Martinez v. City of Beverly Hills

• Decision Date: 10 November 2021
• Docket Number: B305826
• Citation: 71 Cal.App.5th 508,286 Cal.Rptr.3d 462
• Parties: Nieves MARTINEZ, Plaintiff and Appellant, v. CITY OF BEVERLY HILLS, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

71 Cal.App.5th 508

286 Cal.Rptr.3d 462

Nieves MARTINEZ, Plaintiff and Appellant,

v.CITY OF BEVERLY HILLS, Defendant and Respondent.

B305826

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

Filed November 10, 2021

Carpenter, Zuckerman & Rowley, Gary S. Lewis, and Gregory A. Coolidge, Long Beach, for Plaintiff and Appellant.

Burke, Williams & Sorensen, Michael R. Nebenzahl, and Charles H. Abbott, Los Angeles, for Defendant and Respondent.

HOFFSTADT, J.

A public entity is liable for injuries caused by a "dangerous condition" on public property if the entity either creates that condition itself or is otherwise negligent because it had actual or constructive notice of the condition but did not repair it. ( Gov. Code, §§ 835, 835.2.)¹ A public entity will be charged with constructive notice of a dangerous condition only if (1) the dangerous condition existed for a sufficient period of time before the plaintiff's injury, and (2) it was sufficiently obvious that the entity acted negligently in not discovering and repairing it. ( Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 842-843, 206 Cal.Rptr. 136, 686 P.2d 656 ( Carson ); State of California v. Superior Court (1968) 263 Cal.App.2d 396, 400, 69 Cal.Rptr. 683 ( State of California ).) The plaintiff in this case was walking across a back alley and tripped when one of her soft-bottomed flip-flops hit the edge of a concrete drainage ribbon running down the alley's center, and this happened in part because some of the asphalt abutting the ribbon had worn away to create a 1.75-inch-deep divot. Such an imperfection may likely have created a triable issue of fact as to whether it was obvious enough to be discovered had it been located on a sidewalk. But does the same analysis apply to an alley? We conclude that the answer is "no." "[M]unicipal liability for defective streets and sidewalks" turns in part upon "the location, extent, and character of use of the walk in question" and "the resources in men and money available to cope with the problem." ( Nicholson v. Los Angeles (1936) 5 Cal.2d 361, 367, 54 P.2d 725 ( Nicholson ); accord, § 835.2, subd. (b)(1).) Because alleys, unlike sidewalks, are designed and primarily used for purposes other than walking, and because the cost to municipalities of inspecting alleys with the same vigilance as inspecting sidewalks would be astronomical relative to the benefit of doing so, we hold that what is an obvious defect in the condition of an alley is not the same as for a sidewalk. Because reasonable minds can reach only one conclusion—namely, that the less-than-two-inch deep divot in the asphalt abutting a drainage vein in the alley is not an obvious defect—we affirm the trial court's grant of summary judgment in this case.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Incident

Nieves Martinez (plaintiff) works at a law firm that occupies three offices within walking distance of each other in the City of Beverly Hills, California (the City). The law firm's main office is located at 361 South Robertson Boulevard, and can be accessed from the rear by an alley that runs parallel to the boulevard. The alley is "relatively flat" and paved with asphalt, and has a drainage channel (called a "swale") made of concrete that runs down its center. The law firm's employees use the alley to walk between its offices.

Plaintiff parks in a space in the alley near the satellite office where she works, and thus walks through the alley's center to get to the main office only once a month.

In the late morning of July 8, 2016, plaintiff was walking through the alley from the law firm's main office to her satellite office. She was wearing soft-bottomed flip-flops and carrying a paper plate piled with pastries. As she walked toward the alley's center, the front edge of her flip-flop hit the edge of the swale; the asphalt that is normally flush against the edge of the swale had worn away, creating a divot that was "approximately" 1.75 inches in depth. The divot had been there since "at least 2014."

