Filed 12/13/22 Casey v. City of Ojai CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

MONICA CASEY,

 Plaintiff and Appellant,

v.

CITY OF OJAI,

 Defendant and Respondent.

2d Civil No. B318580

(Super. Ct. No. 56-2019-

00531285-CU-PO-VTA)

(Ventura County)

ORDER MODIFYING 

OPINION AND DENYING 

REHEARING

[NO CHANGE IN 

JUDGMENT]

THE COURT:

It is ordered the opinion filed herein on November 21, 2022,

be modified as follows:

1. On page 5, first full paragraph, the first citation 

following the first sentence, “Martinez, supra, 71 Cal.App.5th at 

pp. 515, 521” is deleted so that the citation following the first 

sentence reads as follows:

(Heskel v. City of San Diego (2014) 227 Cal.App.4th 

313, 319 (Heskel).)
2

2. On page 5, first full paragraph, the last citation of the 

paragraph following the last sentence of the paragraph is 

modified to read: 

(Martinez, supra, 71 Cal.App.5th at pp. 521-522.)2

There is no change in the judgment.

Appellant’s petition for rehearing is denied.

GILBERT, P. J. YEGAN, J. BALTODANO, J.
Filed 11/21/22 Casey v. City of Ojai CA2/6 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

MONICA CASEY,

 Plaintiff and Appellant,

v.

CITY OF OJAI,

 Defendant and Respondent.

2d Civil No. B318580

(Super. Ct. No. 56-2019-

00531285-CU-PO-VTA)

(Ventura County)

Monica Casey appeals from the order granting summary 

judgment against her in favor of the City of Ojai (the City). She 

contends there was a triable issue of fact whether the City had 

constructive notice of the dangerous condition that caused her 

injury. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Casey was walking on an unpaved shoulder next to Del 

Monte Road in the City of Ojai. She tripped over a bent metal 

rod protruding from the ground, fell, and fractured her radius. 
2

She sued the City for injuries alleging a dangerous condition of 

public property (Gov. Code, § 835).1

The exposed part of the rod was six to 10 inches long and 

lay one or two inches above the ground. The rod was an anchor 

associated with a utility pole owned and maintained by AT&T. 

The City did not install the rod, and it was not used in any of the 

City’s operations. 

The ground around the rod was covered with leaves and 

was “mottled” (spotted) with areas of sun and shade. Casey did 

not see the rod before she tripped on it. She stated the rod “was 

the same color as the dirt” and “given its shape, color and 

location, [was] not expected, readily apparent or easily visible to 

anyone who would be passing by on foot.” 

City workers “pass[ed] by” the area of the accident daily on 

their way to check the adjacent cemetery. The City routinely 

maintained the area around the accident site, but not the “exact 

site” where the exposed rod was located. The City cut the weeds 

on the shoulder in spring “if needed,” but not every year. String 

trimmers (Weedwackers) were used to cut the weeds down to 

ground level. The weed abatement did not necessarily occur in 

“the exact location” where Casey tripped. 

City workers were trained to report and remove “tripping 

hazard[s].” For example, the City ground down uneven surfaces

between panels on concrete sidewalks. The City did not receive 

any reports about the rod before the accident, and did not see the 

rod during any inspections or repairs it performed. It first 

learned the rod was present when Casey filed her tort claim in 

1 Casey also sued AT&T Services, Inc., and the County of 

Ventura, but resolved those claims. 
3

this case. If the City had been aware of the rod, it would have 

wanted it removed and would have notified the utility company. 

The trial court granted the City’s motion for summary 

judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) 

DISCUSSION

Summary judgment

“[A] motion for summary judgment shall be granted if all 

the papers submitted show that there is no triable issue as to any 

material fact and that the moving party is entitled to a judgment 

as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A 

defendant moving for summary judgment “bears the burden of 

persuasion that ‘one or more elements of’ the ‘cause of action’ in 

question ‘cannot be established,’ or that ‘there is a complete 

defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. 

(2001) 25 Cal.4th 826, 850 (Aguilar); Code Civ. Proc., § 437c, 

subd. (p)(2).)

If the defendant carries this burden, the burden of 

production shifts to the plaintiff to “set forth the specific facts 

showing that a triable issue of material fact exists.” (Code Civ. 

Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-

850.) “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, at p. 

850, fn. omitted.)

“On appeal from the granting of a motion for summary 

judgment, we examine the record de novo, liberally construing 

the evidence in support of the party opposing summary judgment 

and resolving doubts concerning the evidence in favor of that 
4

party.” (Miller v. Department of Corrections (2005) 36 Cal.4th 

446, 460.)

Constructive knowledge

A public entity is liable for an injury proximately caused by 

a dangerous condition of its property if “the dangerous condition 

created a reasonably foreseeable risk of the kind of injury which 

was incurred,” and either (a) “[a] negligent or wrongful act or 

omission of an employee of the public entity . . . created the 

dangerous condition,” or (b) “[t]he public entity had actual or 

constructive notice of the dangerous condition” but failed to 

“protect against” it. (Gov. Code, § 835; Martinez v. City of Beverly 

Hills (2021) 71 Cal.App.5th 508, 513-514 (Martinez).) 

Casey does not contend the City had actual knowledge of 

the rod and relies solely on a theory of constructive knowledge. 

“A public entity had constructive notice of a dangerous condition 

. . . 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.” (Gov. 

Code, § 835.2, subd. (b).) The defect must be “sufficiently 

obvious, conspicuous, and notorious that a public entity should be 

charged with knowledge of the defect.” (Martinez, supra, 71 

Cal.App.5th at p. 521.) The issue of constructive knowledge may 

be resolved as a matter of law on summary judgment. (Id. at p. 

