Filed 1/21/21 Lopez v. City of L.A. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

YOLANDA LOPEZ,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and 

Respondent.

 B283804

 (Los Angeles County

 Super. Ct. No. BC518325)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Benny C. Osorio, Judge. Affirmed.

Yolanda Lopez, in pro. per.; and Channa Weiss for Plaintiff 

and Appellant.

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Assistant City Attorney, Scott Marcus, Chief Civil 

Litigation Branch, Blithe S. Bock and Shaun Dabby Jacobs, 

Deputy City Attorneys, for Defendant and Respondent.

——————————
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Yolanda Lopez sued the City of Los Angeles (the City) for 

premises liability after she tripped on a sidewalk. The City 

moved for summary judgment. After denying Lopez’s request for 

a continuance, the trial court granted the unopposed motion for 

summary judgment. Lopez appeals. We affirm.

BACKGROUND

While walking on a sidewalk in downtown Los Angeles, 

Lopez tripped on broken decorative tiles and fell, injuring herself. 

Lopez sued the City for premises liability under theories of 

negligence, willful failure to warn, and dangerous condition of 

public property. She alleged that the City failed to maintain an 

area under its control, thereby allowing a dangerous condition to 

exist for an unreasonable period of time and over which the City 

had actual or constructive notice. 

The City moved for summary judgment. The City argued 

that it did not own or control the tiles that caused Lopez’s fall 

and did not have notice of the alleged dangerous condition. To 

support the motion, the City submitted the declaration of Hugo 

Valencia, a street services general superintendent for the street 

maintenance division of the City’s Department of Public Works, 

Bureau of Street Services. He is familiar with asphalt, concrete, 

construction practices, subsidence, potholes, and the general 

policies regarding maintenance of the City’s sidewalks and 

roadways. According to Valencia, the City did not remove, 

maintain, or have control over the tiles where Lopez fell.

1

The City also submitted the declaration of a City attorney 

chief investigator stating that he had searched the City’s 

1 The City submitted photographs of where Lopez fell, but 

they are unclear.
3

database for claims regarding the at-issue tiles. Since 1995, 

which was how far back the database went, the only claim for an 

incident at that location was the current one filed by Lopez. 

Finally, the City submitted a service request reflecting that 

it did not repair the sidewalk tiles after Lopez fell. At the City’s 

request, the property owner repaired the tiles. 

Lopez did not file an opposition to the motion. 

The motion was heard on June 26, 2018. At the hearing, 

Lopez orally requested a continuance, which the trial court 

denied. Then, citing the City’s unopposed evidence, the trial 

court granted summary judgment in the City’s favor. The trial 

court found no triable issue of material fact that the City did not 

own or control the alleged dangerous condition and had no notice 

of the alleged condition. 

CONTENTIONS

Lopez makes two contentions. First, the trial court abused 

its discretion by denying her request for a continuance. Second, 

the trial court improperly granted summary judgment because 

the tiles were a dangerous condition of public property, and the 

City had notice of the dangerous condition.

DISCUSSION

I. Denial of continuance

A court shall continue a summary judgment motion if it 

appears from affidavits submitted by the opposing party “that 

facts essential to justify opposition may exist but cannot, for 

reasons stated, be presented.” (Code Civ. Proc., § 437c, subd. (h).) 

A party seeking a continuance must show that the facts are 

essential to opposing the motion, there is reason to believe those

facts exist, and why additional time is needed to obtain them. 
4

(Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) In the 

absence of an affidavit making this showing, we review the denial 

of a request to continue for abuse of discretion. (Ibid.) 

We see none here. Lopez did not submit an affidavit 

making the requisite showing and instead orally moved to 

continue the motion for summary judgment.2 Lopez proffered no

facts essential to oppose the motion and did not explain why they 

could not be presented. On appeal, Lopez argues only that the 

trial court failed to take “the testimony of all available 

witnesses.” The only reason Lopez proffered in the trial court for

the continuance was that she needed to obtain counsel. However, 

when Lopez filed her complaint in 2013, she was represented by 

counsel and remained so until May 2016, when counsel was 

relieved. At that time, Lopez stated that she intended to seek 

new legal representation, and the trial court advised her that the 

trial setting conference would proceed whether or not she had 

counsel. Despite this advisement that matters would proceed, 

Lopez remained unrepresented at the hearing on the summary 

judgment motion in June 2017. The record does not show why 

Lopez was unable to obtain counsel earlier. Because Lopez’s sole 

reason for requesting a continuance was not based on a need to 

obtain facts to justify opposition, the trial court did not abuse its 

discretion in denying the request. (See, e.g., Ponte v. County of 

Calaveras (2017) 14 Cal.App.5th 551, 555–556 [failure to file 

affidavit properly resulted in denial of continuance].)

