Mary Ellen Stevens v. City of San Jose, et al. CASE NO. 18CV337589
DATE: 20 February 2020 TIME: 9:00 LINE NUMBER: 10

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 20 at 408.882.2296 and the opposing party no later than 4:00 PM on 19 February 2020. Please specify the issue to be contested when calling the Court and counsel.

ORDER ON DEFENDANT CITY OF SAN JOSE’S MOTION FOR SUMMARY JUDGMENT

I. Factual and Procedural Background

On 18 November 2017, after crossing Cinnabar Street on eastbound N. Montgomery Street in San Jose, plaintiff Mary Ellen Stevens (“Plaintiff”) stepped off of the sidewalk to greet a co-worker who was sitting in a vehicle parked on the side of the road. (First Amended Complaint (“FAC”), ¶Prem.L-1.) As Plaintiff rounded the front of her co-worker’s vehicle on the street side, she stepped on a loose piece of asphalt lying on the road which caused her to fall, breaking her left arm and right ankle. (Id.) N. Montgomery Street is in a state of extreme disrepair, with multiple large cracks and pieces of loose asphalt in the road. (Id.)

On 8 November 2018, Plaintiff filed a Judicial Council form complaint against defendant City of San Jose (“Defendant”) asserting one cause of action for premises liability including counts for negligence and dangerous condition of public property.

On 13 December 2018, Defendant filed an answer to Plaintiff’s complaint.

On 19 August 2019, Plaintiff filed the operative FAC which continues to assert a cause of action for premises liability with counts for negligence and dangerous condition of public property.

On 28 October 2019, Defendant filed an answer to Plaintiff’s FAC.

On 5 December 2019, Defendant filed the motion now before the court, a motion for summary judgment of Plaintiff’s FAC.

II. Defendant’s motion for summary judgment is GRANTED.

“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 Government Code, §815, subd. (a).)

One such form of statutory liability is Government Code, § 835 which provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. “A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 citing government code, §835, subd. (b).)

To establish liability under Government Code, § 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. (Government Code, §835; emphasis added; see also CACI, No. 1100.)

Defendant moves for summary judgment on several grounds, but the court finds one to be dispositive. Namely, Defendant moves for summary judgment on the ground that it did not have actual notice of the condition. As Defendant points out in the FAC, Plaintiff specifically alleges, “The defendant public entity had actual notice of the existence of the dangerous condition in sufficient time prior to the injury to have corrected it.” (FAC, ¶Prem.L-4; emphasis added.) Plaintiff did not check the Judicial Council form box to allege defendant public entity had constructive notice nor did Plaintiff check the Judicial Council form box alleging the condition was created by employees of the defendant public entity.

“A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Government Code, § 835.2, subd.(a).)

Defendant proffers the following evidence to affirmatively demonstrate that it did not have actual notice of the alleged dangerous condition:

On the evening of 18 November 2017 at approximately 5:20 p.m., Plaintiff parked her vehicle on Cinnabar Street near the intersection with North Montgomery Street (“Subject Area”). Plaintiff crossed Cinnabar Street to the sidewalk on the southwest corner of North Montgomery heading toward the SAP Center. As Plaintiff crossed the street, she noticed a colleague parked on the southwest corner of North Montgomery Street. She walked around the rear of his vehicle, leaving the sidewalk, to his driver’s side window. After speaking to him for five minutes, Plaintiff walked to the front of the vehicle to get back to the sidewalk. As she made her way to the sidewalk, she suddenly felt something “caught under [her right] foot” or she stepped on something. Because a quarter-sized piece of asphalt was the only thing in the area that she could see after the fall, Plaintiff surmised that she must have tripped over that. Plaintiff thinks she fell over on a quarter-sized piece of asphalt.

On 17 October 2017, Defendant issued a permit for laying fiber optic cable at “Cinnabar St., from the intersection of Montgomery St. and Cinnabar St. to approx., 312 ft. NE/o Montgomery St.” The construction work associated with the permit was not performed by the City or its employees. The permittee was MCI Metro.

On 8 November 2017, a construction inspector for the Defendant, John Rodriguez (“Rodriguez”), went out to the Subject Area to observe the progress of the work being performed under the permit. At that time, he did not see or observe any loose asphalt in the Subject Area. There was no additional inspection by Defendant employees connected with the permit between 8 November 2017 and 18 November 2017. Defendant maintains records of any citizen complaints or other reports of issues to the roadway, like potholes. Defendant has no record of complaints regarding loose asphalt in the Subject Area between 2001 and the date of Plaintiff’s accident.

