Case Number: BC616137 Hearing Date: August 31, 2018 Dept: 2

Motion by Defendant, City of Long Beach, Motion for Summary Judgment and/or Summary Adjudication

Motion by Defendant, City of Long Beach, Motion for Summary Judgment and/or Summary Adjudication, filed on 3/8/18, is DENIED. Defendant has not established that it is entitled to judgment or adjudication of issues based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

The complaint alleges that on 3/29/15, Plaintiff was on Defendant’s premises at the Port of Long Beach, when she tripped and fell in a large “cut out” hole in the pavement, measuring at least 7 feet by 5 feet, and which appeared to have been intentionally cut so that the pavement was completely removed, exposing dirt and gravel in the entire “cut out” area. Plaintiff alleges claims for:

Dangerous condition of public property, Cal. Gov. Code § 835.

Negligence (against Does 1-26)

A claim for dangerous condition of public property against a public entity is controlled by Gov Code § 835. Plaintiff must establish the existence of a dangerous condition that proximately caused injury and that the dangerous condition created a reasonably foreseeable risk of injury.

Plaintiff must also show that the public entity created the condition, or that the public entity had actual or constructive notice of the dangerous condition. Cal Gov. Code § 835.

“Actual notice” is statutorily defined as knowledge of existence of the condition and that Defendant knew or should have known of its dangerous character. Cal Gov. Code § 835.2(a). “Constructive notice” is established where the evidence shows that the condition existed for such a period of time and was of such an obvious nature that the public entity should have discovered it in the exercise of due care. Cal Gov. Code § 835.2(b).

2. The undisputed facts establish that Plaintiff worked as the Long Beach Container Terminal for 27 years as a marine clerk. UF 1. Plaintiff drove to the middle harbor on 3/29/15 while working a flex shift. UF 2, 4. Plaintiff fell while walking and checking containers. UF 6. Plaintiff tripped and fell when a cut-out area of the asphalt cut her foot. UF 7.

3. Defendant’s request for adjudication based on Gov. Code § 835.4 is DENIED. City argues it bears no liability to Plaintiff, irrespective of Gov. Code § 835, because it acted “reasonably” in granting a non-exclusive preferential assignment of the wharves and other areas to an assignee, OOCL LLC. UF 19. OOCL was assigned the duty to inspect, maintain, and repair the pavement in the area. UF 21.

Section 835.4 precludes liability if the public entity establishes that the act or omission that created the condition was reasonable. Gov. Code § 835.4(a). Defendant is also not liable if the action it took to protect against the risk of injury created by the condition was reasonable. Gov. Code § 835.4(b).

The determination of whether the act taken to protect against the risk of injury or failure to take action was reasonable under both subparts depends on the time and opportunity Defendant had to take action and by “weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.” Gov. Code, § 835.4(a), (b).

Here, Defendant argues it acted reasonably by delegating the maintenance obligations to an assignee. As Defendant’s case authority states, the “reasonableness” standard depends on a consideration, in part, of the costs and impracticability of doing anything else. Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1138.

This issue is procedurally defective in the manner it is raised. First, Defendant’s separate statement does not separately identify this affirmative defense as an issue to be adjudicated. The separate statement must separately identify each cause of action and affirmative defense to be adjudicated, with supporting material facts. Cal Rules of Court 3.1350(d).

Secondly, the material facts proffered do not establish what other alternatives the City had to address the condition, the costs associated therewith, or evidence that any other alternative was impracticable. Defendant provides no evidence to establish that delegating the maintenance responsibility to a third party was warranted given the costs and impracticability of doing anything else.

Where a Defendant moves for summary judgment or adjudication based on the assertion of an affirmative defense, the Defendant has the initial burden of establishing each element of the affirmative defense. Consumer Cause v. Smilecare (2001) 91 Cal. App. 4th 454, 469-468. Defendant has not met that burden.

4. Issue 1: Adjudication of the claim based on the claim that Defendant did not create the condition is DENIED. As set forth above, Defendant remains liable to Plaintiff, irrespective of the lack of actual or constructive notice, if Plaintiff can show that Defendant created the condition. Gov. Code § 835(a).

