Case Number: BC663274 Hearing Date: October 17, 2018 Dept: 2

Motion for Summary Judgment by Defendant, City of Beverly Hills (“City”), filed on 8/1/18, is DENIED. Defendant has not met its burden of proving it is entitled to judgment on the entire complaint based on the material facts proffered. Cal. Code Civ. Proc. 437c(p)(2).

Plaintiff’s Objections

Declaration of Dianna Manukyan, Defendant’s counsel. #1-4. Sustained.

Declaration of Sharon L’Heureux Dressel, City’s Interim Risk Manager. #5-10. Overruled.

Defendant’s objections.

Declaration of Plaintiff, Eran Shine. Sustained.

Declaration of Brad Avrit.

The Court need only rule on objections that are material to its disposition. Code Civ. Proc., § 437c(q). The declaration of Mr. Avrit was not material to the disposition, because Defendant did not meet its threshold burden based on the material facts proffered in the first instance.

Plaintiff’s Request for Judicial Notice is GRANTED. Evidence Code § 452(b).

To state a claim for dangerous condition of public property pursuant to Gov Code § 835, Plaintiff must prove the existence of a dangerous condition (among other elements). Brenner v. City of El Cajon (2003) 113 Cal. App. 4th 434, 439; Cal. Gov. Code § 835.

A “dangerous condition” is defined 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.” Cal. Gov. Code § 830(a).

Whether a condition is dangerous is a question of fact unless the court determines that no reasonable person would conclude the condition created a substantial risk of injury when used with due care in a reasonably foreseeable way after considering the evidence most favorably to the Plaintiff. Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1344.

The undisputed facts establish that Plaintiff hit his head on signage that included an “All Way” sign affixed to the bottom of a “Stop” sign. UF 2. Plaintiff was standing next to the sign, bent down, and then struck the top of his head on the signage. UF 4.

If the property creates a substantial risk to any foreseeable user who uses it with due care, then a dangerous condition exists. Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.

The property is not in a dangerous condition if it can be shown that the property is safe when used with due care, and a risk of harm is created only when foreseeable users fail to exercise due care. Id.

Defendant argues that Plaintiff was not exercising due care since he was aware of the signage and hit his head although the sign was obvious. Defendant argues that Plaintiff was not using due care since he was injured, that he was aware of the pole, and had seen the sign on numerous days, among other things. Motion 7:3-8.

However, as Defendant’s case authority makes clear, the fact that Plaintiff may not have used due care is relevant only to his comparative fault, and not to the issue of whether a dangerous condition was present. Fredette at 130–131.

The question of whether the condition of property posed a substantial risk of injury to foreseeable users exercising due care is an “objective standard and is measured by the risk posed to an ordinarily foreseeable user.” Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 992. Plaintiff does not have to prove he was using the property with due care. Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1347

Defendant has not met its burden of establishing that the condition of property did not pose a substantial risk of injury to foreseeable users exercising due care. Defendant focuses on Plaintiff’s conduct and awareness of the sign which is irrelevant since the court applies an objective standard. Facts 4 – 10.

Defendant claims their failure to comply with the MUTCD is irrelevant, since negligence is not at issue. Motion 7:24. However, the lack of required height clearance is relevant to whether the condition of property posed a substantial risk of injury to foreseeable users exercising due care.

None of Defendant’s material facts consider the height of the sign and the amount of clearance to the ground and whether that clearance is still safe for pedestrians using the property with due care. Property is not in a dangerous condition if it can be shown that the property is safe when used with due care, and a risk of harm is created only when foreseeable users fail to exercise due care. Fredette at 131. Defendant does not provide evidence of this.

Defendant’s reliance on the lack of prior similar incidents involving contact with the sign is not dispositive in determining the character of the property.

Absence of other similar accidents is not dispositive of whether a condition is dangerous, nor does it establish a finding of “nondangerousness” absent other evidence. Lane v. City of Sacramento (2010) 183 Cal. App. 4th 1337, 1346.

Thus, the fact that the City found no claims or lawsuits concerning the stop sign’s height is insufficient to establish that the signage was not in a dangerous condition.

The evidence is insufficient to establish the absence of a dangerous condition. For the foregoing reasons, the evidence does not “warrant only one conclusion” or that “no reasonable person would conclude” that the condition did not create a substantial risk of injury when used with due care.

Plaintiff has no obligation to create a triable issue if Defendant fails to meet its threshold burden. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. If Defendant does not meet this burden, summary judgment must be denied even if Plaintiff’s response is defective. Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal. App. 3d 52, 58.

The loss of consortium claim by Plaintiff, Khristine Shine, remains viable, since the claim is based on Mr. Shine’s negligence claim, which remains viable. The loss of consortium cause of action is dependent on the existence on the spouse’s claim. Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 746.

Moving party is ordered to give notice.