Sheks Construction Co. v. City of South S.F. CA1/5 ( 2022 )


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  • Filed 6/29/22 Sheks Construction Co. v. City of South S.F. CA1/5
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
    ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION FIVE
    SHEKS CONSTRUCTION
    COMPANY et al.,                                                        A163204
    Cross-complainants and                                            (San Francisco County
    Appellants,                                                            Super. Ct. No. CGC-17-557970)
    v.
    CITY OF SOUTH SAN
    FRANCISCO,
    Cross-defendant and
    Respondent.
    Sheks Construction Company and its owner, Luen Shee Shek
    (collectively, Appellants), appeal the trial court’s judgment in favor of the
    City of South San Francisco (City) on Appellants’ cross-complaint for
    equitable indemnity and contribution. We reverse the court’s award of fees
    and costs, and otherwise affirm.
    BACKGROUND
    On August 1, 2016, Ramon Gomez (Plaintiff) fell while skateboarding
    across an intersection (the Intersection) in a residential neighborhood in the
    City. Plaintiff does not remember the accident. When police responded,
    1
    there was a hose stretched diagonally across the Intersection, connecting a
    fire hydrant to a residential construction site (the Site). No cones or signs
    warned of the hose. Appellants were the plumbing subcontractor at the Site,
    and the hose had been placed in the Intersection that morning by one of
    Appellants’ employees, to fill the pipes in advance of an inspection scheduled
    for that day.
    Approximately a year before the accident, the City issued a permit
    authorizing use of the fire hydrant for work at the Site. The permit was valid
    from August 10, 2015 to October 10, 2015 and, by its own terms, expired at
    the end of that period. The permit was not extended or renewed after
    October 10, 2015. After the permit expired, water from the hydrant
    continued to be used at the Site for construction purposes.
    Plaintiff sued Appellants, as well as the Site’s owner/general contractor
    (Owner), other companies and individuals associated with the Site, and Doe
    defendants, alleging claims for premises liability and negligence. Plaintiff’s
    premises liability claim included theories of failure to warn and dangerous
    condition of public property. The operative complaint alleged Plaintiff “fell
    due to the dangerous condition of the intersection . . . and due to the
    negligent failure to adequately warn of that dangerous condition . . . .”
    Appellants filed a cross-complaint against the City (as well as Owner)
    for equitable indemnity and contribution. The cross-complaint alleged the
    City allowed Owner to stretch the hose across the Intersection “without
    requiring any safety precautions to alert the public.” The cross-complaint
    further alleged that, if the Intersection constituted a dangerous condition of
    2
    public property (Gov. Code, § 8351), the City had “actual and/or constructive
    notice of the condition, which had existed ostensibly daily for a year . . . .”
    The City moved for summary judgment on the ground, among others,
    that it had no actual or constructive notice of any dangerous condition of
    public property. The trial court granted the City’s motion, and granted the
    City’s subsequent motion for fees and costs pursuant to Code of Civil
    Procedure section 1038. This appeal followed.
    DISCUSSION
    I.    Dangerous Condition of Public Property
    “A defendant is entitled to summary judgment if it can ‘show that there
    is no triable issue as to any material fact.’ (Code Civ. Proc., § 437c, subd. (c).)
    The defendant bears the initial burden of establishing that the plaintiff’s
    cause of action has ‘no merit’ by showing that the plaintiff cannot prove ‘one
    or more elements of [the] cause of action.’ (Id., subds. (o) & (p)(2).) If this
    burden is met, 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.’ (Id.,
    subd. (p)(2); [citation].) We independently decide whether summary
    judgment is appropriate.” (Martinez v. City of Beverly Hills (2021)
    
    71 Cal.App.5th 508
    , 517 (Martinez).)
    A.      Legal Background
    “Public property is in a ‘dangerous condition’ when it ‘creates a
    substantial (as distinguished from a minor, trivial or insignificant) risk of
    injury when such property . . . is used with due care in a manner in which it
    is reasonably foreseeable that it will be used.’ (§ 830, subd. (a); [citation].)”
    (Martinez, supra, 71 Cal.App.5th at p. 518.) We will assume, without
    1   All undesignated section references are to the Government Code.
    3
    deciding, that a hose stretched across the Intersection with no cones or other
    warning devices is a dangerous condition of public property.
