Deborah Benedict v. City of Ontario, et al

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. (Gov. Code § 835.)

Issue 1: Dangerous Condition The City’s first Issue is that no “dangerous condition” existed. Under the Government Code, “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.” (Gov. Code, § 830, subd. (a).)

“As a general rule, the issue of whether a given set of facts and circumstances amounts to a dangerous condition poses a question of fact. (Biscotti v. Yuba City Unified School Dist., supra, 158 Cal.App.4th at 558.) “Nevertheless, that question may be decided as a matter of law if no reasonable person could conclude the property’s condition is dangerous as that term is statutorily defined.” (Id. at 559.)

City argues that “the subject parkway at issue did not create a substantial risk of injury when used with due care in a reasonably foreseeable manner,” because: (1) the parkway was covered with grass, which is commonly used in parkways throughout all cities and municipalities; (2) the City had no prior claims or complaints that anyone other than Plaintiff fell from stepping into a hole in the parkway; (3) there are no City records indicating that the parkway had an uneven surface, a hole, or dangerous condition prior to the plaintiff” s complaint; (4) the property owner and its property manager, never observed or received any complaints from any of their residential tenants of a hole in the parkway and does not know anyone, other than plaintiff, to get injured near or on his property and thus never called the City to report any condition that needed attention. (Mot. at 12; DMF1 1-7.)

None of these characteristics, however, prove that “no reasonable person could conclude the property’s condition is dangerous,” as would be required to decide this issue as a matter of law. (Biscotti v. Yuba City Unified School Dist., supra, 158 Cal.App.4th at 559.)

Plaintiff attests she stepped into a hole deep enough to trap her foot. (UMF 24.) As such, even though grass is commonly used and no one complained to the City about this hole, it could still constitute a dangerous condition. However, For Plaintiff to prevail, she needs to establish both a dangerous condition existed and either a City employee “created the dangerous condition,” or “[t]he public entity had actual or constructive notice of the dangerous condition ... a sufficient

1 Given that the parties dispute some of each other’s material facts, facts not disputed are referred to as “UMF,” while disputed facts are labeled either “DMF” = Defendant’s Material Fact or “PMF” = Plaintiff’s Material Fact.

time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code § 835, subd. (a)-(b).)

Issues 2 and 3: Whether an Employee of The City Negligently Created a Dangerous Condition or the City Had Constructive Knowledge of the Hole The parties agree that no evidence exists establishing that a City employee created the hole (the point is not addressed in Plaintiff’s opposition), but the parties do disagree as to constructive knowledge. Plaintiff argues that there is a question of fact as to constructive knowledge based on the definition contained in Government Code section 835.2(b).

Plaintiff puts forward evidence that there is a least a question of fact as to whether City has a “reasonably adequate,” inspection system. (See, e.g., UMF 28.)

City correctly argues however, whether it had a reasonably adequate inspection system is an inquiry that comes secondary to Plaintiff establishing whether “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.” (Gov. Code, § 835.2, subd. (b) (emphasis added).) Evidence of an inadequate inspection system only goes to whether City exercised “due care,” but does not establish the “period of time” element.

The Court of Appeal, Fourth District has stated that, “[w]hether 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. [Citation.] 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.) As stated by the Court of Appeal, Second District “[a] public entity will be charged with constructive notice of a dangerous condition only if (1) the dangerous condition existed for a sufficient period of time before the plaintiff's injury, and (2) it was sufficiently obvious that the entity acted negligently in not discovering and repairing it.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 514.)

Defendant thus argues that Plaintiff has not established that the hole existed for a sufficient period of time for it to be noticed. (Reply at 7-8.)

Neither party provides definitive evidence as to how long the hole existed, meaning it could have existed for years or it could have been created minutes before the incident. Plaintiff emphasizes that the property was inspected in 2019, and that there was tree maintenance in 2020, but the Defendant puts forth evidence that it never received a complaint about the hole. (UMF 27, 36; DMF 2-16.) Although Plaintiff makes a point to argue that this does not defeat constructive knowledge, Plaintiff does not put forth any affirmative evidence to establish how long the hole existed, and instead only seeks to establish that the City’s current Risk Manager cannot “verify with certainty that no past complaints regarding the alleged dangerous condition existed prior to June 30, 2022.” (UMF 42.)

This fact, however, does not fulfill the requirement that it is the “plaintiff [who] must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious.” (Heskel v. City of San Diego, supra, 227 Cal.App.4th at 320.)

In its supplemental opposition, Plaintiff argues that it has presented circumstantial evidence of that the hole existed for a sufficient period of time before the plaintiff's injury, and that it was sufficiently obvious that the entity acted negligently in not discovering and repairing it. Despite the claims, the additional evidence does not establish the necessary elements.

First, the “new” evidence only shows that City had a pattern of checking the water meter near the hole for years prior to the accident. (Supp. Opp. at 4-8; Supp. Ex. 1.) There is no nexus, however, between City’s checking of the water meter and how long the hole existed.

