Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge, Super. Ct. No. CV254207
Law Office of Donald C. Duchow and Donald C. Duchow for Plaintiff and Appellant.
Robinson & Kellar, Oliver U. Robinson and Michael C. Kellar for Defendant and Respondent.
OPINION
HILL, J.
This is an appeal from the judgment in favor of defendant in a personal injury action against the City of Wasco (the City) based upon an alleged dangerous condition of public property. After trial by the court, the court found that, considering the totality of the evidence, there was a lack of credible evidence to carry appellant’s burden to prove a dangerous condition or respondent’s actual or constructive notice of any dangerous condition. Appellant contends his uncontradicted testimony established a dangerous condition and showed the condition was conspicuous enough and had existed long enough to give constructive notice to the City of its existence. We will affirm.
FACTS
Appellant testified there was a pothole at the intersection of Palm and Third in Wasco, which was 20 to 22 inches long, 11 inches wide, and 6 inches deep, and had been there for a year. On the evening of September 27, 2003, appellant was riding his bicycle and, as he made a right turn onto Third, his front wheel went down and he went over the handlebars and landed on his head and hands. He contends the front wheel went into the pothole, which he could not see because it was covered with water. Defendant presented evidence that no one had reported the pothole described by plaintiff. The Public Works Director testified, based on his experience, that a pothole as large as that described by appellant would certainly have been reported.
DISCUSSION
I. Standard of Review
Questions of fact and mixed questions of law and fact which are predominantly factual are reviewed under a substantial-evidence test. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) Appellant contends the uncontradicted evidence showed the existence of a large pothole for a significant period of time, demonstrating both the existence of a dangerous condition and constructive knowledge of the condition on the part of respondent. Because the question is predominantly one of fact, the substantial evidence standard of review applies.
“When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination….” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) “‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citations.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “The ultimate test is whether it [was] reasonable for a trier of fact to make the ruling in question in light of the whole record. [Citation.]” (Id. at p. 652.) Thus, the question here is not whether plaintiff submitted substantial evidence in support of his case, but whether substantial evidence supports the conclusion actually reached by the trial court.
II. Dangerous Condition
“[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 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.” (Gov. Code, § 835.) “‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (§ 830, subd. (a).)
All further references are to the Government Code unless otherwise stated.
Plaintiff testified the pothole was 20 to 22 inches long, 11 inches wide and 6 inches deep. He testified the pothole had been there since plaintiff had moved there one year before the incident, and he had passed it on a daily basis walking or riding his bicycle for two or three months before the incident. On the date of the incident, there was water in the street and he was unable to see the pothole before he hit it. After he fell, he did not go back and look at what caused him to fall.
No photographs of the pothole were introduced. There was testimony that photographs had been taken by Rudy Ventura, an employee of attorney, Gene Lorenz, who directed Ventura to take photographs and measurements after plaintiff consulted Lorenz about the incident. Those photographs were misplaced. Ventura testified he measured the pothole, and it was “around 18 to 19 feet deep” and “36 feet in diameter.”
Warren Craig and Marty Jones testified for defendant. Craig was a street supervisor for the City. He testified the City becomes aware of potholes by inspecting roads it knows are deteriorating badly, and through reports of “refuge” drivers (apparently meaning refuse drivers), transit bus drivers, and street cleaners. When a pothole is reported, Craig goes out and checks it and prioritizes it; if it is going to cause a hazard, he barricades it or calls a crew to fix it. If it is a good sized hole that might cause damage or injury, it would be taken care of that day or barricaded until the next day; the crew would get to a minor hole the next day.
Craig testified that the intersection of Palm and Third, where the incident occurred, was a main thoroughfare and in good shape. Where plaintiff said the pothole was located was along the gutter line, where it would be hard to see; there are cars parked there from time to time during the day. Before the incident in which plaintiff was injured, Craig had not been called out to repair a pothole 22 inches by 11 inches by 6 inches at that intersection; if someone had reported a pothole that size, the City would have fixed it immediately, within 24 hours. On cross-examination, Craig admitted that, if a call had come in about a pothole on that street, at the time of the incident it would not have been given to him because he was not in his current job at that time. If it was not called in and he did not observe it, he would not know it was there.
