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1 MAHO & PRENTICE, LLP
2
Chad M. Prentice (SB#173811)
629 State Street, Suite 217
3 Santa Barbara, CA 93101
Telephone: (805) 962-1930
4
Facsimile: (805) 456-2141
5 Email: cprentice@sbcawlaw.com
6 Attorneys for Plaintiffs, REBECCA FRASER and MARCEL FRASER
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA
10
REBECCA FRASER and MARCEL ) CASE NO.: 21CV03390
11
FRASER, )
12 ) PLAINTIFFS’ MEMORANDUM OF
Plaintiffs, ) POINTS AND AUTHORITIES IN
13 vs. ) OPPOSITION TO MOTION FOR
) SUMMARY JUDGMENT AND/OR
14
COUNTY OF SANTA BARBARA; CITY OF ) SUMMARY ADJUDICATION BY
15 SANTA BARBARA; STATE OF ) COUNTY OF SANTA BARBARA
CALIFORNIA, DEPARTMENT OF )
16 TRANSPORTATION; and DOES 1 to 100, ) Date: July 31, 2023
) Time: 10:00 a.m.
17
Defendants. ) Dept.: SB5
18 )
19 TABLE OF CONTENTS
20 I. INTRODUCTION ............................................................................................................................... 5
21 II. SUMMARY JUDGMENT STANDARDS ......................................................................................... 6
22 III. THE MOTION SHOULD BE DENIED BECAUSE GENUINE TRIABLE ISSUES OF
23 MATERIAL FACT EXIST AS TO WHETHER THE COUNTY HAD CONSTRUCTIVE NOTICE OF
24 THE DEFECTIVE CONDITION ON CHANNEL DRIVE....................................................................... 7
25 A. County’s Statutory Basis for Liability Based on Constructive Notice ............................................ 7
26 B. Whether the County Had Constructive Notice Should Not Be Decided by Summary Judgment. .. 9
27 C. The County Had a Duty to Inspect CalPortland’s Work ............................................................... 11
28 D. There is No Dispute that the Condition on Channel Drive Warranted Removal........................... 17
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 E. The Doctrine of Res Ipsa Loquitor Applies ................................................................................... 17
2 IV. CONCLUSION ................................................................................................................................. 19
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 TABLE OF AUTHORITIES
2 Cases
3 Achay v. Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528 .................................. 10
4 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ........................................................................ 6, 7
5 Alvarez v. Los Angeles County (1955) 132 Cal.App.2d 525 ...................................................................... 9
6 Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284......................................................... 6
7 Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661 .............................................................................. 9
8 Barisich v. Lewis (1990) 226 Cal.App.3d 12 ............................................................................................ 10
9 Barrett v. City of Claremont (1953) 41 Cal.2d 70 .................................................................................... 11
10 Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381 .............................................................................. 18
11 Briggs v. State of California (1971) 14 Cal.App.3d 489 ............................................................................ 9
12 Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820 .................................................................... 17
13 Christy v. City of Alhambra (1935) 9 Cal.App.2d 499 ............................................................................. 10
14 Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466................................. 8
15 Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454 ............................................................... 6
16 Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th 627 .................................................. 10
17 Edwards v. City of San Diego (1932) 126 Cal.App. 1 ................................................................................ 9
18 Gallipo v. City of Long Beach (1956) 146 Cal.App.2d 520 ..................................................................... 10
19 George v. City of Los Angeles (1942) 51 Cal.App.2d 311 ......................................................................... 9
20 Gonzalez v. Mathis (2018) 20 Cal.App.5th 257........................................................................................ 10
21 Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 ............................................................................... 6
22 Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462 ................................................................................ 7
23 Kirack v. City of Eureka (1945) 69 Cal.App.2d 134 ................................................................................ 11
24 Laurenzi v. Vranizan (1945) 25 Cal.2d 806.............................................................................................. 11
25 Marino v. Tuolumne County (1953) 118 Cal.App.2d 675 .......................................................................... 9
26 Murphy v. Lake County (1951) 106 Cal.App.2d 61.................................................................................. 10
27 Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298...................................... 9, 11
28 Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385 ................................................ 10
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 Perry v. City of San Diego (1947) 80 Cal.App.2d 166 ............................................................................... 9
2 Peters v. City and County of San Francisco (1953) 41 Cal.2d 419 ............................................................ 8
3 Ragland v. U.S. Bank Nat’l Ass’n (2012) 209 Cal.App.4th 182 ................................................................. 7
4 Roberts v. Pacific Gas & Electric Co. (1929) 102 Cal.App. 422 ............................................................. 11
5 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 ............................................................................ 6
6 Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658 ......................................................... 18
7 Stanford v. City of Ontario (1972) 6 Cal.3d 870 ........................................................................................ 9
8 State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396 .............................................. 8
9 Strongman v. Kern County (1967) 255 Cal.App.2d 308........................................................................... 11
10 Van Dorn v. City & County of San Francisco (1951) 103 Cal.App.2d 714 ......................................... 9, 11
11 Versa Tech., Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3d 237 ............................................. 6
12 Zavala v. Arce (1997) 58 Cal.App.4th 915 ............................................................................................. 6, 7
13 Statutes
14 Code Civ. Proc., § 437c, subd. (c) .......................................................................................................... 6, 7
15 Code Civ. Proc., § 437c, subd. (p)(2) ......................................................................................................... 6
16 Evid. Code, § 646, subd. (b) ..................................................................................................................... 17
17 Gov. Code, § 835, subd. (b) ........................................................................................................................ 8
18 Gov. Code, § 835.2, subd. (b) ..................................................................................................................... 8
19 Rules
20 Cal. Rules of Court, rule 3.1350(a)(2) ........................................................................................................ 7
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PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 PLAINTIFFS REBECCA FRASER (“Rebecca”) and MARCEL FRASER (collectively with
2 Rebecca, “Plaintiffs”) submit the following memorandum of points and authorities in opposition the
3 County of Santa Barbara’s Notice of Motion for Summary Judgment and/or Adjudication; Memorandum
4 of Points and Authorities; Declarations in Support Thereof (the “Motion”) filed by Defendant COUNTY
5 OF SANTA BARBARA (“County”):
6 I. INTRODUCTION
7 Rebecca tripped and fell, November 17, 2020, on asphalt left on Channel Drive in Montecito
8 after the County and its contractor, Co-defendant CALPORTLAND CONSTRUCTION
9 (“CalPortland”), conducted a County-wide street repaving project that included, inter alia, repaving and
10 subsequently “raising utilities” on Channel Drive. The process of raising utilities, according to the
11 County’s and CalPortland’s witnesses, involved removing existing asphalt with a jackhammer, placing
12 temporary asphalt in the dugout area, and then removing that temporary asphalt from the previously
13 dugout area after the street has been paved. The raising utility process described by the County and
14 CalPortland’s witnesses was messy and required daily cleanup of the removed asphalt which was
15 sometimes done by hand, sometimes by shovel, and sometimes by using construction equipment and
16 then placed onto trucks or other equipment to be hauled on Channel Drive to another location.
17 The County had a duty to inspect the work done by CalPortland both while the work was being
18 performed and during the warranty period after the work was performed. The Motion should be denied
19 because the County has failed to meet its burden of demonstrating that there are no genuine triable
20 issues of material fact and that the County is entitled to judgment as a matter of law. There are also
21 genuine triable issues of material fact regarding whether the County ever inspected the subject area after
22 the utility raising work was done and/or fulfilled its contractual obligations with CalPortland regarding
23 the inspection of the related work and the subject area where the work was performed. Taken together,
24 the presence of the numerous genuine triable issues of material fact warrant denial of the Motion.
25 Because the County omitted numerous relevant facts from its Motion and due to the page
26 limitations associated with oppositions to summary judgment motions, Plaintiffs will address the
27 additional facts that bear on the outcome of the Motion in the context of the legal issues to which those
28 facts relate as discussed hereinbelow.
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 II. SUMMARY JUDGMENT STANDARDS
2 As a defendant moving for summary judgment, the County must “show” that either (a) one or
3 more elements of the “cause of action … cannot be established”; or (b) there is a complete defense to
4 that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) To “show” a complete defense, a defendant
5 must present admissible evidence of each essential element of the defense upon which it bears the
6 burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) This
7 means that where a plaintiff has the burden of proof at trial by a preponderance of evidence, a defendant
8 “must present evidence that would require a reasonable trier of fact not to find any underlying material
9 fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of
10 law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001)
11 25 Cal.4th 826, 857 [emphasis in original].) Once a defendant has met its initial burden, the burden
12 shifts to the plaintiff to produce admissible evidence showing a triable issue of fact exists. (Code Civ.
13 Proc., § 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) If plaintiff is
14 unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400
15 (2001) 25 Cal.4th 763, 780-781.) If the defendant fails to meet its burden, the motion must be denied
16 and plaintiff need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91
17 Cal.App.4th 454, 468.) If the defendant meets its burden, however, and where the plaintiff is required to
18 prove a matter at trial by a preponderance of the evidence, the plaintiff must, in order to raise a triable
19 issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than
20 not. (See Aguilar, supra, 25 Cal.4th at 857.)
