Opinion
B313083
12-19-2022
MARY HELEN CABRERA, Plaintiff and Appellant, v. CITY OF BURBANK, Defendant and Respondent.
Law Offices of Armen M. Tashjian and Armen M. Tashjian; Law Offices of David B. Shapiro and David B. Shapiro for Plaintiff and Appellant. Joseph McDougall, City Attorney, Ashlee P. Clark and Jill A. Vander, Assistant City Attorneys, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV00635, Thomas D. Long, Judge.
Law Offices of Armen M. Tashjian and Armen M. Tashjian; Law Offices of David B. Shapiro and David B. Shapiro for Plaintiff and Appellant.
Joseph McDougall, City Attorney, Ashlee P. Clark and Jill A. Vander, Assistant City Attorneys, for Defendant and Respondent.
FEUER, J.
Mary Helen Cabrera appeals from a judgment entered after the trial court granted the summary judgment motion filed by the City of Burbank (City). Cabrera sued the City for a dangerous condition of public property under Government Code section 835, after she tripped and fell on a raised section of pavement on a public sidewalk in Burbank. The City had performed a repair over two and a half years earlier by adding an asphalt ramp on the sides of the raised section of sidewalk.
Further undesignated statutory references are to the Government Code.
On appeal, Cabrera contends there were triable issues of fact whether the City had notice of the dangerous condition at the accident site based on its prior repair of the sidewalk. Cabrera also argues the trial court erred in sustaining the City's evidentiary objections to portions of her expert witness's declaration submitted in opposition to the City's motion, and in declining to rule on her objections to the City's evidence. Because the City did not carry its initial burden on summary judgment to show it lacked actual knowledge of the dangerous condition in sufficient time to prevent the accident, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident and Cabrera's Lawsuit
On the morning of December 6, 2017, Cabrera visited a store located at 3315 West Burbank Boulevard in Burbank. Upon exiting the store, as Cabrera turned to walk around a clothing rack in front of the store, her left foot struck a raised section of pavement on the sidewalk, and she fell to the ground. Cabrera did not notice the raised pavement on her way into the store. She observed that the whole sidewalk was the same color, except where she fell was "darker" where it "had been repaired."
In January 2019 Cabrera filed a lawsuit against the City, asserting a single cause of action for a dangerous condition of public property. Cabrera alleged the accident site was public property in a dangerous condition because of the raised section of the sidewalk. Further, the City knew or should have known the "placement, installation, location, repair, modification, construction, composition, and integrity" of the sidewalk "constituted a hazard to pedestrians." Cabrera alleged further the City "negligently and defectively maintained, placed, managed, inspected, installed, repaired, modified, supervised, constructed, reviewed and evaluated" the sidewalk. Cabrera's complaint attached and incorporated by reference a copy of a claim for damages she filed against the City on May 14, 2018, in which Cabrera alleged she "tripped over a raised area of sidewalk" where the "[a]rea had been patched but [the] patch deteriorated." Cabrera claimed the City failed to "maintain or repair [the] defective sidewalk."
B. The City's Motion for Summary Judgment
On September 29, 2020 the City filed a motion for summary judgment. Relying on section 835, the City argued Cabrera could not prove the dangerous condition of the sidewalk was created by a negligent or wrongful act or omission of a city employee within the scope of employment, or the City had actual or constructive notice of the dangerous condition in sufficient time to have taken measures to protect against the dangerous condition.
The City pointed to the absence of prior accidents at or complaints about the condition of the sidewalk at the accident site, relying on the declaration of City assistant public works director
John Molinar, who was responsible for overseeing the street repair and maintenance sections of the City's Public Works Department. According to Molinar, the City assessed the area where Cabrera fell in November 2012 and determined no repairs were warranted at that time. Molinar averred that since 2004 the City had in place a four-prong sidewalk repair and maintenance program under which the City promptly addresses all complaints or notifications regarding sidewalk issues, dedicates more than half of the City's street repair crews to repairing concrete improvements (including sidewalks), ensures the more than 365 miles of sidewalks in the City are assessed for repair every 10 years, and requires property owners to upgrade sidewalks adjacent to properties undergoing substantial upgrades or remodeling.
