McDonald v. City of Oakand CA1/2

Filed 2/28/23 McDonald v. City of Oakand CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

LYNNE McDONALD et al.,
Plaintiffs and Appellants,
A161001
v.
CITY OF OAKLAND, (Alameda County
Super. Ct. No. RG18931020)
Defendant and Respondent.

Plaintiffs Lynne McDonald and her husband David Barr appeal after
judgment was entered in favor of the City of Oakland (the City) in their
lawsuit for personal injuries and loss of consortium, after McDonald was
catastrophically injured in a bicycle accident on a City road that had
developed a large pothole. They contend the trial court erred in granting
summary judgment because the evidence established triable issues of fact as
to whether the City was on notice of the dangerous condition that caused the
accident (Gov. Code, §§ 835, 835.2).
We agree and reverse the judgment.
BACKGROUND
A.
A dangerous condition of public property is that which “creates a
substantial (as distinguished from a minor, trivial or insignificant) risk of

1
injury when such property or adjacent property is used with due care in a
manner in which it is reasonably foreseeable that it will be used.” (Gov.
Code, § 830, subd. (a)).
A public entity is liable for a dangerous condition of property “if the
plaintiff establishes that the property was in a dangerous condition at the
time of the injury, that the injury was proximately caused by the dangerous
condition, that the dangerous condition created a reasonably foreseeable risk
of the kind of injury which was incurred, and that either: [¶] (a) A negligent
or wrongful act or omission of an employee of the public entity within the
scope of his employment created the dangerous condition; or [¶] (b) The public
entity had actual or constructive notice of the dangerous condition under
Section 835.2 a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” (Gov. Code, § 835, italics added.)
Notice is defined by section 835.2 and can be either actual or
constructive. Actual notice means the public entity “had actual knowledge of
the existence of the condition and knew or should have known of its
dangerous character.” (Id., subd. (a).) A public entity has constructive notice
“only if the plaintiff establishes that the condition had existed for such a
period of time and was of such an obvious nature that the public entity, in the
exercise of due care, should have discovered the condition and its dangerous
character.” (Id., subd. (b).) The statute also specifies factors that bear on the
issue of due care.1 (See ibid.)

1Subdivision (b) states that “On the issue of due care, admissible
evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character
would have been discovered by an inspection system that was reasonably
adequate (considering the practicability and cost of inspection weighed
against the likelihood and magnitude of the potential danger to which failure

2
 A public entity may raise as an affirmative defense that it acted
reasonably under the circumstances, taking into consideration a balance of
fiscal and practical considerations unique to public entities. (See Gov. Code,
§ 835.4; Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1138-1139.)
This defense allows the public entity to “absolve itself from liability for
creating or failing to remedy a dangerous condition by showing that it would
have been too costly and impractical for the public entity to have done
anything else.” (Cal. Law Revision Com. com, West’s Ann. Gov. Code (2023
ed.) foll. § 835.4.) The affirmative defense created by section 835.4 is distinct
from the reasonableness standard that governs under section 835 and
ordinary negligence principles as to whether a public entity wrongfully
created a dangerous condition. (Metcalf, at p. 1138.) The latter standard is
commensurate with the duty of care owed by private landowners and “does
not depend upon the existence of other, conflicting claims on the defendant’s
resources or the political barriers to acting in a reasonable manner,” whereas
the affirmative defense under section 835.4 reflects a legislative judgment
that public entities may assert that “because of financial or political
constraints, the public entity may not be able to accomplish what reasonably
would be expected of a private entity.” (Metcalf, at p. 1138.)

to inspect would give rise) to inform the public entity whether the property
was safe for the use or uses for which the public entity used or intended
others to use the public property and for uses that the public entity actually
knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an
inspection system with due care and did not discover the condition.”

