SUSAN PINTADO VS CITY OF CARSON ET AL

Tentative Rulings

Case Number: ****8563 Hearing Date: May 5, 2022 Dept: 30

SUSAN PINTADO VS CITY OF CARSON ET AL

Motion for Summary Judgment as to Plaintiff's Complaint (CCP 437c), Filed by Defendant Board of Trustees of the California State University......CONTINUED FROM 04/28/2022 to 05/02/2022 to this date - TO HAVE COURT REPORTER PRESENT

DECISION

For the reasons set forth below, Defendant Board of Trustees of the California State University’s motion for summary judgment is granted.

Moving party is ordered to give notice and to file a proposed judgment within 20 days after the date of this order.

Background

On August 21, 2018, Plaintiff Susan Pintado commenced this action. Defendants in this action are County of Los Angeles and Board of Trustees of the California State University (erroneously served and sued as State of California and California State University, Dominguez Hills).

This action arose out of Plaintiff, on April 27, 2018, tripping and falling after stepping into a depression while walking on a grassy field in a park allegedly owned and maintained by Defendants.

Plaintiff’s complaint has causes of action for a dangerous condition of public property under Government Code section 835, et seq., and for vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

On November 30, 2021, Defendant Board of Trustees of the California State University (“Defendant”) filed a motion for summary judgment. Plaintiff opposes.

Trial is set for June 28, 2022.

Summary

Moving Arguments

Defendant argues that Plaintiff cannot establish when the subject depression in the grass field came into existence, that the alleged dangerous condition was hidden and not obvious, that Plaintiff cannot establish constructive notice, that Plaintiff has no evidence of unfit or incompetent employees, and that Plaintiff failed to comply with the Government Claims Act.

Opposing Arguments

Plaintiff argues Defendant has filed to meet its burden, that Plaintiff complied with the Government Claims Act and paid the $25 filing fee, that Defendant improperly raised the issue of constructive notice as it is not in Defendant’s separate statement, and that Defendant had constructive notice.

Reply Arguments

Defendant argues that Plaintiff provides no evidence on the issue of when the subject hole came into existence and that Plaintiff failed to establish constructive notice. Defendant points out that Plaintiff has not addressed the second cause of action for negligent retention and hiring of incompetent and unfit employees.

Defendant also states that Plaintiff’s check has been found as cashed within a different department within California State University (“CSU”); however, the letter could not be found.

Legal Standard

A motion for summary judgment allows courts “to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute” by determining whether an opposing party can show evidentiary support for a pleading or claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a party cannot provide that evidentiary support, summary judgement allows dismissal without the need for trial. (Id.)

Under Code of Civil Procedure section 437c(c) “the motion for summary judgment shall be granted 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 a judgment as a matter of law.” In making this determination “the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence….” (Id.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

“When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30 (internal quotation marks omitted).)

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 that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co. 25 C4th at 850.) “To avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-3.)

Discussion

Evidentiary Objections

Defendant

Sustained: 1, 4, 5, 6

Overruled: none

Pursuant to Code of Civil Procedure section 437c(q), the Court declines to rule on the following objections: 2, 3

Plaintiff

None

Motion for Summary Judgment

Defendant moves for summary judgment on both causes of action: dangerous condition of public property under Government Code section 835, et seq., and vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

Defendant also initially argued that Plaintiff failed to comply with the Government Claims Act requirements for presenting a government claim by failing to specify where the injury occurred and failing to pay the requisite fee. Defendant recognizes in its reply brief that the $25 fee has been paid but has been unable to find the letter Plaintiff’s counsel claims was mailed indicating the location of the incident. (Reply, p. 2.) Plaintiff’s counsel’s assistant, Francia Guillen, has provided a declaration stating that on June 14, 2018 she sent a letter (Exhibit 2) to California State University (CSU) identifying the subject location. Based on the foregoing, the Court concludes summary judgment on this issue is not warranted. The Court will, therefore, proceed to the merits of this motion.

Dangerous Condition of Public Property (Government Code sections 835, et seq.)

Defendant argues Plaintiff’s cause of action for dangerous condition of public property fails because Plaintiff cannot establish constructive notice.

“Dangerous condition” is statutorily defined 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.” (Government Code 830(a).)

A public entity may be liable for injuries caused by a dangerous condition of public property under Government Code Section 835.

To establish such a claim, the plaintiff must show (1) the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, and (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106; Gov. Code 835.) Additionally, the plaintiff must establish either that: (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 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Id.)

Defendant argues that Plaintiff has no evidence that an employee created any dangerous condition under Government Code section 835(a), so the only issue is whether Defendant had actual or constructive notice under 835(b). Plaintiff does not dispute this framing of the issues.

Constructive Notice

Defendant argues that Plaintiff’s claim rests on constructive notice as Plaintiff has no evidence that Defendant or its employees had knowledge of a dangerous condition where Plaintiff allegedly fell.

A public entity had constructive notice of a dangerous condition “only” if plaintiff establishes that the condition “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); see Heskel v. City of San Diego (2014) 227 CA4th 313, 317-321, 173 CR3d 768, 771-773.) Admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (Gov. Code 835.2(b)(1).) This safety pertains to the used or intended uses of the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (Gov. Code 835.2(b)(1).) Admissible evidence on due care also includes evidence on whether the public entity maintained and operated such an inspection system with due care and did not discover the condition. ( 835.2(b)(2).) Factors to be considered when assessing whether an inspection system is reasonably adequate concern “…the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise…” (Gov. Code 835.2(b)(1).)

Defendant argues that Plaintiff is unable to establish either that (1) the dangerous condition was of such an obvious nature or that (2) the condition existed for such a period of time that Defendant should have discovered it.

Obvious Nature

Defendant argues that “the alleged dangerous condition would not be obvious to anyone looking at it.” (Mot., p. 13.)