The City submitted a declaration of City public works supervisor Michael Smith, who was responsible for supervising the City repair crews that assess and maintain the City's sidewalks. Smith averred that at his direction on March 12, 2015 two crew members repaired "an uplifted concrete sidewalk" located at the accident site by adding "an asphalt ramp" to two sides of the uplift. After the 2015 repair, Smith's crew "did not receive any notice or request to perform additional repairs" at the site until the City received notice of Cabrera's claim for damages in May 2018. Smith's crew then made further repairs at the accident site "to address the issues that [Cabrera] alleged."
The City also submitted a declaration of City forestry services supervisor Juan Cardenas, who was responsible for the maintenance of trees on public grounds as part of the forestry services section of the City's Parks and Recreation Department, which "provides services such as parkway tree inspection and inventory, pruning, trimming, removal of broken or hanging branches, tree removal . . ., and planting." Cardenas declared he reviewed the City's records for the accident site and found forestry services crews went to the site on October 17, 2012 and April 8, 2015 to conduct routine maintenance of a willow tree. The crews "did not observe any issues with the adjacent sidewalk or any unsafe condition that would warrant further attention or repair from the City, such as a sidewalk upheaval. If such conditions were observed, it is the custom and practice to comment on those conditions in the [City's] records."
In her opposition, Cabrera argued the City was aware of the dangerous condition at the accident site because it repaired the uplifted sidewalk in 2015 by adding an asphalt ramp. Cabrera contended further the City's employees created the dangerous condition by failing to remove the raised section of the sidewalk during the 2015 repair. Cabrera asserted the City therefore failed to meet its initial burden on summary judgment.
Cabrera submitted four images (labeled exhibit C), which she identified as "color photocopies of photographs of the defendant's March 12, 2015 repair to the sidewalk submitted in . . . Plaintiff's response to defendant's inspection demands" and two images (labeled exhibit D), which she identified as "color photocopies of photographs submitted by defendant in response to plaintiff's inspection demands."
Cabrera submitted a declaration from municipal infrastructure assessment consultant Gary Gsell. Gsell averred he "personally reviewed the photographs of the subject sidewalk and read the City of Burbank's Motion for Summary Judgment," as well as the depositions of Cabrera, Smith, Molinar, and Cardenas. Gsell also reviewed Cabrera's responses to the City's request for production, which included photographs. Based on his review of the photographs, Gsell opined the City's repair of the uplifted sidewalk in 2015 "was not safe for pedestrians" because the grade of the asphalt ramp around the raised sidewalk was too steep for the two-inch "uplift" in the sidewalk, and the repair was "in a state of deterioration" at the time of Cabrera's accident. Further, the City's 10-year inspection policy was not effective at addressing the raised sidewalk because the City failed to discover that after the City's 2015 repair there still was a one-inch uplift in the sidewalk above the City's asphalt patch that posed a hazard to pedestrians.
Cabrera submitted objections to the City's evidence in support of its motion and to each of the City's undisputed material facts set forth in its separate statement.
The City filed a reply brief and evidentiary objections to portions of Gsell's declaration. The City asserted Gsell's opinions lacked personal knowledge and foundation because he did not specify the photographs on which he was relying. The City also objected that Gsell reached impermissible legal conclusions, and he provided prejudicial, speculative, vague, ambiguous, conclusory, or otherwise improper expert opinions. The City objected further to Gsell's reliance on the four photographs labeled as exhibit C,arguing the photographs produced by Cabrera in discovery were taken on April 26, 2018, nearly five months after Cabrera's alleged accident.
It its reply papers, the City misidentified the photographs as exhibit B.
Attorney Michael M. Lee declared he accessed Cabrera's four photographs in their native format, and the "'[d]ate taken' metadata field" showed the photographs were taken on April 26, 2018.
C. The Trial Court's Ruling and Entry of Judgment
After a hearing, on March 2, 2021 the trial court granted the City's motion for summary judgment. The court sustained most of the City's evidentiary objections to the Gsell declaration, including to Gsell's opinions the asphalt ramp was in a state of deterioration at the time of Cabrera's accident and the ramp's grade was too steep to meet safety standards for pedestrians. The court explained, "Gsell provides no foundation for the photographs he relied on to reach the conclusions asserted, nor personal knowledge for the facts asserted concerning the measurements of the alleged defect." The court declined to rule on Cabrera's evidentiary objections, finding Cabrera's objections were improperly directed at the City's separate statement of facts rather than its evidence in support of those facts, in contravention of California Rules of Court, rule 3.1354(b).
