This court reviews grants of summary judgment de novo. (Montenegro v. City of
Bradbury (2013) 215 Cal.App.4th 924, 928; Orrick Herrington & Sutcliffe v. Superior
Court (2003) 107 Cal.App.4th 1052, 1056; see also Buss v. Superior Court (1997) 16
Cal.4th 35, 60.) We view all the evidence set forth in the moving and opposition papers
in the light most favorable to the nonmoving party. (See Guz v. Bechtel National, Inc.
(2000) 24 Cal.4th 317, 334.) If there remains no triable issue of fact, we affirm. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).)
Heskel argues that the trial court erred because a reasonable jury could have found
the City had constructive notice of the condition, because it was present in its dangerous
state for more than one year. However, the City provided several declarations to support
its motion for summary judgment, which establish that it did not have such constructive
notice of the condition. It showed that City workers had been in the area and did not see
6
the condition within at least the one-year period leading up to Heskel's accident, and this
creates a reasonable inference that the condition was not obvious.
City Code Compliance Officer Caryn Hosford explained in her declaration the
process by which the City generally becomes aware of dangerous conditions on its
streets. Reports or complaints by citizens may be made directly to the City's Streets
Division or through the citizen's assistance program (among other divisions). The streets
division enters information into its database pertaining to areas that need repairs.
Hosford searched her database in January 2010 for any complaints concerning the area
where Heskel fell. There were no complaints within the five years preceding the date of
Heskel's accident.
Michael C. Fornes, an associate management analyst with the San Diego Police
Department, explained in his declaration that he has access to a system that contains
information about traffic collision reports. In March 2011 he compiled a list of police
officer-initiated activity in the area where Heskel fell. According to Fornes's reports, the
police department received no reports of car accidents, vandalism, or other damage
resulting in a downed street sign.
Gus Brown, Assistant Deputy Director of the Transportation and Storm Water
Division, explained in his declaration that he has access to records of maintenance work
performed by City employees on City storm drains. Brown stated there are drainage
structures in the area surrounding the site where Heskel fell. Brown searched his records
and crew logs and determined that City work crews had reportedly been in the location
twice between September 29, 2008 and September 29, 2009. The two reports suggested
7
the workers conducted routine work that did not involve a downed street sign. The
workers did not report having seen the condition over which Heskel tripped.
Associate Traffic Engineer Ty Palusky explained in his declaration that he
regularly accesses a database of citizen notifications of problems, malfunctions, and
requests for improvements pertaining to City traffic controls and devices. In March 2011
Palusky searched his database and found no reports of any damaged or dangerous traffic
control devices on either Mission Gorge or Echo Dell Roads.
From the above summaries, we conclude the City has presented substantial
evidence that the condition was not obvious and the City was, therefore, entitled to
summary judgment. The City successfully shifted the burden to Heskel either to provide
evidence that the condition was obvious or to show the existing evidence created a
reasonable inference of the condition's obviousness. (See Los Gatos, supra, 205
Cal.App.4th at p. 756.)
III
PLAINTIFF'S OPPOSITION TO CITY'S MOTION FOR SUMMARY JUDGMENT
A claim for constructive notice has two threshold elements. (State v. Superior
Court of San Mateo County, supra, 263 Cal.App.2d at p. 400.) A plaintiff must establish
that the dangerous condition has existed for a sufficient period of time and that the
dangerous condition was obvious. (Ibid.) Dobrovsky's declaration demonstrated the
condition existed for more than one year prior to Heskel's fall. Although Dobrovsky had
tripped over the condition previously, he did not state he notified the City of the
8
condition. Dobrovsky's declaration did not state how large the condition was or whether
it was clearly visible from the surrounding streets.
Danny's declaration also did not describe the size of the structure or how obvious
it was from the vantage of public streets. Danny simply explained that he witnessed
Heskel's fall and that afterwards he noticed a sign had been inserted into the condition.
Through Heskel's admitted evidence, he has provided evidence touching solely on the
element of how long the condition was present.