The subject dangerous condition was a depression concealed by grass which Plaintiff described as nonvisible. (Pl. Response to Def. UMF No. 2-3.) Defendant has provided portions of Plaintiff’s transcript including photographs provided by Plaintiff. (Siegel Decl., para. 2, Exh. A.) The attached photograph labeled “Exhibit 8” shows the area with the subject hole which caused Plaintiff’s fall when her foot sank into the hole. (Id., Pintado Depo., p. 85:15-18.) The declaration from Plaintiff’s expert also includes photographs provided by Plaintiff. (See Avrit Decl., p. 3-4.) The photographs show a ruler/measuring stick in the hole appearing to indicate that the hole was concealed by grass and is approximately two inches deep. However, the exact dimensions of the hole are not clear from the evidence provided by either party.

Defendant’s Burden

Defendant points to Plaintiff testifying that “there was grass. There’s no way I would have anticipated that hole. It was nonvisible” and concludes, “Thus, it is undisputed that the condition was not obvious.” (Mot., p. 13.) Defendant also points to cases involving hot coals and a collapsing folding chair for support for the conclusion that the subject hole was not sufficiently obvious.

Through the foregoing arguments, Defendant contends that the condition was not obvious but does not discuss this issue in the context of a reasonable inspection. This approach accords with controlling case law. In State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400, the Court explained, “In the instant case, it can be validly argued that there was a triable issue on the question of inspection, but in determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” This understanding comports with the standard that admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (See Gov. Code 835.2(b).) In essence, it is the nature of the dangerous condition itself that indicates whether it would be discovered by a reasonably adequate inspection system. If a condition was not sufficiently obvious and did not exist for a sufficient period of time, then it cannot be that the public entity should have discovered the condition and its dangerous character.

In Heskel v. City of San Diego (2014) 227 CA4th 313, 318-319, 320, the defendant city provided sufficient evidence that the condition of a metal post, possibly a few inches in height, protruding from the sidewalk was not obvious by showing that a database showed no relevant reports or complaints by citizens, that a compilation of reports of police officer activity in the area showed no issues of relevance, that there was no work by city employees on an issue related to the subject condition, that there were no reports from city employees of having seen the condition, and that another database did not have any reports related to the alleged dangerous condition, such as reports on issues of damaged or dangerous traffic control devices.

In Stanford v. City of Ontario (1972) 6 Cal.3d 870, 882, the dangerous condition was a ditch with a depth exceeding five feet which was not shored due to the sandy composition of the soil and was not adequately sloped. (Id. at p. 882.) The Court cited to a safety inspector’s testimony “that merely a quick glance on the part of any inspector would have revealed that dangerous condition of the excavation.” (Id. at p. 882-883.) Based on the foregoing considerations, the Court concluded “there was ample evidence to support a finding that the existence of the condition and its dangerous character were both sufficiently obvious.” (Id. at p. 883.) The Court then stated, “Moreover, if a City inspector had appeared at the excavation during this time period, he would have had ample opportunity to take measures to protect against the dangerous condition.” (Id. (internal citations omitted).)

In both of the aforementioned cases the issue of obviousness was analyzed independent of the issue of an inspection system. Here, the nature of the concealed hole with a possible approximate depth of a few inches differs significantly from the obviously dangerous ditch in Stanford that was over five feet deep and visible with a quick glance. The concealed hole at issue here is also less obvious than the condition in Heskel, a metal post, possibly a few inches in height, protruding from the sidewalk, concerning which the Court concluded sufficient evidence had been provided that the condition was not obvious.

In addition to producing evidence that the hole of uncertain dimensions with a depth of approximately few inches in a grassy field was concealed by grass, Defendant provides declarations from Jonathan Scheffler, the Associate Vice President of Facilities Management and Operations, and formerly a Director of Facility Services from 2011 to January 2021, at CSU at Dominguez Hills, and Martha Guiditta, a claims examiner and custodian of records at the Office of Risk Management for CSU. Both attest that they have searched databases, kept for maintenance purposes and injury claims purposes, respectively. As to the maintenance or work requests, Scheffler stated that he found no such requests in the subject area in the five years proceeding the incident. (Scheffler Decl., para. 4-6.) According to Scheffler, the subject area was mowed approximately once per week around the time of the incident. (Id., at para. 5.) As to injury claims, Guiditta states that she found no other trip and fall/slip and fall claims in the subject in area from July 1, 2010 to the time of the incident. (Guiditta Decl., para. 3-5.) This evidence, as in Heskel, points to the subject condition not being obvious.

Based on the foregoing evidence and considerations, Defendant has provided sufficient evidence to establish that the condition was not obvious. Thus, the burden shifts to Plaintiff on this issue.

Plaintiff’s Burden

Plaintiff first argues that the Court should not address constructive notice because, according to Plaintiff, Defendant did not identify issues of constructive notice in its separate statement. (Opp., p. 7-8.) The Court disagrees with Plaintiff on this point. Defendant may not have used the words “constructive notice” in the separate statement, but Defendant appears to have included all the purported undisputed material facts in its Separate Statement that Defendant relied on in its constructive notice arguments. (See Def. UMF No. 2-5.) By the standards of the authorities Plaintiff has cited, this is sufficient.

To meet its burden on the issue of the condition’s obviousness, Plaintiff can either “provide evidence that the condition was obvious or...show the existing evidence created a reasonable inference of the condition's obviousness.” (Heskel v. City of San Diego, 227 CA4th at p. 319.) However, Plaintiff has not squarely addressed the issue of whether the subject condition was obvious. Instead, Plaintiff focuses on the issue of inspection.

Plaintiff argues, “Defendant's claim that Plaintiff did not see the hole, and therefore, Defendant could not have seen the hole if an inspection was made, is unavailing.” (Opp., p. 9.) While it may be true that a pedestrian “cannot be held to examine the sidewalk with the same care which would be required of the city in discharging its duty of inspection,” as the Court has already stated, the issue of a reasonably adequate inspection system is secondary to the “primary and indispensable element of constructive notice,” which entails “showing that the obvious condition existed a sufficient period of time before the accident.” (State v. Superior Court of San Mateo County, 263 Cal.App.2d at p. 400.) Thus, the declaration from Plaintiff’s expert, Brad Avrit, which addresses the issue of a reasonably adequate inspection, also does not assist Plaintiff in meeting her burden here. (See Avrit Decl., para. 10-12.) Additionally, Avrit’s opinion that “[i]f a Defendant employee had inspected the subject incident area for safety hazards, he/she would have noticed the depression’s abrupt variation” does not support a finding of obviousness as “expert testimony is unnecessary to a plaintiff's case where the fact sought to be proved is one within the general knowledge of laymen.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844-845.) Whether a condition and its dangerous character is obvious is necessarily in the general knowledge of laymen as opposed to being the subject of the technical aspects of a specialized field.

