Lopez v. City of L.A. CA2/3 ( 2021 )

Filed 1/21/21 Lopez v. City of L.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
YOLANDA LOPEZ, B283804
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC518325)
v.
CITY OF LOS ANGELES,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Benny C. Osorio, Judge. Affirmed.
Yolanda Lopez, in pro. per.; and Channa Weiss for Plaintiff
and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Assistant City Attorney, Scott Marcus, Chief Civil
Litigation Branch, Blithe S. Bock and Shaun Dabby Jacobs,
Deputy City Attorneys, for Defendant and Respondent.
——————————
Yolanda Lopez sued the City of Los Angeles (the City) for
premises liability after she tripped on a sidewalk. The City
moved for summary judgment. After denying Lopez’s request for
a continuance, the trial court granted the unopposed motion for
summary judgment. Lopez appeals. We affirm.
BACKGROUND
While walking on a sidewalk in downtown Los Angeles,
Lopez tripped on broken decorative tiles and fell, injuring herself.
Lopez sued the City for premises liability under theories of
negligence, willful failure to warn, and dangerous condition of
public property. She alleged that the City failed to maintain an
area under its control, thereby allowing a dangerous condition to
exist for an unreasonable period of time and over which the City
had actual or constructive notice.
The City moved for summary judgment. The City argued
that it did not own or control the tiles that caused Lopez’s fall
and did not have notice of the alleged dangerous condition. To
support the motion, the City submitted the declaration of Hugo
Valencia, a street services general superintendent for the street
maintenance division of the City’s Department of Public Works,
Bureau of Street Services. He is familiar with asphalt, concrete,
construction practices, subsidence, potholes, and the general
policies regarding maintenance of the City’s sidewalks and
roadways. According to Valencia, the City did not remove,
maintain, or have control over the tiles where Lopez fell.1
The City also submitted the declaration of a City attorney
chief investigator stating that he had searched the City’s
1 TheCity submitted photographs of where Lopez fell, but
they are unclear.
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database for claims regarding the at-issue tiles. Since 1995,
which was how far back the database went, the only claim for an
incident at that location was the current one filed by Lopez.
Finally, the City submitted a service request reflecting that
it did not repair the sidewalk tiles after Lopez fell. At the City’s
request, the property owner repaired the tiles.
Lopez did not file an opposition to the motion.
The motion was heard on June 26, 2018. At the hearing,
Lopez orally requested a continuance, which the trial court
denied. Then, citing the City’s unopposed evidence, the trial
court granted summary judgment in the City’s favor. The trial
court found no triable issue of material fact that the City did not
own or control the alleged dangerous condition and had no notice
of the alleged condition.
CONTENTIONS
Lopez makes two contentions. First, the trial court abused
its discretion by denying her request for a continuance. Second,
the trial court improperly granted summary judgment because
the tiles were a dangerous condition of public property, and the
City had notice of the dangerous condition.
DISCUSSION
I. Denial of continuance
A court shall continue a summary judgment motion if it
appears from affidavits submitted by the opposing party “that
facts essential to justify opposition may exist but cannot, for
reasons stated, be presented.” (Code Civ. Proc., § 437c, subd. (h).)
A party seeking a continuance must show that the facts are
essential to opposing the motion, there is reason to believe those
facts exist, and why additional time is needed to obtain them.
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(Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) In the
absence of an affidavit making this showing, we review the denial
of a request to continue for abuse of discretion. (Ibid.)
We see none here. Lopez did not submit an affidavit
making the requisite showing and instead orally moved to
continue the motion for summary judgment.2 Lopez proffered no
facts essential to oppose the motion and did not explain why they
could not be presented. On appeal, Lopez argues only that the
trial court failed to take “the testimony of all available
witnesses.” The only reason Lopez proffered in the trial court for
the continuance was that she needed to obtain counsel. However,
when Lopez filed her complaint in 2013, she was represented by
counsel and remained so until May 2016, when counsel was
relieved. At that time, Lopez stated that she intended to seek
new legal representation, and the trial court advised her that the
trial setting conference would proceed whether or not she had
counsel. Despite this advisement that matters would proceed,
Lopez remained unrepresented at the hearing on the summary
judgment motion in June 2017. The record does not show why
Lopez was unable to obtain counsel earlier. Because Lopez’s sole
reason for requesting a continuance was not based on a need to
obtain facts to justify opposition, the trial court did not abuse its
discretion in denying the request. (See, e.g., Ponte v. County of
Calaveras (2017) 14 Cal.App.5th 551, 555–556 [failure to file
affidavit properly resulted in denial of continuance].)
