Case Number: BC491599    Hearing Date: August 12, 2014    Dept: 91

The Motion of Defendant, County of Los Angeles for Order Granting Summary Judgment on Plaintiff’s Complaint, filed on 5/28/14 is GRANTED. Defendant has established, based on the undisputed material facts proffered, that it is entitled to judgment in its favor. Cal Code Civ Procedure § 437c(p)(2).

To establish a claim for negligence and premises liability based on the existence of a dangerous condition of public property, Plaintiff must establish that a dangerous condition existed that created a foreseeable risk of injury, that the condition caused injury, and that 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 v. City of El Cajon, 113 Cal. App. 4th 434, 439 (Cal. App. 4th Dist. 2003), Gov Code § 835.

Contrary to Plaintiff’s argument, Defendant can move for summary judgment based on the contention that there is an absence of evidence to sustain Plaintiff’s prima facie case. Defendant must make an affirmative showing by way of direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. That showing is sufficient to shift the burden of proof to Plaintiff to demonstrate that there are triable issues of fact.
Hagen v. Hickenbottom, 41 Cal. App. 4th 168, 186 (Cal. App. 6th Dist. 1995).

Defendant relies on Plaintiff’s deposition testimony all of which is undisputed. Plaintiff testified that she stepped on a loose cement square that moved high enough to catch her left foot, causing her to fall. While this fact is undisputed (UF 7) it cannot be said as a matter of law that the condition is not dangerous. Defendant does not proffer an expert opinion stating that the defect is trivial. Even if the issue is one for a lay person to determine, reasonable minds could differ that the condition created “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).

However, the motion is GRANTED because Defendant has established that Plaintiff lacks evidence to establish that Defendant had actual or constructive notice of the dangerous condition, which is an essential element.

Where Plaintiff’s discovery responses are “factually devoid,” the burden shifts to Plaintiff to demonstrate that triable issues of fact exist. Chaknova v. Wilbur-Ellis Co., 69 Cal. App. 4th 962, 974 (Cal. App. 1st Dist. 1999). Defendant served Special Interrogatories on Plaintiff on the issue of notice. While Plaintiff’s responses maintain that Defendant knew or should have known of the existence of the dangerous condition, Plaintiff did not cite to any facts. She stated that “discovery is continuing.” Defendant’s Ex. 4, 2:18 – 3:4. In response to Interrogatory 7, Plaintiff responded that she did not know how many other trip and fall accidents occurred before the incident in which she was injured.

Plaintiff’s lack of evidence to establish notice is asserted at UF 11. Plaintiff states “the information is known to Defendants,” which is insufficient to create a triable issue of fact. Plaintiff’s burden is to “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” CCP § 437c(p)(2). See UF 11 and evidence cited therein.