Elgawady v. City and County of S.F. CA1/1

Filed 2/24/22 Elgawady v. City and County of S.F. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
ABDELKADER ELGAWADY,
Plaintiff and Appellant,
A159616
v.
CITY AND COUNTY OF SAN (San Francisco City & County
FRANCISCO, Super. Ct. No. CGC-17-561129)
Defendant and Respondent.
Appellant Abdelkader Elgawady sued the City and County of San
Francisco (City), claiming he suffered personal injury from a dangerous
condition of public property when he tripped over a metal plate affixed to a
City sidewalk. The trial court granted the City’s motion for summary
judgment, finding as a matter of law that the City lacked constructive notice
of the allegedly dangerous condition. On appeal, Elgawady contends the trial
court erred in granting the motion because triable issues of fact remain as to
whether the City had constructive notice of the condition. He also asserts
that the court erred in sustaining the City’s evidentiary objections to opinions
expressed by his expert witness and in denying his motion for a continuance.
We disagree. Because Elgawady failed to present any evidence that the
condition was obvious such that the City in the exercise of due care should
have been aware of it, his claim fails notwithstanding his contention that the
condition may have been present for several months before his accident. As
we will explain, his remaining contentions also lack merit and we affirm the
judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
About noon on June 29, 2015, Elgawady was walking on the brick
sidewalk near the corner of Fifth Street and Market Street in downtown San
Francisco. As he attempted to cross Market Street, he tripped and fell over a
circular metal plate, also referred to as a “flange,” that was about 12 inches
in diameter and one inch in height. The flange was attached to the sidewalk
by four bolts that extended about an inch above the flange’s surface. He did
not see the flange before he fell. He sustained injuries to his knee, back, and
right palm, and was taken to the hospital by an ambulance.
The flange had served as the base of a “wayfinder sign” that provided
directions to nearby museums, shopping areas, and other attractions. The
sign was installed in 2000 by the City’s Department of Public Works
(Department) in conjunction with the San Francisco Municipal
Transportation Agency (SFMTA). It is undisputed that the City has no
record of when the sign became detached from the flange, though a Google
Maps Street View1 image reflects that the sign was intact in January 2015.
The sign was not removed by any of the City’s employees. Following
Elgawady’s accident, the City removed the flange from the sidewalk. The
1“In May 2007, Google introduced ‘Street View’ to its map options.
Street View permits users to see and navigate within 360 degree street level
images.” (Boring v. Google, Inc. (W.D.Pa. 2009) 598 F.Supp.2d 695, 698.)
2
City had not received any claims for injury or requests to repair the flange
before Elgawady’s accident.
B. Pre-Summary Judgment Proceedings
In September 2017, Elgawady filed a complaint against the City for
personal injury. The operative pleading2 asserts two claims, one for
negligence under Government Code3 section 815.2, and the other for a
dangerous condition of public property under section 835. Elgawady alleged
that unnamed City employees had negligently installed the sign and had
later negligently failed to remove the flange. He further asserted that the
flange was dangerous to pedestrians exercising due care and that this danger
had existed long enough to provide the City with constructive notice.
In February 2019, seven weeks before the scheduled April 2019 trial
date, Elgawady served his first deposition notice, seeking to depose the
Department’s then-director, Mohammed Nuru. In response, the City filed a
motion for a protective order arguing that Elgawady’s notice was
unwarranted as Nuru was a high-ranking official with no personal knowledge
of the accident that could not be obtained from another source. The City
noted that it had offered to meet and confer with Elgawady concerning
discovery as early as May 2018, but he never requested a meeting. He also
had not filed any motions to compel discovery responses and had not noticed
any other depositions.
In March 2019, the trial court granted the motion for a protective
order. That same month, the parties jointly moved to continue the trial date
to December 9, 2019. Elgawady asserted that discovery was incomplete and
2The original complaint contained 10 causes of action, eight of which
were stricken following the City’s successful demurrer in November 2017.
3 All undesignated statutory references are to the Government Code.
3
that more depositions were required. The trial court granted the
continuance.
Counsel for the City designated Michael Lennon, the deputy bureau
manager for the Department’s Bureau of Street Use and Mapping, and Noel
Laffey, the manager of the SFMTA’s sign shop, as witnesses in their
professional capacities as City employees. Lennon was deposed in May 2019
and Laffey was deposed in October 2019, after the City filed its motion for
summary judgment.
