,200 for submission of Christos Chrysiliou’s declaration in bad faith.

OBJECTIONS

Plaintiff’s objections are OVERRULED.

LEGAL STANDARD

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.” (Ibid.) “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).)

DISCUSSION

Design Immunity

Defendants argue that the claim fails because they are immune from liability under Government Code section 830.6. This section states in relevant part, “[n]either a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor. . . .”

“A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette v. Department of Transp. (2001) 26 Cal. 4th 63, 66.)

Here, Defendants provide evidence that the plans for the original design of the subject gate includes moving gate that slides along a track. (UFM No. 12.) The plans for the original design of the subject gate were approved prior to construction by structural engineer, Henry M. Layne and Architect Guy W. Kalionzes along with approval from the Office of the State Architect in 1961. (UMF Nos. 13-14.) The state employees were proper employees exercising discretionary authority to give such prior approval of the design of the subject gate. (UMF No. 15.) The construction, including the subject gate, was completed in 1963 in accordance with the plans and specifications previously approved and certified by the then-Office of the State Architect. (UMF No. 17.) Since constructed, there have been no changes to the structure or condition of the subject gate which would have deviated from the state architect approved plans and specifications that are currently on record nor any changes that would have required State Architect approval at any point from construction through Plaintiffs alleged incident. (UMF No. 18.)

However, in opposition, Plaintiff points out that the plans were incomplete and did not show key components that, when assembled together or combined, like the sliding gate and perimeter fence, create an obvious dangerous condition that no engineer would have approved.

Based on the plans submitted, the Court cannot conclude that the perimeter fence that fronted the sliding gate incorporated into any design plans.  Defendants have not highlighted the relevant portion of the plans showing such.  Further, the plans are illegible.  Accordingly, Defendants have not met their burden to show that they are immune from liability pursuant to Government Code section 830.6.

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.”

The term “dangerous condition” means 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 ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” (Peterson v. San Francisco Comm. College Dist. (1984) 36 Cal.3d 799, 810.) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Matthews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of 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 might be.” (Fredette ;v. City of Long Beach (1986) 187 Cal.App.3d 122, 130, fn.5.)

As to whether a condition is ;trivial ;as a matter of law, “[t]he legal analysis involves several steps. First, the court reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a ;trivial ;defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. 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. . . .” (Stathoulis ;v. City of Montebello ;(2008) 164 Cal.App.4th 559, 567-568.)

Plaintiff responded to discovery requests stating that the manner in which the gate opens and closes creates a dangerous condition for those in the immediate vicinity of the gate as persons can become trapped between the metal gates or the moving gate can strike bystanders. (UMF No. 9.) Defendants offer evidence that Plaintiff was talking on her phone and leaning on the gate with her arm on top of it. (UMF No. 8.) They also offer evidence that Plaintiff testified at her deposition that while she was leaning on the gate, it violently slammed into her arm, causing it to become pinned between the stationary and moving parts of the gate, and she did not know how her arm became pinned. (UMF No. 9; Exh. B, Bash Depo., 118:14-24, 120:6-11, 123:3-14.) Defendants argue that a gate primarily functions as an opening in a fence, not as a place to lean on. Accordingly, Defendants argue that it is not a dangerous condition because it was not a foreseeable use and was used without due care.