Filed 5/27/20 Brown v. County of L.A. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

MARVIN BROWN,

Plaintiff and Appellant,

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

B292053

(Los Angeles County
Super. Ct. No.BC624464)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed.

Keiter Appellate Law, Mitchell Keiter for Plaintiff and Appellant.

Thomas Law Firm, Allen L. Thomas for Defendant and Respondent.

INTRODUCTION

Plaintiff Marvin Brown fell after stepping into a hole in the grassy parkway in front of his home. He sued defendant County of Los Angeles (the County), alleging that his injuries resulted from a dangerous condition of public property, caused by the County’s removal of a tree and failure to properly fill the resulting hole in the parkway. The trial court granted the County’s motion for summary judgment, concluding that plaintiff failed to present sufficient evidence that the County either created the dangerous condition or had notice of it. Plaintiff contends the court erred in excluding certain evidence that, if considered, would have established a triable issue of material fact. Finding no error, we affirm.

FACTUAL AND PROCEDURAL HISTORY

I. Background

Plaintiff lived with his mother in her home in an unincorporated part of Los Angeles County. In June 2012, plaintiff contacted the County Department of Public Works (DPW) to request removal of a tree planted in the parkway (the grassy area between the sidewalk and the curb) in front of the home, because the tree was leaning toward the street. Two DPW workers, Reynaldo Hernandez and Jose Cortes, removed the tree on July 3, 2012, then removed the stump on August 28, 2012. DPW procedure and practice dictated the following steps upon removal of a tree stump: (1) grinding the stump into wood chips; (2) placing wood chips and dirt into the resulting hole, using shovels, boots, and the stump cutter to tamp down the chips and dirt; and (3) placing a mound of chips and dirt approximately one-half to one inch above ground level.

At some point after the tree was removed, a depression developed in the parkway where the tree had stood. Around 9:00 p.m. on August 8, 2015, plaintiff was walking to the curb in front of his home. As he crossed the parkway, he attempted to walk around the depression, but instead stepped into it with one foot, lost his balance, and fell into the street.

Plaintiff sued the County and the City of Los Angeles in June 2016. He alleged causes of action for negligence and premises liability –a dangerous condition of public property. He alleged that defendants removed a tree from his property leaving “a large hole which was covered with grass,” he “stepped in the hole causing him to trip and fall,” and he sustained injuries. He further alleged that defendants created the dangerous condition to the property that caused his fall, and had notice of the existence of the dangerous condition in sufficient time to have corrected it. The City was dismissed in 2017.

II. Summary Judgment

A. Defendant’s motion
B.
The County moved for summary judgment in January 2018. It argued that there was no dangerous condition, as the “slight depression” present in the parkway at the time of the accident was trivial and insignificant. Additionally, the County argued that it had no notice of any dangerous condition prior to plaintiff’s injury.

In support of its motion, the County presented evidence that there was no hole immediately after the tree removal, including declarations from Hernandez and Cortes stating that after removing the tree, they followed their usual practice and procedure of backfilling the hole with wood chips and dirt, leaving a solid mound one-half to one inch above ground level. The County also presented evidence that in the three years between removal and the accident, no one had complained about a low spot or hole in the parkway. Its evidence included deposition testimony from plaintiff, his mother, and his sister admitting as much.

Although the County disputed the size and dangerousness of the purported hole, the parties appeared to agree that at the time of plaintiff’s fall, there was some sort of depression where the tree had been, there were no longer any wood chips present, and there was grass growing in that spot. Indeed, both Hernandez and Cortes stated in their declarations that they had reviewed a photograph of the parkway taken after the accident that showed the area “without any chips and dirt,” which was not how they had left the site after removing the tree in 2012. Plaintiff’s mother testified at her deposition that she was aware that there was a hole after the tree was removed, but she did not specify when the hole developed. Plaintiff’s sister testified that immediately following the tree removal the dirt in the hole was level with the parkway. At some point a “low spot” developed, but she did not know when. Plaintiff’s niece testified that she knew about the “dip” in the parkway before the accident, and that it was common knowledge to everyone who lived in the residence.

B. Opposition and Reply

In his opposition to the County’s motion for summary judgment, plaintiff argued that there were triable issues of fact as to whether the hole in the parkway was a dangerous condition and whether the County either created the condition or had sufficient notice of it. To dispute the County’s contention that it properly filled the hole in 2012, plaintiff submitted an excerpt from his deposition in which he acknowledged seeing wood chips and dirt in the hole when he first noticed the stump had been removed, but stated that they were below the level of the parkway. He also submitted deposition testimony from Cortes, in which Cortes stated that when filling in a hole after tree removal, he always made sure to leave enough of a mound above the ground “so that when it sinks, it becomes level.”

