Filed 2/11/21 Northcott v. South Pasadena Unified etc. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ROSA NORTHCOTT,

 Plaintiff and Appellant,

v.

SOUTH PASADENA UNIFIED 

SCHOOL DISTRICT,

 Defendant and Respondent.

 B301025

 (Los Angeles County

 Super. Ct. No. BC672531) 

 

 

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Laura Seigle, Judge. Affirmed. 

Raymond Ghermezian for Plaintiff and Appellant.

Bordin Semmer, Joshua D. Bordin-Wosk, Christopher M. 

Blanchard, and Justin Spearman for Defendant and Respondent.

_____________________________
2

INTRODUCTION

After slipping and falling on loose rocks as she walked 

across a street to reach an elementary school in South Pasadena, 

Rosa Northcott sued the South Pasadena Unified School District 

under Government Code section 8351 for maintaining a 

dangerous condition of its property. She appeals from the 

judgment entered after the trial court granted the District’s

motion for summary judgment. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

In August 2017 Northcott filed this action against the 

District and other public entities who are not parties to this 

appeal, asserting causes of action for maintaining a dangerous 

condition of public property (§ 835), vicarious liability for the 

wrongful acts or omissions of a public entity employee (§ 815.2), 

and public entity employee liability for a dangerous condition of 

public property (§ 840.2). Northcott alleged she suffered an 

injury from a “trip hazard” on the premises of an elementary 

school in South Pasadena. 

The District moved for summary judgment on the grounds

it did not own or control the property on which Northcott suffered 

her injury and did not have actual or constructive notice of the 

alleged dangerous condition. The District cited Northcott’s 

deposition testimony that she suffered her injury while crossing a 

street immediately adjacent to school property. Northcott 

testified that, after parking her car on the opposite side of the 

1 Undesignated statutory references are to the Government 

Code. 
3

street from the school, she was walking across the street, toward 

a driveway on school property that led to a gate where she 

intended to pick up children, when she slipped on “tiny rocks” on 

the surface of the street and landed on her elbow. This occurred 

near where the District had placed several orange cones at the 

edge of the street to keep vehicles from entering the driveway. 

Northcott testified she had walked across the street “hundreds of 

times,” never complained to the school of a dangerous condition, 

and did not believe she was in any danger of falling before the 

accident occurred. 

The District also presented the deposition testimony and 

declaration of David Lubs, an assistant superintendent who 

oversaw maintenance for the District, who stated the place

Northcott slipped and fell was not on school grounds, but in the 

street, which the District did not own or control. According to 

Lubs, the City of South Pasadena or the County of Los Angeles 

owned and controlled the street where Northcott fell. Lubs

stated the District had never received any communication from 

the city regarding the condition of the street there. He also

stated the District “has never received any notices or complaints 

from anyone relating to the sidewalk and/or street outside of the 

[school]” and “is unaware of any prior trip and falls in the same 

location as [Northcott’s] fall in the ten (10) years prior to the 

incident.”

In opposing the motion, Northcott agreed the accident 

occurred in the street, but disputed the District’s claims that it 

did not own or control that area and that it had no actual or 

constructive notice of the dangerous condition. In disputing the 

former claim, Northcott cited the presence of the orange cones 

near the spot where she fell. In disputing both claims she cited 
4

statements from the declaration of her expert, a “Certified 

Playground Safety Inspector,” that the area where Northcott fell 

was “an unsafe and dangerous condition because there was 

deteriorated and deteriorating asphalt which created a pooling of 

debris, rocks and soil”; that “Defendant’s personnel were 

obligated to inspect the subject area,” and “[h]ad they done so, 

they would have seen the deteriorated and deteriorating asphalt”; 

and that “[i]t is common industry practice in safety engineering 

to remove such hazards from foreseeable walkways.” 

The trial court granted the motion, ruling the District 

“established it had no ownership, control, or possession of the

public street and therefore no duty to Plaintiff to maintain the 

public street in a safe condition.” The court did not reach the 

issue of whether the District had actual or constructive notice of 

the alleged dangerous condition. The court also sustained a 

number of objections by the District to statements by Northcott’s 

expert—for example, the statement that “Defendant has a 

responsibility to maintain the areas they obstructed [with the 

orange cones] and the areas they allowed as pick-up areas[,] and 

as such, Defendant’s personnel were obligated to inspect the 

subject area”—on the ground they were legal conclusions the 

“expert has no particular expertise in reaching . . . .” Northcott 

timely appealed from the judgment. 
5

DISCUSSION

A. Applicable Law and Standard of Review

“A motion for summary judgment or summary adjudication 

is properly granted only when ‘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.’” 

(Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 

1168, 1179; see Regents of University of California v. Superior 

Court (2018) 4 Cal.5th 607, 618.) A defendant moving for 

summary adjudication has the initial burden of making a prima 

facie showing “‘“that the cause of action lacks merit because one 

or more elements of the cause of action cannot be established or 

there is a complete defense to that cause of action.”’” (Noe v. 

Superior Court (2015) 237 Cal.App.4th 316, 326; see Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854.) “‘“A prima 

facie showing is one that is sufficient to support the position of 

the party in question.”’” (Noe, at p. 325; see Aguilar, at p. 851.)

To show that a cause of action lacks merit “a defendant 

must present evidence that either ‘conclusively negate[s] an 

element of the plaintiff’s cause of action’ or ‘show[s] that the 

plaintiff does not possess, and cannot reasonably obtain,’ 

evidence necessary to establish at least one element of [its] cause 

of action. [Citation.] Once the defendant satisfies its initial 

burden, ‘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 or a defense thereto.’” (Henderson v. Equilon Enterprises, 

LLC (2019) 40 Cal.App.5th 1111, 1116; see Code Civ. Proc., 

§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 

25 Cal.4th at pp. 849, 853-854.) “There is a triable issue of 
6

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.)

We review de novo an order granting or denying a motion 

for summary adjudication or summary judgment. (Jacks v. City 

of Santa Barbara (2017) 3 Cal.5th 248, 273 [summary 

adjudication]; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 

at p. 860 [summary judgment].) In doing so, we consider “‘“‘“all 

the evidence set forth in the moving and opposing papers except 

that to which objections were made and sustained.’” [Citation.] 

We liberally construe the evidence in support of the party 

opposing summary judgment [or summary adjudication] and 

resolve doubts concerning the evidence in favor of that party.”’” 

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

B. The Trial Court Did Not Err in Granting the Motion 

for Summary Judgment

Northcott appeals the trial court’s ruling only on her cause 

of action under section 835 for maintaining a dangerous condition 

of its property. “Under section 835, a public entity . . . is ‘liable 

for injury caused by a dangerous condition of its property if the 

plaintiff establishes that the property was in a dangerous 

condition at the time of the injury, that the injury was 

proximately caused by the dangerous condition, that the 

dangerous condition created a reasonably foreseeable risk of the 

kind of injury which was incurred, and [that]: [¶] . . . [¶] (b) [t]he 

public entity had actual or constructive notice of the dangerous 

condition under [s]ection 835.2 a sufficient time prior to the 

injury to have taken measures to protect against the dangerous 
7

condition.’” (Bonanno v. Central Contra Costa Transit Authority

(2003) 30 Cal.4th 139, 146, quoting § 835; accord, Gonzales v. City 

of Atwater (2016) 6 Cal.App.5th 929, 945.) “[P]art of the 

plaintiff’s burden in an action under section 835 is, of course, to 

show that the public entity owned or controlled the property 

subject to the dangerous condition.” (Bonanno, at p. 147.) 

Northcott maintains the trial court erred in finding there 

was no triable issue of material fact regarding whether the 

District owned or controlled the property with the alleged

dangerous condition because the court, in essence, misunderstood 

what she was alleging the dangerous condition was. She 

emphasizes the dangerous condition was in fact the school’s gate, 

specifically, its location in relation to the patch of tiny rocks in 

the street. (See Joyce v. Simi Valley Unified School Dist. (2003) 

110 Cal.App.4th 292, 300 [where a motorist struck a student in 

the crosswalk of a busy street near an open school yard gate, the 

open gate was a dangerous condition of public property].) The 

District responds to what it calls Northcott’s “school-gate-asdangerous-condition theory” on its merits and on the ground she 

forfeited it “because she did not plead it or raise it” in the trial 

court. We need not reach its merits or the question of forfeiture, 

however, because Northcott did not raise a triable issue of 

material fact on the District’s (lack of) actual or constructive 

notice of the alleged dangerous condition. (See Hooked Media 

Group, Inc. v. Apple Inc. (2020) 55 Cal.App.5th 323, 336, fn. 1

[although Code of Civil Procedure section 437c,

subdivision (m)(2), provides that,“[b]efore a reviewing court 

affirms an order granting summary judgment or summary 

adjudication on a ground not relied upon by the trial court, the 

reviewing court shall afford the parties an opportunity to present 
8

their views on the issue by submitting supplemental briefs,” 

supplemental briefing is not required where the parties have 

already briefed the issue]; Sharufa v. Festival Fun Parks, LLC

(2020) 49 Cal.App.5th 493, 501, fn. 2 [“we can affirm on a ground 

not reached by the trial court so long as the parties have been

provided an opportunity to brief the issue”]; Goddard v. 