In short, Plaintiff has not presented evidence that the condition was obvious or shown that the evidence supports a reasonable inference that the condition was obvious.

Accordingly, Plaintiff is unable to establish constructive notice. Plaintiff, therefore, has not established triable issues of material fact remain with respect to the dangerous condition of public property cause of action.

Vicarious Liability and/or Retention of Unfit Employee (Government Code Section 815.2, et seq.)

Defendant argues that this cause of action fails because “Plaintiff has no evidence that any employee of Defendant was incompetent or unfit, or that any employee of Defendant committed any act that caused harm to Plaintiff.” (Mot., p. 15.) Defendant also argues, “more importantly,” that “Plaintiff cannot sue the State directly for negligent retention of an employee because all public entity liability must be based on a statute and no statute provides that a public entity can be held liable for negligent hiring, retention or supervision.” (Id.)

Plaintiff has not addressed any of the aforementioned arguments or the viability of this cause of action in her opposing brief.

It is “the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person ( 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes ( 815.2, subd. (a)) to the same extent as a private employer ( 815, subd. (b)).” (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463, 183 Cal.Rptr. 51, 645 P.2d 102.)

Government Code section 815.2(a), states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Under Government Code section 815.2(b), “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The Court notes that Plaintiff’s cause of action could be one of vicarious liability based on retention of an unfit employee, rather than direct liability. As discussed in C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 875, 138 Cal.Rptr.3d 1, 270 P.3d 699, when a plaintiff alleges that employees of a public entity knew or should have known that an employee was unfit, but nevertheless hired, retained and failed to properly supervise that employee, such allegations, if proven, could make the public entity liable under a vicarious liability theory encompassed by section 815.2. As Defendant recognizes, however, Plaintiff would be unable to bring a cause of action for direct liability based on Defendant’s negligence in the retention of an employee as no statute made a public entity liable for this type of negligence. (Mot., p. 15; see Munoz v. City of Union City (2004) 120 Cal. App. 4th 1077, 1110-1113 (overruled on other grounds by Hayes v. County of San Diego (2013) 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252.)

Plaintiff allegations appear to be based on a theory of direct liability. Representatively, Plaintiff alleges, “Defendants CITY OF CARSON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, CALIFORNIA STATE UNIVERSITY, DOMINGUEZ HILLS acted with deliberate indifference and retained Defendants Does 1-100, as employees in conscious disregard of the safety of others.” (Complaint, para. 21.) Thus, Plaintiff’s allegations sound in direct liability as they concern the public entity moving defendant directly instead of alleging that Defendant’s employees negligently retained an unfit employee.

Defendant also points out that Plaintiff has no evidence that any employee of Defendant was incompetent or unfit. (Mot., p. 15.) This is despite the fact that this action was commenced on August 21, 2018. Thus, the only reasonable conclusion is that Plaintiff cannot reasonably obtain the needed evidence to show that a relevant employee of Defendant was incompetent or unfit. (See Kahn v. East Side Union High School Dist., 31 Cal.4th at p. 1003.)

Lastly, to the extent that this cause of action attempts to implicate vicarious liability more broadly, the Court notes that “[e]xcept as provided in this article, a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” (Gov. Code 840.) Thus, Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825 discusses how Government Code section 840, et seq., rather than section 815.2, would have to be asserted for a public entity to be vicariously liable for a dangerous condition of public property where such condition exists because of an act or omission of a public employee within the scope of his employment. Plaintiff’s cause of action does not assert vicarious liability for a dangerous condition of public property under those provisions.

Defendant has met its burden on this cause of action. Plaintiff has not addressed the issues related to this cause of action and so fails to meet her responsive burden.

Accordingly, Defendant has established that no triable issues of material fact remain for either cause of action.

Case Number: ****8563 Hearing Date: May 2, 2022 Dept: 30

SUSAN PINTADO VS CITY OF CARSON ET AL

Motion for Summary Judgment as to Plaintiff's Complaint (CCP 437c), Filed by Defendant Board of Trustees of the California State University......CONTINUED FROM 04/28/2022 TO HAVE COURT REPORTER PRESENT

DECISION

For the reasons set forth below, Defendant Board of Trustees of the California State University’s motion for summary judgment is granted.

Moving party is ordered to give notice and to file a proposed judgment within 20 days after the date of this order.

Background

On August 21, 2018, Plaintiff Susan Pintado commenced this action. Defendants in this action are County of Los Angeles and Board of Trustees of the California State University (erroneously served and sued as State of California and California State University, Dominguez Hills).

This action arose out of Plaintiff, on April 27, 2018, tripping and falling after stepping into a depression while walking on a grassy field in a park allegedly owned and maintained by Defendants.

Plaintiff’s complaint has causes of action for a dangerous condition of public property under Government Code section 835, et seq., and for vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

On November 30, 2021, Defendant Board of Trustees of the California State University (“Defendant”) filed a motion for summary judgment. Plaintiff opposes.

Trial is set for June 28, 2022.

Summary

Moving Arguments

Defendant argues that Plaintiff cannot establish when the subject depression in the grass field came into existence, that the alleged dangerous condition was hidden and not obvious, that Plaintiff cannot establish constructive notice, that Plaintiff has no evidence of unfit or incompetent employees, and that Plaintiff failed to comply with the Government Claims Act.

Opposing Arguments

Plaintiff argues Defendant has filed to meet its burden, that Plaintiff complied with the Government Claims Act and paid the $25 filing fee, that Defendant improperly raised the issue of constructive notice as it is not in Defendant’s separate statement, and that Defendant had constructive notice.

Reply Arguments

Defendant argues that Plaintiff provides no evidence on the issue of when the subject hole came into existence and that Plaintiff failed to establish constructive notice. Defendant points out that Plaintiff has not addressed the second cause of action for negligent retention and hiring of incompetent and unfit employees.