Plaintiff also submitted the declaration of his expert witness, engineer Mark Burns. Burns opined that DPW’s placement of wood chips and dirt into the hole upon removing the tree “would have created an adequate walking surface for some time after its installation, however, woodchips and dirt become displaced and compacted over time due to weathering and environmental conditions.” Burns referenced a Google Maps image, attached to his declaration, purportedly showing a street view of the front of plaintiff’s home and the parkway as of September 2014. According to Burns, the image demonstrated that in 2014, two years after the removal of the tree and a year prior to the accident, grass had grown over the hole and there was “no sign of woodchips or dirt.”

Burns also opined that plaintiff’s description of the hole as about two and a half feet wide and 18 to 20 inches deep was “consistent with the decomposition and displacement of the woodchips and dirt that the County claims they placed.” He concluded that the hole was a dangerous condition at the time of the accident based on its size and depth and because it was “disguised” by grass growing over it. Burns attached several photos, purportedly taken after the incident, showing a person standing in a depression surrounded by brown grass. In its reply, the County raised multiple objections to the Burns declaration and its accompanying photographs.

C. Trial court’s ruling
D.
At the hearing on the motion for summary judgment, the court issued a written tentative ruling granting the motion. In its tentative ruling, the court sustained all but four of the County’s 21 objections to the Burns declaration. We discuss the relevant objections further below. Turning to the merits, the court rejected the County’s argument that the hole was trivial, finding a triable issue of material fact as to the existence of a dangerous condition on the parkway.

Next, the court considered the County’s argument that it did not create the dangerous condition and did not have notice of it prior to the accident. Citing the County’s evidence that Hernandez and Cortes placed a mound of wood chips and dirt after they removed the tree in 2012, the court found it undisputed that the County did not create the hole in 2012. The court also found that plaintiff raised no argument that the County had actual notice of the hole.

As to constructive notice, the court noted that plaintiff’s expert had stated in his declaration that the dirt and wood chips would be expected to disperse or depress over time. Plaintiff relied on this statement as evidence that the County “should have known a hole would inevitably occur in this location.” However, the court found that “[a]dvance knowledge that a defect may someday exist, without more, is insufficient.” Instead, there was “no admissible evidence as to the length of time that the hole has existed. Plaintiff attempts to submit a photo from Google Maps showing the hole in September 2014 . . . but the Court has sustained the objections to such evidence, on the ground there has been no authentication of or foundation for the image.” Further, plaintiff presented no other evidence of when the hole came into existence, “other than that it existed at some point before the incident.” As such, the court concluded plaintiff had submitted insufficient evidence to support a finding that the County had constructive notice of the hole.

Responding to the issue of constructive notice at oral argument, plaintiff’s counsel cited to deposition testimony by plaintiff that he first learned of the hole “approximately maybe a year before” the accident, and it therefore must have existed at least that long. He also argued that DPW knew at the time of the tree removal that it was possible that the hole would form over time, due to the wood chips and dirt sinking.

The court adopted its tentative ruling as the final order, granting the motion for summary judgment. The court entered judgment for the County, and plaintiff timely appealed.

DISCUSSION

Plaintiff contends the trial court erred in granting the County’s motion for summary judgment. He argues that the trial court should not have sustained the County’s objections to the 2014 Google Maps image and his expert’s declaration. Even without that evidence, he claims he raised a triable issue of fact as to the County’s constructive notice of the hole in the parkway. We find no error.

I. Legal Standards
J.
We review the trial court’s summary judgment ruling de novo. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) We interpret the evidence in the light most favorable to plaintiff as the nonmoving party, and resolve all doubts about the propriety of granting the motion in his favor. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 206.) We consider all the evidence before the trial court except that to which objections were made and properly sustained. (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1451–1452.)

A defendant moving for summary judgment must make a prima facie showing that there are no triable issues of fact in order to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861; see also Code Civ. Proc. § 437c, subd. (c).) Once the defendant has met that burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of material fact exists. (Id. at p. 850.) The opposing party must make that showing with admissible evidence. (§ 437c, subd. (d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 [“Only admissible evidence is liberally construed in deciding whether there is a triable issue.”]; accord, Esparza v. Safeway, Inc. (2019) 36 Cal.App. 5th 42, 57; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 846.)

