Price v. City of Pasadena CA2/5 ( 2023 )

Filed 7/17/23 Price v. City of Pasadena CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FIVE
JILL ROSENBERG PRICE, B318250
Plaintiff and Appellant, (Los Angeles County Super.
Ct. No. 18STCV07161)
v.
CITY OF PASADENA, et. al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jill Feeney, Judge. Affirmed.
Kirakosian Law and Gregory L. Kirakosian for Plaintiff
and Appellant.
Michele Beal Bagneris, City Attorney, and Arnold F. Lee,
Assistant City Attorney, for Defendants and Respondents.
___________________________
Plaintiff Jill Rosenberg Price appeals from the summary
judgment entered in favor of defendants City of Pasadena and
Rose Bowl Operating Company (collectively, Pasadena), which
she sued for dangerous condition of public property. Plaintiff
argues the trial court erred in concluding she could not prove
Pasadena was responsible for moving the wooden log that she
tripped over when walking on a Rose Bowl Stadium trail. We
affirm because plaintiff cannot prove Pasadena employees or
contractors moved the log, nor can she use the doctrine of res
ipsa loquitur to imply Pasadena caused the dangerous condition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff’s Accident
On November 11, 2017, plaintiff and two friends drove to
the Rose Bowl Stadium to attend a college football game.
Around dusk, after parking in lot K of the stadium, plaintiff and
her friends walked on an equestrian trail toward will call.
Wooden logs separated lot K from the equestrian trail that abuts
it. While walking on the trail, plaintiff’s foot struck a wooden
log, causing her to trip and fall forward. The 15-foot log was 12
to 16 inches in diameter and over 300 pounds. Pasadena used
this wooden log and others like it as “car stops” to separate the
parking lot from the equestrian trail. Unlike the other logs that
separated the equestrian trail and lot K, this log angled into the
trail at the time of plaintiff’s fall.
Paramedics treated plaintiff where she fell. While at the
scene, paramedics carried the wooden log out of the way to a
different location.
2
2. Plaintiff’s Lawsuit and Pasadena’s Motion for
Summary Judgment
On December 4, 2018, plaintiff sued Pasadena for her
injuries. On March 25, 2019, plaintiff filed her first amended
complaint, alleging dangerous condition of public property and
negligence.1 Plaintiff asserted Pasadena was responsible under
Government Code section 835 for the dangerous condition (the
askew log) that caused her injuries.2
On February 19, 2021, Pasadena moved for summary
judgment. Among other arguments, Pasadena claimed it did not
create, nor was it aware of, the dangerous condition.
Pasadena produced a declaration from the Rose Bowl
Operating Company’s Chief Operating Officer (COO), whom
Pasadena designated as its person most knowledgeable, stating
that the log was not in its proper place and Pasadena’s
employees and contractors did not place it in that position. The
COO explained that the stadium grounds and parking lots
undergo routine maintenance and repairs on a continual basis.
He stated that prior to plaintiff’s fall, there were no reports of
any dangerous conditions in the area plaintiff fell. The COO
attested Pasadena contractors and staff, who had an obligation
to report and promptly address any dangerous conditions, had
not discovered the askew log during the ordinary course of
business or during daily inspections of the parking lots and
surrounding areas. Because the football game was taking place
1 On plaintiff’s motion, the trial court dismissed the
negligence cause of action against Pasadena.
2 All further undesignated statutory references are to the
Government Code.
3
that day, staff visually inspected the parking lots and
surrounding areas on the day of plaintiff’s fall, and did not
discover the mis-angled log.
On October 27, 2021, plaintiff filed her opposition to the
summary judgment motion. Citing testimony from the COO,
plaintiff argued that, because Pasadena employees had
previously moved the log with tractors and trucks to allow
vehicles through an access gate from lot K to the adjacent golf
course, Pasadena had the sole authority and ability to move the
log.
In its reply brief, Pasadena argued plaintiffs failed to
rebut Pasadena’s evidence that Pasadena did not cause the log
to be moved and was not on notice of the mispositioned log. At
his deposition, the COO testified that the log was moved no more
than four times per year, solely to open a gate. The COO stated
there were no events requiring access to that gate and thus no
need to move the log within the 11 days before plaintiff’s fall.
The COO stated that the log could have been moved by members
of the public “horsing around” or doing something they should
not have been doing. He also testified that although the log
delineates where cars should stop, the log would not stop a
speeding vehicle.