Jones testified he is, and was at the time of the incident, the Public Works Director for the City. He receives reports of potholes within the City. Complaints of potholes are received by a secretary or clerk, who forwards the call to the street supervisor; the street supervisor immediately goes out (the same day), checks on it, prioritizes the severity and directs a crew accordingly. The citizens of Wasco are pretty forthcoming with complaints about potholes, if there are any. Before plaintiff’s incident in September 2003, the Department of Public Works had not received complaints of a pothole at this location. Based on his experience as Public Works Director, a hole the size plaintiff described would certainly have been called in and could not have been there for a year without someone complaining about it. On cross-examination, Jones conceded a pothole within 2 or 3 feet of the curb could easily have been missed by cars parking over it.
Plaintiff argues that his uncontradicted testimony established a dangerous condition, and defendant’s evidence was insufficient to create an inference that a dangerous condition did not exist. While it is sometimes broadly stated that the uncontradicted testimony of a witness to a particular fact may not be disregarded, the true rule is that the trier of fact is the exclusive judge of the credibility of the witnesses. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171 (Ortzman).) The trier of fact is not required to accept the uncontradicted testimony of a witness as true where the trier of fact determines the testimony is false. (People v. Woods (1946) 75 Cal.App.2d 246, 248.) In passing on credibility, the trier of fact is entitled to take into consideration the interest of the witness in the result of the case, his motive, the manner in which he testified, and the contradictions appearing in the evidence. (Ortzman, supra, at p. 171; Carroll v. Dungey (1963) 223 Cal.App.2d 247, 253 (Carroll).) “Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted.” (Ortzman, supra, at p. 171, italics omitted.)
Plaintiff testified that the pothole existed and had been there for at least a year before the incident. While there was no directly contradictory testimony, defendant’s witnesses testified to the City’s procedures for inspecting the City’s streets, and receiving and responding to reports of potholes. They indicated the pothole described by plaintiff had not been reported to the City before the incident, and a pothole of the size described by plaintiff would not have existed for over a year without being reported and repaired.
Additionally, plaintiff testified he did not see what caused his fall either immediately before or immediately after the incident. Photographs of the pothole taken on plaintiff’s behalf were not produced. Ventura’s testimony was implausible. A pothole with the dimensions Ventura described would have swallowed both plaintiff and his bicycle; plaintiff testified it merely caused his front wheel to go down and plaintiff to go over the handlebars onto the road.
In light of plaintiff’s interest in the case and the weaknesses in his evidence, it does not appear the trial court acted arbitrarily in rejecting or discounting plaintiff’s testimony and finding there was a “lack of credible evidence” of a dangerous condition. Whether the trial court rejected in toto the testimony that a pothole existed, or determined the evidence of its size (and the degree of danger it presented) was exaggerated, its conclusion is supported by substantial evidence. In light of the whole record, there was substantial evidence to support the conclusion of the trial court that plaintiff failed to prove the existence of a dangerous condition.
III. Actual or Constructive Notice
Liability under section 835 requires a showing that 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. Because this notice element is dependent on the existence of a dangerous condition, the same evidence that supports the trial court’s finding that there was a lack of credible evidence of a dangerous condition supports its finding that there was a lack of credible evidence that respondent had actual or constructive notice of any dangerous condition at the alleged scene of the incident.
Additionally, there was no evidence respondent had actual notice of the pothole described by appellant. Appellant testified he did not report it and respondent’s witnesses testified no one reported a pothole at that location.
As to constructive notice, appellant contends his uncontradicted testimony concerning the size of the pothole and the length of time it existed before his injury establishes constructive notice. For purposes of section 835, “[a] public entity had constructive notice of a dangerous condition … only if the plaintiff establishe[d] 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.” (§ 835.2, subd. (b).) The trier of fact was entitled to evaluate the credibility of testimony, and accept or reject it, even if it was uncontradicted. (Ortzman, supra, at p. 171; Carroll, supra, at p. 253.) Testimony concerning respondent’s procedures for inspecting its streets, and receiving and responding to reports of potholes, testimony that parked cars could have obscured a pothole at the location described by plaintiff, and testimony that a pothole of the size described by plaintiff would not have existed for over a year without being reported and repaired, support the judgment of the trial court. In light of the whole record, there was substantial evidence to support the conclusion of the trial court that plaintiff failed to prove actual or constructive notice of a dangerous condition.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
WE CONCUR: HARRIS, Acting P.J., DAWSON, J.