“We review the trial court’s evidentiary rulings made in connection with a summary judgment motion for abuse of discretion.” (Mitchell v. United National Ins. Co. (2005) 127 Cal.App. 4th 457, 467.) As the party challenging the trial court’s evidentiary rulings, plaintiff has the burden to establish such an abuse, which we will find only if the trial court’s order exceeds the bounds of reason. (DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)

II. Plaintiff Submitted Insufficient Evidence of Notice

“A public entity may be liable for negligently creating an injury-producing dangerous condition of its property or for failing to remedy a dangerous condition despite having had notice and sufficient time to protect against it. (§ 835, subd. (a).)” (Wyckoff v. State (2001) 90 Cal.App.4th 45, 52.) In this appeal, plaintiff does not challenge the trial court’s finding that the County did not create the hole at the time of the tree removal and did not have actual notice of its existence. Rather, he focuses on constructive notice, and contends he introduced evidence to raise a triable issue of fact that the County had such notice prior to his fall.

To establish constructive notice under section 835.2, subdivision (b), a plaintiff must show that the dangerous 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 and its dangerous character.” (§ 835.2, subd. (b).) The plaintiff must satisfy both required elements—that the dangerous condition was obvious and that it existed for a sufficient period of time—to establish a claim of constructive notice. (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317, citing State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400.) Applying this framework, we conclude that the trial court did not abuse its discretion in excluding plaintiff’s evidence. Moreover, even considering that evidence, plaintiff failed to establish constructive notice as a matter of law.

A. Google Maps photo
B.
Plaintiff contends the trial court erred in refusing to consider the Google Maps Street View photo, purportedly showing the parkway in 2014, as evidence that the hole existed for at least a year prior to his accident. The photo was submitted as an exhibit to Burns’s declaration; he did not authenticate it, simply referring to “Google Street View Images of the area from September 2014 (attached hereto as Exhibit ‘E’).”

The court sustained the County’s objections that the photograph lacked foundation or authentication. Plaintiff does not dispute these points, but argues that the photograph was nevertheless admissible to oppose summary judgment as long as the evidentiary shortcomings were “potentially curable,” citing Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 (Sweetwater). We are not persuaded that Sweetwater applies here.

In Sweetwater, our Supreme Court considered the “narrow question” of “what kind of evidence a court may consider in ruling on a pretrial anti-SLAPP motion[ ] in determining a plaintiff’s probability of success.” (Id. at p. 937.) The court held that testimony under oath from a grand jury proceeding in another case was “at least as reliable as an affidavit or declaration.” (Id. at pp. 941, 943.) The court noted that the anti-SLAPP statute expressly allows consideration of affidavits and declarations as an exception to the hearsay rule for purposes of a special motion to strike. (Id. at p. 942.) Because of similar indicia of reliability, the court concluded that the grand jury transcript could be considered, despite the defendants’ hearsay objection. (Id. at pp. 942-943 [“It would not serve the purposes of the SLAPP Act to preclude consideration of testimony made under oath. This sworn testimony is at least as reliable as an affidavit or declaration.”].)

Although the court’s ruling in Sweetwater concerned evidence offered in opposition to an anti-SLAPP motion, the court stated that the statute governing summary judgment motions “reflects a similar understanding of the role played by affidavits and declarations.” (Sweetwater, supra, 6 Cal.5th at p. 945.) The court also overruled Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, which considered the admissibility of prior deposition testimony in the context of a summary judgment motion. (Sweetwater, at p. 944, fn. 8.) Gatton excluded excerpts from depositions in another case because the plaintiffs failed to satisfy the requirements of the former testimony hearsay exception. (Evid. Code, § 1292.) The Sweetwater court disagreed, finding that in the context of pre-trial motions, reliability stems not from the parameters of the hearsay rule, but “from the oath-taking procedures required for affidavits, or the execution under penalty of California perjury laws required by declarations.” (Sweetwater, supra, 6 Cal.5th at p. 944.)

The court acknowledged “important differences” between anti-SLAPP and summary judgment motions, including that “an anti-SLAPP motion is filed much earlier and before discovery.” (Sweetwater, supra, 6 Cal.5th at p. 945.) However, the court continued, “to the extent both schemes are designed to determine whether a suit should be allowed to move forward, both schemes should require a showing based on evidence potentially admissible at trial presented in the proper form.” (Ibid.)

Here, plaintiff seeks to apply the reasoning of Sweetwater to his submission of a Google Maps image lacking authentication or foundation. He argues that because these defects could be curable and the image “may be admissible at trial,” the trial court should have considered it in opposition to summary judgment. We are not persuaded that Sweetwater’s reference to summary judgment proceedings can be read so broadly, especially outside the context of reliable evidence such as declarations and affidavits made under oath. Notably, here plaintiff made no attempt to authenticate or provide foundation for the image, and did not respond to the County’s objections or the court’s tentative ruling on this issue. (Sweetwater, supra, 6 Cal.5th at p. 949 [“If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable”].) Under these circumstances, we decline to extend the reasoning of Sweetwater to cover such glaring evidentiary shortcomings. Thus, it was not an abuse of discretion for the trial court to refuse to consider the Google Maps image as part of plaintiff’s opposition.

