Filed 3/27/24 Amirtalesh v. City of Beverly Hills CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
SHAHNAZ AMIRTALESH, B326610
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV12211)
v.
CITY OF BEVERLY HILLS,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William A. Crowfoot, Judge. Affirmed.
Law Office of Maximilian Lee and Maximilian Lee for
Plaintiff and Appellant.
Burke, Williams & Sorensen, Michael R. Nebenzahl and
Charles H. Abbott for Defendant and Respondent.
Shahnaz Amirtalesh (appellant) appeals from a judgment
entered after the trial court granted summary judgment in favor
of respondent City of Beverly Hills (the City) on appellant’s
claims against the City for negligence, dangerous condition of
public property, and nuisance. Appellant contends the trial court
erred in hearing the City’s motion and erred by determining
appellant lacked evidence the City had actual or constructive
knowledge of the allegedly dangerous condition of public
property.
We find no error and affirm the judgment.
FACTUAL BACKGROUND
On March 10, 2019, at approximately noon, appellant was
walking on the west sidewalk of the 300 block of North Rexford
Drive, Beverly Hills. While walking, appellant’s right foot caught
a crack on the sidewalk (uplift) in the vicinity of 345 North
Rexford Drive, and she fell to the ground. The uplift presented a
height differential of about 1 11/16 inches. The uplift was a
result of overgrown roots from a nearby tree. Prior to March 10,
2019, appellant had not noticed the uplift that prompted her fall.
Appellant usually commuted to work by bus. She nearly
always walked on the west side of North Rexford Drive past the
location where she tripped. Appellant never saw the uplift or
anything dangerous about the sidewalk before she fell on
March 10, 2019.
The City had the power and authority to fix the sidewalk in
front of 345 North Rexford Drive on March 10, 2019. The City’s
sidewalk inspection and repair policy requires inspections in
residential areas every four years. The City’s agent performed a
sidewalk inspection on the 300 block of North Rexford Drive in
2
2017, which was the last inspection prior to appellant’s 2019 fall.
That inspection did not identify a possible sidewalk defect on the
300 block of North Rexford Drive.
In addition to periodic inspections, the City relies on the
public to identify and report sidewalk uplifts and other
conditions. When a citizen reports a sidewalk offset, the City logs
it and requires maintenance staff to visually inspect each report.
No citizen reports had been made to the City about a possible
sidewalk defect on the 300 block of North Rexford Drive. The
City had no record of a claim or lawsuit for injuries in the area
prior to appellant’s fall.
The City also expects its employees to report observed
sidewalk defects. On eight occasions between April 2018 and
March 2019, the City’s public works employees worked within the
300 block of North Rexford Drive. The work included replacing
street light bulbs and servicing the City’s sewage system. During
those eight instances when public employees were on the 300
block of North Rexford Drive, no employee ever reported a
dangerous condition on the sidewalk.
PROCEDURAL HISTORY
On March 27, 2020, appellant filed a complaint against the
City and others for personal injuries. Appellant alleged she
suffered damages due to a nuisance and dangerous condition of
public property owned or controlled by the City.
On February 23, 2022, the City served a motion for
summary judgment on appellant via e-mail. Among other things,
the motion argued the City lacked actual or constructive notice of
the dangerous condition, relying on the evidence described above.
3
The City originally reserved a hearing date of April 11,
2022, for the motion, but later postponed the date to May 12,
2022. Although the City had postponed the hearing date, it
neglected to change the date on the motion it attempted to file on
February 23, 2022. On March 1, 2022, the City’s filing service
alerted the City the court rejected the moving papers because the
reservation number conflicted with the hearing date.
On March 1, 2022, the City filed two notices of errata
explaining the error. The first was a notice of errata and
amended notice of motion for summary judgment, which included
the correct May 12, 2022 hearing date on the caption page and a
new notice of motion with the correct hearing date. To make it
clear that the amended motion filed on March 1, 2022, was
identical to the one served on appellant on February 23, 2022, the
notice of errata attached the motion served on February 23, 2022,
as an exhibit.
The second notice of errata was for the separate statement
of undisputed material facts. It included two identical separate
statements, with the caption on the first separate statement
reflecting the correct hearing date of May 12, 2022.