The court found the City had carried its burden to show it lacked notice of the sidewalk's dangerous condition and its employees did not create the condition. Cabrera did not carry her burden to show a triable issue of fact because without the portions of the Gsell declaration to which the City's evidentiary objections were sustained, Cabrera had not submitted "evidence showing that [the City] had actual or constructive notice of the alleged defect, or that the repair program was inadequate." Further, "Gsell's declaration does not provide a reasoned explanation concerning how any work previously done by [the City's] crew or employees at the subject location was substandard such as to connect it to the ultimate conclusion that [the City's] employees created the condition."
On April 7, 2021 the trial court entered judgment in favor of the City. Cabrera timely appealed.
DISCUSSION
A. Standard of Review
Summary judgment is appropriate only if there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618; Doe v. Roman Catholic Archbishop of Los Angeles (2021) 70 Cal.App.5th 657, 668.) "'"'"We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained."' [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party."'" (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; accord, Doe, at p. 669; Sabetian v. Exxon Mobil Corporation (2020) 57 Cal.App.5th 1054, 1068.)
A defendant moving for summary judgment has the initial burden of presenting evidence that a cause of action lacks merit because the plaintiff cannot establish an element of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; Sabetian v. Exxon Mobil Corporation, supra, 57 Cal.App.5th at p. 1068.) If the defendant satisfies this initial burden, the burden shifts to the plaintiff to present evidence demonstrating there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at p. 850; Sabetian, at p. 1069.)
B. The Trial Court Erred in Granting Summary Judgment
1. Governing law
"Under the Government Claims Act, '[a] public entity is not liable for an injury,' '[e]xcept as otherwise provided by statute.'" (Hampton v. County of San Diego, supra, 62 Cal.4th at p. 347, quoting § 815, subd. (a); accord, Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 ["there is no common law tort liability for public entities"].) Cabrera alleges a single cause of action against the City for dangerous condition of public property under section 835. Under section 835, a public entity's liability for the foreseeable risk of injury arising from a dangerous condition of its property is limited to specified circumstances, including when "either an employee's negligence or wrongful act or omission caused the dangerous condition or the entity was on 'actual or constructive notice' of the condition in time to have taken preventive measures." (Hampton, at pp. 347-348; accord, Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66.) "A dangerous condition is one that 'creates a substantial . . . risk of injury' when the property is 'used with due care in a manner in which it is reasonably foreseeable that it will be used.'" (Hampton, at p. 348; accord, Garcia v. American Golf Corp. (2017) 11 Cal.App.5th 532, 539.)
Section 815, subdivision (a), provides that, except as otherwise provided by statute, "[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."
Section 835 provides that "a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
Under section 835.2, subdivision (a), a public entity has actual notice of a dangerous condition "if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." Under section 835.2, subdivision (b), a public entity has constructive notice of a dangerous condition "only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character."
2. The City failed to meet its initial burden to show it lacked actual or constructive notice the uplifted sidewalk constituted a dangerous condition
Cabrera argues the trial court erred in granting summary judgment because the City's own evidence establishes the City knew of the sidewalk's condition based on the City's March 2015 repair to the location of Cabrera's accident by adding an asphalt ramp to the raised section of sidewalk. Thus, Cabrera contends the City had actual or constructive knowledge of the sidewalk's condition. The City contends it showed it lacked notice of the sidewalk's dangerous condition because "[t]here is no evidence in the record to establish how long the sidewalk had existed in the condition as it was at the time" of Cabrera's accident, and crew members from the City's forestry services section worked near the accident site in October 2012 and April 2015 but did not report an unsafe condition. Therefore, the City's "uncontradicted evidence negates an essential element" of Cabrera's claim. Cabrera has the better argument.