525.)

Casey presented no evidence that the rod would have been 

visible to a passing vehicle or by a City employee standing on the 

dirt shoulder. It is telling that Casey did not see the rod before 

she tripped on it. As she admitted in discovery, it was not 
5

“readily apparent or easily visible to anyone who would be 

passing by on foot.” 

Constructive knowledge was not shown by any prior 

reports or complaints to the City regarding the rod. (Martinez, 

supra, 71 Cal.App.5th at pp. 515, 521; Heskel v. City of San Diego 

(2014) 227 Cal.App.4th 313, 319 (Heskel).) The declaration of the 

City’s public works maintenance supervisor was sufficient to 

establish the lack of reports or complaints. The City was not 

required to present a statement from every employee who might 

have had knowledge regarding that issue. (Martinez, at pp. 521-

522.)2

The fact that City workers had removed weeds in the 

general area did not establish constructive knowledge. (See 

Heskel, supra, 227 Cal.App.4th at pp. 315-316, 319 [summary 

judgment for city because city workers in area did not notice 

hazard].) The evidence does not establish what years the City 

abated weeds, or that City employees clearing weeds would have 

seen the rod in the exercise of due care. 

We examine de novo the photographs the trial court 

considered in the summary judgment motion and “reach our own 

independent conclusions” regarding them. (Kasparian v. 

AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 15, 24-

25.) The photographs support the conclusion that the rod was not 

“obvious” and would not be discovered in the exercise of due care.

2 Another employee the City designated as the person most 

knowledgeable regarding several issues stated in a deposition 

that she did not know if any City employee observed the rod 

before the accident. Casey cites no authority that a triable issue 

of fact is created when one employee has knowledge regarding an 

issue and another employee does not.
6

Photographs taken the day of the accident showed the rod 

was dark, appeared to be several yards from the street, and 

protruded one or two inches above the ground. The rod was 

concealed by scattered leaves and an uneven pattern of shadows, 

apparently from nearby trees. These photographs do not support 

the contention the rod was “obvious” or “was of a substantial size 

or so visible from public thoroughfares that the City, in the 

exercise of due care, should have become aware of it and taken 

corrective action to cure it.” (Heskel, supra, 227 Cal.App.4th at p. 

321.)

Casey submitted Google Maps photographs of the dirt 

shoulder purportedly taken six years before the accident. They 

contain a small dark spot that Casey declared is the rod. But 

based on the lack of contrast with the surrounding shadows and 

the limited quality of the photographs, it cannot be determined if 

they depict the rod or how long the rod was present.

Even if the rod was present for several years, “‘its 

continued existence does not impart notice to the municipality.’” 

(Martinez, supra, 71 Cal.App.5th at p. 519 [divot present at least 

18 months]; Heskel, supra, 227 Cal.App.4th at p. 316 [hazard 

present “‘about 2 years’”].) The sustained presence of a 

dangerous condition does not impart constructive knowledge, 

where, as here, the defect is not conspicuous. (Whiting v. 

National City (1937) 9 Cal.2d 163 [uneven sidewalk, six years]; 

Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 47-50 [break 

in sidewalk, five to six years].)

The court may consider whether the public entity had a 

“reasonably adequate” inspection system, and whether the 

dangerous condition was not discovered in operation of an 

inspection system with due care. (Gov. Code, § 835.2, subd. (b).) 
7

But the City was not required to inspect a dirt shoulder with the 

“same precision” as a sidewalk. (Martinez, supra, 71 Cal.App.5th 

at p. 524 [alleyway different than sidewalk].) And even if the

City’s inspection system was inadequate, constructive notice is 

not imputed here because the hazard was not obvious. (Id. at p.

520.)

Casey cites Erfurt v. State of California (1983) 141 

Cal.App.3d 837, 845, where the state was liable for a defective 

road design that existed for over 10 years. As drivers reached the 

crest of a hill, they were suddenly blinded by the sun at the same 

point the freeway lane split into two lanes with a concrete pillar 

directly in front of them. Unlike Erfurt, there is no evidence here 

the rod was “obvious.”

This case is unlike Carson v. Facilities Development Co.

(1984) 36 Cal.3d 830, upon which Casey relies. There, trees and 

a sign obstructed the view of oncoming traffic. (Id. at pp. 838, 

844.) The sign was “an obvious danger” that “was visible from a 

public roadway.” (Id. at pp. 842-844.) But there is no evidence 

here the rod was visible from the street or likely to be seen by 

City employees working on the shoulder.

Because Casey did not rebut the City’s prima facie case by 

showing “the existing evidence created a reasonable inference 

that the condition was obvious or . . . present additional evidence 

proving that element,” summary judgment was properly granted. 

(Heskel, supra, 227 Cal.App.4th at p. 321.)3

3 The City also sought summary judgment based on the 

affirmative defense of trail immunity. (Gov. Code, § 831.4.) The 

trial court did not rule on this issue. We need not resolve this 

issue because summary judgment was appropriate given the lack 
8

DISPOSITION

The judgment is affirmed. The City shall recover its costs 

on appeal.

NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.

of evidence the City had constructive knowledge of the dangerous 

condition.
Mark S. Borrell, Judge

Superior Court County of Ventura

______________________________

Rose, Klein & Marias, William M. Grewe and Amelia A. 

Steelhead for Plaintiff and Appellant. 

Procter, Shyer & Winter, James N. Procter II, Kristine A. 

Tijam; Pollak, Vida & Barer, Daniel P. Barer and Rebecca E. 

Orloff for Defendant and Respondent.