21 As a result of the foregoing, the court’s sole function on a motion for summary judgment is
22 issue-finding, not issue-determination. The judge must simply determine from the evidence submitted
23 whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); see Zavala
24 v. Arce (1997) 58 Cal.App.4th 915, 926.) “There is a triable issue of material fact if, and only if, the
25 evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing
26 the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.) If
27 there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (Motsinger)
28 (1978) 78 Cal.App.3d 237, 240.) To be “material” for summary judgment purposes, the fact must relate
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the
2 judgment—i.e., if proved, it could change the outcome of the motion. (See Zavala, supra, 58
3 Cal.App.4th at 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470; see also Cal. Rules of
4 Court, rule 3.1350(a)(2).) In ruling on a motion for summary judgment or summary adjudication, the
5 court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (Code
6 Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences “in the light most favorable to
7 the opposing party.” (Aguilar, supra, 25 Cal.4th at 843; see Ragland v. U.S. Bank Nat’l Ass’n (2012)
8 209 Cal.App.4th 182, 199.)
9 As an initial matter, the Motion should be denied because the County has not met its burden of
10 production necessary to shift the burden onto Plaintiffs to demonstrate the existence of a genuine issue
11 of triable issue of material fact due to the lack of competent evidence offered in support of the Motion as
12 more fully explained in Plaintiffs’ concurrently filed Plaintiffs’ Objections to Evidence Offered by
13 County of Santa Barbara in Support of its Motion for Summary Judgment and/or Adjudication. Even if
14 the Court were to deem the County’s burden met in that regard, the Motion should be denied because
15 there are numerous genuine triable issues of material fact as more fully explained below.
16 III. THE MOTION SHOULD BE DENIED BECAUSE GENUINE TRIABLE ISSUES OF
MATERIAL FACT EXIST AS TO WHETHER THE COUNTY HAD CONSTRUCTIVE
17 NOTICE OF THE DEFECTIVE CONDITION ON CHANNEL DRIVE
18 The Motion should be denied because genuine triable issues of material fact exist as to whether
19 the County had constructive notice of the defective condition on Channel Drive. The Motion is premised
20 on the argument that Plaintiffs cannot demonstrate the elements for a dangerous condition on public
21 property. (Motion, pp. 8-11.) In support of that argument, the County argues that it did not create any
22 dangerous conditions, and the County lacked notice of any such dangerous conditions. While Plaintiffs
23 acknowledge that it was not the County or any of its employees who placed the asphalt on Channel
24 Drive on which Rebecca tripped and fell, there are genuine issues of triable material fact as to whether
25 the County had constructive notice of the dangerous condition.
26 A. County’s Statutory Basis for Liability Based on Constructive Notice
27 The bases for a government entity’s liability for torts is limited, but one of those bases is present
28 here.
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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“Except as provided by statute, a public entity is liable for injury caused
1 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
2 injury was proximately caused by the dangerous condition, that the
dangerous condition created a reasonably foreseeable risk of the kind of
3 injury which was incurred, and that either:… The public entity had actual
or constructive notice of the dangerous condition under Section 835.2 a
4 sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.”
5
6 (Gov. Code, § 835, subd. (b).) To establish constructive notice, the statute requires as follows:
7 “A public entity had constructive notice of a dangerous condition within
the meaning of subdivision (b) of Section 835 only if the plaintiff
8 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,
9 should have discovered the condition and its dangerous character. On the
issue of due care, admissible evidence includes but is not limited to
10 evidence as to: [¶] (1) Whether the existence of the condition and its
dangerous character would have been discovered by an inspection system
11 that was reasonably adequate (considering the practicability and cost of
inspection weighed against the likelihood and magnitude of the potential
12 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
13 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
14 property or adjacent property. [¶] (2) Whether the public entity maintained
and operated such an inspection system with due care and did not discover
15 the condition.”
16 (Gov. Code, § 835.2, subd. (b).) “Where a public entity has actual or constructive notice of a dangerous
17 condition, it has a duty to take reasonable steps to protect the public from the danger even if such
18 dangers are not necessarily created by the entity.” (Constantinescu v. Conejo Valley Unified School Dist.
19 (1993) 16 Cal.App.4th 1466, 1475.) “The precise nature of the accident need not be foreseeable, only
20 the general character of the event or harm.” (16 Cal.App.4th at 1474.) “A municipality must exercise
21 vigilance in keeping its streets safe and is bound to make reasonable inspections to that end.” (Peters v.
22 City and County of San Francisco (1953) 41 Cal.2d 419, 427.) Thus, if the County had constructive
23 notice of the defective condition upon which Rebecca tripped and fell, then the County is liable for
24 Plaintiffs’ damages.
25 “Briefly stated, constructive notice may be imputed if it can be shown that an obvious danger
26 existed for an adequate period of time before the accident to have permitted the state employees, in the
27 exercise of due care, to discover and remedy the situation had they been operating under a reasonable
28 plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.)
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 “Constructive notice may be imputed if it can be shown that an obvious danger existed for a sufficient
2 period of time before the accident to have permitted state employees, in the exercise of due care, to
3 discover and remedy the situation.” (Briggs v. State of California (1971) 14 Cal.App.3d 489, 495.) “And
4 in cases such as this, to escape the charge of constructive notice reasonable diligence must have been
5 made in making inspections for the discovery of unsafe or defective conditions.” (Marino v. Tuolumne
6 County (1953) 118 Cal.App.2d 675, 677.) A government entity’s recent road work on a particular area
7 can be the basis of imputing knowledge of the conditions of that area onto the government entity.
8 (Alvarez v. Los Angeles County (1955) 132 Cal.App.2d 525, 528.) Since counties can only act through
9 their employees, a county is responsible for what an employee should have noticed, or could have done.
10 (Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 303.) If the government
11 employee performing the inspection exercises discretion to determine what needs to be fixed and
12 determines that some defects do not require repair, the knowledge of that government employee as to the
13 existence of the defects is imputed to the government agency since it was that employees job to perform
14 the inspection. (Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 667 [city sidewalk inspector].)
15
B. Whether the County Had Constructive Notice Should Not Be Decided by Summary
16 Judgment.
17 One reason that the Motion should be denied is because whether the County had constructive
18 notice should not decided by summary judgment. The question of constructive notice to a municipality
19 of a dangerous and defective condition of property is usually one of fact for the trier of fact. (Perry v.
20 City of San Diego (1947) 80 Cal.App.2d 166, 170.) “The usual rule is that where there is any substantial
21 evidence of a state of facts or circumstances which should impute notice, the question as to whether such
22 facts are sufficient to constitute notice to a party is one of fact for the jury.” (Edwards v. City of San
23 Diego (1932) 126 Cal.App. 1, 3.) The established rule is that it is a question of fact for the trial jury to
24 determine whether the dangerous condition in a public street has existed for a sufficient length of time to
25 constitute constructive notice and also whether a reasonable time to remedy the condition has existed.
26 (George v. City of Los Angeles (1942) 51 Cal.App.2d 311, 315; see also Van Dorn v. City & County of
27 San Francisco (1951) 103 Cal.App.2d 714, 717; Stanford v. City of Ontario (1972) 6 Cal.3d 870, 884.)
28 “…[I]t is ordinarily a question for the jury whether the particular circumstances of the case were
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 sufficient to ascribe actual or constructive notice of the condition to the City.” (Gallipo v. City of Long
2 Beach (1956) 146 Cal.App.2d 520, 527.) “Whether or not a dangerous condition exists and whether or
3 not the county has had actual or constructive notice thereof are questions of fact for the jury….”
4 (Murphy v. Lake County (1951) 106 Cal.App.2d 61, 67.) “We take the question to be, in each case,
5 whether, by the use of reasonable diligence, the given condition should have been discovered within a
6 given period of time, and the answer must depend upon the facts of the particular case.” (Christy v. City
7 of Alhambra (1935) 9 Cal.App.2d 499, 502.)
8 The reason for this rule is that factual disputes are not appropriate for summary judgment or
9 summary adjudication. No issues of fact are decided on a summary judgment motion. (Barisich v. Lewis
10 (1990) 226 Cal.App.3d 12, 15.) This applies to whether or not a government entity acted reasonably
11 under the circumstances. For example, in Achay v. Huntington Beach Union High School Dist. (2022)
12 80 Cal.App.5th 528, 540, summary judgment was improper in favor of the school district because there
13 were genuine triable issues of material fact as to whether the school district provided reasonable security
14 measures to protect its students. Similarly, in cases of premises liability which is essentially the same
15 basis upon which the County would be liable, i.e., a defective condition on its property, the
16 reasonableness of a party’s actions is generally a question of fact for the jury to decide. (Gonzalez v.
