Case Name: Margaret Gutierrez v. City of San Jose, et al.
Case No.: 16CV299844

This is a personal injury lawsuit stemming from Plaintiff Margaret Gutierrez’s trip and fall on February 9, 2016. Plaintiff alleges she tripped and fell after stepping in a grass covered hole in a grass strip near the curb at 604 Genine Court, San Jose while trying to access the passenger door of her car parked at the curb. In her operative First Amended Complaint (“FAC”) filed October 14, 2016 Plaintiff alternatively alleges that the grass strip was either “owned and/or controlled and/or maintained” by Defendant City of San Jose (“City”) or by Defendants Joven & Ederlina Lagdamen (“Lagdamens”) who own/reside at 604 Genine Court. The FAC states two causes of action: 1) Dangerous Condition of Public Property (against the City only) alleging (FAC at 12) that “the portion of the grass road verge of which Plaintiff complains in this action was uneven and had a hole which created a dangerous and unsafe condition on the surface of the road verge,” and 2) Negligence (against the Lagdamens only) alleging (FAC at 27) that in “owning, maintaining, leasing, renting, operating, controlling, repairing, supervising, managing and/or occupying” the property they “failed to reasonable care in to keep the premises in a reasonably safe condition.”

Currently before the Court is the motion for summary judgment (“MSJ”) by the City directed at the first cause of action, the only claim in the FAC alleged against it. Plaintiff does not oppose the motion, only the Lagdamen Defendants do. As an initial matter the Court notes that their opposition, filed May 1, 2019 is untimely, as the deadline for any timely opposition to the MSJ was April 30, 2019. The Court has chosen to exercise its discretion to consider the late-filed opposition.

Motion for Summary Judgment
The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) 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.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that 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 a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) 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.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. Once the defendant has met that 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 a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

The opposing party may be bound by admissions made in deposition testimony or responses to written discovery. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [“Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’”]) An opposing party will sometimes rely on circumstantial evidence and/or inferences arising from declarations or other evidence. To defeat summary judgment such inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”])

Dangerous Condition of Public Property
“A public entity is not liable for an injury arising out of the alleged act or omission of the entity except as provided by statute.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 438 [“Brenner”].) Government Code §835 is the “statutory basis for a claim imposing liability on a public entity based on the condition of public property.” (Id.) To establish a claim against a public entity under §835, a plaintiff must pled and prove: “(1) a dangerous condition existed on the public property at the time of the injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive notice of the dangerous condition of the property in sufficient time to have taken measures to protect against it.” (Brenner, supra, at p. 439, emphasis added; see also Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1455.)

“The term dangerous condition is statutorily defined [in Gov. Code §830.2] as a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used…. As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts…. Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion.” (Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1069-1070, internal citations omitted, brackets added.) The “dangerous condition” must be a physical condition of the property. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1135.)

Actual and constructive notice are defined in Government Code §835.2. Subdivision (a) states that a public entity has “actual notice” of a dangerous condition “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(b) states that 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 car, should have discovered the condition and its dangerous character.”

The City’s MSJ is GRANTED as follows:

The City has established through admissible evidence (the City’s exhibits 1-4) that there is no evidence that it had either actual or constructive notice of the “hole” that caused Plaintiff’s injury prior to February 9, 2016, meaning an essential element of the only claim alleged against it cannot be established. The Lagdamens do not dispute this. (See City’s undisputed material facts 3, 6, 7, 8 & 9, all undisputed by the Lagdamens.)

In their opposition the Lagdamens argue that there is factual dispute as to where Plaintiff fell and who owns/controls the “grass road verge” where Plaintiff allegedly tripped and fell, themselves or the City, but this is not a “material” fact sufficient to defeat the City’s motion. To be material for summary judgment purposes, a fact must relate to some claim or defense in issue under the pleadings. Also it must be in some way essential to the judgment; i.e., if proved, it could change the outcome of the case. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470.) Here, even if it is assumed for purposes of argument that the City does own/control the “grass road verge” (the only location of a dangerous condition alleged in the FAC), without any evidence that the City had actual or constructive notice of the condition the City cannot be liable to Plaintiff on her claim for dangerous condition of public property, the only claim alleged against the City. “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice. Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.)