Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GC040583, C. Edward Simpson, Judge. Reversed with directions.
O’Neil & Matusek and Henry John Matusek II for Plaintiff and Appellant.
Andrea Sheridan Ordin, County Counsel, Ralph L. Rosato, Assistant County Counsel, and Richard K. Kudo, Senior Deputy County Counsel, for Defendant and Respondent.
MALLANO, P. J.
Plaintiff Pearl Livermore appeals from a summary judgment granted in favor of defendant County of Los Angeles (County) on her first amended complaint for dangerous condition of public property arising out of Livermore’s slip and fall on a curb next to a sidewalk in Farnsworth Park in Altadena. We reverse the judgment because the evidence submitted by County did not establish that County was entitled to judgment as a matter of law.
BACKGROUND
On the morning of June 20, 2007, Livermore was attending her granddaughter’s preschool graduation in Farnsworth Park (Park) in Altadena. Livermore entered the Park by walking over a curb, sidewalk, and two steps. The curb and steps were constructed of large, irregularly shaped rocks embedded in concrete, with gaps between the rocks. As Livermore left the Park, she held her two granddaughters’ hand. Livermore and her granddaughters walked down the steps and across the sidewalk to the curb, where Livermore slipped and fell on one of the rocks embedded in the curb, suffering multiple fractures of her left ankle and nerve damage in her left leg. In discovery, Livermore identified four rocks possibly involved in her accident. Livermore’s daughter also identified four rocks possibly involved in Livermore’s fall, including three of the four identified by Livermore and one adjacent to the set of four identified by Livermore.
A. Pleadings and Discovery
In April 2008, Livermore filed her original complaint, which is not part of the record on appeal. On June 18, 2008, Livermore filed a first amended complaint (complaint) against County for damages for maintaining a dangerous condition of its property. The complaint alleged in pertinent part that County “owned, maintained and... had exclusive control of the curb area of the sidewalk on Mountain Curve Avenue in front of the entrance to Farnsworth Park in Altadena where Plaintiff alleges a dangerous condition existed which proximately led to [her] injuries, ” and that the dangerous condition “consisted of a curb made with large, irregular, round stones covered with slippery organic substance which existed for a considerable time before, during and after the time Plaintiff slipped and fell. Further, said dangerous condition was created by [County] and... County had actual... or constructive notice of it but failed to remedy the condition and... adequately warn of its danger.”
County answered the complaint in July 2008, asserting an affirmative defense, among others, of design immunity under Government Code section 830.6.
Unspecified statutory references are to the Government Code.
Meanwhile, on June 2, 2008, County served requests for admissions and interrogatories on Livermore, who served her responses on July 7, 2008. Livermore denied that there was no dangerous condition at Farnsworth Park and stated in her interrogatory response explaining her denial that County has been responsible for the operation, maintenance, and repair of Farnsworth Park since its construction was completed and that the “sidewalk and curb were unreasonably designed, built and maintained. Subsequent repairs failed to comply with any designs approved by the [County] or that complied with applicable building standards.”
In September 2008, County served Livermore with a second set of special interrogatories asking her to “detail the precise dangerous condition” which she contended caused her slip and fall. In October 2008, Livermore served responses stating that “the river rock construction of the curb was inherently dangerous and slippery. The river rock construction of the curb is below accepted safety standards for construction and has an inherent design flaw. The [County] has not been able to establish any actual approved designs for the river rock construction or final approval for as-built construction.” In November 2008, County served Livermore with a third set of special interrogatories asking her to provide further detail regarding the “‘accepted safety standards’” and the “‘inherent design flaw.’” In January 2009, Livermore served responses identifying the safety standard as “American Society for Testing and Material Standard F1637 Standard Practice for Safe Walking Surfaces, ” and the inherent design flaw as the use of “uneven, rounded smooth, large stones set in the concrete curb.”
B. Summary Judgment Motion
In March 2009, County served its motion for summary judgment, arguing that (1) the curb did not constitute a dangerous condition under section 835 because Livermore’s deposition testimony established that the curb and rocks were not wet or covered with a substance, so there was no “slippery organic substance” on the rocks; (2) County was immune from liability pursuant to section 830.2 because the curb presented a minor, trivial, or insignificant risk of injury; (3) Livermore’s discovery responses showed that she had no evidence establishing that the dangerous condition was created by the negligent or wrongful act of a County employee; and (4) assuming that the curb constituted a dangerous condition, County had no actual or constructive notice of it.
Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and 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.”
