Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GC033253. C. Edward Simpson, Judge.
Law Office of Michael S. Goergen and Michael S. Goergen for Plaintiff and Appellant.
Law Offices of Philip E. Black, Philip E. Black, Michael R. Nebenzahl, and Tina M. Jacquez for Defendant and Respondent.
ASHMANN-GERST. J.
Plaintiff and appellant David Luce (Luce) challenges a trial court order granting summary judgment to defendant and respondent City of Pasadena (the City).
We agree with the trial court that Luce failed to present a triable issue of fact. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Luce’s Injury
At all relevant times, Luce was employed as a process server for the Los Angeles County Sheriff’s Department. On January 24, 2003, Luce attempted to serve Diana Nicole Blackwood (Blackwood) at the home located at 2303 Grandeur Avenue, Altadena, California (the property). He had made several prior attempts to serve Blackwood at that location. Previously, Luce parked in the driveway, but on that date, he parked his car in front of the driveway.
The property was owned by Blackwood’s parents, Delroy and Diana Aurica Blackwood.
After serving Blackwood, Luce intended to return to his vehicle by walking back down the driveway. However, he became distracted by Blackwood’s dog, who was barking at him. Luce removed his pepper spray from his holster, and continued moving towards his car, with his head turned back looking at the dog. Luce then tripped over a water meter in the driveway.
The time of Luce’s fall, there were no obstructions to his view of the driveway. Also, there was no debris on the driveway.
The Water Meter and Driveway
On the property is a driveway, whose apron is 10 feet deep, the distance from the curb to the fence line. The City has a water meter with a cover resting over it below the property driveway, two feet west of the curb line. Pasadena Water & Power meter readers read the subject water meter approximately every 60 days.
At the time the driveway was built, the City’s water meter and cover were resting within the County of Los Angeles’s right-of-way, which at the time was within a grass parkway. The property owners did not obtain a permit for the driveway.
The water meter has been in the same location since the Blackwood’s parents owned the property. The owners have never known of a hazard in their driveway and they never complained to the City or to Pasadena Water & Power that the water meter posed a hazard. The owners are unaware of anyone ever tripping or falling on the driveway. No Pasadena Water & Power employee ever reported a hazard or potential danger with the water meter and/or the water meter cover. In fact, in the past 24 years, there have been no complaints to Pasadena Water & Power of a tripping hazard caused by a water meter being located in any residential driveway. Also, in the past 24 years, there have been no claims presented to the City regarding a dangerous condition because of a water meter being located in a residential driveway.
Procedural Background
Luce initiated this action on January 9, 2004. His first amended complaint, filed on March 26, 2004, alleges dangerous condition liability against the City.
On July 14, 2006, the City moved for summary judgment. It argued that Luce failed to use due care, and thus Luce’s use of the property was not reasonably foreseeable.
Luce opposed the City’s motion, asserting that the jury must determine whether a dangerous condition existed, whether he exercised due care, and whether the City failed to correct a dangerous condition.
On October 18, 2006, the trial court granted the City’s motion, finding that there was no dangerous condition of public property.
Judgment was entered and Luce’s timely appeal followed.
DISCUSSION
I. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
II. The Trial Court Properly Granted the City’s Motion for Summary Judgment
Government Code section 835 provides that a public entity is liable for a dangerous condition on its property when either (1) the dangerous condition was caused by a negligent or wrongful act or omission of an employee of the public entity acting within the scope of employment, or (2) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken preventative measures. (Gov. Code, § 835, subds. (a) & (b).) A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a).)
The existence of a dangerous condition is ordinarily a question of fact, but can be decided as a matter of law if reasonable minds can reach only one conclusion. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)
All of the evidence presented indicates that the water meter on the property did not constitute a dangerous condition. The water meter has been in the same location for approximately 20 years. During that time, there have been no claims or complaints regarding this particular water meter, let alone any water meter located on any residential driveway. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 243 [undisputed evidence of no prior substantial or similar accident in five years supported summary judgment in favor of city defendant].) Moreover, Luce had been to the property numerous times prior to the date of his accident. And, at the time Luce fell, nothing was obstructing his view of the driveway. He was injured during broad daylight; there was no debris on the driveway. Rather, Luce was simply not watching where he was going. Instead of directing his attention forward down the sloping driveway, his head was turned backward, and his attention was focused upon Blackwood’s dog.
In urging us to reverse the trial court’s judgment, Luce directs us to the deposition testimony of David Diotalevi (Diotalevi), a district engineer for the Los Angeles County Department of Public Works. Diotalevi testified that the water meter “might” constitute a hazard. Such equivocal and speculative testimony does not create a triable issue of fact. (See, e.g., Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 663; Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1563–1564.) Although he did testify that the City put up a barricade over the water meter after Luce’s fall, Luce does not argue that the City’s purported remedial efforts constitute an admission that the water meter was a dangerous condition. Since this issue was not sufficiently developed by Luce, we deem it waived. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050; People v. Stanley (1995) 10 Cal.4th 764, 793.)
Because Luce waived oral argument, we did not have the opportunity to address this issue at the hearing on December 17, 2007.
Moreover, Luce does not offer any evidence or argument that Luce was using the property “with due care in a manner in which it [was] reasonably foreseeable that it [would have been] used.” (Gov. Code, § 830, subd. (a).) As noted above, at the time of his fall, Luce was not paying attention to where he was walking; instead, his head was faced backward and his attention was focused upon Blackwood’s dog behind him.
Notably, Luce did not submit a reply brief to respond to this argument raised by the City in its respondent’s brief.
Most of the arguments raised in Luce’s opening brief presuppose the existence of a dangerous condition. For example, he spends significant time arguing that the City had actual or constructive notice regarding the alleged dangerous condition. He similarly puts too much weight upon the City’s alleged failure to implement an inspection system that would have allowed for the City to have discovered the dangerous condition. Luce puts the proverbial cart before the horse. Whether the City had notice of a purported dangerous condition or should have discovered such a condition presupposes the existence of a dangerous condition. As set forth above, the water meter and its cover did not constitute a dangerous condition. Thus, the questions of the City’s notice and discovery are irrelevant.
Even if Luce had demonstrated a triable issue of fact regarding the existence of a dangerous condition, it is undisputed that the City did not have notice of this alleged dangerous condition. The water meter had been in the same location for approximately 20 years, without any claims or complaints. (Sambrano v. City of San Diego, supra, 94 Cal.App.4th at p. 243.) Luce’s concomitant claim that the City should have known of the dangerous condition fails as well. While meter readers may have checked this particular water meter every 60 days, it was not their responsibility to evaluate the safety of the installation of water meters. Rather, they only typically identified potential hazards such as electrical problems, including low or hanging wires. Thus, the fact that a meter reader would have seen the location of this water meter does not compel the conclusion that the City knew of a dangerous condition. Absent notice, Luce’s claim fails as a matter of law. (Gov. Code, § 835, subd. (b).)
Although Luce asserts that the City did not have an inspection system in place for the evaluation of the safety of water meters, he does not provide us with any citation to the evidence to support this assertion. The fact that the meter readers are not responsible for this task does not equate with evidence of the absence of such a system.
Finally, for the same reason, Luce’s lengthy contention that the City may be liable for a failure to warn of a dangerous condition fails. Absent a dangerous condition, the City had no duty to warn the public.
DISPOSITION
The judgment of the trial court is affirmed. The City is entitled to costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.