Perez v. City of Berkeley CA1/3

Filed 8/4/23 Perez v. City of Berkeley CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
MIGUEL ANGEL PEREZ,
Plaintiff and Appellant,
A164842
v.
CITY OF BERKELEY, (Alameda County
Case No. RG18891042)
Defendant and Respondent.
Plaintiff and appellant Miguel Angel Perez sued defendant and
respondent the City of Berkeley (the City) under Government Code section
8351 for maintaining a dangerous condition of public property for injuries he
sustained after slipping and falling in a “trash corridor” in a City-owned
building while performing his janitorial work duties. Concluding that Perez
had failed to raise a triable issue of fact as to whether the City had actual or
constructive notice of the dangerous condition in its building, the trial court
granted the City’s summary judgment motion. It further found that even if
the City had the requisite notice, the trash corridor did not constitute a
“dangerous condition.”
1 All statutory references are to the Government Code unless otherwise
indicated.
1
We conclude the trial court erred in granting the City’s motion. A
triable issue of fact existed regarding whether conditions in the corridor
constituted a dangerous condition of public property. In addition, the
evidence – including all reasonable inferences drawn from the evidence –
would allow a trier of fact to find the City had actual notice of the dangerous
condition. Accordingly, we will reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
The City contracted with Universal Building Services and Supply Co.
(UBS) to provide janitorial services at 1947 Center Street in Berkeley, a
building owned by the City. Perez, a UBS employee who worked as a
nighttime janitor at the Center Street property, was responsible for cleaning
the building’s upper floors and part of the basement, and a co-worker was
responsible for the rest of the building. As part of his duties, Perez collected
trash in a large metal cart which he hauled to the ground floor for disposal.
There, he had to descend a ramp and then move the cart through the trash
corridor to reach the trash receptacles outside the building.
During his shift on the night of September 16, 2016, while in the
process of moving the trash cart through the corridor, Perez slipped on
broken glass shards. He fell and hit his head against stacked recycling bins
lining the corridor; the bins fell on him, and he suffered injuries.
The Complaint
In January 2018, Perez sued the City, asserting multiple causes of
action, including one under section 835 for dangerous condition of public
property.2 His complaint alleged that on the night of September 16, 2016,
2 The complaint alleged five additional causes of action: (1) public entity
vicarious liability for the acts or omissions of a public employee (§ 815.2); (2)
2
when he slipped and fell in the City’s Center Street property, the trash
corridor between the ramp and the exit door to the street was dimly lit; the
corridor was lined with “unstably stacked blue recycling bins filled to
capacity;” and the floor was strewn with glass and other debris. He did not
see the glass because the area was windowless and dimly lit. He
unknowingly stepped on the broken glass strewn on the floor which caused
his foot to slip, leading the “already unstable stacked recycling bins to fall on
him and pin him to the ground.” He lost consciousness for at least five
minutes and was trapped, unable to move from the weight of the bins. The
incident caused him to sustain severe bodily injuries. As a result of his
injuries, he suffered lost earnings and was not able to return to work or be
gainfully employed.
Summary Judgment
The City moved for summary judgment on Perez’s entire complaint, or,
in the alternative, summary adjudication on various individual claims and
issues if summary judgment were not granted. With respect to the dangerous
condition of public property claim, the City argued that Perez could not prove
two of its four elements, namely, that the City’s property constituted a
dangerous condition, and that the City created the dangerous condition or
had notice of it. As to the first contention – whether its property constituted
a dangerous condition – the City argued that the small shards of glass which
caused Perez to slip and fall were so inconsequential that they did not pose a
substantial risk of injury to someone exercising due care. As to the second
contention – whether the City created the condition or had notice of it – the
City asserted there was no evidence that it created the glass shards on the
negligent hiring; (3) negligent supervision; (4) negligent retention; and (5)
gross negligence.
3
floor or that it ever had actual or constructive notice of them. Additionally,
the City argued that even if Perez could prove up all elements of his
dangerous condition of public property claim, the City was nonetheless
immune from liability as a “reasonable omission” under section 835.4,
subdivision (b), which shields a public entity from liability arising from a
dangerous condition if it establishes that its failure to take action to protect
against the risk of injury was reasonable.
