Casey v. City of Ojai CA2/6 ( 2022 )

Filed 12/13/22 Casey v. City of Ojai CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MONICA CASEY, 2d Civil No. B318580
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00531285-CU-PO-VTA)
(Ventura County)
v.
ORDER MODIFYING
CITY OF OJAI, OPINION AND DENYING
REHEARING
Defendant and Respondent. [NO CHANGE IN
JUDGMENT]
THE COURT:
It is ordered the opinion filed herein on November 21, 2022,
be modified as follows:
1. On page 5, first full paragraph, the first citation
following the first sentence, “Martinez, supra, 71 Cal.App.5th at
pp. 515, 521” is deleted so that the citation following the first
sentence reads as follows:
(Heskel v. City of San Diego (2014) 227 Cal.App.4th
313, 319 (Heskel).)
2. On page 5, first full paragraph, the last citation of the
paragraph following the last sentence of the paragraph is
modified to read:
(Martinez, supra, 71 Cal.App.5th at pp. 521-522.)2
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
GILBERT, P. J. YEGAN, J. BALTODANO, J.
2
Filed 11/21/22 Casey v. City of Ojai CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MONICA CASEY, 2d Civil No. B318580
(Super. Ct. No. 56-2019-
Plaintiff and Appellant, 00531285-CU-PO-VTA)
(Ventura County)
v.
CITY OF OJAI,
Defendant and Respondent.
Monica Casey appeals from the order granting summary
judgment against her in favor of the City of Ojai (the City). She
contends there was a triable issue of fact whether the City had
constructive notice of the dangerous condition that caused her
injury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Casey was walking on an unpaved shoulder next to Del
Monte Road in the City of Ojai. She tripped over a bent metal
rod protruding from the ground, fell, and fractured her radius.
She sued the City for injuries alleging a dangerous condition of
1
public property (Gov. Code, § 835).
The exposed part of the rod was six to 10 inches long and
lay one or two inches above the ground. The rod was an anchor
associated with a utility pole owned and maintained by AT&T.
The City did not install the rod, and it was not used in any of the
City’s operations.
The ground around the rod was covered with leaves and
was “mottled” (spotted) with areas of sun and shade. Casey did
not see the rod before she tripped on it. She stated the rod “was
the same color as the dirt” and “given its shape, color and
location, [was] not expected, readily apparent or easily visible to
anyone who would be passing by on foot.”
City workers “pass[ed] by” the area of the accident daily on
their way to check the adjacent cemetery. The City routinely
maintained the area around the accident site, but not the “exact
site” where the exposed rod was located. The City cut the weeds
on the shoulder in spring “if needed,” but not every year. String
trimmers (Weedwackers) were used to cut the weeds down to
ground level. The weed abatement did not necessarily occur in
“the exact location” where Casey tripped.
City workers were trained to report and remove “tripping
hazard[s].” For example, the City ground down uneven surfaces
between panels on concrete sidewalks. The City did not receive
any reports about the rod before the accident, and did not see the
rod during any inspections or repairs it performed. It first
learned the rod was present when Casey filed her tort claim in
Casey also sued AT&T Services, Inc., and the County of
1
Ventura, but resolved those claims.
2
this case. If the City had been aware of the rod, it would have
wanted it removed and would have notified the utility company.
The trial court granted the City’s motion for summary
judgment. (Code Civ. Proc., § 437c, subd. (a)(1).)
DISCUSSION
Summary judgment
“[A] motion for summary judgment shall be granted if all
the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment “bears the burden of
persuasion that ‘one or more elements of’ the ‘cause of action’ in
question ‘cannot be established,’ or that ‘there is a complete
defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar); Code Civ. Proc., § 437c,
subd. (p)(2).)
If the defendant carries this burden, the burden of
production shifts to the plaintiff to “set forth the specific facts
showing that a triable issue of material fact exists.” (Code Civ.
Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-
850.) “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.” (Aguilar, at p.
850, fn. omitted.)
“On appeal from the granting of a motion for summary
judgment, we examine the record de novo, liberally construing
the evidence in support of the party opposing summary judgment
and resolving doubts concerning the evidence in favor of that
3
party.” (Miller v. Department of Corrections (2005) 36 Cal.4th
446, 460.)
Constructive knowledge
A public entity is liable for an injury proximately caused by
a dangerous condition of its property if “the dangerous condition
created a reasonably foreseeable risk of the kind of injury which
was incurred,” and either (a) “[a] negligent or wrongful act or
omission of an employee of the public entity . . . created the
dangerous condition,” or (b) “[t]he public entity had actual or
constructive notice of the dangerous condition” but failed to
“protect against” it. (Gov. Code, § 835; Martinez v. City of Beverly
Hills (2021) 71 Cal.App.5th 508, 513-514 (Martinez).)
Casey does not contend the City had actual knowledge of
the rod and relies solely on a theory of constructive knowledge.
“A public entity had 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, subd. (b).) The defect must be “sufficiently
obvious, conspicuous, and notorious that a public entity should be
charged with knowledge of the defect.” (Martinez, supra, 71
Cal.App.5th at p. 521.) The issue of constructive knowledge may
be resolved as a matter of law on summary judgment. (Id. at p.