Department of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359, 

fn. 5 [supplemental briefing is not required under Code of Civil 

Procedure section 437c, subdivision (m)(2), where the parties 

have addressed the issue in their briefs].)

Under section 835.2, subdivision (a), a public entity has 

actual notice of a dangerous condition “if it had actual knowledge 

of the existence of the condition and knew or should have known 

of its dangerous character.” “‘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 public entity, in the exercise of 

due care, should have discovered the condition and its dangerous 

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

313, 317.) Thus, a “claim for constructive notice has two

threshold elements. [Citation.] A plaintiff must establish that 

the dangerous condition has existed for a sufficient period of time 

and that the dangerous condition was obvious.” (Id. at p. 320.) 

“Where the plaintiff fails to present direct or circumstantial 

evidence as to either element, his [or her] claim is deficient as a 

matter of law.” (Id. at p. 317.) 

Northcott does not dispute the District made a prima facie 

showing it did not have actual or constructive notice of the 

alleged dangerous condition by presenting evidence it had never 

received any communications about the condition of the street 
9

where she fell and did not have the obligation or the ability “to 

maintain, repair, or inspect” that area of the street. She argues, 

however, she raised a triable issue of material fact on the 

question of notice by presenting evidence the District “should 

have known of the dangerous condition.” She cites these 

statements by her expert: “Defendant’s personnel were obligated 

to inspect the subject area. Had they done so, they would have 

seen the deteriorated and deteriorating asphalt which created an 

unsafe and dangerous condition for adults and/or students. . . . 

One of Defendant’s employees had to open/close the gate at least 

twice daily to let adults and/or children enter and/or leave the 

school.”

Northcott does not argue that these statements or any 

other evidence tends to prove the District “had actual knowledge” 

there was a patch of tiny rocks in the street en route to the school 

gate—a requirement for establishing actual notice. (See State v. 

Superior Court of San Mateo County (1968) 263 Cal.App.2d 396, 

399-400 [no actual notice under section 835.2 where there was no 

evidence state employees knew the hot coals that burned a child 

had been left on the beach].) And nothing in those statements 

provides evidence of how long the alleged dangerous condition 

existed prior to her fall, let alone evidence the condition existed a 

sufficient time for the District to discover it and its dangerous 

character—as required to establish constructive notice. (See 

State v. Superior Court, at p. 400 [“The primary and 

indispensable element of constructive notice is a showing that the 

obvious condition existed a sufficient period of time before the 

accident.”]; Cheyney v. City of Los Angeles (1953) 119 Cal.App.2d 

75, 77 [affirming nonsuit on lack of constructive notice where 
10

there was “no evidence that the alleged defective condition was 

either conspicuous or notorious or as to how long it had existed”].) 

Northcott suggests the District “admits that it did not have 

an inspection system and therefore cannot claim it lacked 

constructive notice.” But she does not cite any legal authority for 

the latter part of this statement. Moreover, the adequacy of a 

public entity’s inspection system is a “secondary” consideration in 

determining whether it had constructive notice of a dangerous 

condition. (State v. Superior Court of San Mateo County, supra, 

263 Cal.App.2d at p. 400; Strongman v. Kern County (1967) 

255 Cal.App.2d 308, 313.) As the court explained in State v. 

Superior Court of San Mateo County: “In the instant case, it can 

be validly argued that there was a triable issue on the question of 

inspection, but in determining whether there is constructive 

notice, the method of inspection has been held to be secondary. 

The primary and indispensable element of constructive notice is a 

showing that the obvious condition existed a sufficient period of 

time before the accident. [Citation.] Here, there was no evidence 

(direct or circumstantial) that the danger . . . had existed for any 

particular length of time before the accident. Thus, we hold, as a 

matter of law, that the requirements of constructive notice, as 

defined in [section] 835.2, subdivision (b), were not met.” (State 

v. Superior Court, at p. 400, italics omitted.) Because Northcott 

has not demonstrated there was a triable issue of material fact on 

the question of notice, she has not shown the trial court erred in 

granting the motion for summary judgment.2

2 Northcott also contends the trial court erred in sustaining 

the District’s objections to statements in the declaration of her 

expert. Because our analysis does not rely on those rulings, we 

do not reach that issue. 
11

DISPOSITION

The judgment is affirmed. The District is to recover its

costs on appeal. 

 

SEGAL, J.

We concur:

PERLUSS, P. J. 

FEUER, J.