FRANCOIS VS CITY OF TEMECULA

1. CASE # CASE NAME HEARING NAME FRANCOIS VS CITY OF MOTION FOR SUMMARY JUDGMENT ON

TEMECULA 2ND AMENDED COMPLAINT Tentative Ruling: Grant the motion for summary judgment. Deny City’s requests for judicial notice of Exhibits F through L. Sustain City’s Evidentiary Objection Nos. 1 and 2. Decline to consider the separate statement filed with City’s reply.

City argues that Plaintiff did not substantially comply with the Government Claims Act because he listed the wrong location for the site of the accident, which City contends was insufficient to enable City to make an adequate investigation into the merits of the claim.

The undisputed evidence shows that on January 5, 2024, Plaintiff filed a government claim against City, which stated that “Claimant was traveling by bicycle on Ynez Road when dangerous and defective conditions of the road, including potholes caused Claimant to fall and be seriously injured.” (City’s Exhibit A [“Claim”].) The Claim listed the location of the occurrence as “Ynez Road, between Dlr Drive & Ynez Ct, Temecula, CA 92591.” (Id.) On January 23, 2024, City sent Plaintiff a Notice of Insufficiency, which stated that the claim was insufficient because “The description of the incident is vague Ynez Road, between Dlr Drive and Ynez CT is not sufficient.

The exact location is needed, street address, direction of travel and or photographs.” (City’s Exhibit B [“Notice”].) It is undisputed that Plaintiff failed to amend the Claim. [Plaintiff’s Response to Separate Statement [“SS”], ¶ 8.) On February 29, 2024, City rejected Plaintiff’s Claim. (City’s Exhibit C.)

Through discovery, it was later revealed that the accident did not take place on Ynez Road between Dlr Drive and Ynez Ct, as Plaintiff noted in the Claim. Rather, at his deposition, Plaintiff testified that he did not know the specific area where the accident occurred, but that it was on Ynez Road somewhere between Tierra Vista Road and Rancho Vista Road. (City’s Exh. N., Francois Depo., 45:16-22 and 46:14-19.) Plaintiff acknowledges that the actual location of the incident is approximately one mile away from the location that he described on the Claim. (Plaintiff’s Response to SS, ¶ 4 [“Discovery has since placed the accident approximately one mile away, on Ynez Road between Tierra Vista Road and Rancho Vista Road.”].)

Plaintiff contends that a triable issue of material fact exists as to whether he substantially complied with the Government Claims Act. Plaintiff cites to several cases in which courts found substantial compliance existed despite erroneous locations listed in government claims: Johnson v. City of Los Angeles (1955) 134 Cal.App.2d 600, 603-604 [claim described the location as the “southeast” instead of “southwest” corner]; Johnson v. City of Oakland (1961) 188 Cal.App.2d 181, 182-183 [claim listed address as 35th Avenue rather than 34th Avenue]; City of San Jose v.

Sup. Court (1974) 12 Cal.3d 447 [collecting cases]. In Johnson, supra, 134 Cal.App.2d at 603- 604 and Johnson, supra, 188 Cal.App.2d at 182-183, the courts noted that substantial compliance existed in the absence of any implication that the claimant acted in bad faith or intended to mislead the defendant by designating an incorrect place of the accident. City has alleged no such intent against Plaintiff here. Accordingly, Plaintiff has carried its burden to raise a triable issue of material fact as to whether he substantially complied with the Government Claims Act.

In its Reply, City cites two cases in which the courts determined that location disparities were insufficient to provide adequate notice. However, as City acknowledges, these cases are in “other

states,” namely New York and Georgia, and as such, are neither binding nor persuasive in the face of the numerous California cases holding to the contrary.

However, even if Plaintiff properly filed a sufficient government claim, the evidence shows that Plaintiff cannot sustain his causes of action for premises liability and dangerous condition against City.

Premises Liability / Dangerous Condition: A public entity is liable for injury caused by a dangerous condition of its property if: (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and (4) a negligent, wrongful or omission of a public entity employee created the dangerous condition or (5) the public entity had actual or constructive notice of the dangerous condition and there was sufficient time before the injury for the government entity to take remedial action. (Gov. Code § 835; People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.)

The only issue in dispute is whether City had constructive notice of the dangerous condition and there was sufficient time before the injury for the government entity to take remedial action. (Gov. Code § 835.) A public entity has constructive notice of a dangerous condition “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....” (Gov. Code § 835.2(b).)

“A claim for constructive notice has two threshold elements. [Citation.] A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious. [Citation.]” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320 [original emphasis], citing State v. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 400.)