    “Even if there is a dangerous condition on public property, a public
    entity is liable for injuries caused by it only if the entity was negligent. . . . [¶]
    A public entity may be negligent—and hence liable for injuries caused by a
    dangerous condition on its property—in one of two ways. The public entity is
    negligent if it ‘created the dangerous condition.’ (§ 835; [citation].) The
    public entity is also negligent if it did not take ‘measures to protect against
    [a] dangerous condition’ (that it did not create) if it had ‘actual or constructive
    notice of th[at] dangerous condition.’ (§ 835; [citation].)” (Martinez, supra,
    71 Cal.App.5th at pp. 518–519.) Appellants do not contend the City created
    the dangerous condition; instead, their theory is the City had notice of the
    condition.
    “A public entity has ‘actual notice of a dangerous condition’ if it has (1)
    ‘actual knowledge of the existence of the condition’ and (2) ‘knew or should
    have known of its dangerous character.’ (§ 835.2, subd. (a).) To establish
    actual notice, ‘[t]here must be some evidence that the employees had
    knowledge of the particular dangerous condition in question’; ‘it is not enough
    to show that the [public entity’s] employees had a general knowledge’ that
    the condition can sometimes occur.” (Martinez, supra, 71 Cal.App.5th at
    p. 519.)
    A public entity has constructive notice “only if the plaintiff establishes
    that the condition had 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.” (§ 835.2, subd. (b).) In
    general, “it is a question of fact for the jury to determine whether the
    condition complained of has existed for a sufficient time to give the public
    4
    agency constructive notice.” (Erfurt v. State of California (1983)
    
    141 Cal.App.3d 837
    , 845 (Erfurt).) However, the issue can be determined as a
    matter of law in certain circumstances. (State v. Superior Court of San Mateo
    County (1968) 
    263 Cal.App.2d 396
    , 400 [“we hold, as a matter of law, that the
    requirements of constructive notice, as defined in 835.2, subdivision (b), were
    not met”]; Strongman v. County of Kern (1967) 
    255 Cal.App.2d 308
    , 315
    (Strongman) [“ ‘While both the notoriety of the condition [citation] and the
    length of time it must have existed [citation] are normally questions of fact
    which are to be resolved by the jury, if the evidence as to either of these
    elements is insufficient as a matter of law the jury’s verdict can not
    stand.’ ”].)
    B.      Additional Factual Background
    1.   The City’s Evidence
    With its summary judgment motion, the City submitted the following
    evidence. After the permit expired in October 2015 and was not renewed, the
    Owner paid a public utility for the continued use of water from the hydrant,
    but the public utility did not advise the City of the Owner’s continued water
    use.
    The Owner’s onsite contact person between October 2015 and the date
    of Plaintiff’s accident testified she worked at the Site five days per week from
    9:00 a.m. to 4:00 or 5:00 p.m. The hose was used only when water was
    needed—for example, for certain concrete, cement, stucco, and plumbing
    work—and was always put away by the close of business. Cones were stored
    with the hose and the equipment to attach the hose to the hydrant, and if she
    saw a contractor using the hose without the cones she would remind them to
    use cones and/or put the cones out herself. The Owner testified he visited the
    Site two to three times per week in 2016 and saw the hose attached to the fire
    5
    hydrant “several times,” which he clarified was more than four times but he
    was not sure if it was more than five times. He had “maybe” seen warning
    signs near the hose when it was in the Intersection.
    Shek—the individual appellant—testified he worked at the Site for
    approximately seven or eight weeks, not on continuous days. He was at the
    Site an average of a few hours per day and always left before the end of the
    day, around 2:00 or 3:00 p.m. He testified that “[a]lmost every day” he was at
    the Site, the hose was out.2
    Appellants’ employee, David Choi, testified he worked at the Site for
    about 28 days, arriving around 9:00 a.m. and leaving at 5:00 p.m. The hose
    was only stretched across the Intersection when water was needed on the
    Site, and more often than not on the days he was there, the hose was not
    attached to the hydrant. When the hose was used, it was removed when
    water was no longer needed, and Choi had not seen the hose left out all day.
    The Site’s stucco contractor testified he spent approximately ten days
    at the Site, arriving at 9:00 a.m. and leaving at 4:30 or 5:00 p.m. He testified
    every time he needed water—approximately four out of the ten days—a hose
    was already attached to the hydrant and stretched across the Intersection
    when he arrived and was still there when he left. He did not recall whether
    the hose was present on days when he did not need water.