Even if the court had considered the image, we are not convinced by plaintiff’s argument that it was relevant to show the existence of a hole in the parkway as of September 2014. The image, captured from the street, shows the parkway covered in grass and, at most, a partial circular outline marking the outer boundaries of the area in question. It does not, however, show a hole or depression, and certainly not an obvious one as required for a claim under section 835. Plaintiff offered no other evidence to support the inference that there was an obvious dangerous condition as of September 2014. Indeed, plaintiff’s own expert suggested that the hole was dangerous precisely because it was “disguised by the grass growing over it.”

C. Expert Evidence
D.
Plaintiff also asserts that the trial court erred in sustaining the County’s objections to several paragraphs of Burns’s declaration and subsequently concluding that plaintiff failed to establish a triable issue of fact as to constructive notice.

A qualified expert may testify to an opinion on a subject “that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); see also Bozzi v. Nordstrom, Inc., supra 186 Cal.App.4th at p. 761.) But an expert “does not possess a carte blanche to express any opinion within the area of expertise.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) Thus, “an expert’s opinion based on assumptions of fact without evidentiary support, or on speculative or conjectural factors, has no evidentiary value and may be excluded.” (Ibid.) Similarly, “an expert’s conclusory opinion that something did occur, when unaccompanied by a reasoned explanation illuminating how the expert employed his or her superior knowledge and training to connect the facts with the ultimate conclusion, does not assist the jury . . . to determine what occurred, but instead supplants the jury by declaring what occurred.” (Ibid.; see also Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523–525 [an “expert opinion is worth no more than the reasons upon which it rests”]; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [“The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed”].)

Here, the trial court struck Burns’s opinion that “woodchips and dirt become displaced and compacted over time due to weathering and environmental conditions. As such, over time, woodchips and dirt would be displaced and the hole where the tree was removed will continue to exist.” Burns stated no facts to support his opinion, and the opinion itself was conclusory and speculative. He provided no further explanation to support his conclusion regarding displacement in general, or in this particular case. Nor did he elaborate on his definition of “over time” so as to support the existence of a hole sufficiently in advance of plaintiff’s fall to provide constructive notice. As such, it was not an abuse of discretion to exclude this portion of Burns’s declaration.

Despite properly sustaining the County’s objections, the trial court appeared to consider this portion of Burns’s declaration, but concluded it was not sufficient to establish a triable issue of fact as to constructive notice. Plaintiff contends this was error, and that the court improperly focused solely on the condition of the parkway at the time the tree was removed, ignoring his evidence that a hole was inevitable and foreseeable.

This argument is not supported by the record. Instead, the court properly analyzed whether plaintiff established his constructive notice claim under section 835.2, subdivision (b), requiring that the dangerous 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 and its dangerous character.” Plaintiff presented no evidence that the hole was obvious or when it came into existence prior to his fall. None of the deposition excerpts submitted from the multiple occupants of plaintiff’s residence suggested any time frame for the development of the hole. Further, Burns’s opinion that wood chips and dirt would become displaced “over time,” even if considered, does not establish when such displacement occurred. Similarly, the deposition testimony by Cortes acknowledging that some settling was expected does not show that the hole was obvious or establish when it developed.

Finally, plaintiff’s citation to cases such as Fackrell v. City of San Diego (1945) 26 Cal.2d 196 (Fackrell) and Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 834 (Brown) does not rectify these evidentiary shortcomings. Plaintiff argues that these cases support a finding of constructive notice where the public entity “had advance notice of a probable future danger.” This argument improperly conflates the requirements under section 835, subdivision (a) with section 835, subdivision (b). Brown considered liability for a dangerous condition negligently created by an employee under section 835, subdivision (a). (Brown, supra, 4 Cal.4th at p. 834.) Although Fackrell, supra, 26 Cal.2d 196, predated section 835, the court in Brown noted that Fackrell applied the same rule, that where a public employee creates a dangerous condition, the entity is presumed to have notice of that condition. (Brown, supra, 4 Cal.4th at p. 834 [“Fackrell . . . applied the ‘well established’ rule that a public agency was presumed to have notice of a dangerous condition of property that was the ‘natural and probable consequence’ of the entity’s own work”].) The requirements for constructive notice, pursuant to section 835, subdivision (b), are separate and specified in the statute. Plaintiff cannot rely on language regarding foreseeability that is relevant to subdivision (a) in order to establish constructive notice under subdivision (b).

Thus, we conclude that the trial court did not abuse its discretion in excluding plaintiff’s evidence. The County’s motion for summary judgment was properly granted.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, ACTING P.J.

CURREY, J.