3
 B.
On May 12, 2018, McDonald and Barr were on a morning bike ride
with friends in the hills of Oakland, California, when McDonald suddenly
flew off her bike and slammed head-first into the pavement while travelling
downhill on Grizzly Peak Boulevard. She lost consciousness, suffered serious
head and spinal injuries, and doesn’t remember the details of the actual
crash. On the stretch of road where this happened, there was a pothole.
There were no witnesses who saw McDonald crash. She contends the pothole
was about four to six feet long and at least several inches deep, and that she
crashed after either hitting it or swerving to avoid it.
This stretch of road was classified by the City of Oakland as a Class III
Bike Route which, pursuant to statewide design criteria that were
incorporated into the City’s Bicycle Master Plan, meant it was subject to a
higher standard of maintenance than other streets.
C.
McDonald and Barr sued the City for dangerous condition of public
property and loss of consortium. They alleged the City “owned, operated,
designed, constructed, maintained, inspected, repaired, repaved, and
controlled this section of the roadway, including the Pothole, where the
Incident occurred, as well as the surrounding area,” and “that such control
included, among other things, causing the surface of the roadway to be
repaired, or resurfaced with asphalt, or maintained in such a way as to cause
the Pothole to occur.” They further alleged the City was negligent in the
maintenance, repair and control “of the relevant section of Grizzly Peak
Boulevard at the location of the Pothole, such that the roadway presented a
dangerous, defective, and hazardous condition” and that the condition of the

4
incident site and surrounding area “presented a reasonably foreseeable and
substantial risk of harm to members of the public.”
The City moved for summary judgment on the ground, among others,
that there was no triable issue of material fact that it had actual or
constructive notice of the roadway’s defective condition, and that the
affirmative defense of Government Code section 835.4 barred liability as a
matter of law.
On the notice issue, the City argued the pothole was an “aberration”
and it had “no reason to suspect that a recently repaved street would form a
large pothole so quickly.” It asserted the pothole had existed for an unknown
amount of time, but at most a couple of months. It introduced evidence that
this section of roadway had been repaved in late 2013, and that less than four
years later, on March 30, 2017, it had received a citizen complaint about a
different pothole in the same vicinity and had filled it on May 15, 2017. That
repair was made about a year before the bicycle accident, and since then the
City had received no complaints of any other potholes or pavement issues.
The City also proffered an opinion by the employee who supervises the
maintenance of all city streets, Sarah Fine, who said that “for a repaved City
street to begin to fail and form potholes within less than five years is highly
unusual.”
In opposition, plaintiffs argued the City was on notice that the roadway
was defective because it knew or should have known when it fixed the first
pothole in 2017 that the underlying problem was that the structural
foundation of the road (its “base layer,” located underneath the asphalt
surface) had failed. They argued that when the City repaired the 2017
pothole there would have been a distinctive cracking pattern visible (called
“alligator cracking”) that was an obvious sign of base failure. But instead of

5
excavating under the asphalt and replacing the failed base layer to fix the
structural problem, plaintiffs posited, the City simply patched the pothole
with a one-inch overlay of asphalt, which it should have known would result
in more potholes eventually forming. In support, they proffered the
declaration of a paving expert, Russ Scheibley, and deposition testimony from
the City’s person most knowledgeable on such subjects, Kenneth Patton,
which we will discuss in greater detail below. Both opined that the condition
of the roadway near the second pothole exhibited signs of base failure because
of visible alligator cracking. Scheibley also opined that when the City
repaired the first pothole in 2017, “it is a virtual certainty” that “the
‘alligatoring’ pattern was present, visible and obvious.”
In reply, the City acknowledged that the failed base layer “may relate
to what caused the pothole to eventually form.” But it argued there was no
evidence that when city workers repaired the first pothole they should have
known the road was failing “several yards away” where the second pothole
later emerged. The City asserted that there was no “direct” evidence that
any alligator cracking was present at that time and no evidence that there
was anything wrong with the pavement underneath what eventually became
the second pothole. It also argued that even if there were such evidence, it
did not and could not give the City notice of a defective condition—the second
pothole—that did not yet exist.
The trial court sustained objections to portions of the declaration of
plaintiffs’ paving expert Scheibley and granted summary judgment for the
City. It ruled that there was no legal authority “for the proposition that a
public entity can be liable for failure to predict and prevent dangerous
conditions that do not yet exist,” there was no competent evidence that any
alligator cracking was present when the first pothole was repaired, and that