In opposition, Perez argued that the City was attempting to artificially
narrow the scope of the case by focusing only on the glass shards. He
proffered evidence of bulky wheeled trash bins stacked on top of each other in
a narrow, dimly lit trash corridor strewn with other debris, arguing these
issues constituted a dangerous condition posing a substantial risk. Perez
further argued that City employees had negligently stacked the carts in the
trash corridor, and the City had both actual and constructive notice of the
corridor’s dangerous condition. Perez disputed all but two of the 16 proffered
facts the City tendered as undisputed. After the City filed its reply, Perez
filed a sur reply, and the City filed a sur reply in response.
Following a hearing, the trial court granted the City’s motion for
summary judgment on the dangerous condition of public property claim.3
The court found the shattered glass was the “proximate cause” of Perez’s
injury and that the City had neither actual or constructive notice of the glass.
Even “[a]ssuming arguendo the [C]ity did have notice, the [c]ourt [found] the
risk posed by the shattered glass and stacked bins was minor.”
3 The court also granted summary adjudication of all other causes of
action, reasoning that a public entity cannot be sued for negligence arising
from the physical condition of public property in a premises liability case.
Perez concedes that summary adjudication was proper as to these causes of
action as his sole remedy is a section 835 dangerous condition claim.
4
Perez unsuccessfully moved for reconsideration and judgment was
entered in favor of the City. This appeal ensued.
DISCUSSION
I. Applicable Law
“The purpose of summary judgment under Code of Civil Procedure
section 437c ‘is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.’ [Citation.] ‘Summary
judgment is appropriate only “where no triable issue of material fact exists
and the moving party is entitled to judgment as a matter of law.” ’ [Citation.]
A moving defendant bears the burden to show that the plaintiff cannot
establish one or more essential elements of the cause of action, or that there
is a complete defense to that cause of action. [Citations.] If the defendant
meets this burden, ‘the burden shifts to the plaintiff . . . to show that a triable
issue of one or more material facts exists as to the cause of action or defense
thereto.’ ” (Hassaine v. Club Demonstration Services, Inc. (2022) 77
Cal.App.5th 843, 849–850.) A court may grant a motion for summary
judgment only if there is no triable issue of material fact and the moving
party is entitled to judgment in its favor as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c); see also Johnson v. Superior Court (2006) 143 Cal.App.4th
297, 304].)
“On appeal after a motion for summary judgment has been granted, we
review the record de novo, considering all the evidence set forth in the
moving and opposition papers except that to which objections have been
made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317,
334.) We “consider all of the evidence” and all of the “inferences” reasonably
drawn therefrom (Code Civ. Proc., § 437c, subd. (c)) and must view the
5
evidence and inferences “in the light most favorable to the opposing party.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843; Creekridge
Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th
251, 255 [“Because a summary judgment denies the losing party its day in
court, we liberally construe the evidence in support of that party and resolve
doubts concerning the evidence in that party’s favor.”].)
Section 835 “is the sole statutory basis for a claim imposing liability on
a public entity based on the condition of public property.” (Brenner v. City of
El Cajon (2003) 113 Cal.App.4th 434, 438.) According to section 835,
“ ‘[e]xcept 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 either: [¶] (a) A negligent or wrongful act or
omission of an employee of the public entity . . . 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.’ ”
(Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 565–566.)
II. Dangerous Condition
Perez argues the court’s summary judgment in favor of the City should
be reversed because the City never shifted the burden to him since by solely
focusing on the glass shards it failed to address all the hazards alleged in his
complaint that comprised the dangerous condition in the trash corridor.
Even if the burden shifted, he argues that evidence raised triable issues of
6
fact as to whether the trash corridor was a dangerous condition of public
property.
Section 830 defines a “dangerous condition” 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).) Conversely, section 830.2 explains that a condition
is “not dangerous” if “the trial or appellate court, viewing the evidence most
favorably to the plaintiff, determines as a matter of law that the risk created
by the condition was of such a minor, trivial or insignificant nature in view of
the surrounding circumstances that no reasonable person would conclude
that the condition created a substantial risk of injury when such
property . . . was used with due care” in a reasonably foreseeable manner.
(§ 830.2.) “Whether liability may be imposed under section 835 for injury
caused by a dangerous condition of public property is ordinarily a question of
fact to be decided by the trier of fact. [Citation.] However, the issue may be
decided as a matter of law where reasonable minds can only come to one
conclusion.” (Milligan v. Golden Gate Bridge Highway & Transportation
Dist. (2004) 120 Cal.App.4th 1, 7 (Milligan).)