Section 830.2 provides: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”
County submitted declarations in support of its motion, establishing the following: The Park was constructed in the 1930’s. The computer database containing government claims filed against the County for personal injuries at County parks went back to January 1, 1999. Other than Livermore’s claim, no other government claims for injuries were filed involving the Park. A paper file of non-County employee injuries is also maintained for reports of such injuries going back to 2002, and that file did not reveal any injury occurring at the Park other than Livermore’s. A database of County employee injury reports going back to January 1, 2000, showed that there were no reports of any employee injuries in the Park from January 1, 2000, to June 2009.
County also submitted a declaration of Ned Wolfe, a licensed mechanical engineer whose expertise includes safety engineering and slip- or trip-and-fall analysis. In October 2008, Wolfe inspected the scene of the accident and saw that none of the rocks was “polished, coated, broken, loose or wobbly, ” and they were dry and “firmly secured into the Curb with mortar.” Wolfe conducted slip resistance testing on three of the four rocks identified by Livermore as the area where she fell. The fourth rock was significantly smaller than the other three, and Wolfe did not test it because “its configuration made testing difficult, ” but it appeared to be of the same material as the others.
Wolfe measured the “slip resistance” of three of the rocks with an “XL tribometer, ” compliant with “‘ASTM F 1679-06, ’” which is a recognized and accepted methodology in the industry for testing the slip resistance of wet and dry surfaces. “A measurement of 0.50 or greater is considered in the industry as a nonslip surface suitable for outdoor purposes. These measurements are comparable to bare (i.e., unpainted and uncoated) concrete surfaces typically found on sidewalks, which surfaces are not considered slippery.” The slip resistance of the three rocks which he tested ranged from 0.78 to 0.92. These measurements “represent high traction, non-slip surfaces.” Based on the test results, Wolfe concluded that the rocks “did not create a substantial risk of injury if they were used with due care in a manner in which it was reasonably foreseeable that they would be used.”
ASTM International (ASTM), formerly known as the American Society for Testing and Materials, publishes international technical standards concerning a wide range of materials, products, systems, and services. (Nilson ex rel. Nilson v. Hershey Entertainment and Resorts Co. (M.D.Pa. 2009) 649 F.Supp.2d 378, 389, fn. 2; see also [as of July 27, 2010].)
In June 2009, Wolfe conducted the same type of slip resistance test on the additional rock identified by Livermore’s daughter as included in the area where Livermore had fallen. In County’s reply to Livermore’s opposition to the motion, Wolfe provided a supplemental declaration stating that the “co-efficient of friction measurements” of the additional rock ranged from 0.80 to 0.85, which results were consistent with the test results on the other three rocks. Wolfe also stated that Livermore had taken his deposition on June 3, 2009. The hearing on the summary judgment motion was scheduled for June 12, 2009.
C. Livermore’s Opposition to the Summary Judgment Motion
In early May 2009, Livermore moved to compel Wolfe’s deposition, and when that motion was denied, she filed an ex parte application to continue the hearing on the summary judgment motion because (1) her opposition to County’s motion was due on May 29, 2009, before Wolfe’s scheduled deposition in June 2009, and (2) Livermore had not obtained a declaration from her retained expert engineer, Charles Turnbow. Turnbow had provided a brief, two-page “case merit evaluation” report (not under oath or penalty of perjury) in which he expressed an opinion that the curb would not meet current County building standards for public works construction. But the trial court sustained County’s objection to this report and Livermore does not contest this ruling on appeal, so we do not consider Turnbow’s report. The court denied without prejudice Livermore’s ex parte application to continue the summary judgment motion.
On May 29, 2009, Livermore filed opposition to the summary judgment motion. She argued that County had not met its burden because Wolfe’s declaration was speculative, lacked foundation, and too conclusory. Livermore also argued that County, and in particular Wolfe’s declaration, did not address “the claim that the curb is in violation of building standards due to the size, shape and setting of the stones themselves. [Wolfe] does not offer any factual or analytical foundation for his ultimate opinions of dangerous condition of property used with due care.”
Livermore’s attorney also filed a declaration to which he attached publications he obtained from the Web site of William English, the inventor and manufacturer of the English XL Tribometer Wolfe used to perform his slip resistance measurements. According to a publication by English, “Slip resistance is defined in ASTM F1637.95, Practice for Safe Walking Surfaces as ‘The relative force which resists the tendency of the shoe or foot to slide along the walkway surface. Slip resistance is related to a combination of factors including the walkway surface, the footwear bottom, and the presence of foreign material between them.’” Another publication by English stated, “In actual field testing, a series of tests from different directions is recommended. Sometimes a surface has a directionality to its texture and it is not unusual for a floor to be more slippery in one area than another.”