17 Mathis (2018) 20 Cal.App.5th 257, 273, rev’d (2021) 12 Cal.5th 29; see also Coyle v. Historic Mission
18 Inn Corporation (2018) 24 Cal.App.5th 627, 645 [hotel’s efforts to protect guests from spiders];
19 Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 395 [security measures in
20 restaurant parking lot].)
21 Here, the County claims that it had neither actual nor constructive notice of the defective
22 condition on Channel Drive because the defect in the road was small and could only have been there for
23 a maximum of roughly six (6) weeks. (Motion, p. 10.) By making this argument, the County wants the
24 Court to determine that its inspection of Channel Drive and the area where Rebecca fell for which it had
25 a duty to inspect as more fully explained below was reasonable and that six (6) weeks is an insufficient
26 amount of time for the County to identify the condition as a matter of law. Because the County wants
27 the Court to determine the reasonability of its conduct under the circumstances by way of summary
28 judgment, the Motion should be denied on that basis alone.
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 C. The County Had a Duty to Inspect CalPortland’s Work
2 Whether the County fulfilled its duties to inspect CalPortland’s work and whether fulfilling that
3 duty would have put the County on actual notice of the defective condition are genuine triable issues of
4 material fact because the County had a duty to inspect to inspect CalPortland’s work and the failure to
5 fulfill that duty raises the presumption of constructive notice. “A duty is imposed upon officers of a
6 municipality, whose business requires them to inspect and repair sidewalks, to exercise due care to
7 discover either patent or latent defects which may be reasonably anticipated.” (Kirack v. City of Eureka
8 (1945) 69 Cal.App.2d 134, 138.) Where an obligation to inspect rests upon the government entity, its
9 neglect to do so for a period of two and a half months creates the presumption of constructive notice of
10 defects which had existed that entire length of time, and constitutes negligence on its part. (Roberts v.
11 Pacific Gas & Electric Co. (1929) 102 Cal.App. 422, 427.) That a government entity maintained a
12 system for the purposes of finding and repairing defects in the streets for which it is responsible is
13 relevant to the question of whether the street defect should have been noticed before the accident
14 occurred. (Nishihama, supra, 93 Cal.App.4th 298 at 303 [system to finding and repairing potholes].)
15 “But in determining constructive notice, the method of inspection is secondary; the primary and
16 indispensable element of constructive notice is a showing that the condition existed before the accident.”
17 (Strongman v. Kern County (1967) 255 Cal.App.2d 308, 313.) “It is equally clear, we think, that, where
18 the city is charged with constructive notice on the basis of a duty to inspect, it must be made to appear
19 that a reasonable inspection would have disclosed the defect or dangerous condition; that is, that, had
20 there been no neglect of duty there would have been actual knowledge on the part of the city officers.”
21 (Van Dorn, supra, 103 Cal.App.2d at 717; see also Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812.)
22 The theory is that the government entity had it performed its duty of conducting a reasonable inspection,
23 it would have had actual knowledge of the existence of a dangerous defect. (Barrett v. City of Claremont
24 (1953) 41 Cal.2d 70, 73.)
25 The County had a duty to inspect the utility raising work done by CalPortland. The County of
26 Santa Barbara Agreement for: County Project No. 820736 (the “Contract”) between the County and
27 CalPortland identifies documents that are incorporated into the Contract and includes the State of
28 California, Department of Transportation 2018 Standard Specifications (“State Specs”) as modified by
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 the County. (Plaintiffs’ Separate Statement in Opposition to Motion for Summary Judgment, or in the
2 Alternative, Summary Adjudication filed by County of Santa Barbara (“Statement”) ¶ 18.) The Contract
3 also includes a one-year from completion warranty from CalPortland. (Id., ¶ 19.) The County modified
4 the State Specs to designate that “[t]he County of Santa Barbara acting by and through its Department of
5 Public Works; its authorized representatives” would replace the definition of “Department” and “[a]ny
6 duly authorized representative of the Director of Public Works of the County of Santa Barbara would
7 replace the definition of “Engineer” in the State Specs. (Id., ¶ 20.) The County also modified the State
8 Specs by stating “Department acceptance includes sampling, testing, and inspections performed by the
9 Department to verify compliance with the Contract.” (Id., ¶ 21.)
10 The State Specs not modified by the County include that “Work is subject to the Department's
11 inspection, sampling, and testing.” (Statement ¶ 22.) Also, the “Engineer” makes the final decision as to
12 work quality and acceptability. (Id., ¶ 23.) When CalPortland’s work was complete, it was required to
13 contact the “Engineer” to request final inspection and, if the Engineer determines that the work is
14 complete, then the Engineer recommends “Contract acceptance.” (Id., ¶ 24.) The State Specs also state
15 that, during the one-year warranty period, “the Engineer monitors the completed work. If the Engineer
16 finds work having a substantial defect, the Engineer lists the defective work parts and furnishes
17 [CalPortland] the list.” (Id., ¶ 25.) CalPortland was obligated to “[i]mmediately remove hauling spillage
18 from a roadway lane or shoulder open to traffic. When hauling on roadways, trim loads and remove
19 material from shelf areas to minimize spillage.” (Id., ¶ 26.) In addition, CalPortland was directed “[d]o
20 not stockpile material on finished pavement or allow material to drift across pavement. Clean finished
21 pavement of dirt and foreign material…. Dispose of material resulting from finishing activities. If
22 authorized, soil and rock resulting from finishing activities may be used along the roadway.” (Id., ¶ 27.)
23 As part of the County’s practice, once permitted construction work performed in a County roadway, the
24 permittee is required to contact the County for a final inspection. (Id., ¶ 28.)
25 Taken together, there is no doubt that the County had a duty to inspect the work performed by
26 CalPortland both during the performance of CalPortland’s work, immediately after the work was
27 performed for Contract “acceptance” purposes, and during the one-year warranty period after
28 CalPortland’s work was complete. Because the County had such a duty, whether the County fulfilled
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA
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1 that duty is a genuine triable issue of material fact. To identify those triable issues, it is important to
2 understand the work that CalPortland performed on Channel Drive.
3 There are two (2) relevant aspects of the County-wide paving project that impact this matter: (1)
4 the lowering of utilities on Channel Drive and (2) the raising of utilities on Channel Drive. CalPortland
5 was required to lower the utilities, such as manholes and water valves, before the repaving in order to
6 allow the cold planer (a grinding machine) to go over the utilities without hitting them. (Statement ¶
7 29.) Manhole removal included jackhammering out and removing existing concrete, removing the metal
8 manhole cover, covering the opening with a metal plate, and backfilling the dugout area with cold mix
9 asphalt. (Id., ¶ 30.) The digging goes several inches beyond the depth of manhole collar so that grinder
10 does not hit metal collar and that dugout area is filled with cold mix asphalt to the surface of the
11 roadway. (Id., ¶ 31.) The dugout asphalt is put into the bucket of loader. (Id., ¶ 32.) The cold mix asphalt
12 brings the dugout area up to the surface of roadway to also prevent pedestrians from walking into the
13 dugout area. (Id., ¶ 33.)
14 During the process of adding cold mix asphalt to the manhole on Channel Drive near Butterfly
15 Lane, CalPortland brought cold mix asphalt stored at staging area just north of Coral Casino to Channel
16 Drive multiple times and its worker shoveled cold mix asphalt out of the tractor into manhole area.
17 (Statement ¶ 34.) To make sure that the area was clean, CalPortland’s “inspection” of the area after the
18 cold mix asphalt was poured consisted of one of its employees driving the area without ever leaving his
19 vehicle during the inspection. (Id., ¶ 35.) When the street was supposedly clean, then a truck would go
20 down the street spraying liquid asphalt on the ground that allows asphalt subsequently poured by a
21 following truck to better stick to the ground, the asphalt pouring truck would follow, and then a
22 compactor would roll down the recently-laid asphalt. (Id., ¶ 36.) The tack coat is an oily emission that is
23 put down before the paving process to help glue the asphalt to the old asphalt that was previously
24 grinded down. (Id., ¶ 37.) Clean up of the area where the cold mix asphalt is poured consisted of having
25 a street sweeper and an air vacuum truck blow everything from the roadway and sidewalks. (Id., ¶ 38.)
26 This is because the grinder does not pickup all of the material dumped by the dump truck. (Id., ¶ 39)
27 CalPortland had transfer trucks on Channel Drive that transfer hot mix asphalt into the paving
28 equipment by use a hydraulic tailgate on the back of the truck. (Id., ¶ 40.)
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1 Raising utilities is a different process. The utility raising took place on Channel Drive on October
2 5 – 7, 2020. (Statement ¶ 40.) After paving is done, CalPortland has to go back to where the utility was
3 located in the street and use a jackhammer to remove the asphalt around the utility that had been placed
4 by CalPortland. (Id., ¶ 41.) The asphalt removed during the utility raising process includes both hot mix
5 and cold mix asphalt. (Id., ¶ 42.) At the start of the demolition of the asphalt around the manhole, small
6 pieces of asphalt are generated and then, as the process continues, larger pieces of asphalt are generated
7 and removed. (Id., ¶ 43.) CalPortland would then throw the cold mix asphalt into an adjacent tractor that
8 hauls the cold mix asphalt to a dump, set the manhole back, and pour new concrete in the recently dug
9 out area. (Id., ¶ 44.)