    Plaintiff testified he crossed the Intersection by skateboard every week
    or two between 10:00 a.m. and 2:00 p.m. but had never seen a hose there
    while he was on a skateboard. Plaintiff drove across the Intersection
    Although the City asserts Shek testified “he did not pay attention to
    2
    whether orange cones were in place when the hose was attached to the fire
    hydrant,” the record cites provided do not support this assertion.
    6
    approximately twice per week, and had seen a hose in the Intersection “a
    couple times” when he was driving.
    The two City police officers who investigated Plaintiff’s accident did not
    recall seeing a hose stretched across the Intersection prior to the accident,
    although they regularly passed by the Intersection on their patrols. The five
    City building inspectors who performed inspections at the Site had no
    recollection of seeing a hose in the Intersection. The deposed Site workers,
    Plaintiff, Plaintiff’s brother, and Plaintiff’s mother all testified they did not
    recall seeing any City personnel present when the hose was stretched across
    the Intersection.
    On August 25, 2015, City police received a complaint that a
    construction company was “using fire hydrant water source.” The responding
    officer did not recall seeing a hose stretched across the Intersection and
    indicated on the report of his investigation that it “Checks OK.” The City
    received no complaint or claim about the hose in the Intersection from August
    2015 through the date of Plaintiff’s accident.
    2.      Appellants’ Evidence
    With their opposition, Appellants submitted the following evidence.
    A Google Street View photograph from one day in July 2016 showed the
    hose stretched across the Intersection with no cones or other warning devices.
    A friend of Plaintiff’s testified he went by the Intersection once or twice
    per week on his way to a store and saw the hose “a lot.” He gave estimates of
    the number of times he saw the hose between August 2015 and Plaintiff’s
    accident of 10 to 20 times and 20 to 30 times.3
    3 Because the deponent testified that he crossed the Intersection when
    traveling to the store, Appellants’ attorney elicited testimony that, if the
    7
    Plaintiff’s then-girlfriend testified that from August 2015 to the
    accident, she could see the hose from her balcony, and saw it “throughout”
    that time. With their reply, the City submitted additional portions of her
    deposition testimony, which clarified that she could not see the Intersection
    from her balcony, but could only see that the hose was by the Site.
    C.    Analysis
    1.     Actual Notice
    The City produced evidence that City officials known to have passed by
    the Intersection—building inspectors and patrolling police officers—do not
    recall seeing the hose stretched across the Intersection. No deponent recalled
    seeing a City official at the Site when the hose was in the Intersection. The
    City did not receive any complaint or claim about a hose in the Intersection
    before Plaintiff’s accident.
    Appellants point to the City’s issuance of the permit for use of water
    from the hydrant at the Site. The permit does not create a material issue
    with respect to actual notice. As an initial matter, although a diagram
    submitted with the permit application indicated the hydrant was located
    diagonally across the street from the Site, it did not indicate that water
    would be obtained by means of a hose stretched across the Intersection
    (despite Appellants’ assertion to the contrary). Indeed, the permit issued
    stated it was “to be prominently displayed on tank truck during filling
    operation,” indicating an assumption that water from the hydrant would be
    obtained by means of a tank truck. More significantly, the permit expired in
    October 2015, so any notice by virtue of the permit did not extend beyond
    deponent saw the hose 20 to 30 times, but also saw it on his return trip from
    the store, he then saw the hose 40 to 60 times.
    8
    that date. Appellants cite no authority that the City was obligated to ensure
    that water use ceased upon the permit’s expiration.
    Appellants additionally point to the August 2015 police complaint.
    This also does not create an issue of fact as to actual notice. The complaint
    notified the City only that a construction company was using water from a
    fire hydrant—information the City already knew of because of the permit it
    issued—and did not notify the City that water was being accessed by means
    of a hose stretched across the Intersection. There is no evidence the
    responding officer saw the hose.
    In sum, the City satisfied its burden to show Appellants cannot
    establish the City had actual notice, and Appellants failed to establish an
    issue of fact on the matter.