City argues that Plaintiff lacks evidence to support how long the dangerous condition had existed or that the dangerous condition was obvious to establish that City had constructive notice of its existence to subject it to liability. City points to Plaintiff’s deposition testimony, in which Plaintiff testified that a pothole caused his accident, but he did not measure or take a photograph of the pothole, did not know if he ever took a photograph of where the accident happened, and did not give City a photograph of where exactly the accident happened. (City’s Exh. N., Francois Depo., 46:20-47:12.) Further, after being presented with photographs of certain stretches of Ynez Road, Plaintiff testified that he did not know the specific area where the accident happened. (City’s Exh. N., Francois Depo., 46:17-19.)

In an attempt to raise a triable issue of material fact, Plaintiff improperly tries to shift the burden back to City, arguing that City failed to produce any evidence or inspection history as to the true location of the accident that was later identified in discovery. However, to meet its initial burden, City may either negate an essential element of Plaintiff’s cause of action, or show that Plaintiff lacks evidence by establishing that Plaintiff does not possess, and cannot reasonably obtain, needed evidence. (Chavez v. Glock (2012) 207 Cal.App.4th 1283, 1301; 207 Cal.App.4th at 1301; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

City has presented sufficient evidence to show that Plaintiff does not possess, or cannot reasonably obtain, evidence to establish the obvious nature of the pothole, let alone how long it had existed, because Plaintiff did not take a photograph or measurements of the pothole at or near the time of the accident, nor did Plaintiff ever submit a photograph of “where exactly the accident happened.” City has also presented evidence to show that Plaintiff was unable to identify the specific area of the accident, and correspondingly, the alleged pothole.

There is no photographic evidence of the alleged pothole in the record, and it is difficult to see how Plaintiff can reasonably obtain evidence of the condition of the pothole at or before the time of the incident. As such, City has met its initial burden to establish that Plaintiff lacks evidence to support the element of constructive notice to impose liability upon City for a dangerous condition.

Plaintiff argues that his responses to Form Interrogatory No. 12.4 and Special Interrogatory No. 6 establish that he has 15 photographs and 4 videos depicting his injuries and the scene of the accident, all of which were taken on the date of the incident. However, the discovery responses cited by Plaintiff do not include copies of the photographs and videos. To the extent that Plaintiff is referring to the 4 photographs and 4 videos contained in Exhibit K, Plaintiff has failed to properly authenticate them.

As such, the photographs and videos attached to Plaintiff’s motion as Exhibit K are inadmissible—“evidence must be admissible to create a triable issue.” (Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th 966, 994.) Even if Exhibit K were admissible, photographs of the surrounding scene of the accident are irrelevant to establish the obvious nature of the pothole if they do not depict the pothole itself, which is the allegedly dangerous condition at issue here.

Plaintiff then contends that Exhibit K shows construction activity going on around the scene of the accident, which Plaintiff argues “is itself evidence bearing on whether the condition was open, ongoing, and observable, the kind of fact from which a factfinder could conclude that the City, through its own personnel or contractors present at the location, knew or should have known of the dangerous condition.” (Opp., p. 19.) Even if this argument were not speculative, Plaintiff has submitted no admissible evidence to show how City is related to the alleged construction activity to impose constructive knowledge upon City. To the contrary, City notes in its Reply that the banner on the construction site depicted in Exhibit K belongs to a private company. (Reply, p. 6.)

Lastly, Plaintiff asserts that City has failed to establish that he cannot reasonably obtain evidence as to the whether the pothole had existed for a sufficient period of time because Plaintiff’s “verified response asserts that the condition appeared longstanding, nontransient, and observable.” (Opp., p. 18.) However, this assertion is conclusory and speculative at best, and as such, is insufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163.)

Plaintiff has failed to create a triable issue of material fact as to whether City had constructive notice of the alleged pothole that caused Plaintiff’s accident.

2. CASE # CASE NAME HEARING NAME CVME2403788 BANUET V. MESKIMEN CMC & OSC Tentative Ruling: Discharge the OSC. Set a 5-day court trial scheduled for June 11, 2027. The parties are granted five (5) days to post jury fees; failure to do so will be deemed a waiver of the right to a jury trial. All parties must strictly comply with Local Rule 3401 and should familiarize themselves with Reales Investment v. Johnson (2020) 55 Cal.App.5th 463. Failure to comply with Local Rule 3401 may result in the imposition of evidentiary sanctions. The parties are directed to download, review, and follow the trial binder preparation pamphlet available on the court’s website. All experts shall be scheduled to be deposed no later than 20 days prior to the first day of trial, absent good cause. A Zoom MSC will be set by the Court—once set, the Court will provide notice.