10 During pouring of concrete during the raising of the utilities, there is leftover residue of concrete
11 spillage. (Statement ¶ 45.) The cold mix asphalt is thrown by a shovel into a skip loader or truck that
12 contains both new asphalt and cold mix asphalt. (Id., ¶ 46.) Sometimes, CalPortland loaded the removed
13 asphalt from the utilities with a loader because the concrete was too heavy to be lifted by hand. (Id., ¶
14 47.) CalPortland’s employees are aware of previous instances where a skip loader spilled material when
15 there was too much material in the front bucket of the loader causing material to boil out the front and, if
16 the spill was not noticed, that material could be driven over by the skip loader operator. (Id., ¶ 48.) They
17 have also seen instances where a skip loader spilled asphalt when loading the asphalt into truck because
18 the bucket has too much in it or if the bucket is not perfectly aligned with the truck. (Id., ¶ 49.)
19 CalPortland took the removed asphalt on a skip loader and drove it down Channel Drive and took it to a
20 dump truck. (Id., ¶ 50.) CalPortland employees have no idea where the skip loader went or where it
21 dumped the removed asphalt on October 7 through 9, 2020. (Id., ¶ 51.) CalPortland’s employee, Dustin
22 Bowlin, allegedly followed the loaded dump truck to the dump site to make sure that nothing spilled
23 onto the roadway, but admitted that he has no specific recollection of following any truck after the
24 utilities were raised on Channel Drive. (Id., ¶ 52.)
25 After the utilities are raised, the CalPortland foreman is supposed to make sure that area is clean
26 of materials, asphalts, and dirt, which for Channel Drive was Tanner Casner because he was the
27 CalPortland foreman overseeing the utility raising on Channel Drive. (Statement ¶ 53.) Mr. Casner
28 recalled being onsite on October 5 and 6, 2020, but was not present on October 7, 2020, despite his
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
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1 declaration to that effect, and has no recollection of being onsite October 8 or 9, 2020. (Id., ¶ 54.) Mr.
2 Casner has no specification recollection of doing a walking inspection of Channel Drive on October 5 or
3 6, 2020, and his declaration testimony is based solely on his alleged custom and practice. (Id., ¶ 55.) In
4 support of its separate motion, CalPortland claims that Mr. Bowlin inspected Channel Drive after the
5 utility raising, but Mr. Bowlin was not present onsite on October 5 or 6, 2020, and has no specific
6 recollection of inspecting Channel Drive. (Id., ¶ 56.) Another CalPortland employee, Brian Shiffrar, was
7 only onsite on September 5 and October 20, 2020. (Id., ¶ 57.) He too has no specific recollection of
8 being on Channel Drive on October 20, 2020, despite his declaration stating that he did not see any
9 asphalt lumps. (Id., ¶ 58.) When Mr. Shiffrar allegedly did his inspection on October 20, 2020, he stayed
10 in his vehicle, drove down Channel Drive in one direction, and then other direction with vehicles parked
11 on either side of Channel Drive. (Id., ¶ 59.) There is no document prepared by CalPortland to verify
12 whether any of its employees ever inspected Channel Drive after the utilities were raised. (Id., ¶ 60.)
13 When the utility raising is done, the County’s inspection process is supposed to entail walking
14 the project and checking and verifying that the concrete has set and is safe to drive on and removal of
15 traffic control to allow traffic on street. (Statement ¶ 61.) This is consistent with the County’s general
16 practice for inspection of asphalt work where there is an open excavation of determining whether the
17 area has proper traffic control for purposes of avoiding injuries. (Id., ¶ 62.) German Neyra was the
18 County employee assigned to work with CalPortland with the utility raising process on Channel Drive.
19 (Id., ¶ 63.) His role was to work as support for the crew and assist CalPortland with the installation of
20 the manholes in the street to be within 1/8 inch of the level of the payment and with traffic control. (Id.,
21 ¶ 64.) Mr. Neyra did not inspect Channel Drive after the manhole covers were reset, and only inspected
22 the manhole cover work by itself. (Id., ¶ 65.) He admits that the County had a duty to inspect the street
23 to make sure that it is cleaned of excavated asphalt after CalPortland raised the utilities. (Id., ¶ 66.) At
24 the same time, however, Mr. Neyra admits that he could not recall whether CalPortland completely
25 cleaned up all excavated asphalt related to the utility raising on Channel Drive on October 5, 2020, or
26 whether he prepared a punchlist of items for CalPortland to correct. (Id., ¶ 67.) Once the lane striping
27 was done, the County did no further inspections of District 1 where Channel Drive is located. (Id., ¶ 68.)
28 ///
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
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1 As such, the County’s own inspection procedures do not include determining whether asphalt has
2 spilled onto the sides of the streets where vehicles may be parked. When one of the County’s inspectors
3 inspected Channel Drive, there would have been cars parked on either side of Channel Drive and would
4 have only been inspecting the street lane striping. (Statement ¶ 69.) Mr. Murphy would only have
5 driven and looked at Channel Drive on his to another project or another districts. (Id., ¶ 70.) Since one of
6 the County’s inspectors would have inspected Channel Drive when there were cars parked on either side
7 of the street, and the location of where Rebecca fell is in the same area where the cars would have been
8 parked during that County inspector’s inspection, then there is a genuine issue of triable material fact as
9 to whether or not that inspector’s “drive-by” inspection should have put the County on notice of the
10 defective condition. Similarly, if the other County inspector did not even bother to get out of his vehicle
11 to inspect Channel Drive despite the inspection process requiring “walking” the project, then there is a
12 genuine issue of triable material fact as whether the County employee’s inspection would have put the
13 County on notice of the defective condition.
14 There are also genuine triable issues of material fact whether the asphalt lumps upon which
15 Rebecca tripped and fell came from loose asphalt that resulted from operations on Hill Road and/or
16 Olive Mill Road that occurred after the operations on Channel Drive. CalPortland performed paving
17 prep work on Hill Road which included grinding away the old asphalt and placing cold mix asphalt at all
18 conforms and driveway approaches. (Statement ¶ 71.) The work on Hill Road included grinding and
19 paving, but also included providing a fog seal, which is sprayed down onto the roadway from heated
20 tanks pulled behind a truck, to promote the longevity of the asphalt, and turns black when it dries. (Id., ¶
21 72.) Mr. Murphy was inspecting both the grinding on Hill and the paving on Channel Drive at the same
22 time. (Id., ¶ 73.) After Channel Drive was paved, the next street to be paved was Hill Road. (Id., ¶ 74.)
23 CalPortland started paving work on Hill Road on September 29, 2020. (Id., ¶ 75.) When CalPortland
24 brought hot mix asphalt for paving Hill Road, its asphalt trucks were driven on Channel Drive and Olive
25 Mill Road. (Id., ¶ 76.)
26 On October 1, 2020, CalPortland raised 11 water valves on Hill Road. (Statement ¶ 77.) Mr.
27 Neyra supervised approximately 10 manhole cover utility raising processes on Channel Drive, Hill
28 Drive, and Olive Mill Road. (Id., ¶ 78.) When CalPortland raised the utilities on Hill Road, the material
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY
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1 excavated included both cold mix and hot mix asphalt. (Id., ¶ 79.) To the extent asphalt was removed
2 from Hill Drive, it would have been removed the same way as on Channel Drive and placed in a skip
3 loader to go to a truck. (Id., ¶ 80.) Mr. Bowlin was the CalPortland foreman overseeing raising utilities
4 on October 7 through 9, 2020, on Channel Drive and Hill Road. (Id., ¶ 81.) Mr. Bowlin has no
5 recollection of whether truck with asphalt removed from Hill Road was dumped on Channel Drive or
6 Hill Road. (Id., ¶ 82.) That is because, in part, Mr. Bowlin has no recollection of taking part in raising
7 utilities on Hill Road. (Id., ¶ 83.) In addition, after the trucks laden with asphalt removed from Hill Road
8 went down Channel Drive, there was only one other inspection of Channel Drive, and that was only for
9 inspecting the lane striping when there were vehicles parked on both sides of Channel Drive. (Id., ¶ 84.)