6
the City’s evidence established it had no actual notice of the second pothole
and no reason to have discovered it prior to the accident. A judgment was
entered in the City’s favor, from which plaintiffs timely appealed.
DISCUSSION
A motion for summary judgment “shall be granted if all the papers
submitted below show that there is no triable issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
(Code Civ. Proc., § 437c, subd. (c). “[S]ummary judgment shall not be granted
by the court based on inferences reasonably deducible from the evidence if
contradicted by other inferences or evidence that raise a triable issue as to
any material fact.” (Ibid.)
A defendant moving for summary judgment meets its burden of
showing that a cause of action has no merit if the defendant has shown that
one or more elements of the cause of action cannot be established or that
there is a complete defense to the cause of action. (Code Civ. Proc., § 437c,
subd. (p)(1), (2).) “Once the defendant . . . has met that burden, the burden
shifts to the plaintiff . . . to show that a triable issue of one or more material
facts exists as to the cause of action or a defense thereto.” (Id., § 437c,
subd. (p)(2))
We review the court’s order granting summary judgment de novo,
viewing the evidence in the light most favorable to the losing party. (Wiener
v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)
After independently reviewing the evidence submitted in support and
in opposition to the City’s motion (except that which the court excluded), we
conclude the trial court erred in granting summary judgment.2

2 In their reply brief, plaintiffs discuss portions of the Scheibley
declaration that were excluded from evidence and assert that those aspects of

7
 I.
Notice of the Dangerous Condition
Plaintiffs argue the court erred in granting summary judgment on the
issue of notice because there are material triable issues of fact as to whether:
(a) alligator cracking was present and visible in the surface of the roadway in
May 2017 when the City repaired the first pothole, and (b) whether it is more
likely than not that the second pothole would not have emerged had the City
properly remediated the base failure in May 2017 when it fixed the first
pothole.
We address the latter issue first, because it bears on whether plaintiffs
have even asserted a viable legal theory concerning the existence of a
dangerous condition which is a point on which the parties disagree.
A. Dangerous Condition
The City does not dispute that plaintiffs have presented evidence that
both potholes were the result of the same underlying base layer failure. Nor
does it dispute for purposes here that the pothole involved in the bicycle
crash is a dangerous condition. It asserts, however, that it cannot be held
liable for failing to predict and prevent a dangerous condition from arising
(i.e., the pothole). It argues that because it did not create the original
condition that might have led to the pothole’s formation (the base layer),
there can be no tort liability because such a principle would “drastically

his opinion were not speculative. To the extent they are attempting to
challenge the court’s evidentiary rulings, the contention has been forfeited
because it was not made in the opening brief. (See Dameron Hospital Assn. v.
AAA Northern California, Nevada & Utah Exchange (2022) 77 Cal.App.5th
971, 997.) We consider only those portions of the Scheibley declaration to
which objections were not sustained.

8
increase the burdens” on municipalities to preemptively act on all
preliminary signs of road deterioration, no matter how trivial.
Plaintiffs, principally relying on Fackrell v. City of San Diego (1945)
26 Cal.2d 196 (Fackrell), argue that the City can be liable for the pothole’s
emergence because there is a triable issue of fact as to whether it was a
“natural and probable consequence” of the failed base layer.
We agree with plaintiffs.
1. Legal Principles
Under the Tort Claims Act, public property is in a dangerous condition
“if it ‘is physically damaged, deteriorated, or defective in such a way as to
foreseeably endanger those using the property itself.’ [Citation.] A condition
is not dangerous ‘if the trial or appellate court, viewing the evidence most
favorably to the plaintiff, determines as a matter of law that the risk created
by the condition was of such a minor, trivial, or insignificant nature in view of
the surrounding circumstances that no reasonable person would conclude
that the condition created a substantial risk of injury when such property or
adjacent property was used with due care in a manner in which it was
reasonably foreseeable that it would be used.’ (§ 830.2.)” (Cordova v. City of
Los Angeles (2015) 61 Cal.4th 1099, 1105.) “ ‘[W]hether a given set of facts
and circumstances creates a dangerous condition is usually a question of fact
and may only be resolved as a question of law if reasonable minds can come
to but one conclusion.’ ” (Peterson v. San Francisco Community College
Dist. (1984) 36 Cal.3d 799, 810.)
In Fackrell, cited by plaintiffs, our Supreme Court held that public
property can be dangerous even if it does not present an “actual and present
danger of immediate damage.” (Fackrell, supra, 26 Cal.2d at p. 206.) The
Court explained that if public property is designed to be used under