    2.    Constructive Notice
    The evidence, construed in the light most favorable to Appellants, is
    that the hose was stretched across the Intersection at some times, but not at
    others, during the year between August 2015 and Plaintiff’s accident. It was
    undisputed that it was put away at the close of business. All of the
    deponents who regularly saw the Intersection during this time testified that
    more often than not the hose was put away: the Owner’s contact person at
    the Site, the Owner, Plaintiff, and Plaintiff’s friend.4 The two witnesses who
    testified the hose was in the Intersection whenever they were at the Site on
    the days they noticed it—Shek and the stucco contractor—only saw the
    Intersection for a small part of the year: Shek was onsite a few hours per day
    for a maximum of eight weeks out of the year, and the stucco contractor only
    4Plaintiff’s then-girlfriend, who testified she saw the hose from her
    balcony, also testified she could not see the Intersection from her balcony and
    only saw the hose by the Site.
    9
    noticed the hose on the four days he needed water. We question whether
    evidence that a dangerous condition is present on some days and at some
    times between 9:00 a.m. and 5:00 p.m. Monday through Friday for one year,
    but not all of this time, and never outside of this time, is sufficient to
    establish a public entity has constructive notice.
    However, we need not decide this issue because the dangerous
    condition alleged by appellant is the hose stretched across the Intersection
    without any cones or other warning signals. The City presented deposition
    testimony from the Owner’s onsite contact person that she was at the Site
    every weekday, cones were stored with the hose and equipment to attach the
    hose to the hydrant, and if she saw a contractor using the hose without the
    cones she would remind them to use cones and/or put the cones out herself.
    Appellants point to no conflicting witness testimony. The only evidence
    Appellants presented on this issue was the Google Street View photograph
    showing the hose in the Intersection without cones on a single day. This
    evidence does not contradict the Owner’s onsite contact person because she
    testified there were times when a subcontractor used the hose without cones
    and when she saw it, she either put the cones out herself or told the
    contractor to do so. That the Owner’s onsite contact person may have had a
    motive to exaggerate her diligence in ensuring the use of cones is immaterial
    for summary judgment purposes. “[T]he law is clear that summary judgment
    may not be denied solely on the basis of the credibility of the moving party’s
    witnesses. Code of Civil Procedure section 437c, subdivision (e), provides, ‘If
    a party is otherwise entitled to summary judgment pursuant to this section,
    summary judgment shall not be denied on grounds of credibility,’ ” with
    exceptions not present here. (Ayon v. Esquire Deposition Solutions, LLC
    (2018) 
    27 Cal.App.5th 487
    , 496.)
    10
    Thus, the evidence construed most favorably to Appellants is the
    alleged dangerous condition—the hose in the Intersection without cones or
    other warning devices—was present occasionally between 9:00 a.m. and 5:00
    p.m. Monday through Friday, but not present most of this time, and never
    present outside of this time. “The critical test [for constructive notice]
    formulated by the cases is whether ‘the condition has existed long enough
    that it may be inferred that a reasonable inspection would have ascertained
    its existence.’ ” (Strongman, supra, 255 Cal.App.2d at p. 313.) The City could
    well have conducted reasonable inspections of the Intersection between
    August 2015 and Plaintiff’s accident, yet not seen the alleged dangerous
    condition. To permit a finding of constructive notice in such circumstances
    would impose too great a burden on the public entity. As one court reasoned,
    in finding no constructive notice as a matter of law where the plaintiff slipped
    on vomit in an area known to often have vomit on the sidewalk, “As a
    practical matter, if we were to [permit a finding of constructive notice], the
    city would have to have inspectors circulating throughout the area, day and
    night, . . . to discover and remove such material from the sidewalks. In our
    opinion, to state this proposition is to refute it.” (Kotronakis v. City and
    County of San Francisco (1961) 
    192 Cal.App.2d 624
    , 630 (Kotronakis).)
