Respondent's Motion for Award of Mandatory Attorney Fees and Costs
defect in Stack was larger.) Here, the declaration of Bong Walsh asserts - with some degree of boilerplate - that the specific defects here combined to make for a hazard. Further, I lack full measurements of all defects and it is unclear whether this defect is trivial. In some cases, triviality of the risk cannot be established as a matter of law because under the particular facts reasonable minds may differ about whether the risk was trivial. (Stathoulis v City of Montebello (2008) 164 Cal.App.4th 559, 569 (triable issue of fact if competing and conflicting evidence regarding size, nature, and quality of defect to surface presented danger to pedestrians exercising ordinary care).)
In this case, it is not entirely clear what the net change between the crack defect and the raised asphalt creates. Plaintiff's familiarity with the area is a factor to consider, although the Stack court entirely disregarded it under the theory that the issue was the danger to the general public. In this case, there had likely been thousands of safe traversals of the area by Plaintiff. The Court adopts the Stack court's views on Plaintiff's familiarity with the area for the purposes of this motion only.
Walsh's expert opinion on the dangerousness of the condition is not so unsupported from the facts that it is insufficient to find a reasonable basis for the conclusion. Defendant observes accurately that this Court can disregard expert declarations where they are unsupported, but here there are references to the subject defects and a rationale for the dangerousness of that defect.
Notice Richard Mendoza declared under penalty of perjury "A review of the City of Modesto's records reveals that the City had received no complaints about an offset or trip hazard on the sidewalk in front of [the address] at any time prior to August 9, 2024. Based on this review, I can confidently state that the City of Modesto had no notice of an obviously dangerous condition invoving the sidewalk where Plaintiff claims to have tripped and fallen prior to August 9, 2024."
At his deposition, his confidence had abated. He acknowledged that prior repairs had apparently been done by the City, and that was likely in response to a citizen call and a review of the sidewalk status. Whether the City had other notice or not is sufficiently disputed by the Robyn Mills declaration. Further, the Court must consider the countervailing declaration in the context of what appear to be inaccurate assertions
Government Code section 835(b) provides that liability exists when the public entity "had actual or constructive notice of the dangerous condition ... a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." Further, a public entity has constructive notice of a dangerous condition if Plaintiff proves that the condition has 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."
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Whether the defect had existed for an adequate length of time and whether the defect was sufficiently conspicuous that the entity should fairly be charged with notice both of its existence and of its dangerous character are ordinarily questions of fact to be resolved from all relevant circumstances. (Carson v Facilities Dev. Co. (1984) 36 Cal.3d 830). Both actual and constructive notice are sufficiently raised by Plaintiff to bring about a triable issue.
CV-26-001061 - MCKINLEY CONGER JOLLEY & GALARNEAU LLP vs LEMOS, ANNETTE RENE - Petitioner's Amended Petition to Confirm Attorney-Client Fee Arbitration Award - DENIED, without prejudice. The petition fails to demonstrate the date of service of the arbitration award on the Respondent.
CV-26-003831 - MALDONADOPADILLA, PAOLA vs COELHO, KELLEY MARIE - Respondent's Motion for Award of Mandatory Attorney Fees and Costs - GRANTED in a reduced amount of $7,728 in fees and $265.34 in costs, and unopposed. As the prevailing party on her Special Motion to Strike (Anti-SLAPP), Respondent is entitled to an award of her attorney's fees and costs in connection therewith. (Code Civ. Proc. Sec. 425.16(c)(1).) In that regard, the Court finds that Respondent has submitted sufficient evidence establishing the reasonableness of the time expended based on the declaration of her counsel.
The Court must consider the proper rate of attorney fees via lodestar factors outlined in Ketchum v. Moses (2001) 24 Cal.4 th 1122. The Court finds that a reasonable rate for an attorney in Stanislaus County finishing their first year is $300 per hour. Upward or downward adjustments are permitted. In this case, the advocacy was effective, well-presented, and notably efficient. As such, the Court places a 40% upward adjustment on the rate, resulting in a base rate of $420 per hour. On that basis, and in the absence of any controverting evidence or opposition on this issue, the Court finds that Respondent is entitled to an award of attorney's fees and costs in the amount of $7,993.34, consisting of $7,728 in attorney's fees (18.4 hours at $420/hour), $156.56 in incurred costs, and $108.78 in fees in connection with the filing of the instant motion and proposed order.
The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:
CV-24-008419 - GUTIERREZ, ROBERTO vs NINO, ARTURO - Plaintiff's Roberto and Bertha Gutierrez's Motion for Summary Judgment or in the Alternative for Summary Adjudication - GRANTED in part and DENIED in part. For the reasons set forth below, Plaintiffs' unopposed motion for summary judgment is DENIED, and Plaintiffs' unopposed motion for summary adjudication is GRANTED in part and DENIED in part. Plaintiffs to submit a new proposed order within 10 court days consistent with this ruling.
Request for Judicial Notice Pursuant to Evidence Code section 452, subdivision (d), Plaintiff requests judicial notice of (1) the original complaint filed on October 22, 2024, (2) Defendant's Answer filed on March 17, 2025, (3) the Declaration of Mark J. Condon filed September 17, 2025 in support of Plaintiffs' Motion to Deem the Truth of Matters and Genuineness of Documents Specified in Requests for Admission, Set One, Admitted and Conclusively Established, and (4) the Court's Order dated October 24, 2025 deeming the truth of matters and genuineness of documents specified in Requests for Admission, Set One, admitted and conclusively established. It is unnecessary for the Court to take judicial notice of filings in the instant case. (See Bienville Water Supply Co. v. City of Mobile (1902) 186 U.S. 212, 217.) The request for judicial notice is DENIED as moot.
Governing Law A "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 . . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) "A prima facie showing is one sufficient to support the position of the party in question." (Id. at p. 851.) A plaintiff meets their burden "of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action." (Code Civ.
Proc., Sec. 437c(p)(1).) Once the plaintiff satisfies that burden, the burden shifts to the defendant, who must show "that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (Ibid.) "Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party's right to a trial, the moving party must make a strong showing. His affidavits are strictly construed and the opposing party's are liberally construed." (Garcia v.
World Savings, FSB (2010) 183 Cal.App.4th 1031, 1038.) All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment or adjudication. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) Thus, evidence that is equivocal or from which conflicting inferences may be drawn is insufficient to meet the movant's burden. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 297.)
In addition to moving for summary judgment, "[a] party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." (Code Civ. Proc., Sec. 437c(f)(1).) A