State v. Superior Court for San Mateo County

• Decision Date: 24 June 1968
• Citation: 263 Cal.App.2d 396,69 Cal.Rptr. 683
• Court: California Court of Appeals Court of Appeals
• Parties: STATE of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF SAN MATEO, Respondent; Willem Dirk RODENHUIS, an infant minor, by and through his guardian ad litem, Willem Rodenhuis, Real Party in Interest. Civ. 25491.

Page 683

69 Cal.Rptr. 683

263 Cal.App.2d 396

STATE of California, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF SAN MATEO, Respondent Willem Dirk RODENHUIS, an infant minor, by and through his guardian ad litem, Willem Rodenhuis, Real Party in Interest.

Civ. 25491.

Court of Appeal, First District, Division 2, California.

June 24, 1968.

Rehearing Denied July 24, 1968.

Hearing Denied Aug. 21, 1968.

Thomas C. Lynch, Atty. Gen., Leonard M. Sperry, Jr., Deputy Atty. Gen., San Francisco, for petitioner.

William A. Sullivan, San Mateo, for real party in interest.

TAYLOR, Associate Justice.

This petition seeks a writ of prohibition restraining the trial court from proceeding to trial in a personal injury action after the court's denial of petitioner's motion for summary judgment.

The depositions in support of the motion for summary judgment disclosed the following uncontradicted facts: plaintiff, a 2 1/2-year-old minor, had accompanied his mother and others to San Gregorio State Beach in San Mateo County. After inspecting a particular area carefully, the group sat down two or three feet from a small sheltered alcove. Shortly thereafter, plaintiff wandered over and stood and then sat in the remains of a fire located in the alcove and was severely burned. The fire remains were in the white ash stage, blended with the white sand and the hot coals underneath were not apparent or obvious to plaintiff's mother or others who investigated the location.

A state supervisor of beaches, whose duty it was to see that the beaches were clean for public use, had inspected San Gregorio Beach the preceding week. He was aware that people had been burned a number of times by hot coals but had never asked the beach personnel to put out any coals discovered. There were no signs warning the public of hot embers. A state ranger had cleaned up the vicinity where the incident occurred the day before the accident and though he had seen remains of fires in the alcove, he saw no active fires nor felt any heat. He never extinguished fires because there was no convenient method of doing so. He admitted that a fire covered with sand could keep alive for days and would be a hazard to people walking on the beach. When inquiry was made, he advised people of the danger of covering fires with sand but there were no official directives requiring him to do so.

The principal issue is whether, under the rules governing the disposition of motions for summary judgments (Coleman v. Fitzgerald, 252 A.C.A. 58, 61, 60 Cal.Rptr. 173), there was any substantial evidence in petitioner's supporting depositions from which it could be inferred that the state had the actual or constructive notice indicated in sections 835 and 835.2 of the Government Code as a prerequisite to the imposition of liability.

We first dispose of several of respondent's preliminary contentions relating to the propriety of this petition. It is well established that the defense of sovereign immunity presents a jurisdictional question properly raised by prohibition (People v. Superior Court, 29 Cal.2d 754, 178 P.2d 1, 40 A.L.R.2d 919). Furthermore, there is no appeal from a denial of summary judgment (Bricklayers & Masons Union No. 1 of California v. Superior Court, 216 Cal.App.2d 578, 582, 31 Cal.Rptr. 115), and thus, the petition here may also be justified on the ground that 'there is not a plain, speedy, and adequate remedy in the ordinary course of law' (Code Civ.Proc. § 1103; Harden v. Superior Court, 44 Cal.2d 630, 634, 284 P.2d 9; 3 Witkin, Cal.Procedure, § 36, p. 2510). Although the state did not file its petition herein until four months after denial of its motion for summary judgment, there is no statutory time limit on the application for writs and no prejudice resulting from the delay has been shown. Respondent's contention of laches is, therefore, without merit (Wilke v. Coinway, 257 A.C.A. 140, 154, 64 Cal.Rptr. 845).

We now turn to the principal issue of whether respondent's case presents an exception to the defense of sovereign immunity. Section 815 of the Government Code provides that except as otherwise specified by statute, a public entity is immune from liability. Section 835 does permit liability under certain specified conditions. ¹ However, section 835, subdivision (a), does not apply here as there is no evidence in the depositions that the dangerous condition was created By a negligent act or omission of a state employee. Thus, before the state can be subjected to liability, it must be shown that its employees had either actual or constructive notice of the dangerous condition in sufficient time to effectuate a remedy as prescribed in section 835, subdivision (b).

Both active and constructive notice are more particularly described in section 835.2. ² To establish 'actual notice,' it is not enough to show that the state employees had a general knowledge that people do leave hot coals on public beaches. There must be some evidence that the employees had knowledge of the particular dangerous condition in question (George v. City of Los Angeles, 51 Cal.App.2d 311, 315, 124 P.2d 872; Kotronakis v. City & County of San Francisco, 192 Cal.App.2d 624, 630, 13 Cal.Rptr. 709). No such showing has been made and we hold, as a matter of law, that the state did not have actual notice as defined in section 835.2, subdivision (a).

We turn to a consideration of th elements of 'constructive notice.' Briefly stated, constructive notice may be imputed if it can be shown that an Obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection. In the instant case, it can be validly argued that there was a triable issue on the question of inspection, but in determining whether there is constructive notice, the method of inspection has been held to be secondary. The primary and indispensable element of...