Filed 6/13/14 ; pub. o rder 6/23 / 14 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE
STATE OF CALIFORNIA

MENAHEM H E SKEL, Plaintiff and Appellant,

v. CITY OF SAN DIEGO, Defendant and Respondent. D062186

(Super. Ct. No. 37

- 2010

- 00100268

- CU

- PA

- CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed. Michael A. Feldman for Plaintiff and Appellant.
Jan I. G oldsmith, City Attorney, Andrew Jones, Execut ive Assistant City Attorney, Jennifer K. Gilman and Stacy J. Plotkin

- Wolff, Deputy City Attorney s , for Defendant and Respondent. Menahem Heskel (Heskel) sued the City of San Diego (City), claiming he suffered
p ersonal injury from a dangerous condition of public property, when he tripped over a protruding base of a hollows metal post (condition) cemented into a city si dewalk. (Gov. Code, § 835) ; all statutory references are to the Gov ernment Code unless otherwis e2

noted.) The trial court granted the City ' s motion for summary judgment, finding, as a matter of law, the City lacked constructive notice of a dangerous condition. (C ode Civ. Proc., § 437c.) On appeal, Heskel contends the trial court erred because tria ble issues of fact
remain about whether the City had constructive notice of the condition , based solely on the length of time it was present. We disagree. Because Heskel failed to present any evidence that the condition was obvious such that the City, in the exercise of due care, should have become aware of it, his claim must fail as a matter of law, notwithstanding his evidence that the condition was present for over one year before his accident. (§ 835.2, subd. (b).) We affirm the summary judgment.

F ACTUAL AND PROCEDURAL BACKGROUND Heskel and his son, Danny , went for a walk on the night of September 29, 2009. Father and son tr aveled on a sidewalk on the south side of Mission Gorge Road between Jackson Street and Echo Dell Road . Heskel tripped over the condition in the sidewalk, injuring his back and fracturing his left wrist. Heskel claimed the area was not well lit and there were not any adequate warnings of the condition. On March 8, 2011, Heskel filed his first amended complaint against the Ci ty for the personal injury he sustained. The City filed a motion for summary judgment, alleging it lacked the requisite actual or constructive notice to be liable. The City supported its motion with several declarations from City employees, which, taken together, tended to demonstrate that although City workers had been in the area where Heskel fell a few times over the year before the accident (Sept

. 29, 2008

- Sept

. 29, 2009), they did not3

notice the condition. Neither city workers nor citizens had notif ied the City about the condition before Heskel ' s fall. Heskel produced three declarations in opposition. The first, the declaration of his acquaint ance, Natan Dobrovsky , explained that Dobrovsky was familiar with the condition, that Dobrovsky himself h ad tripped over it " well over one year before [Heskel ' s] incident occurred , " and that in the few months after Heskel ' s fall, a " No Parking " sign had been inserted into the base. Danny ' s declaration explained that he witnessed Heskel trip over the condit ion and fall on his arm. A few months after the incident, Danny observed that the area around the condition had been pain t ed . L ater he saw that a " No Parking " sign had been inserted into the opening at that site

. After filing his oppositi on papers, Hes kel filed a declaration from Heraclio Serrano. The City objected to its untimely submission

. T he court sustained the objection, but nevertheless considered the declaration in determining whether to grant the City ' s motion for summary judgment. Serrano e xplained that he had regularly worked in the area near the condition and that it had been present for " about 2 years " before the sign was inserted into it (sometime in late Dec ember 2009 or Jan uary 2010). On one occasion during that two

- year period, Serra no drove his truck onto the sidewalk and the condition punctured a tire. Heskel also produced pictures of the condition, which were attached to Danny ' s declaration but were not formally incorporated by reference. The pictures in the record on appeal are very poor in quality and do not precisely indicate the condition ' s size or4

shape. However, based on the size of the area circled on the pictures in relation to the adjacent curb, the pictures indicate the condition was at most a few inches in height.
O n November 21, 2011, the court heard the parties ' arguments and granted the City ' s motion for summary judgment, concluding the City did not have constructive notice of an obvious dangerous condition as a matter of law. The court entered judgment in the Ci ty ' s favor. On June 18, 2012, Heskel filed a timely notice of appeal.
DISCUSSION
I
CRITERIA FOR PROVING CONSTRUCTIVE NOTICE

