Perez v. City of Berkeley

1

MIGUEL ANGEL PEREZ, Plaintiff and Appellant, v. CITY OF BERKELEY, Defendant and Respondent.

A164842

California Court of Appeals, First District, Third Division

August 4, 2023

NOT TO BE PUBLISHED

(Alameda County Case No. RG18891042)

PETROU, J.

Plaintiff and appellant Miguel Angel Perez sued defendant and respondent the City of Berkeley (the City) under Government Code section 835^[1] 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."

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 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 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."

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 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 fact as to whether the trash corridor was a dangerous condition of public...