Nafal v. Cal. Dept. of Transportation CA4/3

Filed 11/10/26 Nafal v. Cal. Dept. of Transportation CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOURTH APPELLATE DISTRICT DIVISION THREE SAHAR NAFAL, Plaintiff and Appellant, v. G065873 CALIFORNIA DEPARTMENT OF TRANSPORTATION, (Super. Ct. No. 30-2023- 01331787) Defendant and Respondent. OPINION Appeal from a judgment of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed. Mashney Law Offices and Stephen Mashney for Plaintiff and Appellant. Erin E. Holbrook, Jeffrey R. Benowitz, Scott R. Fridell, Justin M. Booth, and Jeffrey M. Curren for Defendant and Respondent.  Sahar Nafal sued the California Department of Transportation (Caltrans) for premises liability and negligence arising out of a slip and fall on a sidewalk owned by the State of California and located in the City of Laguna Beach. Caltrans filed a motion for summary judgment (MSJ), submitting evidence that the alleged defect on the sidewalk was trivial and that Caltrans had no notice of it. The court granted the MSJ, concluding that Nafal failed to produce admissible evidence of a dangerous condition. We affirm. Nafal’s opposition placed critical dependence on an expert report attached to an attorney declaration. The expert report, however, is not admissible, and there was no declaration by the expert setting forth admissible testimony concerning a dangerous condition. In the absence of admissible evidence, the trial court properly granted summary judgment. FACTS On the evening of January 22, 2023, Nafal was in the City of Laguna Beach when she stepped off a curb toward her vehicle and fell. Nafal contends that she fell due to a break in the curb that created a small depression. The depression was seven and a half inches long, and the depth started at zero inches, transitioned to a maximum depth of one and one- eighth inches, and then transitioned back to zero inches at the other end. There were no jagged edges on the depression and the depression was in plain view. There had been no complaints about the depression in the five years before Nafal’s fall, nor any work orders created by Caltrans to address it. Caltrans was unaware of the depression prior to Nafal’s fall. PROCEDURAL HISTORY Nafal sued Caltrans in June 2023, asserting causes of action for negligence and premises liability. She subsequently amended the complaint so that the only causes of action against Caltrans were for liability for a 2 dangerous condition on public property under Government Code section 835, and vicarious liability for the negligence of others hired by Caltrans to maintain the sidewalk. In February 2025, Caltrans filed an MSJ on three grounds: (1) that the risk posed by the condition was trivial as a matter of law; (2) there was no actual or constructive notice of a dangerous condition, and (3) there were no independent contractors who worked on the sidewalk. Nafal opposed the MSJ on the ground that there were triable issues of material facts concerning whether the condition of the walkway constituted a dangerous condition, whether the defect was trivial, and whether Caltrans had constructive notice of the condition. However, the only evidence Nafal submitted with the opposition was a half-page declaration from Nafal’s counsel that attached three exhibits: a copy of the second amended complaint, a January 12, 2024 preliminary report by Alex Zaretskiy (preliminary report), and a curriculum vitae of Zaretskiy. The preliminary report purports to reflect the results of an investigation by Zaretskiy, a mechanical engineer, into the sidewalk where Nafal was allegedly injured. The preliminary report is approximately five pages in length and concludes with an opinion that the sidewalk presented a dangerous condition. Caltrans objected to counsel’s declaration and the attached preliminary report on several grounds: failure to comply with Code of Civil Procedure section 437c, subdivision (d), lack of personal knowledge, lack of foundation, relevance, and hearsay. The trial court granted the MSJ. Initially, the court concluded that Caltrans had presented evidence rebutting essential elements of Nafal’s causes of action: the evidence of the shallowness of the depression was prima facie evidence that the defect was trivial, and Caltrans produced evidence 3 that it had no actual or constructive notice of the condition. This shifted the burden to Nafal to present evidence on those issues. The court concluded that Nafal had failed to present evidence because her counsel did not have personal knowledge of the content of the preliminary report, and it was not adequately authenticated. Accordingly, the court sustained Caltrans’ objections to the preliminary report. In the absence of evidence from Nafal, the court granted the MSJ. Nafal timely appealed. DISCUSSION Nafal contends the court erred in concluding that the preliminary report was inadequately authenticated. We conclude that, even assuming counsel could authenticate the preliminary report, it was inadmissible as hearsay. “A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie case.’” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460, (Miller); see Code Civ. Proc., § 437c, subd. (c).) “[O]nce a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476–477.) We review a trial court’s summary judgment ruling de novo. (Miller, at p. 460.) 