9
conditions that are “normally to be anticipated” it is dangerous if in a
condition that “is, or naturally will become, unsafe for such use” under those
conditions. (Id. at p. 204, italics added.) A condition like that is “inherently”
unsafe, even though the conditions that “activate such defect and danger”
have not yet occurred. (Id. at pp. 204-205.) It rejected the proposition,
advanced here by the City, that unless public property “was inherently
dangerous from the beginning, [a public entity] cannot be charged with either
knowledge or notice of any subsequently developed danger or defect.” (Id. at
p. 204.)
At issue there was a mud sidewalk a city had constructed that
collapsed out from underneath a pedestrian. The Court held the city was on
notice the sidewalk was an unsafe condition even though erosion had not yet
undermined the sidewalk’s structural integrity, because it was known that
this would inevitably happen once it rained. It rejected the city’s argument
that liability cannot be imposed for “anticipated” or “potential” future
dangers (Fackrell, supra, 26 Cal.2d at pp. 203-207) and announced the rule
that where public employees “have knowledge of circumstances which
reasonably might be expected to result in a dangerous condition as a natural
and probable consequence of [their] work, such authorities are put upon
inquiry,” and they must “make inspections commensurate in scope with the
nature and character of their knowledge and the peril which should be
avoided.” (Id. at p. 206.) Fackrell also emphasized that each case depends on
its own facts, and “[w]hether a given set of circumstances creates a dangerous
or defective condition is primarily a question of fact.” (Ibid.)
The City attempts to distinguish Fackrell on the ground that the city in
that case performed the actual work that made the sidewalk dangerous
whereas here the City did not construct the base layer. But the Fackrell

10
court’s holding that the condition of the sidewalk was dangerous did not turn
on who had designed or built it. The significance of the city’s involvement in
the construction concerned the issue of notice: by virtue of the city having
created the dangerous problem, the city was presumed to know of the
sidewalk’s dangerous character (see Fackrell, 26 Cal.2d at pp. 203-206, 207),
a holding that the Tort Claims Act subsequently codified. (Brown v. Poway
Unified School Dist. (1993) 4 Cal.4th 820, 834; Gov. Code, § 835, subd. (a)).
However, the sidewalk was dangerous not because the city built it but
because of circumstances (e.g., rainfall) that “reasonably might be expected to
result in a dangerous condition as a natural and probable consequence” of the
sidewalk’s physical characteristics. (Fackrell, at p. 206.)
Like Fackrell, cases not involving conditions created by a public entity
also reflect that public property can be in a dangerous condition because of
potential, foreseeable risks posed by continued deterioration. (See, e.g.,
Briggs v . State of California (1971) 14 Cal.App.3d 489, 496 [affirming
judgment imposing liability on state for injury caused by large and unusual
mudslide on highway, holding highway was in a dangerous condition because
of instability of adjacent soils that caused recurrent mudslides]; Smith v. San
Mateo County (1943) 62 Cal.App.2d 122 (Smith) [affirming judgment
imposing liability for fatal injuries caused by leaning, undernourished and
dying redwood tree in county park that eventually fell], approved by Hawk v.
City of Newport Beach (1956) 46 Cal.2d 213, 217, and superseded by statute
on other grounds as stated in Meddock v. County of Yolo (2013)
220 Cal.App.4th 170, 181-182.) “[S]ection 835 specifically provides that when
a public entity has actual or constructive notice of a dangerous condition, the
entity’s liability may be predicated on its failure to take protective measures
to safeguard the public from dangers that may not necessarily be of the