At his deposition, Lennon testified that he had searched the
Department’s records and had not located any records of inspections or
complaints concerning the subject wayfinding sign. He stated that the
Department responds to complaints about sidewalk conditions and will
correct any defects that need to be addressed. The Department also
maintains a sidewalk inspection and repair program that is designed to
inspect all City sidewalks on a 25-year rolling basis. The program was
currently staffed by five inspectors who had yet to inspect the area around
Fifth and Market Streets. Lennon admitted that more frequent sidewalk
inspections would be beneficial, however, the Department did not have the
resources to inspect all of the City’s sidewalks on a monthly basis. Lennon
also acknowledged that Market Street is a highly trafficked area and that the
Department is responsible for repairing the street’s brick sidewalks. He did
not know why this area was not inspected more frequently.
Lennon had downloaded the Google Maps Street View image of the
sidewalk corner where the accident occurred to confirm the presence of the
wayfinding sign. He did not know who had installed or removed the sign but
believed such signs were the SFMTA’s responsibility. He had found no
records or other information about the sign or its specifications. He also had
4
no information as to whether permits were required to install such signs or
whether the SFMTA had applied for such a permit.
C. Summary Judgment Proceedings
In August 2019, the City filed a motion for summary judgment. The
City first asserted that Elgawady’s section 815.2 claim failed because he had
offered no evidence to support his allegations of wrongdoing by a City
employee and because his exclusive remedy was limited to that found under
section 835. The City also argued that his section 835 claim failed because
there was no evidence that the City had actual or constructive notice of the
alleged dangerous condition prior to his fall. The City noted that in his
responses to interrogatories seeking the factual basis for his claims,
Elgawady asserted that a City employee had negligently removed the
wayfinding sign. However, he had not provided any factual support for this
assertion. The City’s motion was supported by declarations of Lennon and
Laffey. When Laffey was subsequently deposed, he stated that he had no
information as to how the wayfinding sign came to be removed.
In his opposition, Elgawady complained that “discovery has been
hindered due to [the City’s] unwillingness to cooperate fully,” claiming that
the City had failed to identify employees having actual personal knowledge of
the sign so that they could be properly deposed. Instead, the City had
produced witnesses who were unable to answer his questions. Elgawady
asserted that he needed to depose unnamed City employees who had either
worked or walked in the area of Fifth and Market prior to his fall, claiming
they “should have seen the missing . . . sign and reported it.” He also
asserted that his counsel needed more time to conduct discovery, however, he
did not ask the court to continue the hearing on the motion. Instead, he filed
5
an ex parte application for an order shortening time to hear a motion to
continue the trial date.
Elgawady also argued that there were disputed material facts as to
whether a City employee had created the allegedly dangerous condition and
whether the condition existed long enough to give the City constructive
notice. His argument was based largely on the declaration of Zachary Moore,
a safety engineer and accident reconstruction expert. Moore opined that the
City knew or should have known of the dangerous condition, asserting it was
“more likely than not” that City employees had removed the wayfinding sign
because these employees have “the specialized tools and knowledge required
for the removal of [City] signposts.” Additionally, he claimed that the City
would have had notice of the dangerous condition because “multiple [City]
employees [would have been] in the immediate vicinity of the subject flange
in the up to six months it existed without the signpost on the sidewalk.” He
conceded, however, that he could not say exactly when the sign had been
removed. In its reply, the City objected to Moore’s opinions as speculative
and lacking foundation.
At the November 7, 2019 hearing on the City’s motion, Elgawady
sought to introduce an amended declaration from Moore that purportedly
cured the City’s evidentiary objections. The trial court denied the request as
untimely. That same day, the court filed its order granting the City’s motion
for summary judgment. The court rejected Elgawady’s section 815.2 claim,
finding he was limited to pursuing a claim for dangerous condition of public
property. The court also found that the City had met its initial burden of
production by highlighting Elgawady’s factually devoid interrogatory
responses, and found that his opposition had offered no evidence as to how or
when the sign was removed from its base. Nor did Elgawady provide
6
evidence to suggest that the defect was so obvious that the City would have
discovered it with due care. The court also sustained the City’s evidentiary
objections to Moore’s declaration. The court denied Elgawady’s request for
more time to conduct discovery due to his failure to present a declaration as
required by Code of Civil Procedure section 437c, subdivision (h), as well as
his failure to demonstrate his counsel’s due diligence. Judgment against
Elgawady was entered in November 2019. This appeal followed.
