Rebecca Fraser et al vs County of Santa Barbara et al
Rebecca Fraser et al vs County of Santa Barbara et al
Case Number
21CV03390
Case Type
Hearing Date / Time
Mon, 10/16/2023 - 10:00
Nature of Proceedings
Motion: Summary Judgment (For Defendant County of Santa Barbara)
Tentative Ruling
Case No. 21CV03390
Hearing Date: October 16, 2023
ATTORNEYS: For Plaintiffs Rebecca and Marcel Fraser: Chad M. Prentice,
Maho & Prentice, LLP
For Defendant County of Santa Barbara: Rachel Van Mullem,
Julian Abanise, Santa Barbara County Counsel
TENTATIVE RULING:
For the reasons set forth herein, the motion of defendant County of Santa Barbara for summary judgment and/or summary adjudication is denied.
Background:
The County moves for summary judgment, or in the alternative, summary adjudication of Plaintiffs’ second and third causes of action, on the bases that (1) plaintiffs cannot establish that a County employee created the alleged dangerous condition (Gov Code §835(a)); and (2) that plaintiffs cannot establish that the County had notice of the alleged dangerous condition, as required under Government Code section 835(b).
Undisputed Facts
The following pertinent facts set forth in Defendant’s Separate Statement of Undisputed Material Facts (Defendant’s SSUMF), and in Plaintiffs’ Separate Statement of Undisputed Material Facts (Plaintiffs’ SSUMF) are undisputed:
Plaintiff was walking on Channel Drive toward the Biltmore Hotel, and had just walked by Butterfly Lane, when she tripped and fell on the evening of November 17, 2020. (Defendant’s SSUMF 1, 4). Defendant CalPortland Construction had completed a repair of this area on September 25, 2020, as part of a county-wide pavement rehabilitation project. (Defendant’s SSUMF 6). The paving project required CalPortland to lower utilities prior to the repaving, and to raise the utilities after the paving was completed. (Plaintiffs’ SSUMF 29, 41)
In lowering the utilities, a jackhammer was used to dig out and remove existing concrete around a manhole; the metal manhole cover was removed and replaced with a metal plate; and the dugout area was backfilled with cold mix asphalt. The cold mix asphalt was brought to the manhole on Channel Drive near Butterfly Lane by tractor on multiple occasions from a staging area north of Coral Casino and shoveled by hand onto the manhole cover. (Plaintiffs’ SSUMF 29, 30, 34).
The utilities were raised on Channel Drive between October 5-7, 2020. (Plaintiffs’ SSUMF 41). This process again involved using a jackhammer to remove the asphalt that had previously been placed around the manholes, replacing the manhole cover, and then pouring new concrete into the recently dug out area. (Plaintiffs’ SSUMF 44). During this process there is leftover residue, or concrete spillage. (Plaintiffs’ SSUMF 45) The cold mix asphalt that was removed was thrown by shovel into a truck or skip loader and driven down Channel Drive to a dump truck. (Plaintiffs’ SSUMF 46, 50). CalPortland’s employees are aware of instances in which material has spilled out of the bucket of an overloaded skip loader or from a misaligned bucket. (Plaintiffs’ SSUMF 48, 49)
On September 29, 2020, after the paving on Channel Drive was completed, CalPortland began paving Hill Road. (Plaintiffs’’ SSUMF 74, 75). The asphalt trucks carrying the hot mix asphalt used to pave Hill Road were driven on Channel Drive and Olive Mill Road (Plaintiffs’ SSUMF 76). On October 11, 2020, CalPortland raised 11 manholes on Hill Road (Plaintiffs’ SSUMF 77). Any asphalt removed in doing so would have been removed in the same manner as on Channel drive, by skip loaders taking it to a dump truck. (Plaintiffs’ SSUMF 78).