11
entity’s own creation.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 716,
italics added.)
The City cites no authority holding, or suggesting, that an underlying
structural problem in a roadway that is reasonably expected to deteriorate
without a proper repair and develop an indisputably dangerous pothole is
only a minor or trivial defect, not a dangerous condition like the compromised
sidewalk at issue in Fackrell. (Gov. Code, § 830, subd. (a).). We thus agree
with plaintiffs that, although the City did not “create” the base layer failure,
it can be held for the danger that failure posed if there is evidence the
emergence of a dangerous pothole on a designated Class III Bike Route was a
natural and probable consequence and the City had actual or constructive
knowledge that the base layer was failing.3 The risk that another pothole
would develop under those circumstances must be “substantial” and not
merely “minor, trivial or insignificant.” (Gov. Code, § 830, subd. (a)). But the
City cannot escape liability for a deteriorating roadway merely because it had
no notice the roadway had actually deteriorated to that point.
2. Analysis
Here, plaintiffs presented evidence establishing a triable issue of
material fact that this stretch of roadway was a dangerous condition due to a
deteriorating base layer.
Both plaintiffs’ expert Russ Scheibley and the City’s person most
knowledgeable (PMK) regarding paving witness Kenneth Patton agreed that
the base layer was failing under this portion of the road in the vicinity of the
two potholes. The City did not introduce any evidence that a failed base layer

3 The City does not assert that the pothole itself is not a dangerous
condition to cyclists.

12
in a roadway will not naturally continue to erode and form additional
potholes if left unrepaired. Furthermore, Patton testified that when a
roadway’s base layer has been undermined it needs to be repaired and that as
the operations manager, when he sees the alligator pattern, his concern is
that the base has been undermined, “and in order to effect a definitive repair,
the base has to be addressed.” Patton also testified that alligator cracking
indicates base failure and can lead to potholes, and that potholes will
continue to form until the base layer is repaired properly. Therefore, Patton
testified, the City looks for alligator cracking when it inspects its roadways so
that it can identify any base failure and effectuate a repair.
Plaintiffs’ paving expert Scheibley opined that “ ‘alligator’ cracking is
one of the more serious problems that an asphalt surface can develop,
especially if it is allowed to go without repair” and that if a base layer failure
is not repaired, it “inevitably results in the emergence of adjacent potholes.”
Further, this was a bicycle route and plaintiffs introduced evidence that, as
such, it is subject to more stringent maintenance and safety standards than
other city streets, precisely because of the hazards that road defects can pose
to bicyclists. We conclude that a reasonable factfinder could find that the
existence of a failed base layer on this stretch of Grizzly Peak road is a
dangerous condition.
The City also argues there is no evidence that the second pothole would
not have formed even if it had properly repaired the base layer in 2017. But
the City did not move for summary judgment on that basis, which concerns
the separate and distinct element of proximate causation. (Cordova, supra,
61 Cal.4th at p. 1106.) Moreover, even if it had, the City’s argument
misperceives the burden on a party moving for summary judgment; it was the
City’s burden to establish that plaintiffs could not prove proximate causation.

13
It was not plaintiffs’ burden in opposing summary judgment even to raise a
triable issue about causation absent any showing on the issue by the City.
In any event, viewing the evidence in the light most favorable to
plaintiffs, on this record, a jury could find it was more likely than not that if
the City had properly remediated the base layer failure in 2017, the second
pothole would not have formed. Regardless of whether the base layer failure
had extended all the way to the second location by then, both plaintiffs’
expert Scheibley and the City’s PMK Patton asserted that the proper way to
remediate base layer failure is to excavate beneath the asphalt, dig out the
deteriorated base layer, replace it and compact it. Further, Scheibley opined
that repairing a base failure without addressing the roadway’s failed base
layer “inevitably results in the emergence of adjacent potholes.”
A jury could reasonably infer that had a base failure repair been done,
the City would have discovered and removed all the base layer that was
failing at the time, that if the base layer had failed only below the first
pothole then the remediation of that condition would have prevented its
further deterioration, and that if the base layer failure had already extended
as far as where the second pothole eventually formed then replacing it would
have prevented the second pothole from forming.
B. Notice
This brings us to plaintiffs’ argument they established a triable issue of
material fact regarding notice of the dangerous condition.
Plaintiffs’ briefing on the issue of notice is somewhat unfocused because
they do not clearly specify whether they are asserting a theory of actual or
constructive notice. They argue the emergence of the first pothole and the
alligator cracking that likely was present near it were both “physical
manifestations” of the underlying base failure that existed at that time and