II.
DISCUSSION
A. Standard of Review
A defendant moving for summary adjudication “bears the burden of
persuasion that there is no triable issue of material fact and that [the
defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) To meet this burden, the
defendant must show one or more elements of the cause of action cannot be
established, or that there is a complete defense to that cause of action. (Ibid.)
The defendant may make this showing by relying on the plaintiff’s “factually
devoid discovery responses.” (Union Bank v. Superior Court (1995)
31 Cal.App.4th 573, 590.) Once the defendant has met that burden, the
burden shifts to the plaintiff to make a prima facie showing that a triable
issue of material fact exists. (Aguilar, at p. 850.) The opposing party must
make that showing with admissible evidence. (Code Civ. Proc., § 437c,
subd. (d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761 [“Only
admissible evidence is liberally construed in deciding whether there is a
triable issue.”]; accord, Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 57;
Jambazian v. Borden (1994) 25 Cal.App.4th 836, 846.)
7
We review the trial court’s summary judgment ruling de novo.
(Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69.) We
interpret the evidence in the light most favorable to plaintiff as the
nonmoving party, and resolve all doubts about the propriety of granting the
motion in his favor. (Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201,
206.) We consider all the evidence before the trial court except that to which
objections were made and properly sustained. (Pipitone v. Williams (2016)
244 Cal.App.4th 1437, 1451–1452.) “We review the trial court’s evidentiary
rulings made in connection with a summary judgment motion for abuse of
discretion.” (Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457,
467.) As the party challenging the trial court’s evidentiary rulings, plaintiff
has the burden to establish such an abuse, which we will find only if the trial
court’s order exceeds the bounds of reason. (DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)
B. Summary Judgment Was Properly Granted as to the
Section 815.2 Claim
The City’s liability for Elgawady’s injuries, if any, is defined by statute;
specifically the portion of the Government Claims Act (§ 810 et seq.), entitled
Liability of Public Entities and Public Employees. (§§ 814–895.8, added by
Stats. 1963, ch. 1681, § 1, pp. 3266–3284.) These statutes declare a general
rule of immunity (§ 815) and then set out exceptions to that rule. Section 815
provides, in part: “Except as otherwise provided by statute . . . [¶] . . . [a]
public entity is not liable for an injury, whether such injury arises out of an
act or omission of the public entity or a public employee . . . .” (§ 815,
subd. (a).)
8
The complaint’s first cause of action invokes the exception for vicarious
liability for employee negligence, as set out in section 815.2.4 The complaint
alleges that a City employee negligently failed to remove the exposed flange.
Section 815.2 provides that public entities are liable for injuries caused by
their employees within the scope of their employment “if the act or omission
would, apart from this section, have given rise to a cause of action against
that employee.” (§ 815.2, subd. (a).) Section 815.2, subdivision (b) provides:
“Except as otherwise provided by statute, a public entity is not liable for an
injury resulting from an act or omission of an employee of the public entity
where the employee is immune from liability.” (Italics added.) By its plain
terms, section 815.2 dictates that a public entity cannot be found vicariously
liable for the acts of its employee unless that employee could be found
individually liable for those acts.
Public employees are generally immune from liability for dangerous
conditions of public property. Section 840 states: “Except as provided in this
article, a public employee is not liable for injury caused by a condition of
public property where such condition exists because of any act or omission of
such employee within the scope of his employment.” (Italics added.) It is
well settled that because public employees are not liable for dangerous
conditions, public employers cannot be held vicariously liable under
section 815.2 for their employees’ actions with respect to such conditions. For
example, in Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d
379, a case also involving a sidewalk fall, the appellate court held that the
plaintiffs had not stated a cause of action against the county for vicarious
liability under section 815.2 because the county’s employees were immune
4 The complaint does not cite to section 815.2, however, Elgawady’s
briefing indicates that he is attempting to pursue a vicarious liability theory.
9
from liability for dangerous conditions under section 840. (Longfellow, at
pp. 382–383.) The Longfellow court specifically noted that “public entity
liability for property defects is not governed by the general rule of vicarious
liability provided in section 815.2, but rather by the provisions in sections 830
to 835.4 of the Government Code.” (Id. at p. 383; see also Van Kempen v.
