YATES vs SAFEWAY, INC., et al.

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by The City of Berkeley (Defendant) CRS# 409901373499 in Department 517

Tentative Ruling - 07/22/2026 Keith Fong

The Motion for Summary Judgment filed by The City of Berkeley on 05/01/2026 is Granted.

Defendant City of Berkeley’s Motion for Summary Judgment is GRANTED.

BACKGROUND

On January 18, 2024, at approximately 5:45 P.M., Plaintiff Nancy Yates (“Plaintiff”) walked from her home on Rose Street to the Safeway store on Shattuck Street owned and operated by Defendant Safeway, Inc. (“Safeway”). (Plaintiff’s Undisputed Material Facts (“PUMF”) 19, 22.) On her way home, at about 6:00 P.M., Plaintiff tripped and fell over a raised piece of triangle concrete at the edge of the public sidewalk on Henry Street next to a retaining wall, adjacent to the Safeway store. (PUMF 19.) The area where Plaintiff fell was inadequately lit as one of the overhead lights in Safeway’s parking lot was not operating. (PUMF 21; City’s Undisputed Material Facts (“CUMF”) 9.)

Plaintiff testified that the weather was damp, cold, overcast, and it may have been drizzling at the time of her fall. (City Exh. 1 (“Pltf.’s Depo”) p. 46.) Plaintiff testified that she “fell face down on the pavement” (Id. p. 59.) Plaintiff further testified that the fall caused pain in her head, hands, knees, ribs, and back. (Id. pp. 63-64.)

The sidewalk where Plaintiff fell is within the public right-of-way controlled by the City, and is jointly maintained by the City and Safeway. (Salonga Decl. ¶ 6.) The City utilizes a complaintdriven system for maintenance and repair of its sidewalks and streets. (CUMF 15.) The City records complaints and/or reports of accidents relating to public property in a computer database, which is searchable by property address, and maintained in the ordinary course of business. (CUMF 16; Salonga Decl. ¶¶ 10-11.) Any reports or complaints are entered into the City’s database. (Salonga Decl. ¶ 11.) The City’s Sidewalk Program Administrator for Public Works Engineering states that he was unable to locate any reports, complaints, or reports of injuries regarding the incident location in the 10 years prior to Plaintiff’s fall. (Salonga Decl. ¶¶ 3, 12- 13.)

Plaintiff initiated this action on May 29, 2024. The operative Second Amended Complaint, filed on October 22, 2024, alleges general negligence and premises liability against Safeway and the City of Berkeley (“City”).

Plaintiff alleges Premises Liability – Dangerous Condition of Public Property against the City. The SAC alleges that the City had actual and/or constructive notice of the existence of the dangerous condition in sufficient time to the injury to have corrected it. (SAC p. 4.) The SAC 24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by The City of Berkeley (Defendant) CRS# 409901373499 in Department 517 further alleges that the condition was created by City employees. (Id.)

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.) “That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon.” (Id.) Further, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Id.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id.)

A defendant moving for summary judgment may demonstrate that the plaintiff’s cause of action has no merit by showing that one or more elements of the cause of action cannot be established. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 564.)

EVIDENTIARY OBJECTIONS

The court declines to rule on the City’s evidentiary objections except as discussed below. The Court does not consider them material to the Court’s determination of the instant motion.

DISCUSSION

The City moves for summary judgment on the following grounds: (1) the alleged defect is trivial as a matter of law; (2) there is no evidence that the City negligently created the alleged condition; and (3) there is no evidence that the City had either actual or constructive notice of the alleged dangerous condition. As the Court finds that the notice issue is dispositive, the Court does not reach the City’s other arguments.

A public entity is liable for injury caused by the 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 has occurred, and 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 Sec. 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Govt. Code § 835, emphasis added.)

Public property is in a dangerous condition for purposes of Govt. Code § 835 if it is physically

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by The City of Berkeley (Defendant) CRS# 409901373499 in Department 517 damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) The existence of a dangerous condition is ordinarily a question of fact but can be decided as a matter of law if reasonable minds can come to only one conclusion. (Mixon v.