Defendant also states that Plaintiff’s check has been found as cashed within a different department within California State University (“CSU”); however, the letter could not be found.

Legal Standard

A motion for summary judgment allows courts “to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute” by determining whether an opposing party can show evidentiary support for a pleading or claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a party cannot provide that evidentiary support, summary judgement allows dismissal without the need for trial. (Id.)

Under Code of Civil Procedure section 437c(c) “the motion for summary judgment shall be granted 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 a judgment as a matter of law.” In making this determination “the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence….” (Id.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

“When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30 (internal quotation marks omitted).)

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 that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co. 25 C4th at 850.) “To avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-3.)

Discussion

Evidentiary Objections

Defendant

Sustained: 1, 4, 5, 6

Overruled: none

Pursuant to Code of Civil Procedure section 437c(q), the Court declines to rule on the following objections: 2, 3

Plaintiff

None

Motion for Summary Judgment

Defendant moves for summary judgment on both causes of action: dangerous condition of public property under Government Code section 835, et seq., and vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

Defendant also initially argued that Plaintiff failed to comply with the Government Claims Act requirements for presenting a government claim by failing to specify where the injury occurred and failing to pay the requisite fee. Defendant recognizes in its reply brief that the $25 fee has been paid but has been unable to find the letter Plaintiff’s counsel claims was mailed indicating the location of the incident. (Reply, p. 2.) Plaintiff’s counsel’s assistant, Francia Guillen, has provided a declaration stating that on June 14, 2018 she sent a letter (Exhibit 2) to California State University (CSU) identifying the subject location. Based on the foregoing, the Court concludes summary judgment on this issue is not warranted. The Court will, therefore, proceed to the merits of this motion.

Dangerous Condition of Public Property (Government Code sections 835, et seq.)

Defendant argues Plaintiff’s cause of action for dangerous condition of public property fails because Plaintiff cannot establish constructive notice.

“Dangerous condition” is statutorily defined 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.” (Government Code 830(a).)

A public entity may be liable for injuries caused by a dangerous condition of public property under Government Code Section 835.

To establish such a claim, the plaintiff must show (1) the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, and (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106; Gov. Code 835.) Additionally, the plaintiff must establish either that: (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 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Id.)

Defendant argues that Plaintiff has no evidence that an employee created any dangerous condition under Government Code section 835(a), so the only issue is whether Defendant had actual or constructive notice under 835(b). Plaintiff does not dispute this framing of the issues.

Constructive Notice

Defendant argues that Plaintiff’s claim rests on constructive notice as Plaintiff has no evidence that Defendant or its employees had knowledge of a dangerous condition where Plaintiff allegedly fell.

A public entity had constructive notice of a dangerous condition “only” if plaintiff establishes that the condition “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); see Heskel v. City of San Diego (2014) 227 CA4th 313, 317-321, 173 CR3d 768, 771-773.) Admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (Gov. Code 835.2(b)(1).) This safety pertains to the used or intended uses of the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (Gov. Code 835.2(b)(1).) Admissible evidence on due care also includes evidence on whether the public entity maintained and operated such an inspection system with due care and did not discover the condition. ( 835.2(b)(2).) Factors to be considered when assessing whether an inspection system is reasonably adequate concern “…the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise…” (Gov. Code 835.2(b)(1).)

Defendant argues that Plaintiff is unable to establish either that (1) the dangerous condition was of such an obvious nature or that (2) the condition existed for such a period of time that Defendant should have discovered it.

Obvious Nature

Defendant argues that “the alleged dangerous condition would not be obvious to anyone looking at it.” (Mot., p. 13.)

The subject dangerous condition was a depression concealed by grass which Plaintiff described as nonvisible. (Pl. Response to Def. UMF No. 2-3.) Defendant has provided portions of Plaintiff’s transcript including photographs provided by Plaintiff. (Siegel Decl., para. 2, Exh. A.) The attached photograph labeled “Exhibit 8” shows the area with the subject hole which caused Plaintiff’s fall when her foot sank into the hole. (Id., Pintado Depo., p. 85:15-18.) The declaration from Plaintiff’s expert also includes photographs provided by Plaintiff. (See Avrit Decl., p. 3-4.) The photographs show a ruler/measuring stick in the hole appearing to indicate that the hole was concealed by grass and is approximately two inches deep. However, the exact dimensions of the hole are not clear from the evidence provided by either party.

Defendant’s Burden

Defendant points to Plaintiff testifying that “there was grass. There’s no way I would have anticipated that hole. It was nonvisible” and concludes, “Thus, it is undisputed that the condition was not obvious.” (Mot., p. 13.) Defendant also points to cases involving hot coals and a collapsing folding chair for support for the conclusion that the subject hole was not sufficiently obvious.

Through the foregoing arguments, Defendant contends that the condition was not obvious but does not discuss this issue in the context of a reasonable inspection. This approach accords with controlling case law. In State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400, the Court explained, “In the instant case, it can be validly argued that there was a triable issue on the question of inspection, but in determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” This understanding comports with the standard that admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (See Gov. Code 835.2(b).) In essence, it is the nature of the dangerous condition itself that indicates whether it would be discovered by a reasonably adequate inspection system. If a condition was not sufficiently obvious and did not exist for a sufficient period of time, then it cannot be that the public entity should have discovered the condition and its dangerous character.

In Heskel v. City of San Diego (2014) 227 CA4th 313, 318-319, 320, the defendant city provided sufficient evidence that the condition of a metal post, possibly a few inches in height, protruding from the sidewalk was not obvious by showing that a database showed no relevant reports or complaints by citizens, that a compilation of reports of police officer activity in the area showed no issues of relevance, that there was no work by city employees on an issue related to the subject condition, that there were no reports from city employees of having seen the condition, and that another database did not have any reports related to the alleged dangerous condition, such as reports on issues of damaged or dangerous traffic control devices.