Hayward Area Park Etc. Dist. (1972) 23 Cal.App.3d 822, 825.)
Here, the complaint specifically alleges that City employees working
within the scope of their employment negligently created a dangerous
condition by removing the wayfinding sign and leaving the flange attached to
the sidewalk. Under section 840, the City’s employees cannot be held liable
for this allegedly dangerous condition as a matter of law. Because the City’s
employees are not liable, the City cannot be vicariously liable for its
employees’ alleged conduct with respect to the presence of the flange on the
sidewalk.
On appeal, Elgawady contends that his claim falls under the exception
to section 840 that is found at section 840.2. Section 840.2 provides, in
relevant part: “An employee of a public entity is liable for injury caused by a
dangerous condition of public property if the plaintiff establishes that the
property of the public entity was in a dangerous condition at the time of the
injury, . . . and that either: [¶] (a) The dangerous condition was directly
attributable wholly or in substantial part to a negligent or wrongful act of the
employee and the employee had the authority and the funds and other means
immediately available to take alternative action which would not have created
the dangerous condition; or [¶] (b) The employee had the authority and it was
his responsibility to take adequate measures to protect against the dangerous
condition at the expense of the public entity and the funds and other means
for doing so were immediately available to him, and he had actual or
10
constructive notice of the dangerous condition . . . a sufficient time prior to
the injury to have taken measures to protect against the dangerous
condition.” (Italics added.)
The exception created by section 840.2 does not apply here. Elgawady
has not identified any City employee as having caused the dangerous
condition, let alone an employee having the authority and the funds to have
taken alternative action or provided protective measures. While he asserts
that the statute does not require him to identify a responsible employee, the
cases he relies on are inapposite. Both C.A. v. William S. Hart Union High
School Dist. (2012) 53 Cal.4th 861, 872 and Tom Jones Enterprises, Ltd. v.
County of Los Angeles (2013) 212 Cal.App.4th 1283, 1293 are distinguishable
in that they concern rulings on demurrer, not summary judgment. “To
survive a demurrer, the complaint need only allege facts sufficient to state a
cause of action; each evidentiary fact that might eventually form part of the
plaintiff’s proof need not be alleged.” (Tom Jones, at p. 1292.) Here,
Elgawady had the opportunity to conduct discovery, yet has not provided any
evidence showing that any City employee was responsible for removing the
wayfinding sign. Accordingly, the trial court properly granted summary
judgment in favor of the City on Elgawady’s section 815.2 claim.
C. Summary Judgment Was Properly Granted as to the Section 835
Claim
The complaint’s fifth cause of action alleges that the City maintained a
dangerous condition of public property under section 835. A “dangerous
condition” is defined as “a condition of property that creates a substantial (as
distinguished from a minor, trivial or insignificant) risk of injury when such
property or adjacent property is used with due care in a manner in which it is
reasonably foreseeable that it will be used.” (§ 830, subd. (a).) For purposes
11
of this appeal, we will assume that the metal flange affixed to the sidewalk
constituted a dangerous condition of public property.
In order to incur liability for a dangerous condition, a public entity
must have had actual or constructive notice of the existence of the condition.
Section 835 provides: “Except as provided by statute, 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 either: [¶] (a) A negligent or wrongful
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition; or [¶] (b) The public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a
sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.” (Italics added.)
Elgawady argues that summary judgment was improper because he
presented evidence raising triable issues as to the City’s actual or
constructive notice of the dangerous condition. Preliminarily, we note that he
has offered no admissible evidence indicating that the dangerous condition
was created by a City employee. Instead, it is essentially undisputed that the
City was not responsible for causing the sign to become detached from its
base. Accordingly, the City’s potential liability is confined to section 835,
subdivision (b), which requires the City to have had notice of the dangerous
condition.
Section 835.2 provides that the notice requirement may be met by
either actual notice (§ 835.2, subd. (a)) or constructive notice (id., subd. (b)).
