DE LA CRUZ v. CITY OF PERRIS

No. E064691.

ELIZABETH DE LA CRUZ, Plaintiff and Appellant, v. CITY OF PERRIS, Defendant and Respondent.

Court of Appeals of California, Fourth District, Division Two.


Attorney(s) appearing for the Case

Law Offices of Jacob Emrani, Jacob Emrani , Brett C. Drouet and Timothy P. Mitchell for Plaintiff and Appellant.

Creason & Aarvig, Maria K. Aarvig and Amy J. Osborne for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

MILLER, J.

Plaintiff and appellant Elizabeth De La Cruz appeals the grant of summary judgment in favor of defendant and respondent City of Perris (City).

De La Cruz was walking on the sidewalk on Ruby Drive in Perris when she tripped over a three-inch metal portion of a broken sign post (condition) and broke her arm. De La Cruz filed a single cause of action complaint alleging premises liability. City filed a motion for summary judgment (MSJ). The trial court granted the MSJ.

De La Cruz claims on appeal the MSJ was erroneously granted as there were disputed issues as to whether City had actual or constructive notice of the dangerous condition within the meaning of Government Code sections 835 and 835.2.1 We conclude the MSJ was properly granted.

FACTUAL AND PROCEDURAL HISTORY

A. STATEMENT OF FACTS

De La Cruz lived on Camino Del Sol in Perris for approximately three months prior to the time of the accident. On September 20, 2013, De La Cruz and her boyfriend Carlos Sarigusa Rodriguez took a walk, as they did every night after sunset, to either go to the grocery store or walk their dog. They walked on Ruby Drive, on occasion, on their route. That night, they crossed the street and walked up on the sidewalk on Ruby Drive. Once on the sidewalk, De La Cruz tripped over the condition and fell. She had seen the condition three times on prior walks.

Rodriguez was familiar with the sidewalk along Ruby Drive and had observed the condition no more than 20 days prior to the incident. He never reported the condition to City. De La Cruz had not previously tripped over the condition and had no knowledge of anyone else ever tripping over it.2 City had no reports about the condition until De La Cruz filed her claim. The condition was immediately fixed.

City did not cause the condition by removing the sign post. De La Cruz presented photographs showing the condition was less than three inches in height.

B. PROCEDURAL BACKGROUND

1. COMPLAINT

De La Cruz filed the complaint on May 19, 2014. She alleged one cause of action of premises liability. City filed an answer generally denying the claim.

2. CITY'S MOTION FOR SUMMARY JUDGMENT

City filed the MSJ on May 7, 2015. City alleged that it had no actual or constructive knowledge of the condition prior to De La Cruz alleging she tripped and fell over it.

City alleged that, in order for De La Cruz to prove her one cause of action of dangerous condition of public property premised on a negligence theory, she had to prove the elements under section 835. This included that City owned or controlled the sidewalk, the sidewalk was in a dangerous condition, the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and City had actual or constructive notice of the condition a sufficient amount of time prior to the injury to have taken preventative measures.

City alleged that the condition did not constitute a dangerous condition. Moreover, even if it was a dangerous condition, City was not given actual or constructive notice in time to fix it. Moreover, the subject condition was not obvious. City did not have a formal inspection program for streets and sidewalks in Perris but maintenance workers and employees were instructed to report any maintenance needs seen while working. The condition was never reported to City. No evidence showed how long the sign post was missing.

In support of the MSJ, City attached the declaration of Arturo Garcia.3 He had been the "Public Works Maintenance Crew Leader" for City for seven years. He stated City did not have a "formal sidewalk or sign inspection program, but calls upon all employees to be vigilant for defects and report any dangerous condition." His department never received notice of the condition prior to the claim by De La Cruz. Once the claim was received, the condition was fixed.

City submitted several exhibits. This include responses to interrogatories by De La Cruz. She stated the accident happened between 7:00 and 8:00 p.m. on September 20, 2013. She described the condition as a metal object jutting out of the sidewalk, which appeared to be from an old street sign. She fell on her arm and knee. A photograph of the condition was produced by De La Cruz. It showed the condition was at most two and one-half inches high.

A deposition of De La Cruz was submitted as an exhibit. She did not report the condition to City because she "didn't think nothing of it." She had just crossed the street and walked up on the sidewalk when she tripped. Nighttime close-ups of the condition were submitted at the deposition. A deposition of Rodriquez was also submitted. He had seen the condition at least three times prior to De La Cruz falling and had not reported it to City. He had not seen the sign get taken out and estimated the condition had been present for just the month of September.

An excerpt from the deposition of Garcia was included as an exhibit. Garcia explained that employees called in about defective conditions that needed to be fixed and a work order was prepared. He examined all of the work orders received by his department and there was nothing about the condition. He stated all employees are instructed to be vigilant in identifying dangerous conditions or needed repairs and to report them if seen. He had no record of the sign being removed on Ruby Street. The condition was removed after De La Cruz fell.