Here, even if we assume without deciding that the City met its burden
of showing Perez could not establish the trash corridor constituted a
dangerous condition and shifted the burden on summary judgment to Perez,
we conclude that Perez presented sufficient evidence to show a triable issue
as to whether the trash corridor constituted a dangerous condition. Based on
the evidence presented by Perez, a trier of fact could reasonably conclude the
trash corridor created a substantial risk of injury when used with due care in
a foreseeable manner.
7
The record includes ample evidence of stacked, wheeled garbage or
recycling bins in the trash corridor. Perez included photographs depicting
the corridor, such as this one:
There is one-page memo by a UBS safety coordinator prepared the day
after the accident, noting that the “[t]he area [was] crowded with trash
barrels stacked up on two tiers and the two trash bins [were] located at the
end of the storage room making difficult to dispose the trash into it.” Perez
also included the declaration of Andreina Quiroz, another janitor in the 1947
Center Street property, who testified that throughout the summer of 2016,
“there were two-wheeled trash carts in the trash corridor” at the property
which “had been stacked two high and two deep,” adding this was “a common
8
occurrence.” The record also includes evidence that the stacked trash bins
were partially full or full. Perez testified in deposition that the stacked carts
were “full to capacity with recyclable material.” Quiroz testified that the
stacked trash carts were nearly “half-full of paper.”
Perez submitted additional evidence regarding the narrowness of the
trash corridor as well as its dim lighting. Quiroz testified that “[d]ue to the
narrowness of the trash corridor and the amount of waste carts lined up
[there], [she] had to navigate the trash corridor walking backways pulling the
employee trash cart.” Evan Lane, a paramedic who responded to Perez’s
distress call the night of his fall, stated that the lighting “was dim inside” the
“tunnel” and recalled needing flashlights to provide aid to Perez. He also
noted that the passageway for walking was “narrow.”
Perez also presented evidence speaking to the dangerousness of the
trash corridor. Quiroz testified that before Perez’s injury, the carts nearly fell
on her. Paramedic Lane testified, “You don’t want to stack trash bins with
wheels on top of each other, especially if they’re full of stuff.” He also
commented that the corridor presented “unsafe conditions,” adding that “it’s
actually a fire hazard. It prevents ingress and egress out of the building. I
mean, if a large number of people needed to move out of this building at once,
that’s a huge hazard.” Phillip Harrington, the director of the City’s Public
Works Department, testified in deposition: “I don’t believe lifting and
stacking any type of loaded cart on top of another cart is a safe practice.”
Considering this evidence, reasonable minds may not reach only one
conclusion as to whether a dangerous condition existed in the trash corridor,
or that the City established a trivial or non-dangerous condition as a matter
of law. The evidence permits a reasonable person to conclude that a
substantial risk of injury is involved when the hallway is used with due care
9
in a reasonably foreseeable manner. Accordingly, we conclude a triable issue
of material fact exists as to whether the conditions in the trash corridor were
dangerous.
The City argues that the conditions in the trash corridor in the
aggregate still did not constitute a dangerous condition because they did not
pose a substantial risk to someone using due care. We disagree that the
evidence permits only this conclusion. Perez presented evidence that to do
their job of disposing of the building trash, UBS janitorial staff had to
traverse the trash corridor to dump collected trash into the outside
receptacles. He also presented evidence that when the accident occurred, he
was simply on an evening shift carrying out his usual work, attempting to
perform the routine task of removing trash from the building. He slipped and
fell and the trash bins fell on him in the process of carrying out his regular
work duties. Thus, reasonable minds may differ whether the trash corridor
presented a substantial risk to someone exercising due care, and thus
whether it constituted a dangerous condition was not an issue to be decided
as a matter of law on summary judgment.
Observing that the “critical element for imposition of liability under
section 835 is causation,” the City further contends that the causation
element is missing with respect to the multiple conditions Perez alleged to be
dangerous in the trash corridor, i.e., the stacked trash bins, poor lighting, and
narrow hallway. The City adds that because Perez “readily admit[ted] the
glass was the only ‘but-for’ cause of the alleged incident,” these other factors
are irrelevant. However, the City has forfeited appellate consideration of this
causation argument because it never raised it in the trial court. “ ‘A party is
not permitted to change his petition and adopt a new and different theory on
appeal. To permit him to do so would not only be unfair to the trial court, but
10
manifestly unjust to the opposing litigant.’ ” (Cable Connection, Inc. v.
DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350, fn. 12; Estate of Moore (2015)
240 Cal.App.4th 1101, 1109; Delta Stewardship Council Cases (2020)
48 Cal.App.5th 1014, 1074 [“ ‘It is axiomatic that arguments not raised in
the trial court are forfeited on appeal.’ ”].)
The City’s summary judgment motion expressly challenged whether
Perez could demonstrate only two of the four elements of his dangerous
condition of public property claim: (1) whether the trash corridor was a
dangerous condition, and (2) whether the City either created the dangerous
condition or had actual or constructive notice of it. The City’s motion did not
seek to establish Perez was unable to prove causation. Accordingly, the City
cannot argue Perez’s inability to prove up this element on appeal as grounds
to avoid reversal.4
4
Had the City preserved the argument on appeal, we would not find it
persuasive. To establish causation in a dangerous condition of public
property claim, “[a] plaintiff must show that the dangerous condition was a
substantial factor in causing his or her harm. [Citation.] ‘ “If the conduct
which is claimed to have caused the injury had nothing at all to do with the
injuries, it could not be said that the conduct was a factor, let alone a
substantial factor, in the production of the injuries.” ’ [Citation.] The issue of
causation, like the existence of a dangerous condition, usually presents a
question of fact. [Citation.] However, the issue can be decided as a matter of
law where the facts of the case can permit only one reasonable conclusion.”
(Milligan, supra, 120 Cal.App.4th at pp. 8–9.) Here, Perez presented
evidence that, in all likelihood, would have been sufficient to create a triable
issue of fact as to whether the dangerous condition of the trash corridor was a
substantial factor in causing his injuries. This evidence included that the
corridor was narrow, a feature compounded by the stacked garbage bins
lining its walls. It could reasonably be inferred that the limited space
compelled him to maneuver his trash cart while walking backwards and
adjacent to the stacked garbage bins, and this prevented him from seeing the
broken glass shards on which he slipped and caused the stacked garbage bins
to fall on him.
11
III. Notice
Perez further argues summary judgment should be reversed because he
presented evidence that the City both created the dangerous condition and
knew about it for months.
Under section 835, a plaintiff must show that the dangerous condition
was “created” through “[a] negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment.” (§ 835,
subd. (a).) A plaintiff unable to establish the public entity “created” the
dangerous condition may still prevail by showing 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.” (§ 835, subd. (b); Cole v. Town of Los Gatos (2012)
205 Cal.App.4th 749, 778.)
Even if we again assume without deciding that there was insufficient
evidence showing the City created the dangerous condition, we readily
conclude Perez presented enough evidence to create a triable issue of fact as
to whether the City had actual or constructive notice of the dangerous
condition of the trash corridor.
Section 835.2 provides: “(a) A public entity had actual notice of a
dangerous condition within the meaning of subdivision (b) of Section 835 if it
had actual knowledge of the existence of the condition and knew or should
have known of its dangerous character. [¶] (b) A public entity had
constructive notice of a dangerous condition within the meaning of
subdivision (b) of Section 835 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
12
discovered the condition and its dangerous character.”5 Perez presented
enough evidence demonstrating triable issues of fact as to notice.
For actual notice, Perez presented evidence the City was aware of
various problems in the trash corridor as early as July 2016. The record
includes early July 2016 e-mails from Roger Rushing, a senior building
inspector for the City, to a City Public Works distribution list in which he
writes that during the course of a daily inspection of remodeling occurring at
the 1947 Center Street property, he ended up moving a blue trash bin to the
basement and “[w]hen [he] got to the loading dock the entire corridor was
filled with empty blue containers. On the right side of the corridor the
containers are stacked 2 high 2 deep.” He noted that “facilities
maintenance . . . use this access way to the freight elevator” and that “[i]n
order to clear the path to the rollup door [he] had to stack additional carts
again [2] high and 2 deep further back in the access corridor.” In the e-mail,
he asks who is responsible for “removing surplus wheeled bins” and “for
keeping the access to the freight elevator clear.” On August 19, 2016,
Rushing sent a follow-up e-mail with the added information that the garbage
bins at the end of the corridor were inaccessible to janitorial staff. He
5 “On the issue of due care, admissible evidence includes but is not
limited to evidence as to: [¶] (1) Whether the existence of the condition and
its dangerous character would have been discovered by an inspection system
that was reasonably adequate (considering the practicability and cost of
inspection weighed against the likelihood and magnitude of the potential
danger to which failure to inspect would give rise) to inform the public entity
whether the property was safe for the use or uses for which the public entity
used or intended others to use the public property and for uses that the
public entity actually knew others were making of the public property or
adjacent property. [¶] (2) Whether the public entity maintained and operated
such an inspection system with due care and did not discover the condition.”