OF A DANGEROUS CONDITION Section 835, subdivision (b), states that a public entity is liable for injury caused by a dangerous co ndition of its property if the plaintiff establishes: (1) the property was in a dangerous condition at the time of the injury; (2) the plaintiff ' s injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably f

oreseeable risk of the kind of injury the plaintiff incurred; and (4) the public entity had actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to have taken measures to protect against it. Heskel does not co ntend the City had actual notice of the condition within the meaning of section 835.2, subdivision (a). We shall, therefore, confine our analysis to the issue of whether the City had constructive notice. " Constructive notice, " under section 835.2, subdiv ision (b), requires a plaintiff to establish that the dangerous condition existed for such a period of time and was of such an obvious nature that the5

public entity, in the exercise of due care, should have discovered the condition and its dangerous charac ter. A dmissible evidence for establishing constructive notice is defined by statute as including whether a reasonably adequate inspection system would have informed the public entity , and whether it maintained and operated such an inspection system with d ue care. (§ 835.2 , sub d . (b)(1), (2).) Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice. ( State v . Superior Court of San Mateo County (1 968) 263 Cal.App.2d 396, 400.) Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law. ( Ibid. )
In Carson v. Facilities Development Co. (1984) 36 Cal. 3d 830, 842

- 843 ( Carson ) , the c ourt inferred the obviousness of the alleged dangerous condition of public property from the established circumstances. There, the evidence clearly demonstrated the dangerous condition, a large sign obstructing a public roadway for many months, was substantial enough and so readily apparent from public thoroughfares as to support an inference that its danger was known , for purposes of overcoming a motion for nonsuit. ( Ibid. )
II
THE CITY '

S SHOWING ON ITS MOTION FOR SUMMARY JUDGMENT A defendant is e ntitled to summary judgment on a claim for injury from a dangerous condition as a matter of law when the plaintiff has failed to raise material is sues of fact

. (Code Civ. Proc., § 437c, subd. (c); Cole v. Town of Los Gatos (2012) 2056

Cal.App.4th 749, 756 ( Los Gatos ).) The defendant establishes a right to summary judgment by showing the plaintiff " lacks the evidence to sustain one or more elements of the cause of action. " ( Ibid .) The defendant demonstrates the plaintiff lacks evidence by showing the plai ntiff bears the burden to prove the specified fact and the plaintiff has " no evidence " with which to carry that burden. ( Ibid. ) Once the defendant demonstrates the plaintiff ' s evidence is deficient, the plaintiff may successfully oppose the motion for s ummary judgment by showing the evidence permits conflic ting inferences as to that fact or by presenting additional evidence of its existence. (Code Civ. Proc., § 437c, subds. (c), (p)(1).) This c ourt reviews grants of summary judgment de novo

. ( Montene gro v. City of Bradbury (2013) 215 Cal.App.4th 924, 928; Orrick Herrington & Sutcliffe v. Superior
Court (2003) 107 Cal.App.4th 1052, 1056; see also Buss v. Superior Court (1997) 16 Cal.4th 35, 60 .) We view all the evidence set forth in the moving and opp osition papers in the light most favorable to the nonmoving party. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) If there remains no triable issue of fact, we affirm. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 ( Aguil ar ).) Heskel argues that the trial court erred because a reasonable jury could have found the City had constructive notice of the condition , because it was present in its dangerous state for more than one year. However, the City provided several declarat ions to support its motion for summary judgment, which establish that it did not have such constructive notice of the condition. It showed that City workers had been in the area and did not see7

the condition within at least the one

- year period leading up to Heskel ' s accident, and this creates a reasonable inference that the condition was not obvious. City Code Compliance O fficer Caryn Hosford explained in her declaration the process by which the City generally becomes aware of dangerous conditions on it s
streets. Reports or complaints by citizens may be made directly to the City ' s S treet s Division or through the c itizen ' s a ssistance program (among o ther divisions). The streets d ivision enters information into its database pertaining to areas that need repairs. Hosford searched her database in January 2010 for any complaints concerning the area where Heskel fell. There were no complaints within the five years preceding the date of Heskel ' s accident. Michael C. Fornes, an associate management analys t with the San Diego Police Department, explained in his declaration that he has access to a system that contains information about traffic collision reports. In March 2011 he compiled a list of police officer

- initiated activity in the area where Heskel f ell. According to Fornes ' s reports, the police department received no reports of car accidents, vandalism, or other damage resulting in a downed street sign. Gus Brown, Assistant Deputy Director of the Transportation and Storm Water Division, explained in his declaration that he has access to records of maintenance work performed by City employees on City storm drains. Brown stated there are drainage structures in the area surrounding the site where Heskel fell. Brown searched his records and crew logs and determined that City work crews had reportedly been in the location twice between September 29, 2008 and September 29, 2009. The two reports suggested8

the workers conducted routine work that did not involve a downed street sign. The workers did not report h aving seen the condition over which Heskel tripped

. Associate T raffic E ngineer Ty Palusky explained in his declaration that he regularly accesses a database of citizen notifications of problems, malfunctions, and requests for improvements pertain ing to City traffic controls and devi ces. In March 2011 Palusky searched his database and found no reports of any damaged or dangerous traffic control devices on eit her Mission Gorge or Echo Dell R oads. From the above summaries , we conclude the City has presented substantial evidence that the condition was not obvious and the City was, therefore, entitled to summary judgment. The City successfully shifted the burden to Heskel either to provide evidence that the condition was obvious or to show the exist ing evidence created a
reasonable inference of the condition ' s obviousness. (See Los Gatos , supra , 205 Cal.App.4th at p. 756.)
III
PLAINTIFF '

