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,                                         D062186

         Plaintiff and Appellant,

         v.                                             (Super. Ct. No. 37-2010-00100268-
                                                         CU-PA-CTL)
CITY OF SAN DIEGO,

         Defendant and Respondent.


         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
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

                                              2
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

                                             3
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


                                              4
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

                                              5
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



                                              6
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

                                              7
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



                                              8
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.



                                                9
       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.




                                             10
                                      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.




                                            11
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




                                               12
                           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




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