DGR WINS APPEAL FOR CITY OF SAN MARCOS – DANGEROUS CONDITION SUMMARY JUDGMENT RULING AFFIRMED
Jimenez v. City of San Marcos, No. D085828, 2026 Cal. App. Unpub. LEXIS 4307 (June 26, 2026)
A longtime client of DGR’s is the City of San Marcos. On March 6, 2022, a plaintiff fell on one of the City’s sidewalks. She tripped on the broken base of a recently broken “Bike Lane” signpost that was protruding a couple of inches from the sidewalk. The City first became aware of the signpost base the next day when an employee drove past the site and noticed the downed sign. The post was repaired that same day.
Plaintiff sued the City for a dangerous condition of public property under Government Code section 835. DGR filed a motion for summary judgment, arguing to North County Superior Court Judge Maas that the City did not create the dangerous condition, it had no actual notice of the protruding signpost base, and it had no constructive notice because even though employees were in the area of plaintiff’s fall at least once per month to inspect signs, the condition was not obvious such that the employees should have noticed the condition and its dangerous character. DGR argued that this case was identical to Heskel v. City of San Diego (2014) 227 Cal.App.4th 313.
Judge Maas, over plaintiff’s opposition, and after supplemental briefing, granted the City’s motion. Judge Maas, in a Minute Order dated January 3, 2025, observed that plaintiff did not challenge that the City did not create the condition, and there was no evidence that the City had any actual notice of it either. The real issue was whether the City had constructive notice. Judge Maas first recognized that the City presented evidence like that presented in Heskel. City’s evidence established: (a) City inspects all signs located within City at least once a month; (b) despite having multiple avenues for residents to report complaints/ requests for repair, City’s databases reveal no prior complaints or requests for repairs associated with the broken signpost; (c) City first became aware of the broken sign post on March 7, 2022, when its employee notified City’s Street Maintenance Supervisor the subject Bike Lane” sign was downed; (d) later that same day, in response to that report, an employee inspected the location and repaired the “Bike Line” sign; and (e) the location/sign in question was inspected in February of 2022, and, had any issues existed, such issues would have been documented. Plaintiff could not effectively dispute those facts. And, importantly, Judge Maas also found that the condition was not “obvious” enough such that the condition should have been noticed by an employee from the roadway. Judge Maas wrote:
Examined in the broadest light most favorable to Plaintiff, there is simply no discussion and/or evidence about the obviousness of the condition which actually caused Plaintiff to trip — the broken metal piece protruding out of the sidewalk. As a result, the Court finds Plaintiff has failed to meet her burden to show a triable issue of material fact. Accordingly, City’s motion for summary judgment is granted.
Plaintiff appealed to Division One of the Fourth District Court of Appeal arguing that there was a triable issue of fact on constructive notice of the protruding metal base of the missing street sign that caused her to trip and fall on a public sidewalk. On June 26, 2026, that court issued its opinion affirming the judgment. (That opinion can be viewed HERE)
The appellate court first observed that pursuant to Government Code section 835.2(b), to establish constructive notice, the plaintiff must show “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.” Due care, the court noted, includes evidence as to whether the condition and its dangerous character would have been discovered by a reasonable inspection system that was reasonably adequate, and whether the City maintained and operated such an inspection system with due care and did not discover the condition. The appellate court found the City met its summary judgment burden on both elements and that the plaintiff failed to raise a triable issue of fact as to whether the sidewalk on which she tripped and fell was in an obviously dangerous condition long enough for City employees to discover it in the exercise of due care.
Though unpublished, the appellate court’s opinion provides a good road map on the evidence courts find persuasive to meeting a public entity’s summary judgment burden on constructive notice, and the evidence a plaintiff needs to create a triable issue of material fact.
DGR is proud to have been able to obtain this result through its in-house Certified Appellate Specialist, Lee Roistacher, along with the DGR attorneys and team who wrote and argued the summary judgment motion.