None of Defendant’s facts with respect to Issue 1 negate the Plaintiff’s contention that Defendant created the “cut out” that caused Plaintiff’s injury. This is a separate basis for liability that is not addressed by the material facts. There is no discussion as to how the “cut out” occurred, who created it, or why.

Instead, Defendant admits that beginning in 2011 and continuing past the date of Ms. Gregg’s accident in March of 2015, the Middle Harbor Terminal had been undergoing a redevelopment project to combine two older container terminals into one technologically advanced and “green” terminal. UF 22.

This fact is insufficient, standing alone, to establish that Defendant did not create the condition. The other facts asserted are not relevant to the creation of the condition. As such, Defendant has not met its threshold burden of establishing that it did not create the condition at issue. The burden does not shift to Plaintiff to create a triable issue of fact. Cal Code Civil Procedure § 437c(p)(2).

Nevertheless, Plaintiff’s additional facts (PAF) support the existence of a construction project that occurred at the site from 2011-2014. PAF 33. Plaintiff’s evidence also establishes that the construction project, known as the Wharf/Backlands Redevelopment project, was designed by the Port of Long Beach. PAF 28. The project involved the demolition of existing parts of the wharfs, dredging and construction of new wharf areas and work in the “backlands area” behind the wharf to modernize the terminals. PAF 29. These facts adequately infer that the City created the condition.

Defendant attempts to shift the focus of the motion by belatedly bringing up new arguments in reply, contending that the City did not have control of the property, and that it did not have a duty to warn of obvious or patent conditions. Reply, 4:23-25, 5:17-20.

As these arguments were not raised in the moving papers, they are improper. Plaintiff did not have sufficient notice of these new bases for the motion. Regardless, none of the material facts cited by Defendant establish that it did not have “control” over the property given the undisputed Preferential Assignment Agreement. UF 21.

The affirmative duty to act for the protection of individuals coming upon the land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” Preston v. Goldman, (1986) 42 Cal.3d 108, 118-119.

Defendant asserts that the agreement granted a “non-exclusive preferential assignment” of certain areas, not that the assignee had “exclusive control” of the area where Plaintiff fell. UF 20.

Defendant argues in reply that UF 19-20 granted the tenant a “preferential assignment to occupy and use,” which is not established by those facts. Regardless, the issue is “control.” Reply, 5:25-26.

5. Adjudication of Issue 3 – that Defendant did not have constructive notice of the dangerous condition — is DENIED.

Constructive notice is established where the condition 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. Gov. Code § 835.2(b).

“Due care” can be established by evidence of a reasonably adequate inspection system, considering the cost and practicability of inspection weighed against the likelihood of potential danger. It can also be established with evidence that the public entity maintained and operated such an inspection system with due care and did not discover the condition. Gov. Code § 835.2(b)(1), (2).

None of the material facts proffered in support of Issue 3 are relevant to negate the contention that in the exercise of “due care” Defendant should have discovered the condition. The material facts proffered are relevant to actual notice. Facts 10, 17, 18. Defendant does not proffer any facts relevant to any reasonably adequate inspection practice given costs and impracticability.

6. While there does not appear to be any dispute as to the lack of Defendant’s actual notice of the dangerous condition, summary adjudication cannot be granted as to this issue since adjudication can only be granted if doing so disposes of the entire cause of action. Cal Code Civil Procedure § 437c(f)(1).

Moving party is ordered to give notice.

Motion by Defendant, Manson Construction Company (“Manson”), for Summary Judgment

Motion by Defendant, Manson Construction Company (“Manson”), for Summary Judgment, filed on 6/18/18, is DENIED. Defendant has not established that it is entitled to judgment on the second cause of action for negligence based on the material facts proffered. Cal Code Civil Procedure § 437c(p)(2).

The complaint alleges that on 3/29/15, Plaintiff was on Defendant’s premises at the Port of Long Beach, when she tripped and fell in a large “cut out” hole in the pavement, measuring at least 7 feet by 5 feet, and which appeared to have been intentionally cut so that the pavement was completely removed, exposing dirt and gravel in the entire “cut out” area. Plaintiff alleges claims for:

Dangerous condition of public property, Cal. Gov. Code § 835.

Negligence (against Does 1-26)

The Joinder of Stephen Doreck Equipment Rentals, Inc., (“Doreck”) to Manson Construction Co.’s Motion for Summary Judgment is DENIED. Doreck filed its joinder on 8/27/18, four days before the hearing. Plaintiff is entitled to 75 court-days’ notice increased by five calendar days for service by mail. Cal Code Civil Procedure § 437c(a).