    The authority relied on by Appellants is inapposite. In most of the
    cases cited, the dangerous condition was constant and had persisted for a
    substantial period of time; therefore, unlike here, a single inspection during
    the time the condition existed would have provided notice. (See Levine v. City
    of Los Angeles (1977) 
    68 Cal.App.3d 481
    , 489 [the dangerous condition, a
    sudden narrowing of a roadway, “was an obvious one which had continued for
    a number of years”]; Anderson v. City of Thousand Oaks (1976) 
    65 Cal.App.3d 82
    , 91 [city had constructive notice of dangerous condition, roadway curve
    11
    without reduced speed zone, where it existed “from the time it was first
    opened to traffic until the accident occurred approximately six weeks later”];
    Lorraine v. City of Los Angeles (1942) 
    55 Cal.App.2d 27
    , 30 [sufficient
    evidence of notice of a hole in the sidewalk where it “had existed for a month
    or six weeks prior to the date of [the plaintiff’s] fall”]; Sheldon v. City of Los
    Angeles (1942) 
    55 Cal.App.2d 690
    , 693 [“since the dangerous condition [of one
    and one-half inch difference in sidewalk elevation] had existed for more than
    a year, the city had constructive notice of the defect in its sidewalk”].) “Cases
    involving broken sidewalks, holes in pavements, and other similar conditions
    of a more or less permanent character (that is, permanent unless repaired)
    are quite different from this case, which involves a transitory condition . . . .”
    (Kotronakis, supra, 192 Cal.App.2d at pp. 630–631.)
    The two cases cited by Appellants involving nonpermanent dangerous
    conditions are distinguishable. In Straughter v. State of California (1976)
    
    89 Cal.App.3d 102
    , the plaintiff was injured in an accident caused by ice on
    the interstate. (Id. at p. 104.) Although that particular patch of ice had only
    appeared that morning, the stretch of interstate had been listed as icy in
    state reports for the previous seven days; in addition, workers inspected the
    area hours before the accident and saw “low damp fog” but did not return,
    despite knowing that freezing temperatures were predicted and despite the
    state highway manual requirement that such areas should be
    “ ‘continuous[ly]’ ” patrolled. (Id. at pp. 104–107.) The Court of Appeal held
    “[t]he jury could readily conclude that given the facts concerning the fog and
    temperatures, detailed above, known to [the state worker] in the early
    morning of [the accident], [the worker] did not conduct a reasonable
    inspection under the circumstances, as he failed to continue his patrols and
    admittedly failed to carefully monitor the temperatures.” (Id. at p. 111.) In
    12
    other words, although the actual dangerous condition was temporary, the
    state had notice of conditions known to cause the dangerous condition and
    failed to follow the prescribed policy. An entirely different situation is
    present here.
    In Erfurt, supra, 
    141 Cal.App.3d 837
    , the plaintiff was driving on the
    freeway at sunrise, was blinded by the sun as she reached a hill crest, and
    saw no highway lane markings when she looked down to the side. (Id. at
    p. 840.) She kept driving straight when, unbeknownst to her, the freeway
    split into a “Y” with a pillar in the center surrounded by a guardrail, which
    the plaintiff struck. (Id. at pp. 840–841.) There was evidence this stretch of
    freeway was affected by the sun’s glare about 20 days per year, for 15 to 25
    minutes per day. (Id. at p. 842.) The plaintiff’s expert opined that “the
    combination of improper ‘channelization’ with the absence of devices to
    properly warn of and guide a driver around the abutment in the middle of the
    freeway constituted a dangerous condition at certain times.” (Id. at p. 843.)
    The Court of Appeal found sufficient evidence to find constructive notice:
    “While the particular dangerous condition in this case existed only 20 some
    days of the year, it had been in existence for over 10 years, since the
    construction of the highway in 1966. Under such circumstances the jury
    could reasonably find constructive notice of the dangerous condition.” (Id. at
    p. 844.) Thus, while the glaring light of the sun was not always present, the
    road conditions—improper channeling and lack of warning devices—were,
    and provided notice that the roadway could be a dangerous condition at
    certain times. (Id. at p. 843 [“the pattern of traffic control itself was part of
    the dangerous condition”].) In contrast, there was no aspect of the alleged
    dangerous condition here that was always present.
    13
    3.     Conclusion
    The City established that Appellants cannot prove the City had actual
    or constructive notice of the alleged dangerous condition. Accordingly, we
    affirm the trial court’s order granting summary judgment to the City, and
    need not decide the parties’ remaining arguments regarding this order.5
    II.   Fees and Costs
    Appellants also challenge the trial court’s finding that the City was
    entitled to fees and costs pursuant to Code of Civil Procedure section 1038.
