Filed 6/26/26 Jimenez v. City of San Marcos CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARIA GUADALUPE JIMENEZ, D085828
Plaintiff and Appellant, (Super. Ct. No. 37-2023-
00002355-CU-PO-NC)
v.
CITY OF SAN MARCOS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Earl H. Maas III, Judge. Affirmed.
Khashayar Law Group, Daryoosh Khashayar and Angela Ness for
Plaintiff and Appellant.
Dean Gazzo Roistacher, Lee H. Roistacher, and Mitchell D. Dean for
Defendant and Respondent.
Maria Gudalupe Jimenez appeals the summary judgment in her action
against the City of San Marcos (the City) for personal injuries caused by a
dangerous condition of City property. She contends she raised a triable issue
of fact as to whether the City had constructive notice of the protruding metal
base of a missing street sign that caused her to trip and fall on a public
sidewalk. We reject her contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Jimenez was walking on a public sidewalk in the City on March 6,
2022, when she tripped over the metal base of a bike lane sign that had been
knocked over. She fell to the ground, fractured her left wrist, and sustained
other injuries.
After the City rejected the claim Jimenez submitted under the
Government Claims Act (Gov. Code, § 810 et seq.; subsequent undesignated
section references are to this code), she sued the City for damages in the trial
court. The parties stipulated that the sole cause of action was for a
dangerous condition of public property under section 835.
The City moved for summary judgment (Code Civ. Proc., § 437c) on the
ground it neither created nor had actual or constructive notice of the alleged
dangerous condition. The City supported the motion with photographs of the
scene where Jimenez tripped and fell and related deposition testimony and
with declarations from two employees (Juventino Saavedra and Raul
Quezada) familiar with the City’s systems for inspecting sidewalks and street
signs.
The photographs, which were taken by Jimenez’s daughter Tania
Gaitan on March 6, 2022, showed the metal base of the downed bike lane sign
was located about a foot from the curb and protruded a few inches above the
surface of the sidewalk. The sign itself lay beside a damaged chain link fence
that bordered the edge of the sidewalk opposite the curb.
The City employees’ declarations established the following facts. The
City divides its sidewalks into five inspection sectors, and its contractor
inspects one sector per year, so that each sidewalk is inspected once every
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five years. When Jimenez tripped and fell, the sidewalk on which she fell
had last been inspected in May 2017, and the damaged street sign was not
then noted. Beyond its inspections of the sidewalks, the City inspects street
signs at least once a month by having an assigned employee drive around the
City looking for downed or damaged signs. The City uses the same five
sectors it uses for sidewalk inspections, and the employee drives through
every sector once a month, looking for downed signs. The assigned employee
does not document completion of inspection of a specific area or street; the
employee documents only signs “with issues in need of addressing.” The
downed bike lane sign where Jimenez fell was not noted in the City’s
February 2022 inspection. The City first learned of the downed sign on
March 7, 2022, when the assigned employee noticed it. The City repaired it
the same day. The City maintains a telephone number, e-mail address, and
mobile application by which members of the public may report damaged
sidewalks or street signs and request repairs. The City had no record of
complaints or repair requests regarding the damaged bike lane sign where
Jimenez fell.
Jimenez opposed the summary judgment motion. She conceded the
City did not cause the alleged dangerous condition and had no actual notice
of it, but argued a reasonable jury could find the City had constructive notice
of the condition based on its duration and obviousness. Jimenez submitted a
declaration in which she described her trip and fall and related injuries. She
stated the area where she tripped and fell “is a busy thoroughfare with heavy
vehicle and pedestrian traffic daily.” Gaitan submitted a declaration in
which she stated that before Jimenez tripped and fell, Gaitan went by the
location of the incident at least three or four times per week and noticed the
bike lane sign had been missing for at least two or three weeks. Jimenez also
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submitted excerpts of the transcript of Quezada’s deposition. Quezada
testified the City did not “have a specific inspection program for signs. . . .
[W]e call our ‘inspections,’ where we drive around the [C]ity . . . per sectors.
And we drive and inspect the areas, but there’s no specific inspection sign
program.” Quezada confirmed that every sector is inspected monthly for
missing or damaged signs, even though no records of completion of those
inspections are kept. He also confirmed that the damaged bike lane sign was
repaired when it was discovered in March 2022.
In reply, the City argued the evidence the bike lane sign was missing
for at least two or three weeks before Jimenez tripped and fell over the metal
base of the sign was insufficient to establish that the base was such an
obvious dangerous condition that the City should have discovered it in the
exercise of due care.
The trial court held a hearing and granted the City’s motion for
summary judgment. It ruled Jimenez failed to raise a triable issue of fact as
to the obviousness of the alleged dangerous condition. The court entered
judgment for the City.
DISCUSSION
Jimenez contends the trial court erred by granting the City’s motion for
summary judgment because she raised triable issues of fact as to the City’s
constructive notice of the dangerous condition1 that caused her injuries.
Based on the photographs the City submitted, she argues a jury reasonably
could find the danger presented by the metal base of the missing bike lane
sign was obvious. Based on the evidence the sign was missing for at least two
or three weeks before Jimenez tripped over it, she argues a reasonable jury
1 Jimenez does not contend the City had actual notice of the condition.
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could find the dangerous condition existed long enough for the City to have
discovered it had the City adopted and executed a reasonable inspection
system. She asks us to reverse the summary judgment.