In the case cited by Doreck, the court denied the motion for joinder as untimely as Plaintiff did not receive statutory notice of the motion, which at that time was 28 days.Frazee v. Seely (2002) 95 Cal.App.4th 627, 636–637.

Trial courts do not have discretion to shorten the notice period for summary judgment hearings, in light of the express statutory language requiring 75 court days if personally served. McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118

Additionally, while Doreck relies on selected material facts contained in Manson’s Separate Statement, none of the facts establish when Doreck completed the work and received final acceptance of its work to preclude liability.

UF 1-3, cited by Doreck is relevant to the City’s ownership of the Port, that the City entered into a contract with Manson and that Manson entered into a subcontract with Defendant for a drain system. UF 8 establishes Plaintiff tripped into a “cut out.”

Objections to evidence. Plaintiff’s objections to the Declaration of George Atkinson (VP and Southern Calif Area Manager of Manson Construction. ¶¶ 6 and 7. SUSTAINED.

The court GRANTS Plaintiff’s request for judicial notice of the official acts of legislative, executive, and judicial departments of any state, which includes records, reports, and orders of administrative agencies. Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.

Manson’s objections to the Declaration of Thomas Perry. #1-4. Overruled. #5-13. Decline to rule as defective. These are objections to the Plaintiff’s additional facts. Defendant is required to cite to and quote the particular evidence to which objection is made. Cal Rules of Court 3.1354 #14-19. Overruled.

3. The undisputed facts establish that on 3/23/11, the City entered into a contract with Manson/Connolly JV for the first phase of redevelopment of certain land at the port. UF 2. On 1/3/14, the Port of Long Beach, directed Manson by letter to remove all of its materials and equipment from the Long Beach Container Terminal (LBCT) so that LBCT could commence active terminal operations. UF 4.

Plaintiff an employee of LBCT, who was working at the terminal on 3/29/15, tripped over a rectangular “cut out” in the asphalt pavement. UF 7.

4. The “completed and accepted” doctrine shields a contractor from liability to third persons once the work is completed and the owner accepts the work. The owner’s acceptance of the work shifts liability for its safety to the owner. Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal. App. 4th 1461, 1468; Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969.

5. The Defendant’s motion is DENIED as the material facts proffered do not establish that (a) Manson had

completed the work prior to 3/29/15, when Plaintiff s incident occurred (b) or that the City finally accepted

the work. Triable issues of fact remain.

Defendant asserts by way of the Declaration of Atkinson, who claims, without evidence, foundation, or established personal knowledge, that Manson “completed all of their construction work by January 2014.” Plaintiff’s objections thereto have merit.

Regardless, Plaintiff disputes this contention that the work was “completed” with evidence that the work was only “substantially completed” by the end of January 2014. The Port of Long Beach’s Legislation Text indicates that the Board’s potential action was to “approve substantial completion” of the work as of 1/27/14. RJN, Ex. A, page 1 of Legislation Text.

Defendant’s Reply brief attaches the Deposition of Cesar Larios, the PMK for Defendant City of Long Beach, who confirmed that when the contractor states that the work was substantially complete, he will issue a punch list, which is rechecked and closed out before final acceptance of the project. Reply Ex A, 69: 3-11. Fact 5 is not proved by the inadmissible declaration of Atkinson.

Fact 6 is also not proved by Mr. Atkinson’s inadmissible declaration, for the proposition that Manson’s work was “accepted” by the City. Plaintiff’s objections thereto have merit. Furthermore, the issue is “final acceptance” of completed work. Fact 6 is not proved.

Fact 11, which also concludes that Manson’s work was completed and accepted prior to Plaintiff’s incident is also not proved by Mr. Atkinson’s inadmissible Declaration.

6. To the extent Manson is arguing that it has no liability for a “patent” defect that is open and obvious, the

argument is unavailing.

Defendant may not have a duty to warn of an open and obvious condition, but it still has a duty to remedy the condition. Martinez v. Chippewa Enterprises, Inc., (2004) 121 Cal. App. 4th 1179, 1184.

Moving party is ordered to give notice.