10 Thus, there is no evidence that either the County or CalPortland inspected Channel Drive for
11 asphalt that could have spilled from the truck after the utility raising process on Hill Road. As such,
12 there is a genuine issue of triable material fact as to whether the County should have seen the asphalt
13 lumps upon which Rebecca tripped if the County had fulfilled its legal and contractual inspection duties
14 if its inspector had done anything other than look at the lane striping on Channel Drive when there were
15 vehicles on both sides of Channel Drive, particularly since the area
Preview
1 MAHO & PRENTICE, LLP 2 Chad M. Prentice (SB#173811) 629 State Street, Suite 217 3 Santa Barbara, CA 93101 Telephone: (805) 962-1930 4 Facsimile: (805) 456-2141 5 Email: cprentice@sbcawlaw.com 6 Attorneys for Plaintiffs, REBECCA FRASER and MARCEL FRASER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA 10 REBECCA FRASER and MARCEL ) CASE NO.: 21CV03390 11 FRASER, ) 12 ) PLAINTIFFS’ MEMORANDUM OF Plaintiffs, ) POINTS AND AUTHORITIES IN 13 vs. ) OPPOSITION TO MOTION FOR ) SUMMARY JUDGMENT AND/OR 14 COUNTY OF SANTA BARBARA; CITY OF ) SUMMARY ADJUDICATION BY 15 SANTA BARBARA; STATE OF ) COUNTY OF SANTA BARBARA CALIFORNIA, DEPARTMENT OF ) 16 TRANSPORTATION; and DOES 1 to 100, ) Date: July 31, 2023 ) Time: 10:00 a.m. 17 Defendants. ) Dept.: SB5 18 ) 19 TABLE OF CONTENTS 20 I. INTRODUCTION ............................................................................................................................... 5 21 II. SUMMARY JUDGMENT STANDARDS ......................................................................................... 6 22 III. THE MOTION SHOULD BE DENIED BECAUSE GENUINE TRIABLE ISSUES OF 23 MATERIAL FACT EXIST AS TO WHETHER THE COUNTY HAD CONSTRUCTIVE NOTICE OF 24 THE DEFECTIVE CONDITION ON CHANNEL DRIVE....................................................................... 7 25 A. County’s Statutory Basis for Liability Based on Constructive Notice ............................................ 7 26 B. Whether the County Had Constructive Notice Should Not Be Decided by Summary Judgment. .. 9 27 C. The County Had a Duty to Inspect CalPortland’s Work ............................................................... 11 28 D. There is No Dispute that the Condition on Channel Drive Warranted Removal........................... 17 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 1 1 E. The Doctrine of Res Ipsa Loquitor Applies ................................................................................... 17 2 IV. CONCLUSION ................................................................................................................................. 19 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 2 1 TABLE OF AUTHORITIES 2 Cases 3 Achay v. Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528 .................................. 10 4 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ........................................................................ 6, 7 5 Alvarez v. Los Angeles County (1955) 132 Cal.App.2d 525 ...................................................................... 9 6 Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284......................................................... 6 7 Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661 .............................................................................. 9 8 Barisich v. Lewis (1990) 226 Cal.App.3d 12 ............................................................................................ 10 9 Barrett v. City of Claremont (1953) 41 Cal.2d 70 .................................................................................... 11 10 Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381 .............................................................................. 18 11 Briggs v. State of California (1971) 14 Cal.App.3d 489 ............................................................................ 9 12 Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820 .................................................................... 17 13 Christy v. City of Alhambra (1935) 9 Cal.App.2d 499 ............................................................................. 10 14 Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466................................. 8 15 Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454 ............................................................... 6 16 Coyle v. Historic Mission Inn Corporation (2018) 24 Cal.App.5th 627 .................................................. 10 17 Edwards v. City of San Diego (1932) 126 Cal.App. 1 ................................................................................ 9 18 Gallipo v. City of Long Beach (1956) 146 Cal.App.2d 520 ..................................................................... 10 19 George v. City of Los Angeles (1942) 51 Cal.App.2d 311 ......................................................................... 9 20 Gonzalez v. Mathis (2018) 20 Cal.App.5th 257........................................................................................ 10 21 Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66 ............................................................................... 6 22 Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462 ................................................................................ 7 23 Kirack v. City of Eureka (1945) 69 Cal.App.2d 134 ................................................................................ 11 24 Laurenzi v. Vranizan (1945) 25 Cal.2d 806.............................................................................................. 11 25 Marino v. Tuolumne County (1953) 118 Cal.App.2d 675 .......................................................................... 9 26 Murphy v. Lake County (1951) 106 Cal.App.2d 61.................................................................................. 10 27 Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298...................................... 9, 11 28 Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385 ................................................ 10 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 3 1 Perry v. City of San Diego (1947) 80 Cal.App.2d 166 ............................................................................... 9 2 Peters v. City and County of San Francisco (1953) 41 Cal.2d 419 ............................................................ 8 3 Ragland v. U.S. Bank Nat’l Ass’n (2012) 209 Cal.App.4th 182 ................................................................. 7 4 Roberts v. Pacific Gas & Electric Co. (1929) 102 Cal.App. 422 ............................................................. 11 5 Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763 ............................................................................ 6 6 Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658 ......................................................... 18 7 Stanford v. City of Ontario (1972) 6 Cal.3d 870 ........................................................................................ 9 8 State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396 .............................................. 8 9 Strongman v. Kern County (1967) 255 Cal.App.2d 308........................................................................... 11 10 Van Dorn v. City & County of San Francisco (1951) 103 Cal.App.2d 714 ......................................... 9, 11 11 Versa Tech., Inc. v. Superior Court (Motsinger) (1978) 78 Cal.App.3d 237 ............................................. 6 12 Zavala v. Arce (1997) 58 Cal.App.4th 915 ............................................................................................. 6, 7 13 Statutes 14 Code Civ. Proc., § 437c, subd. (c) .......................................................................................................... 6, 7 15 Code Civ. Proc., § 437c, subd. (p)(2) ......................................................................................................... 6 16 Evid. Code, § 646, subd. (b) ..................................................................................................................... 17 17 Gov. Code, § 835, subd. (b) ........................................................................................................................ 8 18 Gov. Code, § 835.2, subd. (b) ..................................................................................................................... 8 19 Rules 20 Cal. Rules of Court, rule 3.1350(a)(2) ........................................................................................................ 7 21 22 23 24 25 26 27 28 PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 4 1 PLAINTIFFS REBECCA FRASER (“Rebecca”) and MARCEL FRASER (collectively with 2 Rebecca, “Plaintiffs”) submit the following memorandum of points and authorities in opposition the 3 County of Santa Barbara’s Notice of Motion for Summary Judgment and/or Adjudication; Memorandum 4 of Points and Authorities; Declarations in Support Thereof (the “Motion”) filed by Defendant COUNTY 5 OF SANTA BARBARA (“County”): 6 I. INTRODUCTION 7 Rebecca tripped and fell, November 17, 2020, on asphalt left on Channel Drive in Montecito 8 after the County and its contractor, Co-defendant CALPORTLAND CONSTRUCTION 9 (“CalPortland”), conducted a County-wide street repaving project that included, inter alia, repaving and 10 subsequently “raising utilities” on Channel Drive. The process of raising utilities, according to the 11 County’s and CalPortland’s witnesses, involved removing existing asphalt with a jackhammer, placing 12 temporary asphalt in the dugout area, and then removing that temporary asphalt from the previously 13 dugout area after the street has been paved. The raising utility process described by the County and 14 CalPortland’s witnesses was messy and required daily cleanup of the removed asphalt which was 15 sometimes done by hand, sometimes by shovel, and sometimes by using construction equipment and 16 then placed onto trucks or other equipment to be hauled on Channel Drive to another location. 17 The County had a duty to inspect the work done by CalPortland both while the work was being 18 performed and during the warranty period after the work was performed. The Motion should be denied 19 because the County has failed to meet its burden of demonstrating that there are no genuine triable 20 issues of material fact and that the County is entitled to judgment as a matter of law. There are also 21 genuine triable issues of material fact regarding whether the County ever inspected the subject area after 22 the utility raising work was done and/or fulfilled its contractual obligations with CalPortland regarding 23 the inspection of the related work and the subject area where the work was performed. Taken together, 24 the presence of the numerous genuine triable issues of material fact warrant denial of the Motion. 