Filed 1/14/20 Littlejohn v. City and County of San Francisco CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE
LARRY LITTLEJOHN,

Plaintiff and Appellant,

v.

CITY AND COUNTY OF

SAN FRANCISCO,

Defendant and Respondent.

A154446

(City & County of San Francisco

Super. Ct. No. CGC-16-550587)

Larry Littlejohn sued the City and County of San Francisco (the City) for injuries sustained when he slipped and fell on mud and wet cardboard on the sidewalk. The trial court granted summary judgment, ruling (1) the City established it was not on notice of the alleged hazardous condition; and (2) Littlejohn failed to produce competent evidence raising a triable issue of fact regarding the lack of notice. We affirm.

BACKGROUND

In January 2016, Littlejohn slipped and fell on a City sidewalk. He sued the City to recover damages for his injuries. He claimed a dangerous accumulation of mud and wet cardboard caused his fall.

The City moved for summary judgment on the ground it had neither constructive nor actual notice of the sidewalk debris. In support, it submitted evidence that it responds to citizen complaints about conditions on the sidewalks. The City received no complaints about mud or cardboard on the sidewalk where Littlejohn fell and had no actual notice of the condition before Littlejohn’s fall.

Littlejohn disputed the City’s claimed lack of notice. A declaration by his attorney stated that E.P., a passerby who took photographs of the scene immediately after the accident, told him she had seen wet, muddy cardboard on the sidewalk at least three days earlier. E.P. also said she saw a “city cleanup truck” in the area a day or two before the accident and warned the driver the City should remove the debris before someone “busts themselves up.”

Littlejohn submitted an unsigned declaration from E.P. relating this information, as well as E.P.’s photograph of Littlejohn lying on the ground near the debris just after his fall. Littlejohn’s attorney attested he made diligent but unsuccessful efforts to obtain E.P.’s signed declaration or deposition testimony and would be able to do so if granted a continuance. Littlejohn’s investigator provided a further declaration describing his efforts.

In addition, Littlejohn asked the court to take judicial notice of rainfall records for San Francisco for the nine days preceding his fall. He argued that those records, together with the photograph of the scene, supported a reasonable inference the cardboard and mud had been present for at least a week so that the City was on constructive notice of the hazard.

The summary judgment motion came on for hearing on August 31, 2017. The court continued the matter for two months until November 1, 2017, so Littlejohn could “get [E.P.’s] evidence in some form. Whether it be by deposition or by declaration for this motion. It seems only reasonable given that these interrogatory responses completely depend upon [E.P.] being able to provide the evidence you think she will be able to provide.” On October 23, Littlejohn’s attorney submitted a supplemental opposition requesting a second continuance and describing his unsuccessful efforts to procure E.P.’s declaration or subpoena her for deposition. Littlejohn’s investigators had tracked her down to a resident woman’s shelter, but the shelter’s manager and supervisor refused to speak with them or accept service for E.P.

The court continued the summary judgment hearing an additional month, to December 1, 2017, a week before the trial date, and gave Littlejohn until November 29 to obtain and file E.P’s. declaration. The court’s order specified that no further continuances would be granted absent extraordinary unanticipated circumstances.

On December 1, 2017, Littlejohn’s counsel conceded he had been unable to contact E.P. The court granted summary judgment. Littlejohn filed this timely appeal from the ensuing judgment.

DISCUSSION

Littlejohn contends the City failed to show he could not reasonably obtain evidence sufficient to raise a triable issue of fact as to constructive notice, because “there is no question that [E.P.] exists and what she would testify to.” Alternatively, he contends that even without E.P.’s testimony a jury could conclude from the photographs and weather records that the mud and cardboard had been on the sidewalk for three to five days or more, thus long enough to impart constructive notice. We disagree.

I. Legal Standards

A. Constructive Notice

To prove a public entity had constructive notice of a dangerous condition, the plaintiff must establish “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.” (Gov. Code § 835.2, subd. (b).) The critical test for proving constructive notice is “whether ‘the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence.’ ” (Strongman v. County of Kern (1967) 255 Cal.App.2d 308, 313.)

Although the notoriety of the condition and the length of time it existed are normally questions of fact for resolution by the jury, they may be resolved as matter of law where the plaintiff’s evidence as to either element is legally insufficient. (Kotronakis v. City & County of San Francisco (1961) 192 Cal.App.2d 624, 629 [jury verdict for plaintiff reversed where there was no evidence the puddle of vomit in which plaintiff slipped had been on the sidewalk longer than overnight]; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318-319, 321 (Heskel) [summary judgment proper where plaintiff failed to provide evidence to rebut the City’s showing the condition was not obvious].) Where the plaintiff fails to present direct or circumstantial evidence as to either element, the claim is deficient as a matter of law. (Heskel, 227 Cal.App.4th at p. 317.)

