Case Name: David Blanco v. City of San Jose, et al.
Case No.: 16-CV-297724

Currently before the Court is the motion by defendant City of San Jose (“City”) for summary judgment of the complaint of plaintiff David Blanco (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action. On or about November 8, 2015, Plaintiff “was riding his bike down the sidewalk of Penitencia Creek [Road, in front of Toyon Elementary School,] when he struck a sign that was bent at an angle toward pedestrian traffic.” (Complaint, ¶ Prem.L-1.) The area was poorly lit and, consequently, it was difficult to see. (Ibid.) Plaintiff “struck the sign and fell from his bicycle breaking his left ankle in multiple places.” (Ibid.)

Plaintiff alleges that the City and the Berryessa Union School District (collectively, “Defendants”) negligently owned, maintained, managed, and operated the premises on which the dangerous condition existed. (Complaint, ¶¶ Prem.L-2 and Prem.L-4.) The condition was allegedly created by Defendants’ employees. (Id., at ¶ Prem.L-4.) In addition, Defendants allegedly had constructive notice of the existence of the dangerous condition in sufficient time prior to the injury to have corrected it. (Ibid.)

Based on the foregoing, Plaintiff filed a complaint against Defendants, alleging a single cause of action for premises liability. Subsequently, the City filed an answer to the complaint, generally denying the allegations of the complaint and alleging various affirmative defenses.

On December 18, 2017, the City filed the instant motion for summary judgment of the complaint. Plaintiff filed papers in opposition to the motion on February 16, 2018.

Discussion

Pursuant to Code of Civil Procedure section 437c, the City moves for summary judgment of the complaint on the grounds that: (1) the alleged sign defect was trivial; (2) it is not liable for inadequate street lighting; (3) Plaintiff cannot establish that the City had notice of the condition; and (4) Plaintiff is unable to prove causation.

I. Legal Standard

The pleadings limit the issues presented for summary judgment or summary adjudication, and such a motion cannot be granted or denied on issues not raised by the pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73; Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.) A defendant seeking summary judgment or summary adjudication “must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).) “ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)

The tried and true way for defendants to meet their burden of proof is to present affirmative evidence negating, as a matter of law, an essential element of the plaintiff’s claim. (Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 334, fn. 7 [under California’s traditional rules, courts must determine with respect to each cause of action whether the defendant seeking summary judgment has presented affirmative evidence conclusively negating a necessary element of the plaintiff’s case]; see also Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597 [a cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law].)

The defendant may also demonstrate that an essential element of the plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 (Aguilar); see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-104, ¶ 10:242, [“Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.”].)

The final way in which defendants can satisfy their initial burden of proof is to show a complete defense to the plaintiff’s cause of action. (See Aguilar, supra, 25 Cal.4th at p. 849.) For example, defendants can present declarations or other admissible evidence showing that the plaintiff’s claim has been released or is time-barred by the statute of limitations. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017), p. 10-105, ¶ 10:246.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (See Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) The motion may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co. (Hepp) (1978) 86 Cal.App.3d 714, 717-718 (Hepp).) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp, supra, 86 Cal.App.3d at p. 717.)

II. Dangerous Condition of Public Property

“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.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, §223, p. 372 citing Gov. Code, § 815, subd. (a).) The aforementioned provision comes from the Tort Claims Act and “abolishes all common law or judicially declared forms of liability.” (Id., at p. 373.) Instead, liability must be based on statute. One such basis for statutory liability lies for dangerous conditions of public property and it is this form of statutory liability that Plaintiff alleges against the City.

Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. To establish liability under Government Code section 835, the following essential elements must be proved:

1. The public property was in a dangerous condition at the time of the injury;
2. The injury to the plaintiff was proximately caused by the dangerous condition;
3. The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and
4. Either:
a. The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
b. The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

(Gov. Code, § 835; see also 2 VanAlstyne, California Government Tort Liability Practice (4th ed. 2006) § 12.5, pp. 795–796; see also CACI, No. 1100.)

A. Dangerous Condition

As set forth above, the City first contends that it is entitled to summary judgment because the condition at issue in this case—the bent sign pole—does not qualify as a dangerous condition as a matter of law. (See Mem. Ps. & As., pp. 4:23-6:24.)