The contract between the County and CalPortland included a one-year warranty from CalPortland (Plaintiff’s SSUMF 19). The contract specified that CalPortland’s work was subject to inspection by the County, through the Department of Public Works; and that the Director of the Department of Public Works would make the final inspection and determination as to work quality and acceptability (Plaintiff’s SSUMF 18, 20, 22, 23, 24). The contract further specified that the Director of Public Works would monitor the completed work for defects during the one- year warranty period, and would provide CalPortland with a list of any substantial defects that were found. (Plaintiff’s SSUMF 25)
Only the County and CalPortland had authority to haul asphalt on Channel Drive. (Plaintiffs’ SSUMF 88)
Analysis:
- Standards on motions for summary judgment, summary adjudication
To “show” a complete defense, a defendant must present admissible evidence of each essential element of the defense upon which it bears the burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) “A defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown 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. Once the defendant … has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) If the plaintiff is unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) However, if the defendant fails to meet its initial burden the motion must be denied, and the plaintiff need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
Where a plaintiff has the burden of proof at trial by a preponderance of evidence, a defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 857. Once a defendant has met this initial burden, the plaintiff must, in order to raise a triable issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than not. (Aguilar, supra, 25 Cal.4th at 857.)
The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination. The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) “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, supra, 25 Cal.4th at 850.) If there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3d 237, 240.) To be “material” for summary judgment purposes, the fact must relate to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the judgment—i.e., if proved, it could change the outcome of the motion. ( Zavala, supra, 58 Cal.App.4th at 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470; see also Cal. Rules of
Court, rule 3.1350(a)(2).) In ruling on a motion for summary judgment or summary adjudication, the court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences “in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at 843; Ragland v. U.S. Bank Nat’l Ass’n (2012)
8 209 Cal.App.4th 182,
”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 the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, 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. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)
- Triable issues of material fact exist as to whether Plaintiff Rebecca Fraser can establish her second cause of action for dangerous condition of public property
Government Code Section 835 provides as follows:
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its public property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
- A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
- The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
- Triable issues of material fact exist as to whether a dangerous condition was created by a negligent act or omission of a County employee
The County had a contractual duty to inspect CalPortland’s paving work by reason of its contract with CalPortland (Plaintiffs’ SSUMF 18-27), as well as a legal duty to make reasonable inspections to keep its streets safe, and to exercise due care in doing so to discover reasonably anticipated defects. Peters v City of San Francisco (1953) 41 Cal. 2d 419, 427; Kirack v City of Eureka (1945) 69 Cal. App. 2d 134, 138. The County’s Separate Statement does not include or assert as undisputed any facts relating to inspections of CalPortland’s paving work by the County. The County has therefore failed to meet its initial burden of proof on the issue of whether the dangerous condition was caused by an act or omission of a County employee in either failing to inspect Channel Drive after the completion of the paving operations in that area, or failing to exercise due care in such an inspection. Although Plaintiffs have presented evidence on this issue, the Court need not determine whether Plaintiffs’ evidence raises a triable issue of fact, as the burden of proof has not shifted to Plaintiffs, and they have no obligation to make any showing. For the same reason the Court need not address Plaintiffs’ claim that the County’s negligence may be established by application of the doctrine of res ipsa loquitur.
The County’s Separate Statement contains only a single fact to support its assertion that a dangerous condition was not created by a County employee, by attempting to show that a dangerous condition did not exist at the location where Ms. Fraser fell. Defendant’s SSUMF 7 states: “As of September 25, 2020, the location where Mrs. Fraser fell was smooth and free defects such as asphalt lumps or bumps.” The County cites to a declaration of Robert Murphy, an Engineer Technician Specialist employed by the County’s Department of Public Works, as the sole support for this fact. However, the County has not included Mr. Murphy’s declaration in its Appendix of Exhibits ISO motion for summary judgment/summary adjudication, or with the other moving papers filed with its motion on March 29, 2023. A declaration by Mr. Murphy is included in CalPortland’s subsequently filed Volume of Exhibits ISO CalPortland’s motion for summary judgment, filed on April 17, 2023. To the extent that the Court can even consider this declaration on the County’s motion, it does not establish that the area where Ms. Fraser fell was free and clear of defects on the date of her accident, November 17, 2020, given the undisputed evidence of paving operations conducted on Channel Drive and Hill road after September 25, 2020, and the use of trucks to carry the removed cold mix asphalt and the new hot mix asphalt for these operations on Channel Drive. (Plaintiff’s SSUMF 41, 44, 45, 46, 50, 76, 77, 78) Nor does Mr. Murphy’s photographic evidence, incorporated into his declaration, establish the condition of the roadway in the location where Ms. Fraser fell. Mr. Murphy declares that the photo was taken on September 25, 2020, while he was standing in the “general vicinity” where Ms. Fraser fell. This lack of specificity renders this photo evidence inconclusive as to whether it depicts the condition of the actual area where Ms. Fraser fell.