3. Summary Judgment
On November 10, 2021, the trial court granted summary
judgment, ruling that plaintiff could not raise a triable issue of
material fact that Pasadena created the dangerous condition, or
that Pasadena had notice of the dangerous condition. The court
explained:
Plaintiff’s argument seems to be that the only way
the log could have been moved is by equipment only
4
Defendants could access. Therefore, under this
reasoning, it is likely no one but the Defendants could
have moved the log and, since Defendants have
moved the log in the past, it is likely they did so this
time. The evidence Plaintiff provides, however, does
not lead to this conclusion without considerable
speculation.
Indeed, Plaintiff must rely on speculation to make
her theory work because she has not provided
evidence that Defendants actually moved the log to
its position where it protruded into the parking lot or
that the log was only moveable by heavy machinery
which must have been operated by Defendants. . . . .
Essentially, Plaintiff asks the court to apply the res
ipsa loquitur doctrine to infer negligence. However,
that doctrine may not be applied where the cause of
the accident is speculative and there are several
possible causes for it. [Citation.] That is because for
the doctrine to apply, a plaintiff must establish that
the instrumentality or harm was in the exclusive
control of the defendant.
Here, Plaintiff has not established who moved the log
out of its usual place and into a position where it
protruded into the parking lot. The size of the log
was not so large that it precludes the possibility that
it could have been moved by a group of people or a
vehicle or vehicles in the parking lot. Moreover, the
5
log was out in the open and could have been accessed
by members of the public.
On December 17, 2021, the court entered judgment in
favor of Pasadena.
DISCUSSION
Plaintiff’s sole argument on appeal is that she raised a
triable issue of material fact about whether Pasadena created
the dangerous condition, i.e. caused the log to be mispositioned.
1. Standard of Review
Summary judgment is appropriate “if 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.” (Code Civ. Proc., § 437c, subd. (c).) A defendant
satisfies its “burden of showing that a cause of action has no
merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be
established, or that there is a complete defense to the cause of
action. Once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to
show that a triable issue of one or more material facts exists as
to the cause of action or a defense thereto.” (Id., § 437c, subd.
(p)(2).)
The moving party must support the motion with evidence,
e.g. affidavits, declarations, depositions, admissions, and
matters subject to judicial notice, and the opposing party must
oppose the motion with the like. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843 (Aguilar); Code Civ. Proc. § 437c,
subd. (b).) When ruling on the motion, the court must consider
all the evidence and all inferences reasonably drawn from it in
6
the light most favorable to the opposing party. (Aguilar, at
p. 843; Code Civ. Proc. § 437c, subd. (c).)
“We review the trial court’s grant of summary judgment de
novo, applying the same statutory procedure followed in the trial
court.” (Taylor v. Elliott Turbomachinery Co. Inc. (2009)
171 Cal.App.4th 564, 574.)
2. Plaintiff Has Not Raised a Triable Issue of Fact that
Pasadena Created the Dangerous Condition
A. Background
To succeed on her dangerous condition claim under section
835, plaintiff had to prove: (1) the public property was in a
dangerous condition, (2) the dangerous condition proximately
caused her injury, (3) the dangerous condition created a
foreseeable risk of the kind of harm plaintiff suffered, and either:
(4) an employee’s negligent or wrongful act or omission within
the scope of employment created the dangerous condition, or
(5) the public entity had actual or constructive notice of the
dangerous condition in sufficient time to remedy it. (§ 835.)
Plaintiff challenges the trial court’s ruling on the fourth prong
(Pasadena’s creation of a dangerous condition).3
In its motion for summary judgment, Pasadena produced
an affidavit from the COO of the Rose Bowl Operating Company,
which stated the log was not in its proper place and Pasadena’s
employees and contractors did not place the log in that position.
The COO also testified that neither staff nor contractors had
reason to move the log within 11 days of the event plaintiff
attended and did not observe the log askew during inspections.
3 Plaintiff does not appeal the trial court’s alternative
rationale that Pasadena lacked actual or constructive notice of
the dangerous condition.
7
The record showed that the log could be moved if struck by a car
or if picked up by multiple people, and in fact, the paramedics
moved it on the night of plaintiff’s fall. This evidence was
sufficient to establish a prima facie case that no triable issue of
fact existed that Pasadena created the dangerous condition.
The resolution of this appeal turns on whether plaintiff
produced rebuttal evidence showing that Pasadena employees,
while acting within the scope of their employment, mispositioned
the log and thus created the dangerous condition. Plaintiff’s
only evidence was testimony from the COO stating the log was
moved by Pasadena staff or contractors at most four times per
year with a tractor or truck to open a gate.