The City contends in its respondent's brief that Cabrera forfeited her argument the City failed to meet its initial burden on summary judgment to show it lacked notice of the dangerous condition by not raising the argument in her opening brief. In her opening brief Cabrera listed as one of the issues on appeal whether "the court improperly disregard[ed] the fact that the hazardous condition (sub-par patchwork) was created by the City's patch crew on March 12, 2015, hence, the notice requirement was met[.]" And Cabrera argues Smith admitted the sidewalk defect was noticed and "repaired by [the City] on March 12, 2015," and therefore the question of whether the City was on notice of the defect should have gone to the jury. Further, Cabrera raised this issue in her opposition brief in the trial court, arguing the City "[f]ailed to [s]hift the burden" to Cabrera because it created the dangerous condition and therefore was on notice. Although Cabrera's briefing on the issue is minimal, we decline to find forfeiture. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 ["application of the forfeiture rule is not automatic"]; Unzueta v. Akopyan (2019) 42 Cal.App.5th 199, 215 ["'[N]either forfeiture nor application of the forfeiture rule is automatic.'"].)
On appeal, Cabrera focuses on the City's actual or constructive notice of the dangerous condition of the sidewalk. The same argument (based on the fact the City created the dangerous condition) would apply to liability under section 835, subdivision (a), that the condition of the sidewalk was the result of a City employee's negligent act or omission within the scope of employment.
The City failed to meet its initial burden to show Cabrera could not establish the City lacked notice of the sidewalk's dangerous condition in time to take measures to protect against the danger. The City's own evidence in support of its motion showed that on March 12, 2015 Smith directed the City's crew to repair "an uplifted concrete sidewalk" located at the accident site by adding an asphalt ramp to two sides of the uplifted section. Consistent with this evidence, in Cabrera's deposition testimony submitted by the City in support of its motion, Cabrera testified she fell on a "darker" part of the sidewalk "that had been repaired." Therefore, it is undisputed the City had notice both of the raised section of sidewalk and the asphalt ramp surrounding it that constituted the asserted dangerous condition.
In light of this direct evidence of the City's actual knowledge of the condition of the sidewalk after the March 2015 repair, the City could only meet its initial burden on summary judgment to negate an element of Cabrera's claim by presenting evidence the sidewalk condition was not dangerous following the 2015 repair, and the City lacked notice of any change in the condition of the sidewalk that rendered it dangerous at the time of Cabrera's 2017 fall (or the sidewalk was safe in 2017). (See § 835.2, subd. (a) ["A public entity had actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character."].) The City failed to meet this burden.
That the City performed a repair to the uplifted section of sidewalk in 2015 does not show the condition was safe either in 2015 or at the time of Cabrera's fall in 2017. Nor does it show the City did not know or should not have known of the dangerous condition of the sidewalk. In her complaint Cabrera alleged the City negligently and defectively maintained and repaired the sidewalk and the City knew or should have known the state of the repair to the sidewalk constituted a hazard to pedestrians. (See Feltham v. Universal Protection Service, LP (2022) 76 Cal.App.5th 1062, 1068 ["We identify the issues framed by the pleadings and then determine whether '"'"the moving party's showing has established facts which justify a judgment in movant's favor"'"' on those issues."]; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 444 ["The pleadings play a key role in a summary judgment motion and '"'set the boundaries of the issues to be resolved at summary judgment.'"'"].) The City's motion failed to address Cabrera's allegations the City's repair was negligently performed and maintained. Although Smith denied the City received notice or a request for further repairs at the site after the 2015 repair (until Cabrera filed her claim in May 2018), the City at the very least was required to present evidence the 2015 repair rendered the sidewalk safe.
The absence of any report that the sidewalk was in an unsafe condition by the forestry service crews who performed tree maintenance in the area in October 2012 and April 2015 does not prove the sidewalk was made safe by the 2015 repair or that the City should not have known of the alleged deterioration of the repair by the time of Cabrera's accident. There is no evidence the forestry services crews were qualified or instructed to assess the safety of sidewalk conditions-Cardenas averred only that if the crews observe unsafe conditions while performing forestry work, "it is the custom and practice to comment on those conditions in the [City's] records."
Because the City failed to meet its burden in the first instance to present evidence demonstrating Cabrera could not prove an essential element of her case, the trial court erred in granting the City's motion for summary judgment.
Because we conclude the City failed to carry its burden to show it lacked actual or constructive notice of the dangerous condition of the sidewalk, we do not we reach Cabrera's arguments the court erred in sustaining the City's evidentiary objections to the Gsell declaration and declining to rule on her objections to the admissibility of City's evidence.
DISPOSITION
The judgment is reversed. Cabrera is entitled to her costs on appeal.
[*] Judge of the Marin County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.