25 Because the County omitted numerous relevant facts from its Motion and due to the page 26 limitations associated with oppositions to summary judgment motions, Plaintiffs will address the 27 additional facts that bear on the outcome of the Motion in the context of the legal issues to which those 28 facts relate as discussed hereinbelow. PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 5 1 II. SUMMARY JUDGMENT STANDARDS 2 As a defendant moving for summary judgment, the County must “show” that either (a) one or 3 more elements of the “cause of action … cannot be established”; or (b) there is a complete defense to 4 that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) To “show” a complete defense, a defendant 5 must present admissible evidence of each essential element of the defense upon which it bears the 6 burden of proof at trial. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) This 7 means that where a plaintiff has the burden of proof at trial by a preponderance of evidence, a defendant 8 “must present evidence that would require a reasonable trier of fact not to find any underlying material 9 fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of 10 law, but would have to present his evidence to a trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 11 25 Cal.4th 826, 857 [emphasis in original].) Once a defendant has met its initial burden, the burden 12 shifts to the plaintiff to produce admissible evidence showing a triable issue of fact exists. (Code Civ. 13 Proc., § 437c, subd. (p)(2); Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) If plaintiff is 14 unable to do so, defendant is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 15 (2001) 25 Cal.4th 763, 780-781.) If the defendant fails to meet its burden, the motion must be denied 16 and plaintiff need not make any showing at all. (Consumer Cause, Inc. v. SmileCare (2001) 91 17 Cal.App.4th 454, 468.) If the defendant meets its burden, however, and where the plaintiff is required to 18 prove a matter at trial by a preponderance of the evidence, the plaintiff must, in order to raise a triable 19 issue of fact on a summary judgment motion, present evidence showing the matter to be more likely than 20 not. (See Aguilar, supra, 25 Cal.4th at 857.) 21 As a result of the foregoing, the court’s sole function on a motion for summary judgment is 22 issue-finding, not issue-determination. The judge must simply determine from the evidence submitted 23 whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); see Zavala 24 v. Arce (1997) 58 Cal.App.4th 915, 926.) “There is a triable issue of material fact if, and only if, the 25 evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing 26 the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at 850.) If 27 there is a single such issue, the motion must be denied. (Versa Tech., Inc. v. Superior Court (Motsinger) 28 (1978) 78 Cal.App.3d 237, 240.) To be “material” for summary judgment purposes, the fact must relate PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 6 1 to some claim or defense in issue under the pleadings. Also, it must be in some way essential to the 2 judgment—i.e., if proved, it could change the outcome of the motion. (See Zavala, supra, 58 3 Cal.App.4th at 926; Kelly v. First Astri Corp. (1999) 72 Cal.App.4th 462, 470; see also Cal. Rules of 4 Court, rule 3.1350(a)(2).) In ruling on a motion for summary judgment or summary adjudication, the 5 court must “consider all of the evidence” and all of the “inferences” reasonably drawn therefrom (Code 6 Civ. Proc., § 437c, subd. (c)) and must view the evidence and inferences “in the light most favorable to 7 the opposing party.” (Aguilar, supra, 25 Cal.4th at 843; see Ragland v. U.S. Bank Nat’l Ass’n (2012) 8 209 Cal.App.4th 182, 199.) 9 As an initial matter, the Motion should be denied because the County has not met its burden of 10 production necessary to shift the burden onto Plaintiffs to demonstrate the existence of a genuine issue 11 of triable issue of material fact due to the lack of competent evidence offered in support of the Motion as 12 more fully explained in Plaintiffs’ concurrently filed Plaintiffs’ Objections to Evidence Offered by 13 County of Santa Barbara in Support of its Motion for Summary Judgment and/or Adjudication. Even if 14 the Court were to deem the County’s burden met in that regard, the Motion should be denied because 15 there are numerous genuine triable issues of material fact as more fully explained below. 16 III. THE MOTION SHOULD BE DENIED BECAUSE GENUINE TRIABLE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THE COUNTY HAD CONSTRUCTIVE 17 NOTICE OF THE DEFECTIVE CONDITION ON CHANNEL DRIVE 18 The Motion should be denied because genuine triable issues of material fact exist as to whether 19 the County had constructive notice of the defective condition on Channel Drive. The Motion is premised 20 on the argument that Plaintiffs cannot demonstrate the elements for a dangerous condition on public 21 property. (Motion, pp. 8-11.) In support of that argument, the County argues that it did not create any 22 dangerous conditions, and the County lacked notice of any such dangerous conditions. While Plaintiffs 23 acknowledge that it was not the County or any of its employees who placed the asphalt on Channel 24 Drive on which Rebecca tripped and fell, there are genuine issues of triable material fact as to whether 25 the County had constructive notice of the dangerous condition. 26 A. County’s Statutory Basis for Liability Based on Constructive Notice 27 The bases for a government entity’s liability for torts is limited, but one of those bases is present 28 here. PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 7 “Except as provided by statute, a public entity is liable for injury caused 1 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 2 injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of 3 injury which was incurred, and that either:… The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a 4 sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” 5 6 (Gov. Code, § 835, subd. (b).) To establish constructive notice, the statute requires as follows: 7 “A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff 8 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, 9 should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to 10 evidence as to: [¶] (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system 11 that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential 12 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 13 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 14 property or adjacent property. [¶] (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover 15 the condition.” 16 (Gov. Code, § 835.2, subd. (b).) “Where a public entity has actual or constructive notice of a dangerous 17 condition, it has a duty to take reasonable steps to protect the public from the danger even if such 18 dangers are not necessarily created by the entity.” (Constantinescu v. Conejo Valley Unified School Dist. 19 (1993) 16 Cal.App.4th 1466, 1475.) “The precise nature of the accident need not be foreseeable, only 20 the general character of the event or harm.” (16 Cal.App.4th at 1474.) “A municipality must exercise 21 vigilance in keeping its streets safe and is bound to make reasonable inspections to that end.” (Peters v. 22 City and County of San Francisco (1953) 41 Cal.2d 419, 427.) Thus, if the County had constructive 23 notice of the defective condition upon which Rebecca tripped and fell, then the County is liable for 24 Plaintiffs’ damages. 25 “Briefly stated, constructive notice may be imputed if it can be shown that an obvious danger 26 existed for an adequate period of time before the accident to have permitted the state employees, in the 27 exercise of due care, to discover and remedy the situation had they been operating under a reasonable 28 plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 8 1 “Constructive notice may be imputed if it can be shown that an obvious danger existed for a sufficient 2 period of time before the accident to have permitted state employees, in the exercise of due care, to 3 discover and remedy the situation.” (Briggs v. State of California (1971) 14 Cal.App.3d 489, 495.) “And 4 in cases such as this, to escape the charge of constructive notice reasonable diligence must have been 5 made in making inspections for the discovery of unsafe or defective conditions.” (Marino v. Tuolumne 6 County (1953) 118 Cal.App.2d 675, 677.) A government entity’s recent road work on a particular area 7 can be the basis of imputing knowledge of the conditions of that area onto the government entity. 8 (Alvarez v. Los Angeles County (1955) 132 Cal.App.2d 525, 528.) Since counties can only act through 9 their employees, a county is responsible for what an employee should have noticed, or could have done. 10 (Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 303.) If the government 11 employee performing the inspection exercises discretion to determine what needs to be fixed and 12 determines that some defects do not require repair, the knowledge of that government employee as to the 13 existence of the defects is imputed to the government agency since it was that employees job to perform 14 the inspection. (Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 667 [city sidewalk inspector].) 15 B. Whether the County Had Constructive Notice Should Not Be Decided by Summary 16 Judgment. 17 One reason that the Motion should be denied is because whether the County had constructive 18 notice should not decided by summary judgment. The question of constructive notice to a municipality 19 of a dangerous and defective condition of property is usually one of fact for the trier of fact. (Perry v. 20 City of San Diego (1947) 80 Cal.App.2d 166, 170.) “The usual rule is that where there is any substantial 21 evidence of a state of facts or circumstances which should impute notice, the question as to whether such 22 facts are sufficient to constitute notice to a party is one of fact for the jury.” (Edwards v. City of San 23 Diego (1932) 126 Cal.App. 1, 3.) The established rule is that it is a question of fact for the trial jury to 24 determine whether the dangerous condition in a public street has existed for a sufficient length of time to 25 constitute constructive notice and also whether a reasonable time to remedy the condition has existed. 26 (George v. City of Los Angeles (1942) 51 Cal.App.2d 311, 315; see also Van Dorn v. City & County of 27 San Francisco (1951) 103 Cal.App.2d 714, 717; Stanford v. City of Ontario (1972) 6 Cal.3d 870, 884.) 