S OPPOSITION TO CITY ' S MOTION FOR SUMMARY JUDGMENT A claim for constructive notice has two threshold elements. ( State v. Superior Court of San Mateo County , supra , 263 Cal.App.2d at p. 400.) A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious. ( Ibid. ) Dobrovsky ' s declara tion demonstrated the condition existed for more than one year prior to Heskel ' s fall. Although Dobrovsky had tripped over th e condition previously , he did not state he notified the City of the9

condition. Dobrovsky ' s declaration did not state how large t he condition was or whether it was clearly visible from the surrounding streets. Danny ' s declaration also did not describe the size of the structure or how obvious it was from the vantage of public streets. Danny simply explained that he witnessed
Hesk el ' s fall and that afterwards he noticed a sign had been inserted into the condition. Through Heskel ' s admitted evidence, he has provided evidence touching solely on the element of how long the condition was present. In the Serrano declaration, which H eskel filed late but which the trial court considered, Serrano explained that the structure had been present for two years and, on one occasion in that time period, the condition punctured his tire after he drove his truck onto the sidewalk. Serrano did n ot explain whether the condition was obvious based either on its size or visibility from the public streets. Finally, it is unclear by reference to the record what effect Heskel ' s pictures of the condition had on the trial court ' s decision. Although the pictures are poor, the size of the circled structure in relation to the curb suggests that it was not substantial or readily apparent from the street. The pictures show a condition that was roughly a few inches in height. Evidence of a condition of that nature, without more, is not a prima facie showing that the condition was obvious. ( Carson , supra, 36 Cal.3d at pp. 842

- 843.) Unlike in Carson , the condition appears to have been slight in size and not similar to a large sign that was clearly visible fr om a public street that police regularly patrolled. ( Ibid .) T he pictures only support inferences that the structure was not obvious.10

While Heskel has supplied evidence that the condition existed for more than one year, he does not substantiate that the dangerous condition was obvious. On appeal, he merely argues, " The condition speaks for itself, " as to that element. While his evidence suggests that the condition was above ground and visible, it does not demonstrate that it was of a substantial size o r 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. (§ 835.2 , subd. (b); Carson , supra, 36 Cal.3d at pp. 842

- 843.) The City carried its burden to demo nstrate Heskel lacked evidence as to the essential element of " obviousness. " (§ 835.2, subd. (b); see Aguilar , supra, 25 Cal.4th at
pp. 845

- 846 [by statute the burden shifts to the plaintiff when, on summary judgment, the defendant establishes the plainti ff lacks evidence to prove an essential element of the claim].) The burden then shifted to Heskel either to show the existing evidence created a reasonable inference that the condition was obvious or to present additional evidence proving that element. ( Code Civ. Proc., § 437c, subds. (c), (p)(1).) Because Heskel did neither, the trial court ' s grant of the City ' s motion for summary judgment was proper.11 DISPOSITION Summary judgment for the City is affirmed. The parties are to bear their own

costs.

HU FFMAN, Acting P. J.
WE CONCUR:

McDONALD, J.

O ' ROURKE, J.12

Filed 6/23/14 CERTIFIED FOR PUBLICATION

COURT OF APPEAL

- STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION ONE

MENAHEM HESKEL, Plaintiff and Appellant, v. CITY OF SAN DIEGO, Defendant and Respondent. D062186 San Diego County No. 37
- 2010
- 00100 268
- CU
- PA
- CTL

THE COURT: The opinion in this case filed June 13, 2014 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), respondent City of San Diego 's request pursuant to California Rules of Court, rule 8.1120(a), for publication is GRANTED. IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.

__ /s/ Huffman

__________________________ Acting Presiding Justice

cc: All Parties13 AFFIDAVIT OF TRANSMITTAL I am a citizen of the United States, over 18 years of age, and not a party to the within action; that my business address is 750 B Street, Suite 300, San Diego, CA 92101; that I served a copy of the attached material in envelop es addressed to those persons noted below. That said envelopes were sealed and shipping fees fully paid thereon, and thereafter were sent as indicated via the U.S. Postal System from San Diego, CA 92101. I certify under penalty of perjury that the forego ing is true and correct. Kevin J. Lane, Clerk

_______________________________ Dated:

____________ Deputy Clerk
CASE NUMBER: D062186 Office of the Clerk Material Sent YES: ____ San Diego County Superior Court

- Main P.O. Box 120128 Sa n Diego, CA 92112

Material Sent YES: ____ Michael A. Feldman 2398 San Diego Avenue, Suite B San Diego, CA 92110 Material Sent YES: ____ Jennifer Kay Gilman Office of the San Diego City Attorney 1200 3rd Ave Ste 1100 San Diego, CA 92101