4  Government Code section 835 states, “Except as provided by statute, a public entity is liable for injury caused 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 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 [Gov. Code s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” A dangerous condition “means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of 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 condition is not a dangerous condition within the meaning of this chapter 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.” (Gov. Code, § 830.2.) The purpose of the trivial defect doctrine is to ensure that “cities do not become insurers against the injuries arising from trivial defects.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734 (Fielder).) 5  In applying the trivial defect doctrine to sidewalk depressions, the size of the depression is “one of the most relevant factors,” though not the only factor to consider. (Fielder, supra, 71 Cal.App.3d at p. 734.) Courts should also consider circumstances “which might have rendered the defect more dangerous than its mere abstract depth would indicate.” (Ibid.) In Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1095– 1096, the plaintiff sued for a dangerous sidewalk condition in which two concrete panels of a sidewalk were vertically misaligned to a height of between nine-sixteenths of an inch, and one and seven thirty-seconds inches. The court affirmed summary judgment in the city’s favor, finding the defect trivial as a matter of law. “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law.” (Id. at p. 1107.) Here, Caltrans presented evidence that placed the sidewalk depression comfortably within the range that has been held trivial, and it presented evidence that the defect was plainly visible and not otherwise dangerous. This was sufficient to shift the burden to Nafal to present contrary evidence that the defect was, in fact, dangerous. The only evidence Nafal produced was the preliminary report opining that the defect was dangerous; however, it is not admissible because it is hearsay. Although declarations are permitted in an MSJ, “[s]upporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d).) “The same rules of evidence that apply at trial also apply to the declarations submitted in 6 support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) “A declaration stating an expert’s opinion may be admissible to defeat a summary judgment motion, but only if the requirements for admissibility are established in the same manner as if the declarant were testifying at trial.” (Pagan v. City of San Rafael (2026) 119 Cal.App.5th 853, 866.) “The reports of nontestifying experts are hearsay.” (People v. Landau (2016) 246 Cal.App.4th 850, 874.) Zaretskiy did not submit a declaration in opposition to the MSJ, and thus the preliminary report is pure hearsay.1 Nafal argues that we should admit the preliminary report under the hearsay exception for a past recollection recorded. (Evid. Code, § 1237.) However, that exception requires the witness to testify that the statement was true, which did not occur here, and it requires a showing that the witness has “insufficient present recollection to enable him to testify fully and accurately,” which Nafal has not shown. (Id., subd. (a).) Moreover, even if Nafal had made these showings, the preliminary report would still not be admissible. Under subdivision (b), “[t]he writing may be read into evidence, but the writing itself may not be received in evidence . . . .” (Id., subd. (b), 1 At the hearing on the MSJ, Nafal’s counsel stated that the reason for the lack of an expert declaration was “the [Zaretskiy] was not available and we had to kind of scramble the last minute to get this [preliminary] report.” However, Nafal made no effort to continue the MSJ prior to the hearing to obtain additional time to cure the evidentiary defect. Nafal’s request for judicial notice of an expert designation served on Caltrans is denied because it was not before the trial court and is irrelevant to our resolution of this appeal. 7 italics added.) The exception for past recorded recollections simply does not apply here. Nafal also contends we should consider the preliminary report because in the anti-SLAPP context,2 the second step of which has been analogized to a summary-judgment like procedure, the “equivalents” of declarations can be considered if it is reasonably possible that the evidence can be made admissible at trial. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 949.) However, the reason that rule exists in the anti-SLAPP context is because the plaintiff must produce evidence to oppose the motion prior to discovery. (Ibid.) Nafal has not cited any authority applying the more permissive evidentiary standard to an MSJ. Moreover, even if that rule did apply in a summary judgment proceeding, the Sweetwater court endorsed “statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California.” (Id. at p. 945 [applying the rule to sworn testimony in a grand jury proceeding].) “The statements must reflect that they were made by competent witnesses with personal knowledge of the facts they swear to be true.” (Ibid.) The preliminary report in this case was not signed under penalty of perjury and is thus not the equivalent of a declaration. 2 An anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike, as codified in Code of Civil Procedure section 425.16, involves a two-step process. “First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) “Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.”’” (Ibid.) 8  Because Caltrans presented evidence negating an essential element of Nafal’s claims, and because Nafal did not present admissible evidence to support her claims, the trial court properly granted summary judgment. DISPOSITION The judgment is affirmed. Caltrans shall recover its costs incurred on appeal. DELANEY, J. WE CONCUR: MOTOIKE, P. J. SERVINO, J. 9