B. Plaintiff’s evidence did not create a triable
issue of fact as to Pasadena’s creation of the
dangerous condition
For plaintiff to prevail on summary judgment, she must
raise a triable issue of fact that Pasadena created the dangerous
condition. The heading of her argument on this point is:
“Evidence Was Introduced that Created a Reasonable Inference
That Respondents’ Employees Created the Dangerous Condition
With an Instrumentality in Their ‘Exclusive Control.’ ” We
disagree.
Nothing in the record indicates Pasadena had exclusive
control over the log. To the contrary, the public had easy and
regular access to the log as it was located in a parking lot.
Heavy machinery, although convenient for moving the large log,
was not the only way to reposition it. Plaintiff testified the log
was large enough that “a few people” were needed “to pick it up
and move it,” and admitted the paramedics moved the log at the
scene of her accident. A vehicle hitting the log could also cause
8
it to shift. Pasadena’s evidence was that its employees did not
shift the log askew, and neither direct nor circumstantial
evidence, or reasonable inferences, suggests otherwise.
Plaintiff’s speculative argument to the contrary is not based on
the factual record.
Plaintiff relies on Getchell v. Rogers Jewelry (2012)
203 Cal.App.4th 381 (Getchell) and Zentz v. Coca Cola Bottling
Co. (1952) 39 Cal.2d 436 (Zentz) to support her argument that
Pasadena had exclusive control. In Getchell, the plaintiff slipped
and fell on a cleaning solution in the breakroom of defendant’s
store. (Getchell, at p. 383.) The court found the defendant store
had exclusive control because the only people with access to the
breakroom and the cleaning solution were defendant’s
employees. (Ibid.) This case is inapt as plaintiff admits the
public (not just Pasadena employees) had access to the log.
In Zentz, supra, 39 Cal.2d at page 439, a Coca Cola bottle
exploded shortly after delivery to plaintiff’s restaurant, injuring
plaintiff. The Supreme Court concluded res ipsa loquitur
applied to that situation because the evidence indicated the
bottle was otherwise properly handled and the defendant
otherwise had exclusive control over the bottle and its contents.
(Id. at pp. 447–448.) Zentz likewise does not assist plaintiff as
the public had access, opportunity, and means to move the log.
C. Res Ipsa Loquitur Does Not Apply to Section
835 Actions
In her opening brief, plaintiff suggested that she could
avail herself of the doctrine of res ipsa loquitur to establish a
triable issue of fact as to creation of the dangerous condition. In
her reply brief, plaintiff clarifies that she makes no such
9
argument. The concession is appropriate and a brief discussion
of Supreme Court authority on the subject explains why.
In Brown v. Poway Unified School Dist. (1993) 4 Cal.4th
820, 829, the Supreme Court reversed the Court of Appeal’s
application of the res ipsa loquitur doctrine against a public
entity in a dangerous condition case brought under section 835.
The Supreme Court stated that “the elements of res ipsa
loquitur do not match the elements of liability under the
Government Code.” (Id. at p. 836.) The court explained, “it is
apparent that the res ipsa loquitur presumption does not satisfy
the requirements for holding a public entity liable under section
835, subdivision (a). Res ipsa loquitur requires the plaintiff to
show only (1) that the accident was of a kind which ordinarily
does not occur in the absence of negligence, (2) that the
instrumentality of harm was within the defendant’s exclusive
control, and (3) that the plaintiff did not voluntarily contribute
to his or her own injuries. [Citation.] Subdivision (a) [of section
835], in contrast, requires the plaintiff to show that an employee
of the public entity ‘created’ the dangerous condition; in view of
the legislative history, . . . the term ‘created’ must be defined as
the sort of involvement by an employee that would justify a
presumption of notice on the entity’s part.” (Ibid.)
The Supreme Court concluded the Legislature did not
intend “to impose liability on a public entity for a dangerous
condition absent a showing that a public employee was involved
in its creation.” (Brown, supra, 4 Cal.4th at p. 835.) In holding
res ispa loquitur did not apply to actions brought under section
835, the court stated: “to hold that the res ipsa loquitur
presumption, alone, established a prima facie case under section
835, subdivision (a), would permit a jury in this case to find the
10
[public entity] liable even though there was no evidence that an
employee of the [public entity] was involved in creating the
allegedly dangerous condition.” (Id. at p. 838.)
Stepping away from Brown, plaintiff argues in her reply
brief that “[n]either Brown nor any case holds that a plaintiff is
prevented from inferring through admissible evidence that a
government entity created the dangerous condition.” We agree
but, as we have already concluded, the record supports no such
inference and nothing in Brown compels a different result.
DISPOSITION
The judgment is affirmed. Defendants City of Pasadena
and Rose Bowl Operating Company are awarded costs on appeal.
RUBIN, P. J.
WE CONCUR:
MOOR, J.
KIM, J.
11