Plaintiffs dispute Defendant’s SSUMF 7 by objecting to portions of Mr. Murphy’s declaration in which he describes the truck routes that “would have been taken” during the paving operations on Olive Mill Road, Hill Road and Spring Road between September 28 and September 30, for lack of personal knowledge. These objections are not responsive to Defendant’s SSUMF 7. However, as the County has not met its initial burden of proof on this issue, Plaintiffs have no obligation to either dispute or refute the stated fact.
- Triable issues of material fact exist as to whether the County had notice of the dangerous condition
The County cites the declarations of Kurt Klucker and Samantha Francis to support the fact that the County did not receive any complaints or notification of the roadway defect that caused Ms. Fraser to fall until after the November 2020 incident, when she filed her government tort claim. (Defendant’s SSUMF 8). Again, a review of the Court file indicates that these declarations are absent from the County’s moving papers filed on March 29, 2023. The County has therefore failed to meet its initial burden of proof on the issue of notice.
Regardless, the County has failed to address whether a reasonable inspection would have provided the County with constructive notice of the dangerous condition. "The rule is well established that constructive as well as actual knowledge of a dangerously defective sidewalk or street may render a municipality liable for damages for injuries sustained on that account when such defects should be reasonably anticipated by the officers in charge, or when reasonable inspection would have disclosed the dangerous condition. When reasonable minds may differ regarding the question as to whether defective conditions which have existed for sufficient time, under the particular circumstances of a case, will charge a municipality with constructive knowledge thereof, the conclusions of the jury in that regard may not be interfered with on appeal. (Citing cases.)" Kirack v City of Eureka (1945) 69 Cal. App. 2d 134, 138.
Constructive notice will be imputed where, as here, a duty exists to inspect and maintain property in a safe condition, and the presence of an obvious defect or a dangerous condition has existed for an adequate period of time before the accident to have permitted a municipality’s employees, in the exercise of due diligence, to discover and remedy the situation. State v Superior Court for San Mateo County (1968) 263 Cal. App. 2d 396, 400. The question of whether a dangerous condition has existed for a sufficient period of time to constitute constructive notice is usually one of fact. Perry v City of San Diego (1947) 80 Cal. App. 2d 166.
The evidence presented suggests that the alleged dangerous condition may have existed for a period of six to seven weeks. Whether this provided the County with sufficient time to discover and remedy the dangerous condition cannot be determined as a matter of law, is therefore not an issue which is amendable to determination on summary judgment.
Mr. Fraser’s cause of action for loss of consortium is derivative of his wife’s cause of action for dangerous condition of public property. As the County has failed to meet its burden of proof with respect to Ms. Fraser’s cause of action for dangerous condition of public property, the County has likewise failed to meet its burden of proof with respect to Mr. Fraser’s cause of action for loss of consortium.
Evidentiary issues:
The court need only rule on the objections to evidence that it “deems material to its disposition of the motion.” CCP Section 437(q).
Plaintiffs object to portions of the Declarations of Robert Murphy (Objections 1-3) and Kurt Klucker (Objections 4-7). As these declarations are absent from the County’s moving papers they are not material to the Court’s disposition of the motion.