2 There is no reporter’s transcript of the hearing. Instead,
the trial court prepared a settled statement.
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II. Motion for summary judgment
The City moved for summary judgment on two grounds,
first, it did not own or control the tiles where Lopez fell and,
second, even if it did, it had no notice of the dangerous condition.
Because summary judgment was properly granted on the second
ground, we do not reach the first.
A trial court properly grants summary judgment when
there are no triable issues of material fact and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc.,
§437c, subd. (c).) A defendant who moves for summary judgment
has the initial burden to show that one or more elements of the
cause of action, even if not separately pleaded, cannot be
established or that there is a complete defense to the cause of
action. (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the
defendant meets its burden, then the burden shifts to the
plaintiff to set forth specific facts showing that a triable issue of
material fact exists as to the cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2).) A court may grant a defendant’s unopposed
motion so long as the defendant’s evidence overcomes the burden
established in the Code of Civil Procedure section 437c,
subdivision (o)(2). (Thatcher v. Lucky Stores, Inc. (2000) 79
Cal.App.4th 1081, 1084–1087.) We review a trial court’s
summary judgment ruling de novo. (Delgadillo v. Television
Center, Inc. (2018) 20 Cal.App.5th 1078, 1085.)
A cause of action for premises liability against a public
entity is based on statute. (Gov. Code, § 815.) The public entity’s
ownership or control of the at-issue property is a prerequisite to
liability. Public property is property “owned or controlled by the
public entity” but “does not include easements, encroachments
and other property that are located on the property of the public
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entity but are not owned or controlled by” it. (Gov. Code, § 830,
subd. (c).) We will assume without deciding that the City owned
or controlled the sidewalk tiles where Lopez fell.
Even so, a public entity is liable for injury caused by a
dangerous condition of its property if the public entity had actual
or constructive notice of the condition. (Gov. Code, § 835.) Lopez
concedes that the City did not have actual notice of the alleged
dangerous condition. As for constructive notice, the City
submitted evidence that it had no cause to know of the alleged
dangerous condition. A database search found no claims
regarding the location of Lopez’s fall before the fall occurred.
Further, the City did not remove, maintain or control the tiles.
Instead, when Lopez notified the City of the broken tiles, the City
asked the property owner to fix them per Los Angeles Municipal
Code section 62.104(b), which provides that the owner of a lot
shall maintain any sidewalk. The property owner at the location
fixed the tiles. This evidence satisfied the City’s burden of
showing that an element of Lopez’s cause of action could not be
established.
To establish a triable issue of material fact, Lopez had to
show that the condition 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); see also Heskel v. City
of San Diego (2014) 227 Cal.App.4th 313, 320.) Due care may be
established by evidence the dangerous condition would have been
discovered by an inspection system or that the public entity had
an inspection system but did not discover the condition. (Gov.
Code, § 835.2, subd. (b)(1), (2).) Lopez, however, submitted no
evidence regarding, for example, how long the tiles had been
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broken. She does assert on appeal that the hole she stepped into
was 40-inches long and three-to-four inches deep, but she did not
raise that point below. Similarly, where a plaintiff failed to
produce evidence that the puddle of vomit he slipped in had been
on the sidewalk longer than overnight, a jury’s verdict for the
plaintiff had to be reversed. (Kotronakis v. City & County of San
Francisco (1961) 192 Cal.App.2d 624, 629.) As Lopez presented
no evidence that the condition was obvious or had existed for any
particular length of time before the accident, the requirements of
constructive notice are not met as a matter of law. (See, e.g.,
State v. Superior Court of San Mateo County (1968) 263
Cal.App.2d 396, 400.)
Summary judgment in the City’s favor was therefore
properly granted.
DISPOSITION
The judgment is affirmed. No costs are awarded.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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