2 There is no reporter’s transcript of the hearing. Instead, 

the trial court prepared a settled statement.
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II. Motion for summary judgment

The City moved for summary judgment on two grounds, 

first, it did not own or control the tiles where Lopez fell and, 

second, even if it did, it had no notice of the dangerous condition. 

Because summary judgment was properly granted on the second 

ground, we do not reach the first.

A trial court properly grants summary judgment when 

there are no triable issues of material fact and the moving party 

is entitled to judgment as a matter of law. (Code Civ. Proc., 

§437c, subd. (c).) A defendant who moves for summary judgment 

has the initial burden to show 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. (Code Civ. Proc., § 437c, subds. (a), (p)(2).) If the

defendant meets its burden, then the burden shifts to the 

plaintiff to set forth specific facts showing that a triable issue of 

material fact exists as to the cause of action. (Code Civ. Proc.,

§ 437c, subd. (p)(2).) A court may grant a defendant’s unopposed 

motion so long as the defendant’s evidence overcomes the burden 

established in the Code of Civil Procedure section 437c, 

subdivision (o)(2). (Thatcher v. Lucky Stores, Inc. (2000) 79 

Cal.App.4th 1081, 1084–1087.) We review a trial court’s 

summary judgment ruling de novo. (Delgadillo v. Television 

Center, Inc. (2018) 20 Cal.App.5th 1078, 1085.) 

A cause of action for premises liability against a public 

entity is based on statute. (Gov. Code, § 815.) The public entity’s 

ownership or control of the at-issue property is a prerequisite to 

liability. Public property is property “owned or controlled by the 

public entity” but “does not include easements, encroachments 

and other property that are located on the property of the public 
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entity but are not owned or controlled by” it. (Gov. Code, § 830, 

subd. (c).) We will assume without deciding that the City owned 

or controlled the sidewalk tiles where Lopez fell. 

Even so, a public entity is liable for injury caused by a 

dangerous condition of its property if the public entity had actual 

or constructive notice of the condition. (Gov. Code, § 835.) Lopez 

concedes that the City did not have actual notice of the alleged 

dangerous condition. As for constructive notice, the City 

submitted evidence that it had no cause to know of the alleged 

dangerous condition. A database search found no claims 

regarding the location of Lopez’s fall before the fall occurred. 

Further, the City did not remove, maintain or control the tiles. 

Instead, when Lopez notified the City of the broken tiles, the City 

asked the property owner to fix them per Los Angeles Municipal 

Code section 62.104(b), which provides that the owner of a lot 

shall maintain any sidewalk. The property owner at the location 

fixed the tiles. This evidence satisfied the City’s burden of 

showing that an element of Lopez’s cause of action could not be 

established. 

To establish a triable issue of material fact, Lopez had to 

show that the condition 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); see also Heskel v. City 

of San Diego (2014) 227 Cal.App.4th 313, 320.) Due care may be 

established by evidence the dangerous condition would have been 

discovered by an inspection system or that the public entity had 

an inspection system but did not discover the condition. (Gov. 

Code, § 835.2, subd. (b)(1), (2).) Lopez, however, submitted no 

evidence regarding, for example, how long the tiles had been
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broken. She does assert on appeal that the hole she stepped into 

was 40-inches long and three-to-four inches deep, but she did not 

raise that point below. Similarly, where a plaintiff failed to 

produce evidence that the puddle of vomit he slipped in had been 

on the sidewalk longer than overnight, a jury’s verdict for the 

plaintiff had to be reversed. (Kotronakis v. City & County of San 

Francisco (1961) 192 Cal.App.2d 624, 629.) As Lopez presented 

no evidence that the condition was obvious or had existed for any 

particular length of time before the accident, the requirements of 

constructive notice are not met as a matter of law. (See, e.g.,

State v. Superior Court of San Mateo County (1968) 263 

Cal.App.2d 396, 400.)

Summary judgment in the City’s favor was therefore 

properly granted.

DISPOSITION

The judgment is affirmed. No costs are awarded.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.