Government Code section 830, subdivision (a) defines the term “dangerous condition” to mean “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.” “In general, ‘whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’ ” (Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 810; Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1054; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28 (Kasparian) [“If the ‘court determines … sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule … the defect is not dangerous as a matter of law.’ [Citation.] Conversely, where ‘the only evidence available on the issue of dangerousness does not lead to the conclusion … reasonable minds may differ, then it is proper for the court to find … the defect was trivial as a matter of law.’ [Citation.]”].)

Additionally, Government Code section 830.2 permits the court to decide the existence of a “dangerous condition” as a matter of law. That section states, “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.” (Gov. Code, § 830.2.) The foregoing is sometimes referred to as the “trivial defect doctrine,” which encapsulates the policy that the law imposes no duty on a landowner to repair trivial defects or “to maintain [its property] in an absolutely perfect condition.” (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398-399; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927 [“Courts have referred to this simple principle as the ‘trivial defect defense,’ although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove.”].)

The City relies on the “trivial defect” doctrine in arguing that the sign condition at issue here does not constitute a “dangerous condition” as a matter of law. (See Mem. Ps. & As., pp. 5:15-6:24.)

To determine whether an alleged defect is trivial, “[f]irst, the court reviews the evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law and grant judgment for the landowner.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.) “If the ‘court determines … sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule … the defect is not dangerous as a matter of law.’ [Citation.] Conversely, where ‘the only evidence available on the issue of dangerousness does not lead to the conclusion … reasonable minds may differ, then it is proper for the court to find … the defect was trivial as a matter of law.’” (Kasparian, supra, 156 Cal.App.4th at p. 28.)

Here, the City presents evidence that the sign pole was tilted to the side at an angle of five degrees; the sidewalk was 46 inches wide from the southern edge of the base of the sign to the lawn of the Toyon Elementary School; plaintiff was wearing a headlight and utilized a light on the handlebars of his bicycle at the time of the incident; and it has no record of prior complaints with respect to the sign. (Mem. Ps. & As., p. 6:11-24; City’s Sep. Stmt., UMF Nos. 3 and 7-11.)

This evidence is insufficient to establish that the bent sign pole was a trivial defect as a matter of law. As an initial matter, the City does not present any evidence demonstrating that the sign was bent at an angle of five degrees at the time of Plaintiff’s accident. The City’s evidence regarding the angle of the pole is based on measurements of the sign taken by Barry Witt (“Witt”), an investigator for the City. Witt’s measurements were taken on May 5, 2016, approximately six months after the accident occurred. The City presents no evidence showing that the sign as it appeared on May 5, 2016, was the same as, or substantially similar to, the sign as it appeared in November 2015.

In addition to Witt’s measurements, the City offers a photograph of the sign that Plaintiff submitted with his government claim form. However, the City does not present any evidence establishing that the sign as it appears in the photograph is the same as, or substantially similar to, the sign as it appeared when Witt took his measurements on May 5, 2016. Furthermore, the City does not present any evidence establishing that the sign as it appears in the photograph is the same as, or substantially similar to, the sign as it appeared on the night of Plaintiff’s accident. In fact, the City’s evidence shows that Plaintiff testified at deposition that the pole had no sign and was more bent than it is in the photograph at the time of his accident. (Richardson Dec., Ex. A, pp. 28:22, 30:12, 41:1-25, 44:5-13, 45:5-23.) Thus, there is a triable issue of fact regarding the angle at which the sign pole was bent at the time of the accident.

Even assuming for the sake of argument that the pole was bent at an angle of five degrees at the time of Plaintiff’s accident, the City fails to provide any reasoned argument or legal authority suggesting that the five degree differential is trivial as a matter of law. Witt declares that a five degree angle means that the pole protrudes into the walkway by three and a half inches at the typical height of bicycle handlebars. (Witt Dec., ¶ 6.) Furthermore, the City’s evidence arguably shows that, at the time of the accident, the pole had no sign, it was 7:00 or 8:00 p.m. in the evening, and it was dark. (Richardson Dec., Ex. A, pp. 21:11-24, 28:22, 30:12.) Absent legal authority and/or persuasive reasoned argument, the Court is not prepared to find, as a matter of law, that an isolated protrusion into the walkway of three and a half inches is trivial, particularly given potentially aggravating factors, such as the lack of a sign or adequate lighting.