14
that City employees “could and should have” discovered the base failure at
the time the City fixed the first pothole.
In support, they rely on the opinion of their paving expert Scheibley
who stated that it was “highly likely” that there was visible, obvious alligator
cracking present when the City repaired the first pothole, because
alligatoring precedes the emergence of a pothole when there is base failure,
not the other way around. He therefore asserted that the City should have
addressed the base failure in May 2017 by using the asphalt patching repair
method instead of simply filling the first pothole, which in his view fell below
the industry standard of care.
Although plaintiffs do not clearly articulate whether they are relying on
a theory of actual or constructive notice, their evidence creates a triable issue
of material fact as to both.
Actual notice means the public entity “had actual knowledge of the
existence of the condition and knew or should have known of its dangerous
character.” (§ 835.2, subd. (a).) Actual knowledge of a dangerous condition
can be proved by evidence that a public employee has observed visible signs
of the underlying structural defect or hazard. (See Smith, supra,
62 Cal.App.2d at p. 128 [evidence sufficient to show county had actual
knowledge of dangerous tree because employee had observed that it was
“spike-topped” which meant it was undernourished and dying]; see also
Briggs v. State of California, supra, 14 Cal.App.3d at p. 497 [state had notice
highway was dangerous even though it had no notice of particular mudslide
involved in accident, because it knew of earlier mudslides in same location
and was aware of condition of adjacent hillside].) Here, Scheibley’s opinions
that alligator cracking almost certainly was present in 2017 when the City
repaired the first pothole and that alligatoring “is a classic sign” of base layer

15
failure were sufficient to create a triable issue as to whether the City had
actual notice that the base layer was failing and another pothole likely would
develop.
The City argues Scheibley’s opinion that alligator cracking was visibly
present in May 2017 is purely conjectural and not entitled to any evidentiary
weight, because there is no direct evidence of any alligator cracking at that
time. But an expert is not a fact witness. An expert never has direct
evidence of a fact that, in her opinion, is true. She forms an opinion based on
the objectively provable facts and applies her specialized knowledge and
skills about how the world works to reach an expert inference about what
must have happened. (See, e.g., Schreidel v. American Honda Motor Co.
(1995) 34 Cal.App.4th 1242, 1251-1253 [expert opinion about mechanical
source of clutch problems in automobile].) In other words, an expert’s opinion
is just a professionally informed inference from circumstantial evidence about
what the true historical facts are, even when direct evidence does not exist.
Experts do this all the time. (See, e.g., People v. Eubanks (2011) 53 Cal.4th
110, 148 [crime scene reconstruction expert testimony not speculative];
People v. Sundlee (1977) 70 Cal.App.3d 477, 484-485 [arson expert opinion
about cause of fire not speculative or conjectural].) Furthermore, an expert’s
declaration submitted in opposition to summary judgment need not be as
detailed in its reasoned explanation as those submitted in support of
summary judgment. (See, e.g., Jennifer C. v. City of Los Angeles Unified
School District (2008) 168 Cal.App.4th 1320, 1332-1333 [holding that expert’s
declaration on unsafe school conditions was supported by a reasoned
explanation and not “conclusory” because it was based on the expert’s
experience and the facts of the case].) Here, Scheibley was a qualified expert
in the road paving and repair, and he explained a logical reason that was