The notices of errata included a declaration from the City’s
counsel, Michael R. Nebenzahl. The declaration explained the
reason for the error, and emphasized the motion served on
February 23, 2022, was the same as the motion attached to the
notices of errata. It also attached all the declarations and
supporting documents that had accompanied the February 23,
2022 separate statement. Appellant raised no objection to the
documents filed on March 1, 2022.
On March 2, 2022, the trial court held a hearing on the
City’s motion to continue trial. The hearing included a discussion
4
regarding the reserved hearing date on the City’s motion for
summary judgment. Among other things, the trial court ordered
the City’s motion for summary judgment was reserved for and
would be heard on May 12, 2022. Appellant raised no objection
concerning the timing of the motion or the date of the hearing.
In keeping with Code of Civil Procedure section 437c,
subdivision (b)(2), appellant filed her opposition to the City’s
summary judgment motion on April 28, 2022, 14 days before the
May 12, 2022 hearing. Appellant also filed a response to the
City’s separate statement of undisputed material facts, the
declaration of Mark Burns, the declaration of Samer Habbas, and
appellant’s objections to evidence. Every caption page of
appellant’s opposition and supporting documents contained the
correct May 12, 2022 hearing date. Appellant’s opposition
contained no objection to the timing of the City’s filing. Appellant
did not challenge the facts set forth by the City regarding their
lack of notice of the alleged dangerous condition of the sidewalk.
Instead, appellant argued the uncontested facts raised a genuine
issue of material fact as to actual or constructive notice.
After appellant’s opposition was filed, the trial court
notified the City that it did not docket the motion attached to the
notice of errata and asked the City to refile the documents it had
filed on February 23, 2022.1 On May 5, 2022, the City followed
the superior court’s request and refiled the motion and all
supporting documents with the caption page of each document
containing the correct May 12, 2022 hearing date. The trial court
treated the motion filed on May 5, 2022, as the motion filed on
1 The City has not provided a citation to the record
supporting this fact that appellant does not specifically contest.
It is not necessary to our decision in this matter.
5
March 1, 2022. On May 6, 2022, the City filed its reply to
appellant’s opposition to the motion for summary judgment along
with a response to appellant’s additional undisputed material
facts and objections to the declaration of Burns.
The hearing was held on May 12, 2022. Following the
hearing, the trial court granted summary judgment in favor of
the City. In its tentative decision the trial court explained its
rationale for granting summary judgment in the City’s favor,
explaining that appellant could not, as a matter of law,
demonstrate that the City had actual or constructive notice of the
alleged sidewalk defect. The trial court noted, “[t]o assign
liability for a defect, the landowner must have notice not only of
the condition of the sidewalk, but also of the dangerous character
of such condition. (Whiting v. National City (1937) 9 Cal.2d 163,
165.) [Appellant] has not offered any evidence showing that [the
City’s] agents had notice of the dangerous character of the
sidewalk offset.” Because appellant was unable to establish this
required element of her claim against the City, the City’s motion
for summary judgment was granted.
The trial court also granted the City’s motion to exclude
parts of the declaration of appellant’s expert Burns. The court
sustained the City’s objections to portions of Burns’s declaration
on the grounds they were a legal conclusion or lacked foundation.
Judgment in favor of the City was entered on November 17,
2022.
On January 13, 2023, appellant filed her notice of appeal
from the judgment.
6
DISCUSSION
I. Applicable law and standards of review
We review an appeal from an order granting summary
judgment de novo, considering all the evidence in the moving and
opposition papers except the evidence to which objections were
made and sustained by the trial court. (Guz v. Bechtel National,
Inc. (2000) 24 Cal.4th 317, 334.) We review the evidence in the
light most favorable to the losing plaintiff, liberally construing
the plaintiff’s evidence and resolving any evidentiary doubts in
favor of the losing party. (Wiener v. Southcoast Childcare
Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) “Only admissible
evidence is liberally construed in deciding whether there is a
triable issue.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th
755, 761.)
We review the court’s rulings on notice issues for abuse of
discretion. (Robinson v. Woods (2008) 168 Cal.App.4th 1258,
1261.) We also review the court’s evidentiary decisions for abuse
of discretion. (Alexander v. Scripps Memorial Hospital La Jolla
(2018) 23 Cal.App.5th 206, 226.) The appropriate test for the
abuse of discretion standard is whether the trial court exceeded
the bounds of reason and resulted in a miscarriage of justice.
(Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 378.)
II. Timing issues
Appellant argues the trial court erred in considering and
granting the City’s summary judgment motion when there were
only 72 days between the City’s filing and service of the operative
motion for summary judgment and the May 12, 2022 hearing.
Code of Civil Procedure section 437c, subdivision (a)(2) requires
that “[n]otice of the [summary judgment] motion and supporting
papers shall be served on all other parties to the action at least
7
75 days before the time appointed for hearing.” Appellant
emphasizes that “[t]he importance of providing the minimum
statutory notice of a summary judgment hearing cannot be
overemphasized.” (Robinson v. Woods, supra, 168 Cal.App.4th at
p. 1262.) “‘[T]rial courts do not have authority to shorten the
minimum notice period for summary judgment hearings.’” (Ibid.)
We find that appellant forfeited this issue by failing to raise
it before the trial court. (Briley v. City of West Covina (2021) 66
Cal.App.5th 119, 138.) Appellant notes we have discretion to
consider for the first time on appeal an issue of law, particularly
if it is not dependent upon the production of additional evidence
and the parties have been afforded a reasonable opportunity to
address it. (See, e.g., Waller v. Truck Ins. Exchange, Inc. (1995)
11 Cal.4th 1, 24; Matera v. McLeod (2006) 145 Cal.App.4th 44,
59.) We choose not to exercise such discretion under the
circumstances of this case.
The record shows the motions filed and served on March 1,
2022, were identical to the motions served on February 23, 2022,
78 days before the May 12, 2022 hearing. The Code of Civil
Procedure requires only that notice be served on all other parties
no less than 75 days prior to the hearing. (Code Civ. Proc.,
§ 437c, subd. (a)(2).) While the City had listed the wrong hearing
date on the caption page, resulting in rejection of the documents
for filing, the City promptly corrected this error and provided
appellant with the correct hearing date. Thus, although filing of
the motion was not perfected until March 1, 2022, appellant was
notified of the motion on February 23, 2022, thus giving
appellant more than 75 days to conduct discovery and prepare
her opposition. Appellant never objected to the trial court’s
decision to proceed with the hearing on May 12, 2022.
8
Appellant’s failure to object forfeits her claim on appeal as she
“‘depriv[ed] the trial court of the opportunity to correct potential
error.’” (People v. Ramos (1997) 15 Cal.4th 1133, 1171.)
Further, appellant cannot claim prejudice or confusion.
Appellant listed the correct hearing date on her opposition and
supporting documents. The opposition did not raise a notice
issue, nor did appellant object to the May 12, 2022 hearing date
at any time. Had appellant raised this issue, it could have easily
been resolved by the trial court in the first instance with a
continuance of the hearing date. Given appellant’s failure to
object, we find she has forfeited her claim of procedural error.
The trial court acted well within reason in conducting the hearing
on May 12, 2022, when the supporting documents showed they
were served on appellant more than 75 days prior to that date,
without objection.
III. Actual or constructive notice
The trial court granted the City’s motion for summary
judgment on the ground there existed no triable issue of material
fact as to the City’s actual or constructive notice of the dangerous
condition of public property. As set forth below, we find no error
in this decision.
In order to prove the City was liable for a dangerous
condition of public property, appellant was required to establish
the following: (1) that defendant owned or controlled the
property; (2) that the property was in a dangerous condition at
the time of the injury; (3) that the dangerous condition created a
reasonably foreseeable risk of the kind of injury that occurred; (4)
that negligent or wrongful conduct of the defendant’s employee
acting within the scope of employment created the dangerous
condition or that the defendant had notice of the dangerous
9
condition for a long enough time to have protected against it; (5)
that plaintiff was harmed; and (6) that the dangerous condition
was a substantial factor in causing plaintiff’s harm. (CACI
No. 1100.) In its motion for summary judgment, the City
contended, among other things, that appellant could not, as a
matter of law, establish the fourth element of this claim.