In Stanford v. City of Ontario (1972) 6 Cal.3d 870, 882, the dangerous condition was a ditch with a depth exceeding five feet which was not shored due to the sandy composition of the soil and was not adequately sloped. (Id. at p. 882.) The Court cited to a safety inspector’s testimony “that merely a quick glance on the part of any inspector would have revealed that dangerous condition of the excavation.” (Id. at p. 882-883.) Based on the foregoing considerations, the Court concluded “there was ample evidence to support a finding that the existence of the condition and its dangerous character were both sufficiently obvious.” (Id. at p. 883.) The Court then stated, “Moreover, if a City inspector had appeared at the excavation during this time period, he would have had ample opportunity to take measures to protect against the dangerous condition.” (Id. (internal citations omitted).)

In both of the aforementioned cases the issue of obviousness was analyzed independent of the issue of an inspection system. Here, the nature of the concealed hole with a possible approximate depth of a few inches differs significantly from the obviously dangerous ditch in Stanford that was over five feet deep and visible with a quick glance. The concealed hole at issue here is also less obvious than the condition in Heskel, a metal post, possibly a few inches in height, protruding from the sidewalk, concerning which the Court concluded sufficient evidence had been provided that the condition was not obvious.

In addition to producing evidence that the hole of uncertain dimensions with a depth of approximately few inches in a grassy field was concealed by grass, Defendant provides declarations from Jonathan Scheffler, the Associate Vice President of Facilities Management and Operations, and formerly a Director of Facility Services from 2011 to January 2021, at CSU at Dominguez Hills, and Martha Guiditta, a claims examiner and custodian of records at the Office of Risk Management for CSU. Both attest that they have searched databases, kept for maintenance purposes and injury claims purposes, respectively. As to the maintenance or work requests, Scheffler stated that he found no such requests in the subject area in the five years proceeding the incident. (Scheffler Decl., para. 4-6.) According to Scheffler, the subject area was mowed approximately once per week around the time of the incident. (Id., at para. 5.) As to injury claims, Guiditta states that she found no other trip and fall/slip and fall claims in the subject in area from July 1, 2010 to the time of the incident. (Guiditta Decl., para. 3-5.) This evidence, as in Heskel, points to the subject condition not being obvious.

Based on the foregoing evidence and considerations, Defendant has provided sufficient evidence to establish that the condition was not obvious. Thus, the burden shifts to Plaintiff on this issue.

Plaintiff’s Burden

Plaintiff first argues that the Court should not address constructive notice because, according to Plaintiff, Defendant did not identify issues of constructive notice in its separate statement. (Opp., p. 7-8.) The Court disagrees with Plaintiff on this point. Defendant may not have used the words “constructive notice” in the separate statement, but Defendant appears to have included all the purported undisputed material facts in its Separate Statement that Defendant relied on in its constructive notice arguments. (See Def. UMF No. 2-5.) By the standards of the authorities Plaintiff has cited, this is sufficient.

To meet its burden on the issue of the condition’s obviousness, Plaintiff can either “provide evidence that the condition was obvious or...show the existing evidence created a reasonable inference of the condition's obviousness.” (Heskel v. City of San Diego, 227 CA4th at p. 319.) However, Plaintiff has not squarely addressed the issue of whether the subject condition was obvious. Instead, Plaintiff focuses on the issue of inspection.

Plaintiff argues, “Defendant's claim that Plaintiff did not see the hole, and therefore, Defendant could not have seen the hole if an inspection was made, is unavailing.” (Opp., p. 9.) While it may be true that a pedestrian “cannot be held to examine the sidewalk with the same care which would be required of the city in discharging its duty of inspection,” as the Court has already stated, the issue of a reasonably adequate inspection system is secondary to the “primary and indispensable element of constructive notice,” which entails “showing that the obvious condition existed a sufficient period of time before the accident.” (State v. Superior Court of San Mateo County, 263 Cal.App.2d at p. 400.) Thus, the declaration from Plaintiff’s expert, Brad Avrit, which addresses the issue of a reasonably adequate inspection, also does not assist Plaintiff in meeting her burden here. (See Avrit Decl., para. 10-12.) Additionally, Avrit’s opinion that “[i]f a Defendant employee had inspected the subject incident area for safety hazards, he/she would have noticed the depression’s abrupt variation” does not support a finding of obviousness as “expert testimony is unnecessary to a plaintiff's case where the fact sought to be proved is one within the general knowledge of laymen.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844-845.) Whether a condition and its dangerous character is obvious is necessarily in the general knowledge of laymen as opposed to being the subject of the technical aspects of a specialized field.

In short, Plaintiff has not presented evidence that the condition was obvious or shown that the evidence supports a reasonable inference that the condition was obvious.

Accordingly, Plaintiff is unable to establish constructive notice. Plaintiff, therefore, has not established triable issues of material fact remain with respect to the dangerous condition of public property cause of action.

Vicarious Liability and/or Retention of Unfit Employee (Government Code Section 815.2, et seq.)

Defendant argues that this cause of action fails because “Plaintiff has no evidence that any employee of Defendant was incompetent or unfit, or that any employee of Defendant committed any act that caused harm to Plaintiff.” (Mot., p. 15.) Defendant also argues, “more importantly,” that “Plaintiff cannot sue the State directly for negligent retention of an employee because all public entity liability must be based on a statute and no statute provides that a public entity can be held liable for negligent hiring, retention or supervision.” (Id.)

Plaintiff has not addressed any of the aforementioned arguments or the viability of this cause of action in her opposing brief.

It is “the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person ( 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes ( 815.2, subd. (a)) to the same extent as a private employer ( 815, subd. (b)).” (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463, 183 Cal.Rptr. 51, 645 P.2d 102.)

Government Code section 815.2(a), states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Under Government Code section 815.2(b), “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The Court notes that Plaintiff’s cause of action could be one of vicarious liability based on retention of an unfit employee, rather than direct liability. As discussed in C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 875, 138 Cal.Rptr.3d 1, 270 P.3d 699, when a plaintiff alleges that employees of a public entity knew or should have known that an employee was unfit, but nevertheless hired, retained and failed to properly supervise that employee, such allegations, if proven, could make the public entity liable under a vicarious liability theory encompassed by section 815.2. As Defendant recognizes, however, Plaintiff would be unable to bring a cause of action for direct liability based on Defendant’s negligence in the retention of an employee as no statute made a public entity liable for this type of negligence. (Mot., p. 15; see Munoz v. City of Union City (2004) 120 Cal. App. 4th 1077, 1110-1113 (overruled on other grounds by Hayes v. County of San Diego (2013) 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252.)