525.)
Casey presented no evidence that the rod would have been
visible to a passing vehicle or by a City employee standing on the
dirt shoulder. It is telling that Casey did not see the rod before
she tripped on it. As she admitted in discovery, it was not
4
“readily apparent or easily visible to anyone who would be
passing by on foot.”
Constructive knowledge was not shown by any prior
reports or complaints to the City regarding the rod. (Martinez,
supra, 71 Cal.App.5th at pp. 515, 521; Heskel v. City of San Diego
(2014) 227 Cal.App.4th 313, 319 (Heskel).) The declaration of the
City’s public works maintenance supervisor was sufficient to
establish the lack of reports or complaints. The City was not
required to present a statement from every employee who might
have had knowledge regarding that issue. (Martinez, at pp. 521-
2
522.)
The fact that City workers had removed weeds in the
general area did not establish constructive knowledge. (See
Heskel, supra, 227 Cal.App.4th at pp. 315-316, 319 [summary
judgment for city because city workers in area did not notice
hazard].) The evidence does not establish what years the City
abated weeds, or that City employees clearing weeds would have
seen the rod in the exercise of due care.
We examine de novo the photographs the trial court
considered in the summary judgment motion and “reach our own
independent conclusions” regarding them. (Kasparian v.
AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 15, 24-
25.) The photographs support the conclusion that the rod was not
“obvious” and would not be discovered in the exercise of due care.
2Another employee the City designated as the person most
knowledgeable regarding several issues stated in a deposition
that she did not know if any City employee observed the rod
before the accident. Casey cites no authority that a triable issue
of fact is created when one employee has knowledge regarding an
issue and another employee does not.
5
Photographs taken the day of the accident showed the rod
was dark, appeared to be several yards from the street, and
protruded one or two inches above the ground. The rod was
concealed by scattered leaves and an uneven pattern of shadows,
apparently from nearby trees. These photographs do not support
the contention the rod was “obvious” or “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.” (Heskel, supra, 227 Cal.App.4th at p.
321.)
Casey submitted Google Maps photographs of the dirt
shoulder purportedly taken six years before the accident. They
contain a small dark spot that Casey declared is the rod. But
based on the lack of contrast with the surrounding shadows and
the limited quality of the photographs, it cannot be determined if
they depict the rod or how long the rod was present.
Even if the rod was present for several years, “‘its
continued existence does not impart notice to the municipality.’”
(Martinez, supra, 71 Cal.App.5th at p. 519 [divot present at least
18 months]; Heskel, supra, 227 Cal.App.4th at p. 316 [hazard
present “‘about 2 years’”].) The sustained presence of a
dangerous condition does not impart constructive knowledge,
where, as here, the defect is not conspicuous. (Whiting v.
National City (1937) 9 Cal.2d 163 [uneven sidewalk, six years];
Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47-50 [break
in sidewalk, five to six years].)
The court may consider whether the public entity had a
“reasonably adequate” inspection system, and whether the
dangerous condition was not discovered in operation of an
inspection system with due care. (Gov. Code, § 835.2, subd. (b).)
6
But the City was not required to inspect a dirt shoulder with the
“same precision” as a sidewalk. (Martinez, supra, 71 Cal.App.5th
at p. 524 [alleyway different than sidewalk].) And even if the
City’s inspection system was inadequate, constructive notice is
not imputed here because the hazard was not obvious. (Id. at p.
520.)
Casey cites Erfurt v. State of California (1983) 141
Cal.App.3d 837, 845, where the state was liable for a defective
road design that existed for over 10 years. As drivers reached the
crest of a hill, they were suddenly blinded by the sun at the same
point the freeway lane split into two lanes with a concrete pillar
directly in front of them. Unlike Erfurt, there is no evidence here
the rod was “obvious.”
This case is unlike Carson v. Facilities Development Co.
(1984) 36 Cal.3d 830, upon which Casey relies. There, trees and
a sign obstructed the view of oncoming traffic. (Id. at pp. 838,
844.) The sign was “an obvious danger” that “was visible from a
public roadway.” (Id. at pp. 842-844.) But there is no evidence
here the rod was visible from the street or likely to be seen by
City employees working on the shoulder.
Because Casey did not rebut the City’s prima facie case by
showing “the existing evidence created a reasonable inference
that the condition was obvious or . . . present additional evidence
proving that element,” summary judgment was properly granted.
(Heskel, supra, 227 Cal.App.4th at p. 321.)3
3
The City also sought summary judgment based on the
affirmative defense of trail immunity. (Gov. Code, § 831.4.) The
trial court did not rule on this issue. We need not resolve this
issue because summary judgment was appropriate given the lack
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DISPOSITION
The judgment is affirmed. The City shall recover its costs
on appeal.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J.
YEGAN, J.
of evidence the City had constructive knowledge of the dangerous
condition.
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Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Rose, Klein & Marias, William M. Grewe and Amelia A.
Steelhead for Plaintiff and Appellant.
Procter, Shyer & Winter, James N. Procter II, Kristine A.
Tijam; Pollak, Vida & Barer, Daniel P. Barer and Rebecca E.
Orloff for Defendant and Respondent.