Appellant responds that, when viewed in the light most
favorable to her, the City’s evidence regarding the frequent work
performed on the block where appellant tripped and fell created
triable issues of material fact as to the City’s actual or
constructive notice. Appellant points out the City worked
multiple times on the block where the subject uplift was located,
yet there was a lack of report of any sidewalk defect. Construed
in the light most favorable to her position, appellant argues, the
trial court should have concluded the City’s employees were
negligent in failing to report the uplift or that the City’s
inspection policy in place at the time of the incident was
unreasonable. Appellant cites Straughter v. State of California
(1976) 89 Cal.App.3d 102, 109, for the proposition that
“[c]onstructive notice may be found where the dangerous
condition would have been discovered by a reasonable inspection
[citation].” Appellant further argues that “[t]he questions of
whether a dangerous condition could have been discovered by
reasonable inspection and whether there was adequate time for
preventive measures are properly left to the jury.” (Carson v.
Facilities Development Co. (1984) 36 Cal.3d 830, 843.) Appellant
adds, based on these authorities, that the trial court’s failure to
find a triable issue of material fact as to actual or constructive
notice was prejudicial error.
10
Appellant has presented no evidence of actual notice.
Rather, appellant provides pure speculation in suggesting that
because City employees worked in the vicinity of the uplift, such
employees must have observed the uplift. Appellant has provided
no deposition testimony suggesting she inquired of any City
employee whether the employee observed the uplift.2 In the
absence of evidence of actual notice, appellant’s only remaining
option was to show evidence of constructive notice.
In order to show constructive notice, appellant is required
to present facts supporting two elements: (1) the dangerous
condition existed for “a period of time” and (2) “was of such an
obvious nature that the public entity, in the exercise of due care,
should have discovered the condition and its dangerous
character.” (Gov. Code, § 835.2, subd. (b).) The City concedes
appellant provided some evidence from Google Maps suggesting
the uplift may have existed for a period of time. However,
appellant provided no evidence the uplift was obvious.
Appellant’s testimony was that she traversed that sidewalk
frequently as she walked to the bus stop on her way to and from
work. Despite the frequency of her passage on that stretch of
sidewalk, appellant never noticed the uplift or anything
dangerous about the sidewalk before she tripped on March 10,
2019. Thus, appellant’s own testimony suggested that the uplift
was not obvious.
2 The identities of the city employees who performed work on
the subject block of North Rexford Drive were available to
appellant, as they were identified by employee number on the
work orders attached to the declaration of the City engineer,
Daren Grilley.
11
The City provided evidence that City employees are
required to report any sidewalk defect they observe. The City
also produced work orders showing its employees had worked on
the block where appellant tripped eight times in the 11 months
before appellant’s fall, including three instances 45 days before
appellant’s fall. Despite the work performed on the block, no City
employee reported the subject uplift. This evidence does not
support a finding of constructive notice.
Heskel v. City of San Diego (2014) 227 Cal.App.4th 313 is
instructive. In Heskel, the plaintiff sued the City of San Diego
claiming he suffered injury after tripping over a protruding base
of a hollow metal post cemented into a city sidewalk. (Id. at
p. 315.) The trial court granted the city’s motion for summary
judgment on the ground the plaintiff lacked evidence of
constructive knowledge on the part of the city, and the Heskel
court affirmed, finding the plaintiff failed to present evidence the
condition was obvious, such that the city, in the exercise of due
care, should have become aware of it. (Ibid.) The city presented
evidence demonstrating that although city workers had been in
the area several times in the year preceding the accident, they
did not notice the condition. Neither city workers nor citizens
had notified the city about the alleged danger. (Id. at pp. 315-
316.) The plaintiff produced evidence that others had noticed the
dangerous condition, along with photographs showing “the
condition was at most a few inches in height.” (Id. at p. 316.) On
that record, the Heskel court confirmed that the plaintiff had
failed to produce evidence creating a triable issue of fact as to
obviousness. While the plaintiff produced evidence which
suggested “that the condition was above ground and visible, it
does not demonstrate that it was of a substantial size or so visible
12
from public thoroughfares that the [c]ity, in the exercise of due
care, should have become aware of it and taken corrective action
to cure it.” (Id. at p. 321.)
Similarly, here, appellant lacks evidence as to the essential
element of obviousness. The uplift in this matter was 1 11/16
inches—smaller than the post at issue in Heskel. Thus, it was
not inherently obvious. Appellant failed to convince “the existing
evidence created a reasonable inference that the condition was
obvious or to present additional evidence proving that element.”
(Heskel, supra, 227 Cal.App.4th at p. 321.)
Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749 is
distinguishable. In Cole, the town acknowledged that prior to the
subject accident, it had received a complaint from a resident near
the location where the accident took place. The resident reported
a dangerous condition on that particular stretch of road and
requested a traffic sign, which the town declined to install. (Id.
at p. 779.) Unlike the City in this matter, the evidence in Cole
“amply establish[ed] that [the] [t]own had been notified” of the
dangerous condition. (Ibid.)3
3 Similarly, in Straughter v. State of California, supra, 89
Cal.App.3d at page 110, the issue was whether the jury could
have determined the state had constructive notice of ice on a
highway for a sufficient period of time such that it could have
been discovered by a reasonable inspection and remedied. The
Straughter court found that “[t]he jury here could readily believe
the expert’s testimony concerning the gradual formation of the ice
and its existence prior to the accident,” which was confirmed by
one of the plaintiff’s witnesses. (Ibid.) The jury was also entitled
to believe the state’s employee “should have discovered the ice by
reasonable inspection at 4:30, 5:30 or 6:15 a.m.,” when the
employee conducted such inspections. (Ibid.) Thus, unlike the
13
Appellant emphasizes that in Carson v. Facilities
Development Co., supra, 36 Cal.3d at page 843, the court stated,
“The questions of whether a dangerous condition could have been
discovered by reasonable inspection and whether there was
adequate time for preventive measures are properly left to the
jury.” However, this statement is true only where there is
conflicting evidence on the issue of constructive notice. In
Carson, the dangerous condition at issue was a sign erected near
the intersection where the plaintiffs’ decedent was killed. The
strip of land on which the sign was placed was owned by the city,
which required an encroachment permit for the placement of the
sign on its property. (Id. at pp. 836-837.) The sign had been in
place for seven months, and a police officer testified that traffic
was moderate to heavy at the intersection. (Id. at p. 844.) The
Carson court noted, “The jury could reasonably have inferred
from this evidence that [c]ity police officers regularly patrolled
the intersection.” (Ibid.) In contrast to the uplift at issue here,
the sign was visible to passersby. Further, due to the permit
requirement, there was evidence from which a jury could
reasonably infer that the city should have discovered the
dangerous condition.
Here, appellant lacked evidence of actual or constructive
notice on the part of the City of the uplift in question. Thus, the
trial court properly granted summary judgment.4
City here, there was evidence the defendant’s employees had
conducted inspections for the very hazard at issue on the date of
that accident.
4 We decline to address at length appellant’s argument that
city employees were negligent in failing to report the defect.
14
IV. Exclusion of evidence
Appellant argues the trial court erroneously sustained the
City’s objection to the testimony of appellant’s expert Burns.
Appellant contends Burns is a highly qualified expert in the
fields of safety, human factors, and accident reconstruction.
Burns reviewed all of the materials filed on March 1, 2022, in
support of the City’s motion for summary judgment and
personally conducted his own inspection of the site where
appellant fell. He stated his opinions to a reasonable degree of
scientific and engineering certainty. Appellant argues the trial
court abused its discretion in sustaining the City’s objection to
Burns’s testimony that the City’s policy regarding inspection of
sidewalks was inherently deficient and below the standard of
care for a reasonably prudent municipality.
The trial court sustained the portion of Burns’s declaration
where he stated the City’s policy regarding inspection of
sidewalks was “wholly inadequate” on the ground it lacked
foundation. We find no abuse of discretion in this decision.
While appellant points to Burns’s general qualifications, she fails
to articulate any specific qualification regarding City sidewalk
inspection policies. The record does not show Burns to have
worked for a municipality or any expertise with sidewalk policies.
He set forth no comparative inspection policies nor did he rely on
any specific experience with sidewalks or other municipalities.
He offered no insight as to how often sidewalk uplifts appear or
There is no evidence that any City employee observed the defect.
Further, Government Code section 815 absolves a public entity
from liability except as provided by statute. Appellant has failed
to provide statutory authority for her argument that employee
negligence is a viable theory in this case.
15
worsen. Instead, he simply claimed, “This policy is wholly
inadequate as sidewalks are not inspected consistently on a
regular basis and therefore dangerous conditions such as
sidewalk uplifts could easily form and worsen during the
designated four-year time frame without the City ever taking any
action.” The trial court did not abuse its discretion in
determining that this broad statement lacked adequate
foundation.
DISPOSITION
The judgment is affirmed. Each side is to bear their own
costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
16