To create a triable issue of fact as to actual knowledge, there must be “some
12
evidence that the employees had knowledge of the particular dangerous
condition in question.” (State of California v. Superior Court (1968)
263 Cal.App.2d 396, 399.) Here, the undisputed evidence shows that the City
did not have actual notice of the missing wayfinding sign or the flange. The
City offered Lennon’s declaration stating that he had conducted a thorough
search of all computerized records concerning complaints or inspection
requests for the area where Elgawady fell and had confirmed the City had
not received any complaints or inspection requests during the five years prior
to the accident. Laffey declared that based on his record review the SFMTA
also had not received any complaints or request for inspection or repair
concerning the wayfinding sign. Nor had anyone informed the SFMTA that
the sign had become detached or otherwise damaged before Elgawady’s
injury. Thus, we are concerned only with whether the City had constructive
notice.
To establish constructive notice under section 835.2, subdivision (b), a
plaintiff must show 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.”
Put another way, “[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.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320
(Heskel).) “Where the plaintiff fails to present direct or circumstantial
evidence as to either element, his claim is deficient as a matter of law.” (Id.
at p. 317.) The critical test for proving constructive notice is “whether ‘the
condition has existed long enough that it may be inferred that a reasonable
13
inspection would have ascertained its existence.’ ” (Strongman v. County of
Kern (1967) 255 Cal.App.2d 308, 313.)
The City argues that Elgawady failed to carry his burden on summary
judgment because he presented no evidence indicating that the wayfinding
sign was missing for a sufficient time to provide constructive notice. We
agree. The Google Maps Street View images provided to the trial court
conclusively show only that the wayfinding sign was intact as of January
2015, and that it had become detached at some point before Elgawady’s fall in
June 2015. There was no evidence establishing exactly when the sign
became detached from the flange.
On appeal, Elgawady requests that we take judicial notice of three
Google Maps Street View images that were not provided to the trial court,
purportedly showing that the wayfinding sign had been removed by February
2015. Because these documents were never presented to the trial court, we
deny his request for judicial notice of these images.5 (Vons Companies, Inc. v.
Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [absent exceptional
circumstances, appellate courts will only consider matters included in the
record at the time judgment was entered].)
5 The request for judicial notice is denied in its entirety. The three
images dated February, July, and November 2015 were not presented to the
trial court, nor was the Department’s order No. 178,884, which Elgawady
includes in his request. The two images dated January and June 2015 were
presented to the trial court and are in the record on appeal, therefore judicial
notice is unnecessary. Elgawady’s further request for judicial notice of URL
addresses from various websites run by the City’s internal departments is
also denied as these exhibits were not presented to the trial court and, in any
event, are not subject to judicial notice. (See Jolley v. Chase Home Finance,
LLC (2013) 213 Cal.App.4th 872, 889 [“we know of no ‘official Web site’
provision for judicial notice in California”].)
14
And we agree with the City that case law supports the conclusion that
Elgawady has not established a triable issue of fact as to the element of
constructive notice. As the City notes, the facts of this case are similar to
those in Heskel, supra, 227 Cal.App.4th 313. In Heskel, the plaintiff tripped
over the protruding base of a hollow metal post that was cemented into a city
sidewalk. The post was not more than a few inches in height. (Id. at
pp. 315–316.) The Court of Appeal upheld the trial court’s grant of summary
judgment, finding that the defendant city had met its burden of proof and
that the plaintiff had failed to demonstrate the obvious nature of the
condition. (Id. at p. 321.) The defendant city had presented two declarations
from city employees averring that a search of the city’s databases contained
no reports or complaints having been made regarding the condition. Nor
were there any reports of a downed street sign. (Id. at pp. 318–319.) The city
further provided a declaration of a work crew supervisor stating that none of
the workers had reported a downed street sign or the existence of a metal
post while working in the subject area. (Id. at p. 319.) The Heskel court
found that the declarations constituted substantial evidence to show that the
condition was not obvious, shifting the burden to the plaintiff. (Ibid.)
In opposition, the plaintiff provided declarations from himself and
another witness showing that the metal post had been there for over a year,
as well as photographs of the post. (Heskel, supra, 227 Cal.App.4th at
p. 320.) The court found that this evidence was insufficient to create a triable
issue of material fact as to the obviousness of the condition. (Ibid.) The
declarations offered by the plaintiff merely explained how long the structure
had been present and how the plaintiff’s fall had occurred. Nothing in the
evidence showed how visible the condition was from the public street nor the
size of the condition. (Ibid.) Although the plaintiff provided pictures of the
15
condition, the images were of poor quality, and the court concluded, “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.” (Ibid.) The Heskel court upheld the trial court’s
grant of summary judgment for the defendant city based on the condition’s
lack of obviousness. (Id. at p. 321.)
