Case Name: Gail Ann Erwin v. City of Milpitas, et al.
Case No.: 17CV311865

I. Background

Plaintiff Gail Ann Erwin (“Plaintiff”) was walking when she tripped and fell on the sidewalk in front of 2391 Cresthaven Street in Milpitas, California. She filed a complaint asserting a single cause of action for premises liability against homeowners Vamsi Tatapudi and Suryakanthi Suravarapu (collectively, “Homeowners”), property manager Realmanage, LLC (“Manager”), and the City of Milpitas (the “City”). Homeowners then filed a cross-complaint against the City and Manager for indemnity and contribution. Currently before the Court is the City’s motion for summary judgment of Plaintiff’s premises-liability action and Homeowners’ cross-action, which is accompanied by a request for judicial notice.

II. Legal Standard

A defendant or cross-defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) The moving party bears the initial burden of proving “a cause of action has no merit [by] show[ing] that 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 the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the moving party must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Request for Judicial Notice

The City requests judicial notice of “the fact that” Plaintiff filed a complaint containing a single cause of action for premises liability and Homeowners filed a cross-complaint for indemnity and contribution. (Req. for Jud. Not. at p. 2:12–17.) A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, the Court necessarily must consider the pleadings because they frame the issues for the purpose of the motion for summary judgment. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382.) Because the Court necessarily must consider the pleadings and the fact of the claims asserted therein, judicial notice of those matters is unnecessary. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Consequently, the City’s request for judicial notice is DENIED.

IV. Merits of Motion

A. Plaintiff’s Premises-Liability Action

Premises liability is simply a species of negligence. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529–30.) Government Code section 835 establishes the circumstances when a public entity may be held liable for injuries resulting from a dangerous condition on its premises. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) Under that statute, the public entity may be held liable “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, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred….” (Gov. Code, § 835.) Additionally, a plaintiff must establish “either: (a) [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 (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subds. (a)–(b).)

The City argues Plaintiff cannot establish the prerequisites for liability under Government Code section 835 because it did not create the dangerous condition on the public sidewalk and did not have notice of the condition. In opposition, Plaintiff does not address this first argument and states the sole issue raised by the City is whether it had notice of the sidewalk variance.

Turning to the City’s first supporting argument—which appears to be based on Government Code section 835, subdivision (a)—it states (without more) it “neither constructed the sidewalk nor created the variance.” (Mem. of Pts. & Auth. at p. 9:1.) In support, it seems to rely on the undisputed testimony of Tony Ndah, Director of Public Works, who states “the City did not build or construct the sidewalk at issue….” (Ndah Decl., ¶ 3.) Although Plaintiff does not dispute this fact or address this argument, the Court observes the testimony presented solely establishes the City did not construct the sidewalk and does not necessarily establish the variance, which might have arisen after the sidewalk was first constructed, is not attributable to the City. And so, the evidence does not substantiate the entirety of the City’s argument.

As for whether the City had notice, it is undisputed that the City did not have actual notice. (See Gov. Code, § 835.2, subd. (a).) The undisputed evidence shows it does not regularly inspect its sidewalks and never received any complaint about a defect in the sidewalk at issue. (Sep. Stat., ¶¶ 4, 7–8, 13–16, citing Ndah Decl., ¶¶ 6–8, Murray Decl., Ex. 5, Ndah Dep. at p. 28:12–24.) Nevertheless, the parties dispute whether the City had constructive notice of the sidewalk variance.

Under Government Code section 835.2, subdivision (b), a public entity has constructive notice of a dangerous condition “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.” Admissible evidence pertinent to the issue of due care may include:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

(Gov. Code, § 835.2, subds. (b)(1)–(2); see also Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 303–04.)

The City’s showing relative to the issue of constructive notice is inadequate. It does not analyze the criteria in Government Code section 835.2 or provide a clear explanation of its position. It reiterates that it did not receive complaints about the variance and states “[t]here is no evidence whatsoever that the City had ‘constructive notice’….” (Mem. of Pts. & Auth. at p. 10:5–11.) But as the moving party, the City must do more than simply point out the absence of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854–55.) Additionally, the absence of complaints does not clearly and directly negate the criteria for constructive notice set forth above, particularly in the absence of analysis and authority. The City does not otherwise present evidence showing or even argue that the variance arose too recently or could not have been discovered through the exercise of due care. Thus, the City does not carry its initial burden of showing Plaintiff cannot establish it had constructive notice of the sidewalk variance.

In reaching this conclusion, the Court does not consider the points the City unfairly raises for the first time in its reply. (See Tellez v. Rich Voss Trucking Inc. (2015) 240 Cal.App.4th 1052, 1066.) The City asserts Plaintiff fails to address the obviousness of the defect for the purpose of raising a triable issue of material fact on the subject of constructive notice. But the City’s initial showing is insufficient in the first instance and does not put in issue the obviousness of the defect. And so, this argument is not well-taken. The City also asserts it exercised due care and had no duty to inspect sidewalks. As discussed above, the City entirely neglected to discuss these concepts from Government Code section 835.2 in its memorandum of points and authorities. Thus, Plaintiff has not had an opportunity to respond to these arguments. And, in any event, the City’s discussion of its duty to inspect is underdeveloped and lacks evidentiary support. Accordingly, the Court does not reach a contrary conclusion based on the points in the City’s reply.

B. Homeowners’ Cross-Action for Indemnity and Contribution

The City also moves for summary judgment of Homeowners’ cross-action. Its supporting analysis consists of an assertion that the claims in the cross-complaint are derivative of Plaintiff’s claim and the conclusion that “[i]mmunity is immunity.” (Mem. of Pts. & Auth. at p. 10:14–18.) It is insufficient to merely assert a point without providing authority and analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85.) Thus, this conclusory presentation is wholly inadequate to establish the City is not required to indemnify or contribute sums to Homeowners. Moreover, the Court has not concluded the City is immune from liability. Accordingly, the City fails to carry its initial burden of demonstrating Homeowners’ cross-action lacks merit.

C. Conclusion

For the reasons set forth above, the City does not carry its initial burden of demonstrating Plaintiff’s action and Homeowners’ cross-action lack merit. Consequently, the motion for summary judgment is DENIED.

The Court will prepare the order.