3. DE LA CRUZ'S OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT

De La Cruz filed her opposition to the MSJ on July 14, 2015. De La Cruz insisted that City did not have an inspection system, which was required in order to show it exercised due care in discovering the condition within the meaning of section 835.2. De La Cruz alleged that although City claimed that the condition was not a dangerous condition, there was no evidence supporting the claim. City had failed to establish it could not afford a formal inspection system. De La Cruz insisted that section 835.2 required that City have a formal inspection system. De La Cruz also insisted that each Wednesday in September, street sweeping occurred on Ruby Drive. An employee would have passed the condition or the missing sign post. Further, code enforcement officers employed by City drove in front of the street sweeper to issue citations to those illegally parked on the street.

De La Cruz submitted the declaration of Timothy Mitchell.4 He reviewed City's website, which contained information on street sweeping. It provided information that a code enforcement officer accompanies the street sweeper.

De La Cruz submitted several exhibits.5 These included additional excerpts from her deposition, Rodriguez's deposition and Garcia's deposition. Garcia admitted there was no "specific policy" of inspection but every employee was instructed to be vigilant. exhibit No. 10 was a picture of the sidewalk of Ruby Drive from across the street when the sign was still in place.

De La Cruz submitted a separate statement of facts. It included additional facts that the area was dark when the accident occurred. City had no employees living within a one block radius of the condition. The sign removed indicated "No Parking Street Clearing Every Wednesday." De La Cruz fractured her forearm as a result of the fall. There were three Wednesdays, prior to her fall in the period identified, that the sign was missing.

The declaration of Brad Avrit was submitted.6 He was a licensed civil engineer and had investigated numerous trip and fall incidents on sidewalks. Based on his review of photographs, the condition was between two and one-half and three inches tall. He admitted it was "low enough to go easily unnoticed." There were no street lights in the area and no moon on the night De La Cruz fell. Avrit determined it was a dangerous condition.

4. CITY'S REPLY TO DE LA CRUZ'S OPPOSITION

City filed its reply to De La Cruz's opposition on July 16, 2015. City clarified the MSJ was "based upon a lack of notice, not the absence of a dangerous condition." Further, although it did not have a "formal, written policy" it called upon its employees to look for defects and dangerous conditions. It also insisted that the absence of a formal inspection program was irrelevant because De La Cruz failed to demonstrate the condition was of a substantial size that was visible from public thoroughfares. De La Cruz's own expert, Avrit, stated that the condition could go unnoticed. Raising that the lighting was poor was a new claim that could not be raised in the opposition. City objected to evidence submitted by De La Cruz as aforementioned.

5. RULING

The matter was heard on July 24, 2015. De La Cruz additionally argued City had to have an inspection system that had designated inspections of the sidewalks at least every six months or one year. The trial court rejected that there was such a requirement. City argued that the issue was whether the condition was obvious. The court also found statements by Garcia, that he instructed employees orally to be vigilant in their inspections of streets and report dangerous conditions, were inadmissible hearsay but that it was not relying upon an inspection system in its ruling.

The trial court signed the order granting the MSJ on September 25, 2015. It set forth its rulings on the admission of evidence. It then ruled that "The moving papers showed the defendant CITY OF PERRIS had no actual or constructive knowledge of the alleged condition." It further ruled, "The opposition failed to raise a triable issue of fact. The plaintiff failed to show that the condition was so obvious that the defendant, with due care, should have discovered it. There are no photographs or any other evidence produced by the plaintiff showing the visibility of the condition such that the defendant should have become aware of it. Although the plaintiff did present evidence that the condition existed for twenty days prior to the subject incident, there was no evidence that the defendant was actually present near the location within those twenty days, or that had the defendant been present, the defendant would have seen the alleged condition. Further, the plaintiff does not present any evidence or authority that the defendant's inspection procedure is inadequate or that the defendant failed to exercise due care in inspecting the areas in question."

DISCUSSION

A. STANDARD OF REVIEW

"A trial court will grant summary judgment where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment must prove the action has no merit. He does this by showing one or more elements of plaintiff's cause of action cannot be established or that he has a complete defense to the cause of action. At this point, plaintiff then bears the burden of showing a triable issue of material fact exists as to that cause of action or defense." (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)

"Since summary judgment motions involve purely questions of law, we review the granting of summary judgment de novo. [Citation.] Because the facts here `are generally undisputed, only legal issues are presented.'" (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84.) Because we review this matter after summary judgment was entered in favor of City, we consider the facts most favorably to De La Cruz. We liberally construe De La Cruz's evidentiary submissions, strictly construe the evidence submitted by City, indulge all reasonable inferences in support of De La Cruz, and resolve all evidentiary doubts or conflicts in favor of De La Cruz. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)

B. ANALYSIS

De La Cruz contends the MSJ was improperly granted. City lacked an actual inspection system, which was required under section 835.2, and had the City had an inspection system, it would have discovered the dangerous condition.

Section 835 states that "a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."

Section 835.2 defines notice. Relevant here, it defines constructive notice as, "A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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 care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to: [¶] (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. [¶] (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition." (Italics added.)