In the present case, the City’s evidence was sufficient to meet its
burden of proof. The City’s evidence is similar to that offered by the
defendant city in Heskel. Taken together, a reasonable juror could only
reasonably infer and conclude that the lack of complaints, coupled with the
relatively small height differential of, at most, two inches at each of the
flange’s four bolts, shows that the flange itself was not sufficiently obvious to
have placed the City on constructive notice of the object’s dangerous
condition.
Elgawady attempts to distinguish this case from Heskel, noting the
defendant city in that case had at least attempted an inspection of the subject
area. Here, Elgawady argues that no such attempt was ever made, citing to
the Department’s sidewalk inspection program and other evidence he claims
shows that, absent a complaint, the City does not undertake reasonable
efforts to ensure the safety or condition of its property. He further notes that
during the 15 years since the wayfinding sign was installed, the City
apparently never checked on the sign and could not produce documents about
the history of the sign or its maintenance. He claims these circumstances
would allow a jury to infer that the City had an inadequate inspection
program. In support of this claim, Elgawady relies on out-of-state cases and
California cases that predate the 1963 enactment of the Government Claims
16
Act, as well as cases that pertain to private entities. The cases are not
persuasive.
In any event, the adequacy of a public entity’s inspection system is a
“secondary” consideration in determining whether the entity had constructive
notice of a dangerous condition. (State of California v. Superior Court, supra,
263 Cal.App.2d at p. 400; see also Strongman v. County of Kern, supra,
255 Cal.App.2d at p. 313.) As the court explained in State of California: “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.”
(263 Cal.App.2d at p. 400.)
For similar reasons, we conclude Elgawady has failed to meet his
burden to show a triable issue of material fact on the issue of constructive
notice. No evidence was offered to show that the dangerous condition was
obvious apart from evidence that the height differential between the highest
points of the flange and the sidewalk was approximately two inches.
Significantly, in Heskel, the court considered similar evidence of a differential
of “roughly a few inches in height” and concluded that “[e]vidence of a
condition of that nature, without more, is not a prima facie showing that the
condition was obvious.” (Heskel, supra, 227 Cal.App.4th at p. 320.)
Moreover, Elgawady lacked specific evidence as to how long the condition
existed before his accident. While he asserts on appeal that the condition
must have been present for at least four months, we note the condition in
Heskel had apparently existed for over a year. In sum, we find summary
judgment was properly granted in favor of the City on the section 835 claim.
17
D. The Trial Court Did Not Err in Sustaining the City’s Objections
to Moore’s Declaration
Elgawady contends that the trial court erred in sustaining the City’s
objections to statements in Moore’s declaration. We disagree.
A qualified expert may testify to an opinion on a subject “that is
sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.” (Evid. Code, § 801, subd. (a); see also Bozzi v.
Nordstrom, Inc., supra, 186 Cal.App.4th at p. 761.) But an expert “does not
possess a carte blanche to express any opinion within the area of expertise.”
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th
1108, 1117.) Thus, “an expert’s opinion based on assumptions of fact without
evidentiary support [citation], or on speculative or conjectural factors
[citation], has no evidentiary value [citation] and may be excluded from
evidence.” (Ibid.) Similarly, “an expert’s conclusory opinion that something
did occur, when unaccompanied by a reasoned explanation illuminating how
the expert employed his or her superior knowledge and training to connect
the facts with the ultimate conclusion, does not assist the jury. . . . to
determine what occurred, but instead supplants the jury by declaring what
occurred.” (Id. at pp. 1117–1118; see also Kelley v. Trunk (1998)
66 Cal.App.4th 519, 523–525 [“an expert opinion is worth no more than the
reasons upon which it rests”]; Pacific Gas & Electric Co. v. Zuckerman (1987)
189 Cal.App.3d 1113, 1135 [“The value of opinion evidence rests not in the
conclusion reached but in the factors considered and the reasoning
employed.”].)
Here, the trial court struck Moore’s opinion that “[i]t is more likely
than not [the City] or [the City’s] agent removed the signpost,” finding the
statement to be speculative and lacking any evidentiary support. Without
referencing any facts, Moore justified his opinion by stating that City
18
employees have “specialized tools and knowledge required for the removal of
[City] signposts.” He did not identify any of these “specialized” tools.