Pacific Gas and Electric Co. (2012) 207 Cal.App.4th 124, 131.) A public entity will be charged with constructive notice of a dangerous condition if (1) the dangerous condition existed for a sufficient period of time before 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, 513.)

“[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1037.)

The City contends that there is no evidence that it had actual or constructive notice of a dangerous condition prior to Plaintiff’s incident. The City submits the sworn declaration of Terrence Salonga, P.E., Sidewalk Program Administrator for Public Works Engineering. Mr. Salonga, a civil engineer, states that he “conducted a thorough and diligent search of City records relating to the area where Ms. Yates fell; the LAGAN Enterprise database; and the City’s work orders and requests for information relating to the Incident Location, which included records going back to January 2014.” (Salonga Decl. ¶ 12.)

Mr. Salonga states that based on the records he reviewed, he did not find any reports or complaints regarding the incident location; reports of injuries at the incident location prior to Plaintiff’s incident; or work orders or requests relating to the sidewalk at the area. (Id.) “Based on the records available in the City’s LAGAN Enterprise database, the City received zero complaints of issues, concerns, or accidents in the area of Ms. Yates’ fall on the 1400 block of Henry Street between Rose Street and Vine Street in the 10 years prior to Plaintiff’s trip and fall.” (Id. ¶ 13.)

Salonga further states that in 2010-2012, Safeway undertook a renovation project which included work at the incident area. (Salonga Decl. ¶¶ 7-8.) As such, the City contends that there is no evidence that a City employee negligently created the alleged dangerous condition.

The City satisfies its burden of proof to show that it did not create the dangerous condition and it lacked actual or constructive notice of a dangerous condition on the sidewalk. The burden shifts to Plaintiff to show the existence of a triable issue of material fact.

Plaintiff contends that whether the City had notice is a triable issue of fact. Plaintiff submits the declaration and written report of findings of its expert, Zachary Moore, a forensic engineer. (Moore Decl. Exh. 1, p. 5.) Mr. Moore’s report states that his firm obtained street view history images, and the City knew or should have known of he dangerous condition because “based on Google Street View history, the subject height differential appears to be present at least nine years prior to Plaintiff’s incident.” (Id. pp. 2, 5.)

The City objects to Mr. Moore’s reliance on historical Google Stret View imagery of the location

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by The City of Berkeley (Defendant) CRS# 409901373499 in Department 517 as, inter alia, inadmissible hearsay, lacking authentication, lacking foundation. The objections on these bases are SUSTAINED. The images are not provided in Mr. Moore’s declaration or report and he provides no information to provide foundation for such evidence. The City further objects to Mr. Moore’s opinion that the subject area was unsafe at the time of Plaintiff’s fall as, inter alia, lack of foundation and improper expert opinion.

The objection on this basis is SUSTAINED. Mr. Moore does not reference a photo showing the differing height differential and the location of Plaintiff’s fall, or the alleged dangerous condition. Moreover, Mr. Moore’s statement that the City knew or should have known of the dangerous condition lacks any reference to documents, testimony, or any other basis to establish why the City knew or should have known of the alleged condition.

Mr. Moore’s report and opinion regarding the purported unsafe condition at the incident location are speculative and conclusory, based upon unauthenticated photos that are not provided with the opposition papers. As such, Plaintiff fails to meet her burden to establish a triable issue of material fact as to whether the City had actual or constructive notice of a purportedly dangerous condition.

CONCLUSION

Defendant City of Berkeley’s Motion for Summary Judgment is GRANTED.

By or before August 14, 2026, the City is ORDERED to submit a proposed judgment. (Blauser v. Dubin (2024) 106 Cal.App.5th 918.)

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

24CV077608: YATES vs SAFEWAY, INC., et al. 07/23/2026 Hearing on Motion for Summary Judgment filed by The City of Berkeley (Defendant) CRS# 409901373499 in Department 517 Noon if possible) at least one (1) court day before the scheduled hearing.

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