28 “…[I]t is ordinarily a question for the jury whether the particular circumstances of the case were PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 9 1 sufficient to ascribe actual or constructive notice of the condition to the City.” (Gallipo v. City of Long 2 Beach (1956) 146 Cal.App.2d 520, 527.) “Whether or not a dangerous condition exists and whether or 3 not the county has had actual or constructive notice thereof are questions of fact for the jury….” 4 (Murphy v. Lake County (1951) 106 Cal.App.2d 61, 67.) “We take the question to be, in each case, 5 whether, by the use of reasonable diligence, the given condition should have been discovered within a 6 given period of time, and the answer must depend upon the facts of the particular case.” (Christy v. City 7 of Alhambra (1935) 9 Cal.App.2d 499, 502.) 8 The reason for this rule is that factual disputes are not appropriate for summary judgment or 9 summary adjudication. No issues of fact are decided on a summary judgment motion. (Barisich v. Lewis 10 (1990) 226 Cal.App.3d 12, 15.) This applies to whether or not a government entity acted reasonably 11 under the circumstances. For example, in Achay v. Huntington Beach Union High School Dist. (2022) 12 80 Cal.App.5th 528, 540, summary judgment was improper in favor of the school district because there 13 were genuine triable issues of material fact as to whether the school district provided reasonable security 14 measures to protect its students. Similarly, in cases of premises liability which is essentially the same 15 basis upon which the County would be liable, i.e., a defective condition on its property, the 16 reasonableness of a party’s actions is generally a question of fact for the jury to decide. (Gonzalez v. 17 Mathis (2018) 20 Cal.App.5th 257, 273, rev’d (2021) 12 Cal.5th 29; see also Coyle v. Historic Mission 18 Inn Corporation (2018) 24 Cal.App.5th 627, 645 [hotel’s efforts to protect guests from spiders]; 19 Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 395 [security measures in 20 restaurant parking lot].) 21 Here, the County claims that it had neither actual nor constructive notice of the defective 22 condition on Channel Drive because the defect in the road was small and could only have been there for 23 a maximum of roughly six (6) weeks. (Motion, p. 10.) By making this argument, the County wants the 24 Court to determine that its inspection of Channel Drive and the area where Rebecca fell for which it had 25 a duty to inspect as more fully explained below was reasonable and that six (6) weeks is an insufficient 26 amount of time for the County to identify the condition as a matter of law. Because the County wants 27 the Court to determine the reasonability of its conduct under the circumstances by way of summary 28 judgment, the Motion should be denied on that basis alone. PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 10 1 C. The County Had a Duty to Inspect CalPortland’s Work 2 Whether the County fulfilled its duties to inspect CalPortland’s work and whether fulfilling that 3 duty would have put the County on actual notice of the defective condition are genuine triable issues of 4 material fact because the County had a duty to inspect to inspect CalPortland’s work and the failure to 5 fulfill that duty raises the presumption of constructive notice. “A duty is imposed upon officers of a 6 municipality, whose business requires them to inspect and repair sidewalks, to exercise due care to 7 discover either patent or latent defects which may be reasonably anticipated.” (Kirack v. City of Eureka 8 (1945) 69 Cal.App.2d 134, 138.) Where an obligation to inspect rests upon the government entity, its 9 neglect to do so for a period of two and a half months creates the presumption of constructive notice of 10 defects which had existed that entire length of time, and constitutes negligence on its part. (Roberts v. 11 Pacific Gas & Electric Co. (1929) 102 Cal.App. 422, 427.) That a government entity maintained a 12 system for the purposes of finding and repairing defects in the streets for which it is responsible is 13 relevant to the question of whether the street defect should have been noticed before the accident 14 occurred. (Nishihama, supra, 93 Cal.App.4th 298 at 303 [system to finding and repairing potholes].) 15 “But in determining constructive notice, the method of inspection is secondary; the primary and 16 indispensable element of constructive notice is a showing that the condition existed before the accident.” 17 (Strongman v. Kern County (1967) 255 Cal.App.2d 308, 313.) “It is equally clear, we think, that, where 18 the city is charged with constructive notice on the basis of a duty to inspect, it must be made to appear 19 that a reasonable inspection would have disclosed the defect or dangerous condition; that is, that, had 20 there been no neglect of duty there would have been actual knowledge on the part of the city officers.” 21 (Van Dorn, supra, 103 Cal.App.2d at 717; see also Laurenzi v. Vranizan (1945) 25 Cal.2d 806, 812.) 22 The theory is that the government entity had it performed its duty of conducting a reasonable inspection, 23 it would have had actual knowledge of the existence of a dangerous defect. (Barrett v. City of Claremont 24 (1953) 41 Cal.2d 70, 73.) 25 The County had a duty to inspect the utility raising work done by CalPortland. The County of 26 Santa Barbara Agreement for: County Project No. 820736 (the “Contract”) between the County and 27 CalPortland identifies documents that are incorporated into the Contract and includes the State of 28 California, Department of Transportation 2018 Standard Specifications (“State Specs”) as modified by PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 11 1 the County. (Plaintiffs’ Separate Statement in Opposition to Motion for Summary Judgment, or in the 2 Alternative, Summary Adjudication filed by County of Santa Barbara (“Statement”) ¶ 18.) The Contract 3 also includes a one-year from completion warranty from CalPortland. (Id., ¶ 19.) The County modified 4 the State Specs to designate that “[t]he County of Santa Barbara acting by and through its Department of 5 Public Works; its authorized representatives” would replace the definition of “Department” and “[a]ny 6 duly authorized representative of the Director of Public Works of the County of Santa Barbara would 7 replace the definition of “Engineer” in the State Specs. (Id., ¶ 20.) The County also modified the State 8 Specs by stating “Department acceptance includes sampling, testing, and inspections performed by the 9 Department to verify compliance with the Contract.” (Id., ¶ 21.) 10 The State Specs not modified by the County include that “Work is subject to the Department's 11 inspection, sampling, and testing.” (Statement ¶ 22.) Also, the “Engineer” makes the final decision as to 12 work quality and acceptability. (Id., ¶ 23.) When CalPortland’s work was complete, it was required to 13 contact the “Engineer” to request final inspection and, if the Engineer determines that the work is 14 complete, then the Engineer recommends “Contract acceptance.” (Id., ¶ 24.) The State Specs also state 15 that, during the one-year warranty period, “the Engineer monitors the completed work. If the Engineer 16 finds work having a substantial defect, the Engineer lists the defective work parts and furnishes 17 [CalPortland] the list.” (Id., ¶ 25.) CalPortland was obligated to “[i]mmediately remove hauling spillage 18 from a roadway lane or shoulder open to traffic. When hauling on roadways, trim loads and remove 19 material from shelf areas to minimize spillage.” (Id., ¶ 26.) In addition, CalPortland was directed “[d]o 20 not stockpile material on finished pavement or allow material to drift across pavement. Clean finished 21 pavement of dirt and foreign material…. Dispose of material resulting from finishing activities. If 22 authorized, soil and rock resulting from finishing activities may be used along the roadway.” (Id., ¶ 27.) 23 As part of the County’s practice, once permitted construction work performed in a County roadway, the 24 permittee is required to contact the County for a final inspection. (Id., ¶ 28.) 25 Taken together, there is no doubt that the County had a duty to inspect the work performed by 26 CalPortland both during the performance of CalPortland’s work, immediately after the work was 27 performed for Contract “acceptance” purposes, and during the one-year warranty period after 28 CalPortland’s work was complete. Because the County had such a duty, whether the County fulfilled PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 12 1 that duty is a genuine triable issue of material fact. To identify those triable issues, it is important to 2 understand the work that CalPortland performed on Channel Drive. 3 There are two (2) relevant aspects of the County-wide paving project that impact this matter: (1) 4 the lowering of utilities on Channel Drive and (2) the raising of utilities on Channel Drive. CalPortland 5 was required to lower the utilities, such as manholes and water valves, before the repaving in order to 6 allow the cold planer (a grinding machine) to go over the utilities without hitting them. (Statement ¶ 7 29.) Manhole removal included jackhammering out and removing existing concrete, removing the metal 8 manhole cover, covering the opening with a metal plate, and backfilling the dugout area with cold mix 9 asphalt. (Id., ¶ 30.) The digging goes several inches beyond the depth of manhole collar so that grinder 10 does not hit metal collar and that dugout area is filled with cold mix asphalt to the surface of the 11 roadway. (Id., ¶ 31.) The dugout asphalt is put into the bucket of loader. (Id., ¶ 32.) The cold mix asphalt 12 brings the dugout area up to the surface of roadway to also prevent pedestrians from walking into the 13 dugout area. (Id., ¶ 33.) 14 During the process of adding cold mix asphalt to the manhole on Channel Drive near Butterfly 15 Lane, CalPortland brought cold mix asphalt stored at staging area just north of Coral Casino to Channel 16 Drive multiple times and its worker shoveled cold mix asphalt out of the tractor into manhole area. 17 (Statement ¶ 34.) To make sure that the area was clean, CalPortland’s “inspection” of the area after the 18 cold mix asphalt was poured consisted of one of its employees driving the area without ever leaving his 19 vehicle during the inspection. (Id., ¶ 35.) When the street was supposedly clean, then a truck would go 20 down the street spraying liquid asphalt on the ground that allows asphalt subsequently poured by a 21 following truck to better stick to the ground, the asphalt pouring truck would follow, and then a 22 compactor would roll down the recently-laid asphalt. (Id., ¶ 36.) The tack coat is an oily emission that is 23 put down before the paving process to help glue the asphalt to the old asphalt that was previously 24 grinded down. (Id., ¶ 37.) Clean up of the area where the cold mix asphalt is poured consisted of having 25 a street sweeper and an air vacuum truck blow everything from the roadway and sidewalks. (Id., ¶ 38.) 