16
founded on the evidence for him to conclude that alligatoring was present in
2017, based upon his experience, his review of photographs of the roadway,
and a site visit. No more was needed.
Second, this evidence also established a triable issue of material fact
concerning constructive notice, which can be established by proof of visible
signs of an underlying deteriorating condition that poses a hazard. (See
Fackrell, supra, 26 Cal.2d at p. 209 [evidence that sidewalk previously
crumbled in vicinity where sidewalk collapsed under plaintiff from erosion
held relevant both to prove existence of dangerous condition and constructive
notice of same]; Smith, supra, 62 Cal.App.2d at pp. 127-128 [county on
constructive notice of danger posed by rotting tree because it exhibited visible
signs of dying and county had neglected to discover and remedy it by digging
down under the tree to examine the condition of its base].)
Here, in addition to the opinions of Scheibley and Patton about the
significance of alligatoring as evidence of underlying base failure we have
discussed, it is undisputed the first pothole emerged (in March 2017) less
than four years after the road had been repaved (in late 2013), and yet the
City itself proffered a declaration from the employee who supervises the
maintenance of all city streets who said that “for a repaved City street to
begin to fail and form potholes within less than five years is highly unusual.”
Viewing this evidence in the light most favorable to the plaintiffs, such
evidence that the City knew the road had developed a premature pothole
near where the second pothole would later emerge, combined with evidence
there was alligator cracking visibly present at that time, creates a triable
issue of fact that the City was on constructive notice the base layer was
failing. Indeed, the entire premise of the City’s opening memorandum of
points and authorities on summary judgment was that it had “no reason to

17
suspect that a recently repaved street would form a large pothole” by mid-
2018 when the plaintiff was injured. Yet there was evidence that it did have
reason to suspect that. Another such pothole that apparently resulted from a
base failure had already formed.
What constitutes a reasonable time to confer constructive notice is
ordinarily a factual question (Maddern v. City and County of San Francisco
(1946) 74 Cal.App.2d 742, 752), and a reasonable factfinder could conclude
the City was aware of these indications that the base layer was failing in
2017, in ample time to take action to repair it before the bicycle accident
occurred.
For these reasons, the court erred in concluding plaintiffs could not as a
matter of law prove the City was on notice of the dangerous condition that
caused the injury.
II.
Government Code Section 835.4 Defense
The City asserts that even if there are triable issues of fact as to
whether it had notice of the dangerous condition, its decision not to repair the
base layer in 2017 when it repaired the first pothole was reasonable as a
matter of law, and thus it has a complete defense under section 835.4.
That provision absolves a public entity for liability for a dangerous
condition of public property if it establishes “the action it took to protect
against the risk of injury created by the condition or its failure to take such
action was reasonable.” (§ 835.4, subd. (b)). “The reasonableness of the
action or inaction of the public entity shall be determined by taking into
consideration the time and opportunity it had to take action and by weighing
the probability and gravity of potential injury to persons and property
foreseeably exposed to the risk of injury against the practicability and cost of

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protecting against the risk of such injury.” (Ibid.) This provision establishes
an affirmative defense that a public entity must establish. (Metcalf v. County
of San Joaquin, supra, 42 Cal.4th 1121, 1138.)
The City asserts that no reasonable factfinder would conclude that it
was unreasonable for the City to decide, based on the information it had in
2017, not do a base repair on this stretch of road. It is unnecessary to discuss
this contention in depth. Reasonableness under section 835.4 is ordinarily a
question of fact (Ducey v. Argo Sales Co., supra, 25 Cal.3d at p. 720), the City
did not introduce any evidence concerning “the practicability and cost” of
performing an asphalt repair on the first pothole to ensure that no further
potholes would emerge, and the plaintiffs introduced evidence that such work
would cost roughly $5 per square foot of roadway. Reasonable minds could
differ as to whether the City’s decision not to address the base failure in 2017
was unreasonable, and the issue is properly one for the jury.
DISPOSITION
The judgment is reversed. Appellants shall recover their costs.

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 STEWART, P. J.

We concur.

RICHMAN, J.

MILLER, J.

McDonald et al. v. City of Oakland (A161001)

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