A defendant’s motion for summary judgment is properly granted if the
defendant submits evidence that the plaintiff cannot establish an essential
element of her claim and she fails to submit evidence that would permit a
reasonable trier of fact to find in her favor on that element. (Code Civ. Proc.,
§ 437c, subds. (a), (c), (p)(2); Maksimow v. City of South Lake Tahoe (2024)
106 Cal.App.5th 514, 521 (Maksimow).) We review the ruling on the motion
de novo, considering the evidence in the light most favorable to the plaintiff
and drawing all rational inferences in her favor. (Maksimow, at pp. 521–
522.)
The only cause of action at issue on the City’s summary judgment
motion was one for dangerous condition of public property under section 835.
As applicable to this case, the statute would subject the City to liability if a
dangerous condition on its property proximately caused Jimenez to sustain
an injury of a kind reasonably foreseeable from the condition and the City
had constructive notice of the condition long enough before the injury to have
taken measures to protect against the danger. (Id., subd. (b); Cornette v.
Department of Transportation (2001) 26 Cal.4th 63, 68.)
Pursuant to section 835.2, subdivision (b), to establish constructive
notice, Jimenez 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. 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
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that was reasonably adequate (considering the practicability and cost of
inspection weighed against the likelihood and magnitude of the potential
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 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.”
Stated more simply, “ ‘constructive notice may be imputed if it can be shown
that an obvious danger existed for an adequate period of time before the
accident to have permitted the [City] employees, in the exercise of due care,
to discover and remedy the situation had they been operating under a
reasonable plan of inspection.’ ” (Maksimow, supra, 106 Cal.App.5th at
p. 526.)
Jimenez 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. The City
submitted evidence that it inspected each sidewalk once every five years and
each street sign once every month, that the metal base of the missing bike
lane sign was not discovered during the most recent sidewalk inspection and
monthly street sign inspection before Jimenez tripped and fell over the metal
base, and that the missing sign was discovered and repaired by a City
employee the day after the accident. The City also submitted evidence that it
maintains a telephone number, e-mail address, and mobile application for
members of the public to report damaged sidewalks or street signs and to
request repairs and that it had no record of complaints or repair requests for
the damaged bike lane sign where Jimenez fell. This evidence satisfied the
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City’s burden on the motion for summary judgment and shifted the burden to
Jimenez to submit evidence that the City failed to act with due care because
its inspection- and complaint-based system was not reasonably adequate and
had the City used a reasonably adequate system it would have discovered the
dangerous condition. (Gov. Code, § 835.2, subd. (b); Code Civ. Proc., § 437c,
subd. (p)(2); Maksimow, supra, 106 Cal.App.5th at p. 521; see Sambrano v.
City of San Diego (2001) 94 Cal.App.4th 225, 243 [city showed it acted
reasonably by setting forth its policies for dealing with dangerous condition
and submitting evidence employees complied with policies]; Strongman v.
County of Kern (1967) 255 Cal.App.2d 308, 313 [adequacy of county’s
inspection system is issue for jury when plaintiff presents “considerable
evidence concerning the adequacy” that is “open to more than one
interpretation”].)
Jimenez, however, submitted no evidence that the City’s inspection
system was not reasonably adequate. She cites Quezada’s testimony that the
City “do[es]n’t have a specific inspection program for signs” but ignores his
testimony that “[e]very sector gets inspected monthly” and that the downed
sign was discovered and repaired by the City employee assigned to do the
monthly inspections the day after she tripped over the metal base and fell.
Jimenez criticizes the City for failing to have a more formal procedure for
inspecting street signs and for failing to keep records of when inspections
were done, and complains the five-year period between sidewalk inspections
was “inadequate to ensure [the] safety of the City’s busy sidewalks for its
pedestrians.” But she does not explain why the monthly sector inspections
were inadequate, particularly in light of the fact that the City employee
assigned to do the inspections located and repaired the downed sign within
two or three weeks from her daughter’s estimate of when the sign was
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downed. Although the City “must exercise vigilance in keeping its streets
[and sidewalks] safe and is bound to make reasonable inspections to that
end” (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 427–
428), Jimenez has not cited and we have not found any legal authority
requiring the City to adopt specific formal inspection procedures, to keep
records, or to conduct inspections with a particular frequency. She simply
asserts that with more frequent inspections and formal procedures, the metal
sign base over which she tripped and fell “would have been discovered on this
very busy street.” But “triable issues of fact can only be created by conflicting
evidence, not speculation or conjecture.” (Lattimore v. Dickey (2015) 239
Cal.App.4th 959, 967.) Jimenez’s “guesswork falls short of raising a triable
issue of material fact.” (Maksimow, supra, 106 Cal.App.5th at p. 528.)
We conclude Jimenez has not raised a triable issue of fact as to whether
the City’s system for inspecting its sidewalks and street signs for dangerous
conditions was reasonably adequate and satisfied its duty to exercise due
care to discover and repair such conditions. We therefore need not address
the parties’ arguments about whether the metal base of the downed bike lane
sign was an obvious danger that existed for a sufficient period of time before
she tripped and fell over it.
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DISPOSITION
The judgment is affirmed. The City is entitled to costs on appeal.
KELETY, J.
I CONCUR:
DATO, J.
I CONCUR IN THE RESULT:
I concur in the result based upon Heskel v. City of San Diego (2014) 227
Cal.App.4th 313.
O’ROURKE, Acting P. J.
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