Plaintiff allegations appear to be based on a theory of direct liability. Representatively, Plaintiff alleges, “Defendants CITY OF CARSON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, CALIFORNIA STATE UNIVERSITY, DOMINGUEZ HILLS acted with deliberate indifference and retained Defendants Does 1-100, as employees in conscious disregard of the safety of others.” (Complaint, para. 21.) Thus, Plaintiff’s allegations sound in direct liability as they concern the public entity moving defendant directly instead of alleging that Defendant’s employees negligently retained an unfit employee.

Defendant also points out that Plaintiff has no evidence that any employee of Defendant was incompetent or unfit. (Mot., p. 15.) This is despite the fact that this action was commenced on August 21, 2018. Thus, the only reasonable conclusion is that Plaintiff cannot reasonably obtain the needed evidence to show that a relevant employee of Defendant was incompetent or unfit. (See Kahn v. East Side Union High School Dist., 31 Cal.4th at p. 1003.)

Lastly, to the extent that this cause of action attempts to implicate vicarious liability more broadly, the Court notes that “[e]xcept as provided in this article, a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” (Gov. Code 840.) Thus, Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825 discusses how Government Code section 840, et seq., rather than section 815.2, would have to be asserted for a public entity to be vicariously liable for a dangerous condition of public property where such condition exists because of an act or omission of a public employee within the scope of his employment. Plaintiff’s cause of action does not assert vicarious liability for a dangerous condition of public property under those provisions.

Defendant has met its burden on this cause of action. Plaintiff has not addressed the issues related to this cause of action and so fails to meet her responsive burden.

Accordingly, Defendant has established that no triable issues of material fact remain for either cause of action.

Case Number: ****8563 Hearing Date: April 28, 2022 Dept: 30

Department 30, Spring Street Courthouse

April 28, 2022

****8563

Motion for Summary Judgment as to Plaintiff's Complaint (CCP 437c), Filed by Defendant Board of Trustees of the California State University

DECISION

For the reasons set forth below, Defendant Board of Trustees of the California State University’s motion for summary judgment is granted.

Moving party is ordered to give notice and to file a proposed judgment within 20 days after the date of this order.

Background

On August 21, 2018, Plaintiff Susan Pintado commenced this action. Defendants in this action are County of Los Angeles and Board of Trustees of the California State University (erroneously served and sued as State of California and California State University, Dominguez Hills).

This action arose out of Plaintiff, on April 27, 2018, tripping and falling after stepping into a depression while walking on a grassy field in a park allegedly owned and maintained by Defendants.

Plaintiff’s complaint has causes of action for a dangerous condition of public property under Government Code section 835, et seq., and for vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

On November 30, 2021, Defendant Board of Trustees of the California State University (“Defendant”) filed a motion for summary judgment. Plaintiff opposes.

Trial is set for June 28, 2022.

Summary

Moving Arguments

Defendant argues that Plaintiff cannot establish when the subject depression in the grass field came into existence, that the alleged dangerous condition was hidden and not obvious, that Plaintiff cannot establish constructive notice, that Plaintiff has no evidence of unfit or incompetent employees, and that Plaintiff failed to comply with the Government Claims Act.

Opposing Arguments

Plaintiff argues Defendant has filed to meet its burden, that Plaintiff complied with the Government Claims Act and paid the $25 filing fee, that Defendant improperly raised the issue of constructive notice as it is not in Defendant’s separate statement, and that Defendant had constructive notice.

Reply Arguments

Defendant argues that Plaintiff provides no evidence on the issue of when the subject hole came into existence and that Plaintiff failed to establish constructive notice. Defendant points out that Plaintiff has not addressed the second cause of action for negligent retention and hiring of incompetent and unfit employees.

Defendant also states that Plaintiff’s check has been found as cashed within a different department within California State University (“CSU”); however, the letter could not be found.

Legal Standard

A motion for summary judgment allows courts “to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute” by determining whether an opposing party can show evidentiary support for a pleading or claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) If a party cannot provide that evidentiary support, summary judgement allows dismissal without the need for trial. (Id.)

Under Code of Civil Procedure section 437c(c) “the motion for summary judgment shall be granted 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 a judgment as a matter of law.” In making this determination “the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence….” (Id.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

“When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain, needed evidence.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30 (internal quotation marks omitted).)

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 that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co. 25 C4th at 850.) “To avert summary judgment the plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-3.)

Discussion

Evidentiary Objections

Defendant

Sustained: 1, 4, 5, 6

Overruled: none

Pursuant to Code of Civil Procedure section 437c(q), the Court declines to rule on the following objections: 2, 3

Plaintiff

None

Motion for Summary Judgment

Defendant moves for summary judgment on both causes of action: dangerous condition of public property under Government Code section 835, et seq., and vicarious liability and/or retention of unfit employee under Government Code section 815.2, et seq.

Defendant also initially argued that Plaintiff failed to comply with the Government Claims Act requirements for presenting a government claim by failing to specify where the injury occurred and failing to pay the requisite fee. Defendant recognizes in its reply brief that the $25 fee has been paid but has been unable to find the letter Plaintiff’s counsel claims was mailed indicating the location of the incident. (Reply, p. 2.) Plaintiff’s counsel’s assistant, Francia Guillen, has provided a declaration stating that on June 14, 2018 she sent a letter (Exhibit 2) to California State University (CSU) identifying the subject location. Based on the foregoing, the Court concludes summary judgment on this issue is not warranted. The Court will, therefore, proceed to the merits of this motion.

Dangerous Condition of Public Property (Government Code sections 835, et seq.)

Defendant argues Plaintiff’s cause of action for dangerous condition of public property fails because Plaintiff cannot establish constructive notice.

“Dangerous condition” is statutorily defined 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.” (Government Code 830(a).)

A public entity may be liable for injuries caused by a dangerous condition of public property under Government Code Section 835.

