Case Number: BC720207 Hearing Date: December 19, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

JIUBY LAM, ETC.,

Plaintiff(s),

vs.

CITY OF PASADENA, ET AL.,

Defendant(s).

Case No.: BC720207

[TENATATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

December 19, 2019

1. Undisputed Facts

Plaintiff, Jiuby Lam, a minor by and through her GAL, Ho Jack Lam, filed this action against Defendant, City of Pasadena for damages arising out of burn injuries sustained on a hot manhole cover on the public sidewalk. Lam was a toddler at the time she sustained her injuries. She fell onto the manhole cover, which was hot because it was 81 degrees and sunny outside. She sustained burns as a result of her fall.

2. Motion for Summary Judgment

At this time, Defendant moves for summary judgment on the complaint. It contends it is entitled to judgment as a matter of law because (a) there was no dangerous condition of public property, (b) Plaintiff cannot show Defendant had notice of any dangerous condition, (c) Defendant is immune from liability, and (d) Defendant acted reasonably at all times.

a. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff’s case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present 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” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant’s initial evidentiary showing may “consist of the deposition testimony of the plaintiff’s witnesses, the plaintiff’s factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff’s factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party’s supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

b. Evidentiary Objections

Defendant submitted evidentiary objections with its reply papers. The objections are sustained.

c. No Dangerous Condition

Defendant’s first argument is that the defects in the sidewalk, if any, were trivial as a matter of law. A “dangerous condition” is a condition of property that creates a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable. Ordinarily, the existence of a dangerous condition is a question of fact. However, it can be resolved as a question of law if reasonable minds can come but to one conclusion. It is for the Court to determine whether, as a matter of law, a given defect is not dangerous because property owners should not become insurers against injuries arising from trivial defects. Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.

The basic facts relating to this case are not in dispute. Plaintiff was a toddler when she was injured. She was walking on the sidewalk, and she fell. She fell onto a manhole cover, which was made of metal and was hot because it was a sunny and hot day. While the situation is very sad and unfortunate, the Court finds Defendant is not, as a matter of law, liable for the accident. A metal manhole cover does not create a “substantial risk of injury when used with due care.” Notably, if the Court were to find otherwise, it would necessarily have to find that there can be no exposed metal into which a person can come into contact anywhere in the world. The Court cannot make such a finding.

Plaintiff, in opposition to the motion, presents the Declaration of Tony Wong. Wong is Plaintiff’s attorney. He declares that he found an advertisement on the internet for a product that would have prevented this injury. He attaches the online advertising materials as Exhibit A. Defendant’s objections to this exhibit are sustained for several reasons. First, Wong has no personal knowledge relating to this product. Second, the product itself indicates it is for “steam manhole covers,” and there is no evidence that the manhole cover at issue in this case was a “steam manhole cover.” Third, the mere fact that a product exists that many potentially make city property MORE safe does not render the property in a dangerous condition, as a matter of law.

d. Conclusion

The motion for summary judgment is granted on the ground that the condition at issue is not dangerous as a matter of law. The Court declines to rule on the remaining arguments advanced. Defendant is ordered to give notice.