For these reasons, the City fails to establish that the alleged defect is trivial.

B. Inadequate Street Lighting

Next, the City argues that “inadequate street lighting is not a viable basis for a premises liability cause of action against [it]” because it “had no duty to illuminate the location of Plaintiff’s fall ….” (Mem. Ps. & As., p. 7:19-25.)

This argument fails to dispose of Plaintiff’s claim for premises liability. In the complaint, Plaintiff alleges that the dangerous condition of public property was the bent pole, and the inadequate street lighting was an aggravating factor that made the dangerous condition difficult to see. (Complaint, ¶ Prem.L-1.) Thus, the claim as pleaded is not based on allegations that the City had a duty to illuminate the sidewalk where the accident occurred.

Accordingly, the City’s argument lacks merit.

C. Notice

The City also contends that it is entitled to summary judgment because it did not have actual or constructive notice of the alleged dangerous condition. (Mem. Ps. & As., pp. 7:26-8:11.) The only UMF cited in support of this contention is UMF No. 11, which states that the City “has no records of prior complaints associated with the subject sign located on Penitencia Creek Road adjacent to Toyon Elementary School.” (City’s Sep. Stmt., UMF No. 11.)

Although this evidence is sufficient to meet the City’s initial burden with respect to actual notice, it does not demonstrate that the City lacked constructive notice of the alleged condition. Constructive notice is where the dangerous condition was present for a sufficient period of time and was of such an obvious nature that the owner should have discovered its existence. (See Gov. Code, § 835.2 [“A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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.”]; see also Ortega v. Kmart Corp (2001) 26 Cal.4th 1200, 1206-07.) The City’s evidence does not address: how long the alleged dangerous condition was present prior to Plaintiff’s accident or whether the condition was of such an obvious nature that is should have been discovered in the exercise of due care. Therefore, the City fails to demonstrate that it lacked constructive notice of the condition.

Even assuming arguendo that the City presented sufficient evidence demonstrating that it did not have actual or constructive notice of the alleged dangerous condition, the City is not entitled to summary judgment on that basis because its argument fails to dispose of Plaintiff’s claim in its entirety. (See All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 [summary judgment is appropriate only if it disposes of the entire lawsuit].) To establish liability for a dangerous condition, a plaintiff must prove that either: (1) “[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 (2) “[t]he 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.) “In order to recover under Government Code section 835, it is not necessary for plaintiff to prove a negligent act and notice; either negligence or notice will suffice.” (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 693.)

Here, Plaintiff alleges both that a negligent act of the City’s employees created the dangerous condition and that the City had constructive notice of the condition. (FAC, ¶ Prem.L-4.) With respect to the allegation that the dangerous condition was created by its employees, the City asserts in a conclusory manner that “Plaintiff is unable to demonstrate that the City created the allegedly dangerous condition.” (Mem. Ps. & As., p. 8:4-5.) However, the City does not cite any UMF or evidence supporting its assertion. Thus, the City fails to establish that Plaintiff does not possess, and cannot reasonably obtain, evidence supporting his allegation that the dangerous condition was created by the City’s employees. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Accordingly, the City is not entitled to summary judgment on this basis.

D. Causation

Finally, the City argues that Plaintiff cannot prove that the alleged condition caused his injuries because: (1) Plaintiff’s inattention to his surroundings caused him to strike the right, or curbside, side of the sign pole; and (2) the sign pole leans away from, and does not lean across or toward, the portion of the sidewalk on which Plaintiff was riding when he struck the sign pole. (Mem. Ps. & As., pp. 6:26-7:17.) The City asserts that Plaintiff was cycling west on Penitencia Creek Road when he crossed the road at Bard Street. (City’s Sep. Stmt., UMF No. 2.) He then proceeded onto the sidewalk on the south side of Penitencia Creek Road. (Ibid.) “Plaintiff came upon the sign pole as he was adjusting his headlight and it was too late to avoid the sign.” (Id., at UMF No. 4.) The front tire of Plaintiff’s bicycle hit the right side of the sign pole, which is the side of the pole that is closest to the sidewalk curb. (Id., at UMF Nos. 5-6.) At the time of the accident, the sign pole bent away from Penitencia Creek Road. (Id., at UMF No. 7.)