B. Summary Judgment

“A defendant is entitled to summary judgment on a claim for injury from a dangerous condition as a matter of law when the plaintiff has failed to raise material issues of fact. [Citations.] The defendant establishes a right to summary judgment by showing the plaintiff ‘lacks the evidence to sustain one or more elements of the cause of action.’ [Citation.] The defendant demonstrates the plaintiff lacks evidence by showing the plaintiff bears the burden to prove the specified fact and the plaintiff has ‘no evidence’ with which to carry that burden. [Citation.] [¶] Once the defendant demonstrates the plaintiff’s evidence is deficient, the plaintiff may successfully oppose the motion for summary judgment by showing the evidence permits conflicting inferences as to that fact or by presenting additional evidence of its existence.” (Heskel, 227 Cal.App.4th at p. 318).)

“Section 437c, subdivision (h) provides: ‘If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both 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. Subdivision (h) was added to section 437c ‘ “[t]o mitigate summary judgment’s harshness,” . . . [Citations]’ [Citation] ‘for an opposing party who has not had an opportunity to marshal the evidence[.]’ [Citation.] The statute mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that additional time is needed to obtain facts essential to justify opposition to the motion. [Citations.] Continuance of a summary judgment hearing is not mandatory, however, when no affidavit is submitted or when the submitted affidavit fails to make the necessary showing under section 437c, subdivision (h). [Citations.] Thus, in the absence of an affidavit that requires a continuance under section 437c, subdivision (h), we review the trial court’s denial of appellant’s request for a continuance for abuse of discretion.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 253-254 (Cooksey).)

“This court reviews grants of summary judgment de novo. [Citations.] We view all the evidence set forth in the moving and opposition papers in the light most favorable to the nonmoving party. [Citations.] If there remains no triable issue of fact, we affirm.” (Heskel, supra, 227 Cal.App.4th at p. 318.)

II. Analysis

Littlejohn contends the City failed to negate his ability to prove constructive notice, “because there is no question that [E.P.] exists and what she would testify to.” Accordingly, he argues, the court was required to continue the summary judgment hearing for a third time so he could keep trying procure her testimony. We disagree. “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.] ‘ “To be entitled to a continuance, the party opposing the motion for summary judgment must show that its proposed discovery would have led to “facts essential to justify opposition.” ’ ” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326; Acuńa v. Regents of University of California (1997) 56 Cal.App.4th 639, 648.)

Littlejohn did not make such a showing. True, his evidence indicated E.P. was aware of facts that could defeat summary judgment and that Littlejohn made considerable efforts to obtain her testimony. (See Cooksey, supra, 123 Cal.App.4th at p. 255 [party seeking continuance must show diligence].) But at the same time, Littlejohn’s showing undermined any reasonable likelihood that further efforts would produce the evidence needed to defeat summary judgment. According to the declaration submitted in opposition to summary judgment, E.P. left plaintiff’s counsel’s phone messages and emails unreturned for over a year. Despite her initial agreement to meet, she never followed through. When Littlejohn’s investigator finally succeeded in contacting E.P., after some 50 attempts, on July 8, 2017, she became visibly uncomfortable and refused to sign the statement prepared for her. Subsequently, multiple attempts to track her down and subpoena her testimony were unsuccessful. In short, Littlejohn was unable to procure E.P.’s testimony over the course of some 19 months before the initial summary judgment hearing date or three months after it. No showing was made that he was not allowed “an opportunity to marshal the evidence” (Cooksey, supra, 123 Cal.App.4th at p. 253) or that another continuance would prove fruitful. In these circumstances, the court’s decision to deny a third continuance was within its discretion.

Nor are we persuaded by Littlejohn’s argument that the photograph showing mud and/or debris on the sidewalk (which we have reviewed), along with the slight amount of rainfall in the days preceding his accident, were sufficient to establish constructive notice. He asserts “the cardboard box had to be present for many days to look as it did in the pictures,” but his assertion is unsupported by the photographic or other evidence and is not self-evident. The cases Littlejohn relies on are also of no help to him, as they do not address a potentially transient condition like the debris involved here (see Van Dorn v. City & County of San Francisco (1951) 103 Cal.App.2d 714 [3 to 3 1/2-inch depression along rail tracks within crosswalk]; Wise v. City of Los Angeles (1935) 9 Cal.App.2d 364, 365 [6-inch hole in public street for four or five days]; Fackrell v. City of San Diego (1945) 26 Cal.2d 196 [defective construction of sidewalk caused partial collapse]), and/or involved evidence of a defective condition evident for days before the accident. (Maddern v. City & County of S.F. (1946) 74 Cal.App.2d 742 [testimony roadway cracked days before collapse].) These cases have no bearing on whether the City had constructive notice of minor debris that could have been present for just hours or moments before the accident. Viewing the evidence in the light most favorable to Littlejohn, we must affirm.

DISPOSITION

The judgment is affirmed.

Siggins, P.J.

We concur.

Fujisaki, J.

Petrou, J.

Littlejohn v. City and County of San Francisco / A154446