To establish such a claim, the plaintiff must show (1) the property was in a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, and (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105-1106; Gov. Code 835.) Additionally, the plaintiff must establish either that: (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 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Id.)

Defendant argues that Plaintiff has no evidence that an employee created any dangerous condition under Government Code section 835(a), so the only issue is whether Defendant had actual or constructive notice under 835(b). Plaintiff does not dispute this framing of the issues.

Constructive Notice

Defendant argues that Plaintiff’s claim rests on constructive notice as Plaintiff has no evidence that Defendant or its employees had knowledge of a dangerous condition where Plaintiff allegedly fell.

A public entity had constructive notice of a dangerous condition “only” if plaintiff establishes that the condition “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); see Heskel v. City of San Diego (2014) 227 CA4th 313, 317-321, 173 CR3d 768, 771-773.) Admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (Gov. Code 835.2(b)(1).) This safety pertains to the used or intended uses of the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (Gov. Code 835.2(b)(1).) Admissible evidence on due care also includes evidence on whether the public entity maintained and operated such an inspection system with due care and did not discover the condition. ( 835.2(b)(2).) Factors to be considered when assessing whether an inspection system is reasonably adequate concern “…the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise…” (Gov. Code 835.2(b)(1).)

Defendant argues that Plaintiff is unable to establish either that (1) the dangerous condition was of such an obvious nature or that (2) the condition existed for such a period of time that Defendant should have discovered it.

Obvious Nature

Defendant argues that “the alleged dangerous condition would not be obvious to anyone looking at it.” (Mot., p. 13.)

The subject dangerous condition was a depression concealed by grass which Plaintiff described as nonvisible. (Pl. Response to Def. UMF No. 2-3.) Defendant has provided portions of Plaintiff’s transcript including photographs provided by Plaintiff. (Siegel Decl., para. 2, Exh. A.) The attached photograph labeled “Exhibit 8” shows the area with the subject hole which caused Plaintiff’s fall when her foot sank into the hole. (Id., Pintado Depo., p. 85:15-18.) The declaration from Plaintiff’s expert also includes photographs provided by Plaintiff. (See Avrit Decl., p. 3-4.) The photographs show a ruler/measuring stick in the hole appearing to indicate that the hole was concealed by grass and is approximately two inches deep. However, the exact dimensions of the hole are not clear from the evidence provided by either party.

Defendant’s Burden

Defendant points to Plaintiff testifying that “there was grass. There’s no way I would have anticipated that hole. It was nonvisible” and concludes, “Thus, it is undisputed that the condition was not obvious.” (Mot., p. 13.) Defendant also points to cases involving hot coals and a collapsing folding chair for support for the conclusion that the subject hole was not sufficiently obvious.

Through the foregoing arguments, Defendant contends that the condition was not obvious but does not discuss this issue in the context of a reasonable inspection. This approach accords with controlling case law. In State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400, the Court explained, “In the instant case, it can be validly argued that there was a triable issue on the question of inspection, but in determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” This understanding comports with the standard that admissible evidence on the issue of due care includes evidence as to whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate to inform the public entity whether the property was safe. (See Gov. Code 835.2(b).) In essence, it is the nature of the dangerous condition itself that indicates whether it would be discovered by a reasonably adequate inspection system. If a condition was not sufficiently obvious and did not exist for a sufficient period of time, then it cannot be that the public entity should have discovered the condition and its dangerous character.

In Heskel v. City of San Diego (2014) 227 CA4th 313, 318-319, 320, the defendant city provided sufficient evidence that the condition of a metal post, possibly a few inches in height, protruding from the sidewalk was not obvious by showing that a database showed no relevant reports or complaints by citizens, that a compilation of reports of police officer activity in the area showed no issues of relevance, that there was no work by city employees on an issue related to the subject condition, that there were no reports from city employees of having seen the condition, and that another database did not have any reports related to the alleged dangerous condition, such as reports on issues of damaged or dangerous traffic control devices.

In Stanford v. City of Ontario (1972) 6 Cal.3d 870, 882, the dangerous condition was a ditch with a depth exceeding five feet which was not shored due to the sandy composition of the soil and was not adequately sloped. (Id. at p. 882.) The Court cited to a safety inspector’s testimony “that merely a quick glance on the part of any inspector would have revealed that dangerous condition of the excavation.” (Id. at p. 882-883.) Based on the foregoing considerations, the Court concluded “there was ample evidence to support a finding that the existence of the condition and its dangerous character were both sufficiently obvious.” (Id. at p. 883.) The Court then stated, “Moreover, if a City inspector had appeared at the excavation during this time period, he would have had ample opportunity to take measures to protect against the dangerous condition.” (Id. (internal citations omitted).)

In both of the aforementioned cases the issue of obviousness was analyzed independent of the issue of an inspection system. Here, the nature of the concealed hole with a possible approximate depth of a few inches differs significantly from the obviously dangerous ditch in Stanford that was over five feet deep and visible with a quick glance. The concealed hole at issue here is also less obvious than the condition in Heskel, a metal post, possibly a few inches in height, protruding from the sidewalk, concerning which the Court concluded sufficient evidence had been provided that the condition was not obvious.

In addition to producing evidence that the hole of uncertain dimensions with a depth of approximately few inches in a grassy field was concealed by grass, Defendant provides declarations from Jonathan Scheffler, the Associate Vice President of Facilities Management and Operations, and formerly a Director of Facility Services from 2011 to January 2021, at CSU at Dominguez Hills, and Martha Guiditta, a claims examiner and custodian of records at the Office of Risk Management for CSU. Both attest that they have searched databases, kept for maintenance purposes and injury claims purposes, respectively. As to the maintenance or work requests, Scheffler stated that he found no such requests in the subject area in the five years proceeding the incident. (Scheffler Decl., para. 4-6.) According to Scheffler, the subject area was mowed approximately once per week around the time of the incident. (Id., at para. 5.) As to injury claims, Guiditta states that she found no other trip and fall/slip and fall claims in the subject in area from July 1, 2010 to the time of the incident. (Guiditta Decl., para. 3-5.) This evidence, as in Heskel, points to the subject condition not being obvious.