    On this issue, we reverse.6
    “Under Code of Civil Procedure section 1038, certain defendants in civil
    proceedings under the Government Claims Act (Gov. Code, § 810 et seq.) may
    recover defense costs, including reasonable attorney’s fees, if the court
    determines the proceeding was not brought ‘with reasonable cause and in the
    good faith belief that there was a justifiable controversy under the facts and
    law.’ (Code Civ. Proc., § 1038.)” (Lee v. Department of Parks & Recreation
    (2019) 
    38 Cal.App.5th 206
    , 215 (Lee).) “For a defendant to recover fees, it is
    sufficient if the trial court finds the plaintiff lacks either reasonable cause or
    good faith.” (Id. at p. 215.) The trial court did not find, and the City does not
    contend, that Appellants lacked good faith.
    5 Although we are affirming in part on a ground not relied on by the
    trial court, “supplemental briefing is not required under Code of Civil
    Procedure section 437c, subdivision (m)(2) because the ground on which we
    rely has already been briefed on appeal.” (Syngenta Crop Protection, Inc. v.
    Helliker (2006) 
    138 Cal.App.4th 1135
    , 1175, fn. 16; accord, Byars v. SCME
    Mortgage Bankers, Inc. (2003) 
    109 Cal.App.4th 1134
    , 1147, fn. 7.)
    6The City’s motion sought, in the alternative, an award of costs
    incurred after a Code of Civil Procedure section 998 settlement offer. On
    remand, the City may seek this alternative relief.
    14
    “Reasonable cause is an objective standard, determined as a matter of
    law on the basis of facts known to the plaintiff when [the plaintiff] filed or
    maintained the action. [Citation.] Courts have also defined reasonable cause
    under an objective standard as ‘ “ ‘whether any reasonable attorney would
    have thought the claim tenable.’ ” ’ ” (Lee, supra, 38 Cal.App.5th at pp. 215–
    216, fn. omitted.) “A defendant may not recover section 1038 costs simply
    because it won a summary judgment or other dispositive motion; victory does
    not per se indicate lack of reasonable cause.” (Kobzoff v. Los Angeles County
    Harbor/UCLA Medical Center (1998) 
    19 Cal.4th 851
    , 856.) “Reasonable
    cause is often found lacking in cases in which the public entities show they
    did not own or operate the injury site. [Citations.] . . . ‘The easy case for lack
    of reasonable cause is one in which the plaintiff (and thus [the plaintiff’s]
    attorney) can be shown to have been aware that an element of the cause of
    action was missing.’ [Citation.] ‘If a legislative purpose to protect public
    entities from meritless claims is to be served, a plaintiff must bear a burden
    of investigation sufficient to establish at least a basis for reasonable belief
    that all elements exist. Abstract hope is not reasonable belief: Under section
    1038 a plaintiff who lacks even the basis for a reasonable belief in the
    existence of all essential elements of [a] claim cannot simply name every
    conceivable defendant and rely on what future discovery may turn up.’ ” (Id.
    at p. 858.) “ ‘ “Reasonable cause” ’ is determined objectively as a matter of
    law and is subject to de novo review.” (Lee, at p. 215.)
    The trial court found that when Appellants learned the City permit had
    expired months before the accident, they should have known the cause of
    Plaintiff’s accident was their own negligence, and not a dangerous condition
    of public property. On appeal, the City relies on the permit’s expiration, as
    15
    well as Appellants’ knowledge that it was their employee who left the hose
    out on the day of Plaintiff’s accident.
    Neither the expired permit nor the undisputed fact that Appellants’
    employee left out the hose that allegedly injured Plaintiff render Appellants’
    claim against the City frivolous. We need not, and do not, decide whether a
    hose continuously left stretched across an intersection without cones or other
    warning devices is a dangerous condition of public property even if the public
    entity did not itself place the hose there and even if a previously granted
    permit had since expired. It is sufficient that such a claim is a colorable one.
    Appellants’ cross-complaint did not lack reasonable cause.
    DISPOSITION
    The trial court’s order finding the City entitled to reasonable fees and
    costs pursuant to Code of Civil Procedure section 1038 is reversed. On
    remand, the City may seek costs pursuant to Code of Civil Procedure section
    998 (see ante, fn. 6). In all other respects, the judgment is affirmed. The
    parties shall bear their own costs on appeal.
    16
    SIMONS, J.
    We concur.
    JACKSON, P. J.
    BURNS, J.
    (A163204)
    17
    

Document Info

Docket Number: A163204

Filed Date: 6/29/2022

Precedential Status: Non-Precedential

Modified Date: 6/29/2022