In the Serrano declaration, which Heskel filed late but which the trial court
considered, Serrano explained that the structure had been present for two years and, on
one occasion in that time period, the condition punctured his tire after he drove his truck
onto the sidewalk. Serrano did not explain whether the condition was obvious based
either on its size or visibility from the public streets.
Finally, it is unclear by reference to the record what effect Heskel's pictures of the
condition had on the trial court's decision. Although the pictures are poor, the size of the
circled structure in relation to the curb suggests that it was not substantial or readily
apparent from the street. The pictures show a condition that was roughly a few inches in
height. Evidence of a condition of that nature, without more, is not a prima facie
showing that the condition was obvious. (Carson, supra, 36 Cal.3d at pp. 842-843.)
Unlike in Carson, the condition appears to have been slight in size and not similar to a
large sign that was clearly visible from a public street that police regularly patrolled.
(Ibid.) The pictures only support inferences that the structure was not obvious.
9
While Heskel has supplied evidence that the condition existed for more than one
year, he does not substantiate that the dangerous condition was obvious. On appeal, he
merely argues, "The condition speaks for itself," as to that element. While his 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. (§ 835.2, subd. (b); Carson, supra, 36 Cal.3d at pp. 842-843.)
The City carried its burden to demonstrate Heskel lacked evidence as to the
essential element of "obviousness." (§ 835.2, subd. (b); see Aguilar, supra, 25 Cal.4th at
pp. 845-846 [by statute the burden shifts to the plaintiff when, on summary judgment, the
defendant establishes the plaintiff lacks evidence to prove an essential element of the
claim].) The burden then shifted to Heskel either to show the existing evidence created a
reasonable inference that the condition was obvious or to present additional evidence
proving that element. (Code Civ. Proc., § 437c, subds. (c), (p)(1).) Because Heskel did
neither, the trial court's grant of the City's motion for summary judgment was proper.
10
DISPOSITION
Summary judgment for the City is affirmed. The parties are to bear their own
costs.
HUFFMAN, Acting P. J.
WE CONCUR:
McDONALD, J.
O'ROURKE, J.
11
Filed 6/23/14 CERTIFIED FOR PUBLICATION
COURT OF APPEAL - STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION ONE
MENAHEM HESKEL, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent. D062186 San Diego County No. 37-2010-00100268-CU-PA-CTL
THE COURT:
The opinion in this case filed June 13, 2014 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), respondent City of San Diego's request pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
I am a citizen of the United States, over 18 years of age, and not a party to the within action; that my business address is 750 B Street, Suite 300, San Diego, CA 92101; that I served a copy of the attached material in envelopes addressed to those persons noted below.
That said envelopes were sealed and shipping fees fully paid thereon, and thereafter were sent as indicated via the U.S. Postal System from San Diego, CA 92101.
I certify under penalty of perjury that the foregoing is true and correct.
Office of the Clerk Material Sent YES: ____ San Diego County Superior Court - Main P.O. Box 120128 San Diego, CA 92112
Material Sent YES: ____ Michael A. Feldman 2398 San Diego Avenue, Suite B San Diego, CA 92110
Material Sent YES: ____ Jennifer Kay Gilman Office of the San Diego City Attorney 1200 3rd Ave Ste 1100 San Diego, CA 92101
13
AI Brief
AI-generated · verify before citing
Holding. The court held that a public entity is not liable for a dangerous condition under a theory of constructive notice when the plaintiff fails to provide evidence that the condition was sufficiently obvious to be discovered through the exercise of due care.
Issues
Whether the City had constructive notice of a dangerous condition on a public sidewalk under Government Code section 835.2, subdivision (b).
Whether the plaintiff met the burden of proof to establish that the condition was of such an obvious nature that the City should have discovered it.
Disposition. affirmed
Quotations verified verbatim against the opinion
“Because Heskel failed to present any evidence that the condition was obvious such that the City, in the exercise of due care, should have become aware of it, his claim must fail as a matter of law”
“Whether 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.”