Second, Plaintiff presents no evidence and creates no question of fact that the hole was obvious such that constructive notice can be established. Although Plaintiff argues otherwise, Martinez is instructive. In Martinez, the Court of Appeal, Second District looked at similar circumstances – the plaintiff had tripped on a hole in an alleyway, but the trial court granted summary judgment in favor of the defendant city Beverly Hills after analyzing “whether that divot was sufficiently obvious such that the City should be charged with knowledge of it and, therefore, liable for failing to repair it.” (Martinez, supra, 71 Cal.App.5th at 523.)

In analyzing what is sufficient to establish “constructive notice,” the Court of Appeal established that “constructive notice will not be imputed if the defect is not sufficiently obvious,” and that “[a] defect is not obvious just because it is visible” or “because it is nontrivial.” (Id. at 520 (emphasis in original).) Specifically, “[n]ontriviality, without more, does not also mean that that the defect is obvious; if it did, then the constructive notice element would be automatically satisfied in every instance where that dangerous condition preexisted the accident and thus would effectively write the negligence element out of the statute.” (Ibid. (emphasis in original).)

The Court of Appeal found that “whether a nontrivial defect is sufficiently obvious, conspicuous, and notorious that a public entity should be charged with knowledge of the defect for its failure to discover it depends upon ‘all [of] the existing circumstances.’ [Citation.] Those circumstances include (1) ‘the location, extent, and character of the use of the walk [or, more generally, the public property] in question,’ which looks to both its intended use for travel as well as the actual ‘frequency of travel in the area’... and more specifically, ‘the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise’”. (Id. at 521 (internal citations omitted).)

In Martinez, the Court of Appeal found that there is a different standard when evaluating whether a defect in a sidewalk is obvious as opposed to a defect in an alleyway. In so finding, the Martinez court reasoned that: It takes less for a defect in a sidewalk to be obvious. The reasons for this are, well, obvious. As their very name implies, sidewalks are made for perambulation. Pedestrians on sidewalks accordingly have “the right to assume [that] the surface would be safe” without having to “keep [their] eyes fixed on the ground.” [Citation.] Given the very likely danger to pedestrians and others from all but the most trivial of defects in sidewalks, the “likelihood and magnitude of potential danger” due to failure to maintain sidewalks in good condition justifies a requirement that public entities apply more rigorous scrutiny to searching sidewalks for defects, even if that means

greater cost. [Citation.] A need for greater attention to pedestrian safety—and hence a more exacting standard for obviousness—may also apply to those portions of roadways that pedestrians cross (such as crosswalks or streets with sidewalks on both sides) and to parking lots heavily used by pedestrians. (Martinez, supra, 71 Cal.App.5th at 523.)

Here, the same rationale applies. Plaintiff does not allege there was a hole in the sidewalk, but instead that she was traversing a “parkway” adjacent to a sidewalk. (DMF 1; UMF 35.) Similar to the alley in Martinez, while people sometimes walk in parkways, they are not intended, as sidewalks are, for frequent pedestrian use. Although Plaintiff argues that “the subject parkway is a heavily-trafficked grass parkway adjoining a residential sidewalk in the public right-of-way,” and relies on UMF 25, UMF 25 does not state that the parkway is the equivalent of a sidewalk, or heavily trafficked, but instead “that ‘Begonia Street, was dedicated for public use. The subject GRASS PARKWAY is located within the dedicated Begonia Street right-of-way.” (UMF 25 (emphasis in original).)

Given the area of the accident is a grass parkway, and not a sidewalk, “the likelihood of injury to pedestrians is much lower,” and the universe of ‘obvious defects’” would be “smaller than the universe of ‘obvious defects’ for sidewalks.” (Martinez, supra, 71 Cal.App.5th at 524.) Plaintiff points to no other factors that create a question of fact as to its obviousness.

Further, although Plaintiff relies heavily on Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, that case is distinguishable because it deals with a plaintiff tripping on a city sidewalk, not a parkway.

Consequently, because Plaintiff has not provided any evidence to create a question of fact as to “the dangerous condition has existed for a sufficient period of time,” or its obviousness, the Court grants summary judgment.

Issue 4: Causation Since the Court granted summary judgment for the reasons stated above, issue 4 is moot. Nevertheless, the Court addresses it here for thoroughness.

To recover from a public entity for a dangerous condition of public property, a plaintiff must show not only that there was a dangerous condition but also that the plaintiff’s “injury was proximately caused by the dangerous condition.” (Gov. Code § 835.) Causation is a “factual question[] for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 [114 Cal.Rptr.2d 470, 36 P.3d 11].)

Here, Defendant has not fulfilled its burden as to this issue. It simply restates its argument as to issues 1-3.

Plaintiff’s Request to Delay Ruling on Summary Judgment Based on Discovery For relief to be granted under subdivision Code of Civil Procedure section 437c(h), “[t]he affidavit must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain 5

these facts.” (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) Here, Plaintiff only includes a paragraph and the end of her opposition making the request that the motion be denied or delayed based on Defendant’s failure to provide certain discovery, but does not attach the required affidavit. As such, she has not met the requirement for such relief. Therefore, Plaintiff’s request to delay ruling on summary judgment based on discovery is denied.

Dated: June 24, 2026

____________________________ Judge Kory Mathewson

6