In supplemental opposition, Livermore’s attorney declared that in Wolfe’s June 3, 2009 deposition, Wolfe admitted that slip resistance is related to a combination of factors including the walkway surface, the footwear bottoms, and the presence of foreign material between them, but Wolfe had no knowledge of Livermore’s footwear and whether there was any foreign material between her shoe and the rock. Wolfe also purportedly admitted that the curb was not in compliance with current building codes or any codes that he had been aware of in his 32 years as a professional engineer and safety consultant.
In her opposition papers, Livermore requested a continuance of the motion to permit her to continue her expert witness discovery and present a declaration from Turnbow.
Both Livermore and County filed written objections to some of the opposing party’s evidence.
D. Rulings on Summary Judgment Motion
The trial court sustained County’s oral objections to Turnbow’s consultation report, but overruled all of the parties’ other evidentiary objections. The court also denied Livermore’s request for a continuance, stating that her attorney admitted that he intentionally did not procure Turnbow’s declaration for strategic reasons. The court granted County’s motion for summary judgment, and judgment was entered on June 30, 2009.
E. Livermore’s Motion for a New Trial
On July 30, 2009, Livermore served and filed a notice of intent to move for a new trial. Livermore’s motion argued that the court erred in granting the summary judgment motion and attached portions of Wolfe’s deposition transcript and a declaration by Turnbow. County opposed the motion for a new trial. After a hearing on September 18, 2009, the court denied the motion for a new trial.
Livermore appealed from the summary judgment and also seeks review of the order denying her motion for a new trial.
DISCUSSION
A. Design Defect Theory of Liability
Livermore contends, and we agree, that County’s summary judgment motion should have been denied because County’s evidence failed to negate the design defect theory of liability. County responds that summary judgment was properly granted because it refuted the only claim alleged in the complaint — that the curb constituted a dangerous condition based on rocks covered with a “slippery organic substance.” County argues that Wolfe’s declarations established that the rocks represented “high traction, non-slip surfaces, ” and Livermore’s and her daughter’s testimony established that it was not raining and the rocks were not wet. County concludes that the foregoing evidence was undisputed and was all that County needed to establish its right to summary judgment. County charges that Livermore, “for the first time on appeal, contends that the curb violated ‘building standards, ’” and that she presents a “completely different new theory” of liability.
We reject County’s characterization of the complaint, the scope of the issues raised below, and the issues properly before us on this appeal. The complaint alleged that County “created, ” that is, built, the dangerous condition, consisting of a “curb made with large, irregular, round stones covered with a slippery organic substance which existed for a considerable time before, during and after the time [Livermore] slipped and fell.” It is apparent from the complaint that Livermore was asserting a theory that the curb was defectively designed. County’s answer asserted an affirmative defense of design immunity under section 830.6. And County persistently served Livermore with interrogatories seeking further details about her claim of the curb’s “inherent design flaw, ” and Livermore answered the interrogatories. Accordingly, before County filed its summary judgment motion, County was well aware that Livermore contended that County created and built the curb and that the curb was defectively designed and not in compliance with building standards.
The duty to define the issues presented by the complaint and to challenge them factually is on the defendant seeking summary judgment. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1114.) “If a defendant is unclear about what theories are tendered by the complaint, there are procedural means by which they may be clarified, ” such as “the use of discovery methods such as depositions, interrogatories and requests for admissions.” (Id. at p. 1114 & fn. 4.) And if a plaintiff pleads several theories, the defendant has the burden of demonstrating that there are no material facts requiring trial on any of them. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) “Thus, even if no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact.” (Ibid.)
Here, County sought discovery of further details pertaining to the issues presented by the complaint, and Livermore provided details pertaining to her claim that the curb was defectively designed. The defective design issue was properly raised by the pleadings and the discovery below; County’s summary judgment motion was required to address it. We thus proceed to evaluate whether County’s evidence in support of its motion was sufficient to establish that it was entitled to judgment as a matter of law on this theory of liability.
B. Standard of Review
On appeal from a summary judgment, our review is de novo and we independently review the record that was before the trial court; we review the ruling and not the trial court’s rationale. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1251 (Laabs).)
“A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. [Citation.] ‘In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted.... [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at pp. 1250–1251.)
“[W]e view the evidence most favorably to the party opposing the motion, liberally construe its evidence, and strictly construe the movant’s.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 565 (Stathoulis).) Pursuant to this principle, expert declarations submitted in support of a summary judgment motion must be detailed and provide a foundation for the expert’s opinions and conclusions. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125.) “‘[W]hen an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an “expert opinion is worth no more than the reasons upon which it rests[.]”’” (Id. at p. 126, fn. 2.)