In opposition, Plaintiff does not dispute that the City’s evidence establishes the foregoing. Additionally, Plaintiff does not contest that the City’s evidence is sufficient to meet its initial burden on summary judgment with respect to the element of causation. Instead, Plaintiff contends that the Court should disregard his deposition testimony that his front bicycle tire hit the side of the pole that was not bent across the walkway because he previously alleged that he struck the side of the sign pole that was bent across the sidewalk. (Opp’n., p. 3:13-22.) Plaintiff asserts that his deposition testimony to the contrary is due to the fact that he became confused with counsel’s “barrage” of questions. (Ibid.)

Plaintiff’s argument is not well-taken. The opposing party, Plaintiff, may not rely upon allegations or denials in its pleadings; rather, it must “set forth the specific facts showing that a triable issue of material fact exists.” (Code of Civ. Proc. § 437c, subd. (p)(2); see Santa Ana Unified School Dist. v. Orange County Develop. Agency (2001) 90 Cal.App.4th 404, 411.) Plaintiff does not point to any evidence whatsoever demonstrating that his bicycle struck the side of the sign pole that was bent across the sidewalk. Therefore, Plaintiff fails to raise a triable issue of material fact with respect to the element of causation.

E. Conclusion

Because the City meets its initial burden and Plaintiff fails to raise a triable issue of material fact with respect to the element of causation, the motion for summary judgment is GRANTED.

III. Request for Continuance

Alternatively, Plaintiff’s counsel asks the Court for additional time to locate Plaintiff so he can provide a declaration regarding causation. (Opp’n., p. 3:23-28.) Counsel declares that attempts to locate Plaintiff over the past 30 days in order to obtain a declaration from him have been unsuccessful. (Abronson Dec., ¶ 10.)

“Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. [Citation.]” (Mahoney v. Southland Mental Health Assocs. Medical Group (1990) 223 Cal.App.3d 167, 170.) “An exception is created by Code of Civil Procedure section 437c, subdivision (h), which mandates that the court grant a continuance of a hearing on a motion for summary judgment ‘upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify the opposition to the motion.’ [Citations.]” (Ibid.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment…that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.” (Code Civ. Proc., § 437c, subd. (h).)

“The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397 (Bahl).) “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

“The nonmoving party seeking a continuance ‘must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]’ ” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.) “The decision whether to grant such a continuance is within the discretion of the trial court.” (Ibid.) “[T]echnical compliance with the procedures of Code of Civil Procedure section 437c is required to ensure there is no infringement of a litigant’s hallowed right to have a dispute settled by a jury of his or her peers.” (Bahl, supra, 89 Cal.App.4th at p. 395.)

“When a continuance of a summary judgment motion is not mandatory, because of a failure to meet the requirements of Code of Civil Procedure section 437c, subdivision (h), the court must determine whether the party requesting the continuance has nonetheless established good cause therefor. That determination is within the court’s discretion.” (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716 (Lerma).) The court’s discretion, however, must be exercised liberally in favor of granting a continuance. (See Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.)

The declaration by Plaintiff’s counsel fails to satisfy the requirements under section 437c, subdivision (h) as it does not explain why Plaintiff’s declaration is essential to opposing the City’s motion for summary judgment. (See Lerma, supra, 120 Cal.App.4th at pp. 715-716 [“The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.”].)

Nevertheless, the Court may grant the request for a continuance under its broad discretionary power based upon a showing of good cause. In the opposition papers, Plaintiff’s counsel indicates that Plaintiff’s declaration will bear on the issue of causation and demonstrate that Plaintiff actually struck the bent side of the sign pole and simply became confused by the deposition questions. The Court finds that there is no good cause for a continuance. Given that the declaration to be provided by Plaintiff would directly contradict his prior sworn deposition testimony, the statements in that declaration would be deemed “disingenuous” and insufficient to demonstrate a triable issue of material fact as to causation. (See Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1989) 199 Cal. App. 3d 791, 800 [“[i]n reviewing motions for summary judgment, the courts have long tended to treat affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive,” and facts set forth in affidavits that contradict prior testimony are insufficient to create a triable issue of material fact]; see also Viseuta v. General Motors Corp. (1991) 234 Cal App 3d 1609, 1613 [“Admissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.”]; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal App 4th 1510, 1522 [“In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own sworn deposition testimony.”].)

Accordingly, the request for a continuance is DENIED.