Defendant The City of La Habra’s motion for summary judgment as to Plaintiffs Shana Gaudreau’s and Cade Gaudreau’s Complaint is denied.
Request for Judicial Notice
Plaintiffs’ request for judicial notice is granted.
Defendant’s request that the Court take judicial notice of the Complaint is denied, as it is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 9.53.1a.)
Evidentiary Objections
Plaintiffs’ evidentiary objections are all overruled.
Defendant’s evidentiary objections are overruled as to nos. 1, 2, 5, 6, and 9, and sustained as to nos. 3, 4, and 7-8.
Applicable Law
“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].) Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Merits
“[I]n California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ …, and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty.” (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 171; see Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “A public entity is not liable for any injury caused by the act or omission of the public entity or a public employee unless such liability is imposed by statute ([Gov. Code,] § 815, subd. (a)), and liability imposed upon a public entity by statute is subject to statutory immunity and any defenses that could be asserted by a private individual (§ 815, subd. (b).) (Richardson–Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061, 69 Cal.Rptr.3d 176.)” (Strong v. State (2011) 201 Cal.App.4th 1439, 1448 [footnote omitted].) “It is a well-settled rule that ‘[t]here is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person.’” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 441–442.)
Plaintiffs allege a single cause of action against Defendant for dangerous condition of public property, as a result of injuries that Plaintiff Cade Gaudreau, a minor, suffered from ingesting and choking on a dried pinto bean that was part of an exhibit at the Children’s Museum. Government Code 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 [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] (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) [t]he 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.
(Gov. Code, § 835; see CACI no. 1100 [setting forth the essential factual elements for dangerous condition on public property]; People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484–1485.)
Government Code section 830 defines “dangerous condition” as being “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.” (Gov. Code, § 830, subd. (a); see County of San Diego v. Superior Court (2015) 242 Cal.App.4th 460, 467.) “Whether a condition creates a substantial risk of harm depends on how the general public would use the property exercising due care” and is determined under an objective standard. (Schonfeldt v. California (1998) 61 Cal.App.4th 1462, 1466; Milligan v. Golden Gate Bridge Highway & Transp. Dist. (2004) 120 Cal.App.4th 1, 7 [finding on demurrer bridge lacking suicide barrier does not constitute dangerous condition because “persons who use the bridge to commit suicide are not using the bridge in a manner used by the general public exercising ordinary care”].) “Even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 132 [jury trial]; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768 [finding status of a condition as ‘dangerous’ for purposes of the statutory definition does not depend on whether plaintiff or other persons were actually exercising due care but on whether condition of the property posed a substantial risk of injury to persons who were exercising due care].)
Government Code section 830.2 emphasizes that, “[a] condition is not a dangerous condition within the meaning of this chapter 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 or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.)
In addition, a public entity has “actual notice” of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity has “constructive notice” of a dangerous condition “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. . . .” (Gov. Code, § 835.2, subd. (b).)
In general, whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.) “Whether property is in a dangerous condition often presents a question of fact, but summary judgment is appropriate if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used.” (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234; see Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1352.) Put another way, “The existence of a dangerous condition is ordinarily a question of fact but can be decided as a matter of law if reasonable minds can come to only one conclusion.” (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1458.) Furthermore, it is ordinarily a questions of fact for a jury whether particular circumstances of a case are sufficient to ascribe actual or constructive notice of the dangerous condition to the municipality. (Gallipo v. City of Long Beach (1956) 146 Cal.App.2d 520, 526-527.)
The interactive exhibit Balance & Funnel was a table filled with dried beans intended to develop fine motor skills through balance and weight experiments at the Children’s Museum. (Undisputed Material Fact [“UMF”] 4.) Whether the exhibit constituted a dangerous condition is a triable issue of material fact. It cannot be said that reasonable minds can only come to the conclusion that the exhibit did not create a dangerous condition. Reasonable minds could reach the conclusion that it created a dangerous condition, e.g., that it would be reasonable to expect young children to put the dried beans in their mouths and swallow and choke on them. Whether the circumstances surrounding the exhibit are sufficient to ascribe actual or constructive notice of a dangerous condition, is also an issue of material fact. Whether the alleged dangerous condition of the exhibit was open and obvious is also an issue of material fact. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 25-26.)
Finally, Defendant argues that Plaintiffs assumed the risk. But, Defendant failed to plead this as an affirmative defense in its answer. “A party who fails to plead affirmative defenses waives them.” (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.) Accordingly, Defendant has waived this affirmative defense.
Accordingly, the Court denies Defendant’s motion for summary judgment, finding that a triable issue of fact exists as to whether the subject exhibit constituted a dangerous condition of public property.
Plaintiffs shall give notice of the ruling.