(§ 835.2, subd. (b).)
13
counted “39 paper bins lined up in the corridor, 10 of which [were] full of
paper and card board [sic],” noting that “nothing can come in and nothing can
go out at this time.” He also noted, “I’m sure there are plenty of people who
know the condition exists, but either aren’t complaining or are just throwing
up their hands in frustration.” He implored City Public Works staff to
“reduce the number of bins in the corridor so that full ones can be accessed
and emptied” and “maintain the aisle way so that the corridor can be used
other than a parking lot [for] full and empty blue cans.” The distribution of
this e-mail included additional City employees: Dionne Early, facility or
property manager for the 1947 Center Street property; Perry Fletcher, the
facility maintenance superintendent manager; Manual Hector, a City worker;
and Paul Kaushal, a City project manager, and Phillip Harrington, the Public
Works director, were also copied. In his deposition testimony, Harrington
acknowledged that he was “aware of issues, potential issues regarding the
carts . . . in the basement area of 1947” before the date of Perez’s accident
from June through September 2016. The record also includes deposition
testimony from Manuel Hector who recalled seeing stacked trash carts in the
1947 Center Street property and who had been asked to have his staff empty
the containers in the trash corridor “because they were complaining that all
of the containers were full and needed to be serviced.” Also included in the
record was an e-mail from Paul Kaushal to Dionne Early dated August 31,
2016, with the subject “Garbage and Recycling at 1947” which stated: “I
realize you know about this already. It’s getting out of hand and needs to be
addressed.”
Given this evidence, we do not believe that reasonable minds can reach
only one conclusion as to whether the City had notice of the dangerous
condition in the trash corridor. The evidence permits a reasonable person to
14
conclude the City had actual notice of it and sufficient time prior to Perez’s
injury to have taken measures to protect against the dangerous condition.
Accordingly, we conclude a triable issue of material fact exists as to whether
the City had, at minimum, actual notice of the dangerous condition in the
trash corridor necessary for dangerous condition liability.6
The City argues that Perez waived his right to argue the City had
notice of the small pieces of glass he slipped on because he failed in his
appellate brief to address notice with respect to the glass shards, which were
the “but-for” cause of the accident. The City also argues, in any event, that
Perez nonetheless failed to provide any competent evidence that the City had
actual notice of the small pieces of glass in the corridor. According to the
City, the evidence demonstrates that when Perez completed his prior shift at
1:30 a.m. on September 16, 2016, there was no glass on the ground when he
left, and it only appeared later in the day when he returned to work and
slipped on it around 10:30 p.m. The City notes the absence of any evidence of
complaints about glass or other debris in the corridor on the date of Perez’s
fall.
We conclude Perez did not waive his notice argument because he did
not address the City’s awareness of glass shards on the floor of the trash
corridors specifically. The City’s argument is improperly premised on the
notion that the glass shards are the only alleged dangerous condition that
matters, which is not the case. “ ‘[T]he scope of the issues to be properly
addressed in [a] summary judgment motion’ is generally ‘limited to the
6
Because the statutory element of notice is written in the disjunctive
(actual or constructive notice) (see § 835, subd. (b)), and we have determined
that reasonable jurors could find the City had actual notice of the conditions
in the trash corridor, it is not necessary for us to consider the issue of
constructive notice.
15
claims framed by the pleadings.’ ” (Jacobs v. Coldwell Banker Residential
Brokerage Co. (2017) 14 Cal.App.5th 438, 444.) A moving party is not
required to go beyond the allegations in the operative complaint, and
similarly, an opposing plaintiff may not assert claims or theories not
encapsulated by the complaint’s allegations. (Ibid.) In considering what
issues are properly raised in opposition to a summary judgment motion, we
construe the allegations of the complaint liberally. (See Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1257.) Here, Perez’s complaint
alleged multiple hazards in the trash corridor constating a dangerous
condition. While he attributed the slip and fall to the glass shards, his
testimony does not preclude other substantial factors as the cause of his
injury. Although Perez presented no evidence regarding the City’s awareness
of glass shards strewn on the floor of the trash corridor specifically, the
evidence he submitted regarding the City’s actual knowledge of the various
deficiencies and dangerous conditions in the trash corridor was adequate to
preserve his claim.