26 This is because the grinder does not pickup all of the material dumped by the dump truck. (Id., ¶ 39) 27 CalPortland had transfer trucks on Channel Drive that transfer hot mix asphalt into the paving 28 equipment by use a hydraulic tailgate on the back of the truck. (Id., ¶ 40.) PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 13 1 Raising utilities is a different process. The utility raising took place on Channel Drive on October 2 5 – 7, 2020. (Statement ¶ 40.) After paving is done, CalPortland has to go back to where the utility was 3 located in the street and use a jackhammer to remove the asphalt around the utility that had been placed 4 by CalPortland. (Id., ¶ 41.) The asphalt removed during the utility raising process includes both hot mix 5 and cold mix asphalt. (Id., ¶ 42.) At the start of the demolition of the asphalt around the manhole, small 6 pieces of asphalt are generated and then, as the process continues, larger pieces of asphalt are generated 7 and removed. (Id., ¶ 43.) CalPortland would then throw the cold mix asphalt into an adjacent tractor that 8 hauls the cold mix asphalt to a dump, set the manhole back, and pour new concrete in the recently dug 9 out area. (Id., ¶ 44.) 10 During pouring of concrete during the raising of the utilities, there is leftover residue of concrete 11 spillage. (Statement ¶ 45.) The cold mix asphalt is thrown by a shovel into a skip loader or truck that 12 contains both new asphalt and cold mix asphalt. (Id., ¶ 46.) Sometimes, CalPortland loaded the removed 13 asphalt from the utilities with a loader because the concrete was too heavy to be lifted by hand. (Id., ¶ 14 47.) CalPortland’s employees are aware of previous instances where a skip loader spilled material when 15 there was too much material in the front bucket of the loader causing material to boil out the front and, if 16 the spill was not noticed, that material could be driven over by the skip loader operator. (Id., ¶ 48.) They 17 have also seen instances where a skip loader spilled asphalt when loading the asphalt into truck because 18 the bucket has too much in it or if the bucket is not perfectly aligned with the truck. (Id., ¶ 49.) 19 CalPortland took the removed asphalt on a skip loader and drove it down Channel Drive and took it to a 20 dump truck. (Id., ¶ 50.) CalPortland employees have no idea where the skip loader went or where it 21 dumped the removed asphalt on October 7 through 9, 2020. (Id., ¶ 51.) CalPortland’s employee, Dustin 22 Bowlin, allegedly followed the loaded dump truck to the dump site to make sure that nothing spilled 23 onto the roadway, but admitted that he has no specific recollection of following any truck after the 24 utilities were raised on Channel Drive. (Id., ¶ 52.) 25 After the utilities are raised, the CalPortland foreman is supposed to make sure that area is clean 26 of materials, asphalts, and dirt, which for Channel Drive was Tanner Casner because he was the 27 CalPortland foreman overseeing the utility raising on Channel Drive. (Statement ¶ 53.) Mr. Casner 28 recalled being onsite on October 5 and 6, 2020, but was not present on October 7, 2020, despite his PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 14 1 declaration to that effect, and has no recollection of being onsite October 8 or 9, 2020. (Id., ¶ 54.) Mr. 2 Casner has no specification recollection of doing a walking inspection of Channel Drive on October 5 or 3 6, 2020, and his declaration testimony is based solely on his alleged custom and practice. (Id., ¶ 55.) In 4 support of its separate motion, CalPortland claims that Mr. Bowlin inspected Channel Drive after the 5 utility raising, but Mr. Bowlin was not present onsite on October 5 or 6, 2020, and has no specific 6 recollection of inspecting Channel Drive. (Id., ¶ 56.) Another CalPortland employee, Brian Shiffrar, was 7 only onsite on September 5 and October 20, 2020. (Id., ¶ 57.) He too has no specific recollection of 8 being on Channel Drive on October 20, 2020, despite his declaration stating that he did not see any 9 asphalt lumps. (Id., ¶ 58.) When Mr. Shiffrar allegedly did his inspection on October 20, 2020, he stayed 10 in his vehicle, drove down Channel Drive in one direction, and then other direction with vehicles parked 11 on either side of Channel Drive. (Id., ¶ 59.) There is no document prepared by CalPortland to verify 12 whether any of its employees ever inspected Channel Drive after the utilities were raised. (Id., ¶ 60.) 13 When the utility raising is done, the County’s inspection process is supposed to entail walking 14 the project and checking and verifying that the concrete has set and is safe to drive on and removal of 15 traffic control to allow traffic on street. (Statement ¶ 61.) This is consistent with the County’s general 16 practice for inspection of asphalt work where there is an open excavation of determining whether the 17 area has proper traffic control for purposes of avoiding injuries. (Id., ¶ 62.) German Neyra was the 18 County employee assigned to work with CalPortland with the utility raising process on Channel Drive. 19 (Id., ¶ 63.) His role was to work as support for the crew and assist CalPortland with the installation of 20 the manholes in the street to be within 1/8 inch of the level of the payment and with traffic control. (Id., 21 ¶ 64.) Mr. Neyra did not inspect Channel Drive after the manhole covers were reset, and only inspected 22 the manhole cover work by itself. (Id., ¶ 65.) He admits that the County had a duty to inspect the street 23 to make sure that it is cleaned of excavated asphalt after CalPortland raised the utilities. (Id., ¶ 66.) At 24 the same time, however, Mr. Neyra admits that he could not recall whether CalPortland completely 25 cleaned up all excavated asphalt related to the utility raising on Channel Drive on October 5, 2020, or 26 whether he prepared a punchlist of items for CalPortland to correct. (Id., ¶ 67.) Once the lane striping 27 was done, the County did no further inspections of District 1 where Channel Drive is located. (Id., ¶ 68.) 28 /// PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 15 1 As such, the County’s own inspection procedures do not include determining whether asphalt has 2 spilled onto the sides of the streets where vehicles may be parked. When one of the County’s inspectors 3 inspected Channel Drive, there would have been cars parked on either side of Channel Drive and would 4 have only been inspecting the street lane striping. (Statement ¶ 69.) Mr. Murphy would only have 5 driven and looked at Channel Drive on his to another project or another districts. (Id., ¶ 70.) Since one of 6 the County’s inspectors would have inspected Channel Drive when there were cars parked on either side 7 of the street, and the location of where Rebecca fell is in the same area where the cars would have been 8 parked during that County inspector’s inspection, then there is a genuine issue of triable material fact as 9 to whether or not that inspector’s “drive-by” inspection should have put the County on notice of the 10 defective condition. Similarly, if the other County inspector did not even bother to get out of his vehicle 11 to inspect Channel Drive despite the inspection process requiring “walking” the project, then there is a 12 genuine issue of triable material fact as whether the County employee’s inspection would have put the 13 County on notice of the defective condition. 14 There are also genuine triable issues of material fact whether the asphalt lumps upon which 15 Rebecca tripped and fell came from loose asphalt that resulted from operations on Hill Road and/or 16 Olive Mill Road that occurred after the operations on Channel Drive. CalPortland performed paving 17 prep work on Hill Road which included grinding away the old asphalt and placing cold mix asphalt at all 18 conforms and driveway approaches. (Statement ¶ 71.) The work on Hill Road included grinding and 19 paving, but also included providing a fog seal, which is sprayed down onto the roadway from heated 20 tanks pulled behind a truck, to promote the longevity of the asphalt, and turns black when it dries. (Id., ¶ 21 72.) Mr. Murphy was inspecting both the grinding on Hill and the paving on Channel Drive at the same 22 time. (Id., ¶ 73.) After Channel Drive was paved, the next street to be paved was Hill Road. (Id., ¶ 74.) 23 CalPortland started paving work on Hill Road on September 29, 2020. (Id., ¶ 75.) When CalPortland 24 brought hot mix asphalt for paving Hill Road, its asphalt trucks were driven on Channel Drive and Olive 25 Mill Road. (Id., ¶ 76.) 26 On October 1, 2020, CalPortland raised 11 water valves on Hill Road. (Statement ¶ 77.) Mr. 27 Neyra supervised approximately 10 manhole cover utility raising processes on Channel Drive, Hill 28 Drive, and Olive Mill Road. (Id., ¶ 78.) When CalPortland raised the utilities on Hill Road, the material PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION BY COUNTY OF SANTA BARBARA Page - 16 1 excavated included both cold mix and hot mix asphalt. (Id., ¶ 79.) To the extent asphalt was removed 2 from Hill Drive, it would have been removed the same way as on Channel Drive and placed in a skip 3 loader to go to a truck. (Id., ¶ 80.) Mr. Bowlin was the CalPortland foreman overseeing raising utilities 4 on October 7 through 9, 2020, on Channel Drive and Hill Road. (Id., ¶ 81.) Mr. Bowlin has no 5 recollection of whether truck with asphalt removed from Hill Road was dumped on Channel Drive or 6 Hill Road. (Id., ¶ 82.) That is because, in part, Mr. Bowlin has no recollection of taking part in raising 7 utilities on Hill Road. (Id., ¶ 83.) In addition, after the trucks laden with asphalt removed from Hill Road 8 went down Channel Drive, there was only one other inspection of Channel Drive, and that was only for 9 inspecting the lane striping when there were vehicles parked on both sides of Channel Drive. (Id., ¶ 84.) 10 Thus, there is no evidence that either the County or CalPortland inspected Channel Drive for 11 asphalt that could have spilled from the truck after the utility raising process on Hill Road. As such, 12 there is a genuine issue of triable material fact as to whether the County should have seen the asphalt 13 lumps upon which Rebecca tripped if the County had fulfilled its legal and contractual inspection duties 14 if its inspector had done anything other than look at the lane striping on Channel Drive when there were 15 vehicles on both sides of Channel Drive, particularly since the area