"A claim for constructive notice has two threshold elements." (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320 (Heskel).) "[C]onstructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection. . . . [I]n determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident." (State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400.)

This case is nearly identical to Heskel, supra, 227 Cal.App.4th 313. The plaintiff sued the City of San Diego claiming he suffered personal injury "when he tripped over a protruding base of a hollow metal post ([post base]) cemented into a city sidewalk" while taking a walk at night. (Id. at p. 315.) He claimed it was a dangerous condition and sued pursuant to section 835. The City of San Diego supported its motion for summary judgment by submitting declarations from city employees attesting that although they had been in the area on several occasions prior to the accident, they did not notice the post base. (Id. at pp. 315-316.) No one had notified the city of the post base prior to the accident. The plaintiff presented evidence of a declaration from a friend who had also tripped on the post base. Evidence was presented that the post base had been present for approximately two years. (Id. at p. 316.) Photographs of the post base were submitted, which showed it "was at most a few inches in height." The trial court granted the motion for summary judgment finding that the City of San Diego did not have constructive notice of an obvious dangerous condition as a matter of law. (Ibid.) The plaintiff appealed.

Initially, the appellate court found that the City of San Diego had presented substantial evidence that the post base was not obvious and the city was therefore entitled to summary judgment. This included evidence that there were no citizen complaints about the post base, there were no reports of a downed street sign, and employees who worked in the area never reported a downed street sign or the post base. (Heskel, supra, 227 Cal.App.4th at p. 319.) The appellate court then looked to the evidence presented by the plaintiff. The court first noted that the plaintiff had to show that the dangerous condition existed for a sufficient period of time and that it was obvious. The only evidence in support was a declaration from the plaintiff's friend that it had been present for one year, and there was no evidence as to how large the post base was or whether it was clearly visible from the surrounding streets. (Id. at pp. 320-321.) Another declaration provided that the post base had been present for two years but the declaration had not indicated "whether the [post base] was obvious based either on its size or visibility from the public streets." (Id. at p. 320.)

The appellate court also concluded the photographs presented only showed a condition that was a few inches. It found "Evidence of a condition of that nature, without more, is not a prima facie showing that the [post base] was obvious." (Heskel, supra, 227 Cal.App.4th at p. 320.) The appellate court further concluded, "While his evidence suggests that the [post base] was above ground and visible, it does not demonstrate that it was of a substantial size or so visible from public thoroughfares that the City, in the exercise of due care, should have become aware of it and taken corrective action to cure it." (Id. at p. 321.)

The appellate court concluded that the City of San Diego "carried its burden to demonstrate [the plaintiff] lacked evidence as to the essential element of `obviousness.'" (Heskel, supra, 227 Cal.App.4th at p. 321.) Further, "The burden then shifted to [the plaintiff] either to show the existing evidence created a reasonable inference that the [post base] was obvious or to present additional evidence proving that element. [Citation.] Because [the plaintiff] did neither, the trial court's grant of the City's motion for summary judgment was proper." (Id. at p. 321.)

Here, City carried its burden to demonstrate De La Cruz lacked evidence as to the essential element of obviousness. (Heskel, supra, 227 Cal.App.4th at p. 321.) City presented evidence that the condition was not obvious. Garcia stated that there were no reports of the sign post being broken. Additionally, there were no reports of the condition until De La Cruz fell and filed her claim. De La Cruz herself thought nothing of the condition and did not report it. Rodriguez did not report the condition. The only photographs of the condition were close-ups, and showed that the protrusion was less than three inches from the ground.

In response, De La Cruz did not establish the obviousness of the condition. She presented only close-ups that did not show the condition could be seen from the street or other public thoroughfares. De La Cruz presented no evidence as to how far away the condition could be seen. Her own expert stated that the condition could go "unnoticed." Further, De La Cruz presented evidence that street sweepers had been in the area along with code enforcement officers employed by City. Those street sweepers and code enforcement officers did not report the condition.

As found in Heskel, "[w]hile [the] evidence suggests that the condition was above ground and visible, it does not demonstrate that it was of a substantial size or so visible from public thoroughfares that the City, in the exercise of due care, should have become aware of it and taken corrective action to cure it." (Heskel, supra, 227 Cal.App.4th at p. 321.) Since De La Cruz failed to establish the threshold element of obviousness in section 835.2, the trial court properly granted summary judgment.

DISPOSITION

The judgment is affirmed. As the prevailing party, the City of Perris is awarded its costs on appeal.

RAMIREZ, P. J. and FIELDS, J., concurs.

FootNotes


1. All further statutory references are to the Government Code unless otherwise indicated.
2. De La Cruz objected as irrelevant but the objection was overruled.
3. De La Cruz objected to the declaration but the objection was overruled.
4. City objected to the declaration but the objection was overruled.
5. De La Cruz submitted numerous exhibits but only a portion were admitted after objections by City. We will only refer to those exhibits that were admitted.
6. City objected to Avrit's declaration. We will provide only those statements which were admitted by the trial court.

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