Defendant’s evidence is sufficient to demonstrate that it did not have actual notice of the alleged dangerous condition. Defendant anticipates Plaintiff will assert actual notice based on general knowledge of the deterioration of a portion of the street in the area of Plaintiff’s fall. Defendant contends general knowledge is insufficient. (See State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 399—“To establish ‘actual notice,’ it is not enough to show that the state employees had a general knowledge that people do leave hot coals on public beaches. There must be some evidence that the employees had knowledge of the particular dangerous condition in question. [Citations.] No such showing has been made and we hold, as a matter of law, that the state did not have actual notice as defined in section 835.2, subdivision (a).” )

Indeed, in opposition, Plaintiff disputes Rodriguez’s assertion that he did not see or observe any loose asphalt in the Subject Area by asserting, “The subject area was in a state of disrepair, with cracked and broken asphalt, that more likely than not existed for months or years prior to the incident.” The underlying evidence to support this assertion is Exhibit 3 to the Declaration of Louis S. Abronson (Plaintiff’s counsel) in Support of Opposition to Defendant City of San Jose’s Motion for Summary Judgment. In the accompanying declaration, Plaintiff’s counsel declares, “Attached as Exhibit 3 are true and correct copies of seven photographs produced by Defendant in discovery.”

Plaintiff’s evidence does not create a triable issue of material fact. Even if the photographs depict the subject area where the incident occurred, the evidence does not conflict with Defendant’s evidence concerning actual notice. Plaintiff is essentially attempting to argue Defendant had constructive notice.

“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.” Plaintiff’s evidence lacks any indicia of the particular location relative to the Subject Area or the date/time the photographs were taken relative to the subject incident.

Most importantly, Plaintiff did not plead Defendant’s constructive notice.

Plaintiff contends the decision of Newman v. San Mateo County (1953) 121 Cal.App.2d 825 (Newman) is on point. The court disagrees. The Newman court avoided having to decide whether the defendant public entity had actual notice, instead opting to uphold a finding of constructive notice.

The evidence shows that in January of 1950, 11 months before the accident, the appellant was notified that the sidewalk was in a bad state of disrepair. Of course it did not know of this particular hole, because the evidence shows that such hole was not observed until June or July of 1950. Appellant contends that the January notice could not serve as a blanket notice sufficient to predicate liability for subsequently arising conditions where the particular defect was not a natural and probable consequence of the normal wear or tear but was caused, apparently, by a horse’s hoof.

We do not find it necessary to decide whether the appellant had actual notice of the defect because we are of the opinion that under the facts the jury was entitled to find that the defect was of such a nature and had existed long enough to give appellant constructive notice. …

The law is quite clear that at least after notice the public agency is under a duty to make a reasonable inspection and is chargeable with constructive notice of what such an inspection would have disclosed. (Fackrell v. City of San Diego, 26 Cal.2d 196 [157 P.2d 625, 158 A.L.R. 625]; Van Dorn v. City & County of San Francisco, 103 Cal.App.2d 714 [230 P.2d 393].) Clearly, the appellant was put on inquiry by the complaint made in January of 1950. That complaint covered the condition of disrepair in the whole length of the sidewalk. This complaint was directed to the generally deteriorating condition of the entire sidewalk. After receiving the notice the appellant was under a duty to inspect and is chargeable with notice of all defects that a reasonable inspection would have disclosed. (Bigelow v. City of Ontario, 37 Cal.App.2d 198 [99 P.2d 298].) The respondent’s general complaint had a continuing effect as long as the deteriorating condition existed and covered all defects later occurring. (Newman, supra, 121 Cal.App.2d at pp. 831–832; emphasis added.)

Newman is not on point as Plaintiff here has expressly premised her claim for dangerous condition of public property on Defendant’s “actual notice” of the dangerous condition, not constructive notice. Moreover, unlike Newman, Defendant here did not receive any general complaint about the deteriorating condition of the Subject Area prior to the incident at issue involving Plaintiff.

For the reasons stated above, Defendant’s motion for summary judgment is GRANTED. City is to prepare an appropriate Judgment.

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DATED: ______________________¬¬¬________________________

HON. SOCRATES PETER MANOUKIAN

Judge of the Superior Court

County of Santa Clara