Moreover, the mere possession of such tools does not reasonably allow for the
inference that the sign was removed by City employees.
Moore also stated that the City “had multiple employees in the
immediate vicinity of the subject flange in the up to six months it existed
without the signpost on the sidewalk.” However, he did not include any facts
as to when or how the sign was removed or whether the City would have had
sufficient time to remedy the danger presented by the flange, stating only
that “[a]t some time between January 1, 2015 and June 29, 2015,” the sign
was removed. Accordingly, there are no facts to support the conclusion that
the flange had been exposed for up to six months. Because Moore’s opinions
lack factual support, we conclude the trial court did not abuse its discretion
in striking the challenged portion of Moore’s declaration.
E. The Trial Court Did Not Err in Denying a Continuance
Elgawady contends that the trial court erred in denying his motion for
a continuance to allow him to obtain further evidence. The court based its
ruling on the absence of a declaration as required by Code of Civil Procedure
section 437c, subdivision (h), along with its finding that Elgawady had
“neglect[ed] to show diligence.”
Code of Civil Procedure section 437c, subdivision (h) provides: “If it
appears from the affidavits submitted in opposition to a motion for summary
judgment or summary adjudication, or both, that facts essential to justify
opposition may exist but cannot, for reasons stated, then be presented, the
court shall deny the motion, order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may be just.”
“Subdivision (h) was added to section 437c ‘ “[t]o mitigate summary
19
judgment’s harshness,” . . . [Citations]’ [Citation] ‘for an opposing party who
has not had an opportunity to marshal the evidence[.]’ [Citation.] The
statute mandates a continuance of a summary judgment hearing upon a good
faith showing by affidavit that additional time is needed to obtain facts
essential to justify opposition to the motion. [Citations.] Continuance of a
summary judgment hearing is not mandatory, however, when no affidavit is
submitted or when the submitted affidavit fails to make the necessary
showing under section 437c, subdivision (h). [Citations.] Thus, in the
absence of an affidavit that requires a continuance under section 437c,
subdivision (h), we review the trial court’s denial of appellant’s request for a
continuance for abuse of discretion.” (Cooksey v. Alexakis (2004)
123 Cal.App.4th 246, 253–254.) Here, an affidavit was not submitted and the
record fails to establish that the trial court abused its discretion in denying a
continuance of a summary judgment hearing.
First, Elgawady’s counsel did not satisfactorily explain the reason for
her failure to conduct the discovery necessary to present further opposition
evidence at the hearing. A showing of discovery diligence, in the nature of an
explanation of what efforts were made to obtain the evidence and why they
were not undertaken earlier, is required by a party seeking relief under Code
of Civil Procedure section 437c, subdivision (h). (Desaigoudar v. Meyercord
(2003) 108 Cal.App.4th 173, 191; A & B Painting & Drywall, Inc. v. Superior
Court (1994) 25 Cal.App.4th 349, 356–357.) At the time of the hearing on the
summary judgment motion, the action had been pending for over two years.
During that time, Elgawady had rejected the City’s offer to meet and confer
regarding discovery. While he complains that the City’s witnesses lacked
personal knowledge regarding the subject wayfinding sign, he never brought
20
a motion to compel, instead waiting until the eve of the November 9, 2019
discovery cut-off to request a continuance of the December 9, 2019 trial date.
Further, Elgawady failed to demonstrate with any specificity that
“ ‘facts essential to justify opposition may exist.’ ” (Roth v. Rhodes (1994)
25 Cal.App.4th 530, 548.) The only specific discovery source he identified was
a former Department director, Mohammed Nuru, the person he believed was
the “person most knowledgeable.” However, the trial court had already
issued a protective order as to Nuru. Apart from Nuru, Elgawady indicated
only that he wished to depose unnamed City employees who “would have or
should have noticed that the 10ft [wayfinding] sign was missing.” We note it
is undisputed that the City has no records of having received any complaints
or requests for service regarding the sign. It is difficult to imagine that any
City employee would have retained an independent recollection about a
missing sign more than four years after the sign had been removed. We
conclude the trial court did not abuse its discretion in denying Elgawady’s
last-minute request to continue the summary judgment hearing.
III.
DISPOSITION
The judgment is affirmed.
21
EAST, J.
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
A159616
Elgawady v. City & County of San Francisco

Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
22