B. The City's inspection and maintenance of the alley

The City is aware that people sometimes walk in its alleys, but "the alleys are not intended for pedestrian walkways." Instead, the City's alleys are primarily used by "heavy commercial trucks, trash trucks, delivery trucks, [and other] large equipment"; this use "tend[s] to degrade asphalt over time." To ensure that alleys stay safe for this use, the City does two things. First, the City has a "pavement management program." Every two years, the City hires a contractor to inspect all of the City's streets and alleys and to prepare a "report spelling out the condition of the alley or street as a whole," which the City then uses to prioritize when it "resurface[s]" those streets and alleys. This program is "not designed to identify specific divots, such as the one plaintiff tripped in." Second, the City will inspect—and, if warranted, repair—any "potential hazards" in response to "user calls." The City does not otherwise "inspect alleys," and had not inspected the alley behind this block of Robertson Boulevard since at least 2009.

Since January 1, 2010, the City had received no complaints or work orders "with respect to the ... divot" on which plaintiff tripped. Since January 1, 2001, no person had filed a claim with the City or filed a lawsuit against the City claiming injury occurring from any divot in that alley.²

In October 2015, the City received a "user call" reporting a "large indentation" in the alley where plaintiff was injured.³ When a City work crew went to the alley to repair the indentation later that same month, the seven crew members ended up filling three potholes—one was 2 feet by 10 feet, one was 3 feet by 4 feet, and the third was 3 feet by 12 feet. The crew did not repair the divot at issue. It is unknown whether any crew member saw the divot, but even if they had, the crew "would have done nothing" to fix it "because the size of the divot is so insignificant" and because the "material" used to patch the larger potholes cannot be used for such small divots.

II. Procedural Background

A. Complaint

In June 2017, and while represented by the law firm that employs her, plaintiff sued the City for the injuries suffered when she "tripped and fell on a dip/hole/uneven portion of the pavement in the alley" under theories of premises liability and negligence.⁴

B. Summary judgment proceedings

The City moved for summary judgment on the grounds that (1) the divot was too trivial to constitute a dangerous condition, and (2) the City had no notice of the dangerous condition. Following briefing, and a hearing, the trial court granted summary judgment for the City. The court rejected the City's first proffered basis for summary judgment, ruling that the divot was not "trivial as a matter of law," chiefly because the City "did not submit evidence of the character of the divot" in its moving papers. However, the court accepted the City's second proffered basis for summary judgment. The court ruled that the City had carried its initial burden of showing that it had no actual or constructive notice of the divot based upon the absence of any entries in its pertinent databases. This shifted the burden to plaintiff to show a triable issue of fact, and the trial court ruled that plaintiff had not carried her burden. Specifically, the court reasoned that plaintiff had adduced "no evidence that [the City's] employees either saw or should have seen the divot" when they were patching the alley in October 2015, and that the City's two-part inspection system was "sufficient" for alleys, given that alleys—unlike sidewalks—are "designed for access" and not for walking.

C. Appeal

Following the entry of judgment, plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in granting summary judgment to the City because there are triable issues of fact regarding whether the City had notice of the divot. The City defends the trial court's ruling on notice, and also contends that summary judgment should be upheld because the divot is "trivial as a matter of law." As explained below, we conclude that summary judgment is appropriate because the City did not have notice of the divot; this obviates any need to reach the parties’ alternative arguments regarding triviality.

I. Pertinent Law

A. On summary judgment

A defendant is entitled to summary judgment if it can "show that there is no triable issue as to any material fact." ( Code Civ. Proc., § 437c, subd. (c).) The defendant bears the initial burden of establishing that the plaintiff's cause of action has "no merit" by showing that the plaintiff cannot prove "one or more elements of [her] cause of action." (Id. , subds. (o) & (p)(2).) If this burden is met, the "burden shifts" to the plaintiff "to show that a triable issue of one or more material facts exists as to the cause of action." (Id. , subd. (p)(2); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) We independently decide whether summary judgment is appropriate. ( Jacks v. City of Santa Barbara (2017) 3 Cal.5th 248, 273, 219 Cal.Rptr.3d 859, 397 P.3d 210.)

B. On the liability of public entities for injuries on public property

Plaintiff's claims for premises liability and negligence rest on the same elements—namely, (1) a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in injury. ( Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, 210 Cal.Rptr.3d 283, 384 P.3d 283 ; Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 924, 278 Cal.Rptr.3d 270 ( Issakhani ).) When a person is injured on public property, the public entity's duty of care and the circumstances under which it is breached turn on (1) whether "the property was in a dangerous condition"; (2) whether "the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred"; and (3) whether...