As for the lack of competent evidence that the City had actual notice of
the small pieces of glass in the corridor, we do not see this gap as sufficient to
sustain summary judgment in the City’s favor. Evidence presented in
opposition to summary judgment is liberally construed, with any doubts
about the evidence resolved in favor of the party opposing the motion.
(Regents of University of California v. Superior Court (2018) 4 Cal.5th 607,
618; Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th
840, 864 [“Courts deciding motions for summary judgment or summary
adjudication may not weigh the evidence but must instead view it in the light
most favorable to the opposing party and draw all reasonable inferences in
favor of that party.”].) Further, we “resolve doubts about the propriety of
16
granting the motion in favor of the party opposing it.” (Diep v. California
Fair Plan Assn. (1993) 15 Cal.App.4th 1205, 1207.) Liberally construing
Perez’s evidence and resolving any doubts about the propriety of summary
judgment in his favor, we conclude the evidence was sufficient to show the
trash corridor was a crowded mess that made it difficult and dangerous for
janitorial staff to carry out their job duties. While no evidence was presented
specifically about notice of glass shards, based on the evidence presented a
trier of fact could reasonably infer the City’s awareness that the trash
corridor was in a state of general disorder and disarray (including the
presence of debris) in the summer of 2016. This evidence was sufficient to
create a triable issue of material fact and survive summary judgment.
IV. “Reasonable Omission” Immunity
Finally, Perez disputes the City’s argument that it was entitled to
“reasonable omission” immunity under section 835.4, subdivision (b).
Section 835.4, subdivision (b) provides in full: “A public entity is not
liable under subdivision (b) of Section 835 for injury caused by a dangerous
condition of its property if the public entity establishes that the action it took
to protect against the risk of injury created by the condition or its failure to
take such action was reasonable.” (§ 835.4, subd. (b).) “Under section 835.4,
subdivision (b) . . . the question of the reasonableness of the state’s action in
light of the practicability and cost of the applicable safeguards is a matter for
the jury’s determination.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707,
720.)
In its summary judgment motion, the City argued it was entitled to
section 835.4 immunity because not finding and removing the alleged glass
shards in the trash corridor was reasonable as a matter of law since the City
had hired UBS to clean the floors, including the basement hallways, on a
17
daily basis. According to the City, its “alleged ‘failure’ to take yet other
preventative measures beyond daily floor cleaning was reasonable” and it
was thus entitled to “reasonable omission immunity.” In opposition, Perez
asserted that the issue was not limited to glass shards and was in any event
a matter for jury determination. He argued that the City had adequate time
to remedy the dangerous condition in the trash corridor and multiple
opportunities to address it prior to Perez’s injury. He also noted that the City
had made no showing of any financial or political constraints that would have
prevented it from addressing the problems in the trash corridor. The trial
court did not rule on this asserted defense in its order.
In our de novo review, we conclude the City’s proffered reasonable
omission immunity defense would not have been a proper basis for granting
the City summary judgment. Section 835.4, subdivision (b) further instructs
that “the reasonableness of the action or inaction of the public entity shall be
determined by taking into consideration the time and opportunity it had to
take action and by weighing the probability and gravity of potential injury to
persons and property foreseeably exposed to the risk of injury against the
practicability and cost of protecting against the risk of such injury.” (§ 835.4,
subd. (b).) In its moving papers, and again on appeal, the City asserts only
that its conduct was reasonable because it had hired UBS to clean the floors,
including the trash corridor. The City has presented no evidence or
argument related to the time and opportunity it had to take action; the
probability and gravity of potential injury to other persons foreseeably
exposed to the risk of injury; or the practicability and costs of protecting
against the risk of injury. Having failed to address the considerations
required by the statute, the City has not met its burden of demonstrating its
entitlement to reasonable omission immunity as a matter of law and the
18
burden never shifted to Perez to show a triable issue of fact exists as to the
defense.
DISPOSITION
The summary judgment in favor of the City is reversed. Perez shall
recover his costs on appeal.
19
_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Rodriguez, J.
A164842
20