Based on the foregoing evidence and considerations, Defendant has provided sufficient evidence to establish that the condition was not obvious. Thus, the burden shifts to Plaintiff on this issue.

Plaintiff’s Burden

Plaintiff first argues that the Court should not address constructive notice because, according to Plaintiff, Defendant did not identify issues of constructive notice in its separate statement. (Opp., p. 7-8.) The Court disagrees with Plaintiff on this point. Defendant may not have used the words “constructive notice” in the separate statement, but Defendant appears to have included all the purported undisputed material facts in its Separate Statement that Defendant relied on in its constructive notice arguments. (See Def. UMF No. 2-5.) By the standards of the authorities Plaintiff has cited, this is sufficient.

To meet its burden on the issue of the condition’s obviousness, Plaintiff can either “provide evidence that the condition was obvious or...show the existing evidence created a reasonable inference of the condition's obviousness.” (Heskel v. City of San Diego, 227 CA4th at p. 319.) However, Plaintiff has not squarely addressed the issue of whether the subject condition was obvious. Instead, Plaintiff focuses on the issue of inspection.

Plaintiff argues, “Defendant's claim that Plaintiff did not see the hole, and therefore, Defendant could not have seen the hole if an inspection was made, is unavailing.” (Opp., p. 9.) While it may be true that a pedestrian “cannot be held to examine the sidewalk with the same care which would be required of the city in discharging its duty of inspection,” as the Court has already stated, the issue of a reasonably adequate inspection system is secondary to the “primary and indispensable element of constructive notice,” which entails “showing that the obvious condition existed a sufficient period of time before the accident.” (State v. Superior Court of San Mateo County, 263 Cal.App.2d at p. 400.) Thus, the declaration from Plaintiff’s expert, Brad Avrit, which addresses the issue of a reasonably adequate inspection, also does not assist Plaintiff in meeting her burden here. (See Avrit Decl., para. 10-12.) Additionally, Avrit’s opinion that “[i]f a Defendant employee had inspected the subject incident area for safety hazards, he/she would have noticed the depression’s abrupt variation” does not support a finding of obviousness as “expert testimony is unnecessary to a plaintiff's case where the fact sought to be proved is one within the general knowledge of laymen.” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844-845.) Whether a condition and its dangerous character is obvious is necessarily in the general knowledge of laymen as opposed to being the subject of the technical aspects of a specialized field.

In short, Plaintiff has not presented evidence that the condition was obvious or shown that the evidence supports a reasonable inference that the condition was obvious.

Accordingly, Plaintiff is unable to establish constructive notice. Plaintiff, therefore, has not established triable issues of material fact remain with respect to the dangerous condition of public property cause of action.

Vicarious Liability and/or Retention of Unfit Employee (Government Code Section 815.2, et seq.)

Defendant argues that this cause of action fails because “Plaintiff has no evidence that any employee of Defendant was incompetent or unfit, or that any employee of Defendant committed any act that caused harm to Plaintiff.” (Mot., p. 15.) Defendant also argues, “more importantly,” that “Plaintiff cannot sue the State directly for negligent retention of an employee because all public entity liability must be based on a statute and no statute provides that a public entity can be held liable for negligent hiring, retention or supervision.” (Id.)

Plaintiff has not addressed any of the aforementioned arguments or the viability of this cause of action in her opposing brief.

It is “the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person ( 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes ( 815.2, subd. (a)) to the same extent as a private employer ( 815, subd. (b)).” (Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463, 183 Cal.Rptr. 51, 645 P.2d 102.)

Government Code section 815.2(a), states, “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Under Government Code section 815.2(b), “Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

The Court notes that Plaintiff’s cause of action could be one of vicarious liability based on retention of an unfit employee, rather than direct liability. As discussed in C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 875, 138 Cal.Rptr.3d 1, 270 P.3d 699, when a plaintiff alleges that employees of a public entity knew or should have known that an employee was unfit, but nevertheless hired, retained and failed to properly supervise that employee, such allegations, if proven, could make the public entity liable under a vicarious liability theory encompassed by section 815.2. As Defendant recognizes, however, Plaintiff would be unable to bring a cause of action for direct liability based on Defendant’s negligence in the retention of an employee as no statute made a public entity liable for this type of negligence. (Mot., p. 15; see Munoz v. City of Union City (2004) 120 Cal. App. 4th 1077, 1110-1113 (overruled on other grounds by Hayes v. County of San Diego (2013) 57 Cal.4th 622, 160 Cal.Rptr.3d 684, 305 P.3d 252.)

Plaintiff allegations appear to be based on a theory of direct liability. Representatively, Plaintiff alleges, “Defendants CITY OF CARSON, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, CALIFORNIA STATE UNIVERSITY, DOMINGUEZ HILLS acted with deliberate indifference and retained Defendants Does 1-100, as employees in conscious disregard of the safety of others.” (Complaint, para. 21.) Thus, Plaintiff’s allegations sound in direct liability as they concern the public entity moving defendant directly instead of alleging that Defendant’s employees negligently retained an unfit employee.

Defendant also points out that Plaintiff has no evidence that any employee of Defendant was incompetent or unfit. (Mot., p. 15.) This is despite the fact that this action was commenced on August 21, 2018. Thus, the only reasonable conclusion is that Plaintiff cannot reasonably obtain the needed evidence to show that a relevant employee of Defendant was incompetent or unfit. (See Kahn v. East Side Union High School Dist., 31 Cal.4th at p. 1003.)

Lastly, to the extent that this cause of action attempts to implicate vicarious liability more broadly, the Court notes that “[e]xcept as provided in this article, a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.” (Gov. Code 840.) Thus, Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 825 discusses how Government Code section 840, et seq., rather than section 815.2, would have to be asserted for a public entity to be vicariously liable for a dangerous condition of public property where such condition exists because of an act or omission of a public employee within the scope of his employment. Plaintiff’s cause of action does not assert vicarious liability for a dangerous condition of public property under those provisions.

Defendant has met its burden on this cause of action. Plaintiff has not addressed the issues related to this cause of action and so fails to meet her responsive burden.

Accordingly, Defendant has established that no triable issues of material fact remain for either cause of action.