C. Dangerous Condition Liability
“Liability may attach to a governmental entity if there is a dangerous condition on governmental property. (§§ 830, 835.) A condition is ‘dangerous’ if it creates a ‘substantial’ (as distinguished from a minor, trivial or insignificant) risk of injury when such property... is used with due care in the manner in which it is reasonably foreseeable that it will be used.’ (§ 830, subd. (a).) Conversely, a condition is ‘not dangerous, ’ if ‘the trial or appellate court, viewing the evidence most favorably to the plaintiff, ’ determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property... was used with due care...’ in a reasonably foreseeable manner. (§ 830.2.)” (Stathoulis, supra, 164 Cal.App.4th at pp. 565–566.)
“Under appropriate circumstances a court may determine, as a matter of law, that a given walkway defect is trivial. (§ 830.2.) However, it cannot make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.” (Stathoulis, supra, 164 Cal.App.4th at p. 569.) Accordingly, whether a crack or other defect in a walkway is dangerous does not rest entirely on its size, and “‘a tape measure alone cannot be used to determine whether the defect was trivial.’” (Id. at p. 567.) “‘Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect....’” (Ibid.)
In order for liability to attach under section 835, either (a) a negligent or wrongful act or omission of a government employee must have created the dangerous condition or (b) the government entity must have 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. (See fn. 2, ante.)
Section 835.2 provides in pertinent part: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.”
Thus, “[t]he rule is well established that when it is shown that a certain street and sidewalk improvement has been planned by city officers and constructed in accordance with such plan, and that by carrying out the plan a dangerous or defective condition has been created, no further proof is needed to charge the city with notice of that condition.” (Fackrell v. City of San Diego (1945) 26 Cal.2d 196, 203; Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246, 254.)
In Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 835, our Supreme Court confirmed that section 835, subdivision (a) was intended to incorporate the rule of Fackrell and Pritchard because “‘[t]he creation by the public entity of a physical facility or condition that is “dangerous” dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.’” (Brown, supra, 4 Cal.4th at p. 836.) “Because an entity must act through its employees, virtually all suits brought on account of dangerous conditions created by the entity will be brought under subdivision (a) [of section 835]. In contrast, subdivision (b) can also support suits based on dangerous conditions not created by the entity or its employees.” (Brown, supra, at p. 836.) But liability under subdivision (a) of section 835 does not dispense with the requirement that the dangerous condition be created by a negligent or wrongful act of the public employee. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1135–1136.)
D. Analysis
Based on the evidence proffered by County in support of its motion, we conclude that “reasonable minds could differ as to whether the nature and quality of the defect at issue presented a substantial risk of injury” (Stathoulis, supra, 164 Cal.App.4th at p. 570), and the trial court erred in determining otherwise.
As pointed out by Livermore, County’s evidence, including Wolfe’s declarations, did not address the issue of whether the irregular, curved surfaces of the curb presented a substantial risk of injury to pedestrians. Wolfe failed to test the smallest rock, nor did his declarations establish that he tested the area in the gaps between the rocks. And as to the rocks Wolfe did test, his declarations did not establish that the “slip resistance” tests he performed took into account the irregular, curved surfaces of the rocks. In other words, it cannot be ascertained from his declarations whether his testing showed only what the “slip resistance” would have been had the rocks’ surfaces formed a relatively flat and evenly smooth surface, like that of a concrete sidewalk, or whether his testing took into account the actual configuration of the irregularly curved curb. And, according to Livermore’s attorney, Wolfe admitted in his deposition that slip resistance is related to a number of factors, including the footwear bottom. But Wolfe’s declarations failed to address the issue of Livermore’s footwear. A strict construction of Wolfe’s declarations reveals that they were too conclusory and incomplete to support his opinion that the curb did not create a substantial risk of injury for pedestrians using due care. (Powell v. Kleinman, supra, 151 Cal.App.4th at pp. 123, 125–126.) And County’s evidence also did not address the issue of whether the dangerous condition was created by the negligent or wrongful act of a County employee in failing to comply with applicable building codes or standards.
Because County’s evidence failed to meet County’s burden on summary judgment, the motion should have been denied. We need not discuss Livermore’s opposition. We also need not discuss the order denying Livermore’s motion for a new trial because the order is moot upon a reversal of the judgment. (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 123.)
DISPOSITION
The judgment is reversed and on remand the trial court is directed to deny the County of Los Angeles’s motion for summary judgment. Livermore is entitled to costs on appeal.
We concur: ROTHSCHILD, J., JOHNSON, J.
Under section 830.6, “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 Transportation (2001) 26 Cal.4th 63, 69.)