Sheks Constr. Co. v. City of S. S.F.

• Decision Date: 29 June 2022
• Docket Number: A163204
• Parties: SHEKS CONSTRUCTION COMPANY et al., Cross-complainants and Appellants, v. CITY OF SOUTH SAN FRANCISCO, Cross-defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

SHEKS CONSTRUCTION COMPANY et al., Cross-complainants and Appellants,
v.
CITY OF SOUTH SAN FRANCISCO, Cross-defendant and Respondent.

A163204

California Court of Appeals, First District, Fifth Division

June 29, 2022

NOT TO BE PUBLISHED

(San Francisco County Super. Ct. No. CGC-17-557970)

SIMONS, J.

Sheks Construction Company and its owner, Luen Shee Shek (collectively, Appellants), appeal the trial court's judgment in favor of the City of South San Francisco (City) on Appellants' cross-complaint for equitable indemnity and contribution. We reverse the court's award of fees and costs, and otherwise affirm.

BACKGROUND

On August 1, 2016, Ramon Gomez (Plaintiff) fell while skateboarding across an intersection (the Intersection) in a residential neighborhood in the City. Plaintiff does not remember the accident. When police responded,

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there was a hose stretched diagonally across the Intersection, connecting a fire hydrant to a residential construction site (the Site). No cones or signs warned of the hose. Appellants were the plumbing subcontractor at the Site, and the hose had been placed in the Intersection that morning by one of Appellants' employees, to fill the pipes in advance of an inspection scheduled for that day.

Approximately a year before the accident, the City issued a permit authorizing use of the fire hydrant for work at the Site. The permit was valid from August 10, 2015 to October 10, 2015 and, by its own terms, expired at the end of that period. The permit was not extended or renewed after October 10, 2015. After the permit expired, water from the hydrant continued to be used at the Site for construction purposes.

Plaintiff sued Appellants, as well as the Site's owner/general contractor (Owner), other companies and individuals associated with the Site, and Doe defendants, alleging claims for premises liability and negligence. Plaintiff's premises liability claim included theories of failure to warn and dangerous condition of public property. The operative complaint alleged Plaintiff "fell due to the dangerous condition of the intersection . . . and due to the negligent failure to adequately warn of that dangerous condition . . . ."

Appellants filed a cross-complaint against the City (as well as Owner) for equitable indemnity and contribution. The cross-complaint alleged the City allowed Owner to stretch the hose across the Intersection "without requiring any safety precautions to alert the public." The cross-complaint further alleged that, if the Intersection constituted a dangerous condition of

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public property (Gov. Code, § 835^[1]), the City had "actual and/or constructive notice of the condition, which had existed ostensibly daily for a year . . . ."

The City moved for summary judgment on the ground, among others, that it had no actual or constructive notice of any dangerous condition of public property. The trial court granted the City's motion, and granted the City's subsequent motion for fees and costs pursuant to Code of Civil Procedure section 1038. This appeal followed.

DISCUSSION

I. Dangerous Condition of Public Property

"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 [the] 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); [citation].) We independently decide whether summary judgment is appropriate." (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517 (Martinez).)

A. Legal Background

"Public property is in a 'dangerous condition' when it 'creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is reasonably foreseeable that it will be used.' (§ 830, subd. (a); [citation].)" (Martinez, supra, 71 Cal.App.5th at p. 518.) We will assume, without

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deciding, that a hose stretched across the Intersection with no cones or other warning devices is a dangerous condition of public property.

"Even if there is a dangerous condition on public property, a public entity is liable for injuries caused by it only if the entity was negligent. . . . [¶] A public entity may be negligent-and hence liable for injuries caused by a dangerous condition on its property-in one of two ways. The public entity is negligent if it 'created the dangerous condition.' (§ 835; [citation].) The public entity is also negligent if it did not take 'measures to protect against [a] dangerous condition' (that it did not create) if it had 'actual or constructive notice of th[at] dangerous condition.' (§ 835; [citation].)" (Martinez, supra, 71 Cal.App.5th at pp. 518-519.) Appellants do not contend the City created the dangerous condition; instead, their theory is the City had notice of the condition.

"A public entity has 'actual notice of a dangerous condition' if it has (1) 'actual knowledge of the existence of the condition' and (2) 'knew or should have known of its dangerous character.' (§ 835.2, subd. (a).) To establish actual notice, '[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question'; 'it is not enough to show that the [public entity's] employees had a general knowledge' that the condition can sometimes occur." (Martinez, supra, 71 Cal.App.5th at p. 519.)

A public entity has constructive notice "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." (§ 835.2, subd. (b).) In general, "it is a question of fact for the jury to determine whether the condition complained of has existed for a sufficient time to give the public

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agency constructive notice." (Erfurt v. State of California (1983) 141 Cal.App.3d 837, 845 (Erfurt).) However, the issue can be determined as a matter of law in certain circumstances. (State v. Superior Court of San Mateo Coun...