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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MENAHEM HESKEL,

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. Goldsmith, City Attorney, Andrew Jones, Executive Assistant City 

Attorney, Jennifer K. Gilman and Stacy J. Plotkin-Wolff, Deputy City Attorneys, for 

Defendant and Respondent.

Menahem Heskel (Heskel) sued the City of San Diego (City), claiming he suffered 

personal 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 sidewalk. (Gov. 

Code, § 835); all statutory references are to the Government Code unless otherwise 
2

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. (Code Civ. 

Proc., § 437c.)

On appeal, Heskel contends the trial court erred because triable 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. 

FACTUAL AND PROCEDURAL BACKGROUND

Heskel and his son, Danny, went for a walk on the night of September 29, 2009. 

Father and son traveled 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 City 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 not 
3

notice the condition. Neither city workers nor citizens had notified the City about the 

condition before Heskel's fall. 

Heskel produced three declarations in opposition. The first, the declaration of his 

acquaintance, Natan Dobrovsky, explained that Dobrovsky was familiar with the 

condition, that Dobrovsky himself had 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 condition and 

fall on his arm. A few months after the incident, Danny observed that the area around the 

condition had been painted. Later he saw that a "No Parking" sign had been inserted into 

the opening at that site.

After filing his opposition papers, Heskel filed a declaration from Heraclio 

Serrano. The City objected to its untimely submission. The court sustained the 

objection, but nevertheless considered the declaration in determining whether to grant the 

City's motion for summary judgment. Serrano explained 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 December 2009 or January 2010). On one occasion 

during that two-year period, Serrano 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 or 
4

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. 

On 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 City'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 condition 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 foreseeable 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 contend 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, subdivision (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 the 
5

public entity, in the exercise of due care, should have discovered the condition and its 

dangerous character. Admissible 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 due care. (§ 835.2, subd. (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 (1968) 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 court 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 entitled 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 

issues of fact. (Code Civ. Proc., § 437c, subd. (c); Cole v. Town of Los Gatos (2012) 205 
6

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 plaintiff 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 summary judgment by showing the evidence 

permits conflicting inferences as to that fact or by presenting additional evidence of its 

existence. (Code Civ. Proc., § 437c, subds. (c), (p)(1).) 

This court reviews grants of summary judgment de novo. (Montenegro 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 opposition 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 (Aguilar).)

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 declarations 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 see 
7

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 Officer Caryn Hosford explained in her declaration the 

process by which the City generally becomes aware of dangerous conditions on its 

streets. Reports or complaints by citizens may be made directly to the City's Streets

Division or through the citizen's assistance program (among other divisions). The streets 

division 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 analyst 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 fell. 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 suggested 
8

the workers conducted routine work that did not involve a downed street sign. The 

workers did not report having seen the condition over which Heskel tripped. 

Associate Traffic Engineer Ty Palusky explained in his declaration that he 

regularly accesses a database of citizen notifications of problems, malfunctions, and 

requests for improvements pertaining to City traffic controls and devices. In March 2011

Palusky searched his database and found no reports of any damaged or dangerous traffic 

control devices on either Mission Gorge or Echo Dell Roads. 

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 existing 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 declaration demonstrated the 

condition existed for more than one year prior to Heskel's fall. Although Dobrovsky had 

tripped over the condition previously, he did not state he notified the City of the 
9

condition. Dobrovsky's declaration did not state how large the 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 

Heskel'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 Heskel 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 not 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 from a public street that police regularly patrolled. 

(Ibid.) The 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 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. (§ 835.2, subd. (b); Carson, supra, 36 Cal.3d at pp. 842-843.) 

The City carried its burden to demonstrate 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 plaintiff 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. 

HUFFMAN, 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. 37-2010-00100268-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 Parties
13

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 envelopes 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 foregoing 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 

San 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