Judge: Anne Hwang, Case: 20STCV24832, Date: 2023-10-19 Tentative Ruling

Case Number: 20STCV24832    Hearing Date: October 19, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Jacqueline Bounché

2.      Separate Statement of Undisputed Material Facts

3.      Request for Judicial Notice

4.      Evidence in Support of Motion

OPPOSITION PAPERS

1.      Opposition to Motion for Summary Judgment

2.      Response to Separate Statement

3.      Declaration of Nicole Glassman

4.      Declaration of William E. Jackson, AIA

REPLY PAPERS

1.      Reply to Plaintiff’s Opposition

2.      Evidentiary Objections

3.      Reply to Plaintiff’s Additional Material Facts

BACKGROUND

On February 11, 2021, Plaintiff Nona Avagyan (Plaintiff) filed the operative first amended complaint (FAC) against Defendants City of Los Angeles, County of Los Angeles, Helene Udy, and Does 1 to 50 for injuries sustained on a “sidewalk, walkway, parkway, and/or pathway adjacent to” 5000 Franklin Avenue, Los Angeles California (Premises). (FAC ¶ 7.) Against Moving Defendant Helene Udy (Defendant), Plaintiff asserted two causes of action for general negligence and premises liability. Plaintiff alleges Defendant owned the subject property and thus, owed a duty to exercise reasonable and ordinary care in maintaining the parkway in between the street and sidewalk.

Defendant originally brought a motion for summary judgment that was heard on May 5, 2023. The Court denied the motion because Defendant failed to raise evidence regarding the ownership, maintenance, or installation of the parkway, and instead only relied on evidence about the sidewalk.

Defendant moves again for summary judgment on the grounds that Defendant did not own, maintain, or control the property at issue, and Defendant did not have actual or constructive notice of the alleged defect.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)           

JUDICIAL NOTICE

The Court grants Defendant’s request for judicial notice of the following as part of the Court’s record:

1.      Plaintiff’s First Amended Complaint.

2.      Plaintiff’s Opposition and Supporting papers.

3.      The Court’s May 5, 2023 Minute Order.

The Court denies Defendant’s request for judicial notice of:

1.      Exhibit L

2.      Exhibit M

3.      Exhibit N

4.      Exhibit O

5.      Exhibit P

EVIDENTIARY OBJECTIONS

The Court overrules Plaintiff’s objection to paragraphs 1-3, and 8 of the declaration of William E. Jackson. The Court sustains the remaining the objections.

DISCUSSION

Plaintiff alleges that she tripped and fell on a walkway within a parkway, which is an area between the street curb and the sidewalk. Defendant argues that there are no facts establishing that she owed Plaintiff a duty of care.

1.      NEGLIGENCE AND PREMISES LIABILITY

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

a.      Duty of Care

A “general duty to maintain the property one owns or occupies [generally does not] extend to abutting property that is owned by others – and, in particular, to abutting property owned by public entities.” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255.) “That is because, for more than 150 years, the ‘general rule’ has been that, ‘in the absence of a statute[,] a landowner is under no duty to maintain in a safe condition a public street’ or ‘sidewalk’ ‘abutting upon his property.’” (Id.)

“This general rule has one notable exception: A person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has ‘exercise[d] control over th[at] property.’” (Lopez, 55 Cal.App.5th at 255.) An owner of private property exerts control of abutting, publicly owned property either “(1) when the owner or occupier has created that hazard [citation omitted], or (2) if the hazard was created by a third party, when the owner or occupier has ‘dramatically asserted’ dominion and control over the abutting publicly owned property by effectively treating the property as its own.” (Id. at 256 [emphasis in original, alteration omitted].)

“[A]n owner or occupier can create a more enduring hazard by ‘constructing’ or ‘altering’ the configuration of the public property – whether by doing it itself or by urging the public entity to do so at its behest – and will be held liable for that hazard if the reconfiguration is done (1) for the owner or occupier’s own ‘special benefit’ and (2) in a manner that causes the public property to ‘serve a use independent of an apart from the ordinary and accustomed use for which that property (e.g., a sidewalk) was designed.” (Lopez, supra, 55 Cal.App.5th at 256-57 [alterations omitted].) “Given these requirements, it is not enough that the owner or occupier ‘derives a benefit from the alteration.’” (Id. at 257 [citation omitted].) “The additional factors of whether the alteration serves a use independent of and apart from the ordinary and accustomed use of the sidewalk and the degree of exclusivity of such use must be considered.” (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 201.) If these requirements are satisfied, “the duty to guard against the hazard lasts as long as the hazard itself; it is no defense that the alteration occurred when the private property was owned or occupied by a predecessor in interest.” (Lopez, supra, 55 Cal.App.5th at 257.)

Here, it is unclear whether the parties are disputing that Defendant Udy owned the parkway. Udy presents evidence that the walkway is “within the right-of-way maintained by the City of Los Angeles.” (Nelson Dec. ¶ 7.) Plaintiff appears to be suggesting that there exists a grant or other document regarding transfer of the land. (Opposition at pp. 7-8.) No documents regarding ownership have been presented to the Court. The parties do not address whether there are triable issues of fact that Defendant Udy owned the parkway sufficient to give rise to a duty of care.

Instead, the parties primarily address the exception to the general rule that property owners owe no duty regarding abutting property owned by others, namely, the control exception. With regard to this issue, the parties do not appear to dispute that Defendant did not exercise dominion and control over it by effectively treating it as her own. Rather, the issue here appears to be whether Defendant (due to purported actions of a predecessor in interest) created the hazard.

Defendant offers the following facts:[1]

-          Defendant UDY did not design, develop, or construct the sidewalk/walkway/parkway at issue in this litigation. (UMF 13.)

-          Defendant UDY did not inspect, maintain, or repair the sidewalk, walkway, and parkway adjacent to the real property at 5000 Franklin Ave., Los Angeles, California. (UMF 25.)

-          Defendant UDY did not exercise any control over the sidewalk, walkway, and parkway adjacent to her property where plaintiff’s incident is alleged to have occurred. (UMF 26.)

-          Defendant UDY does not own, possess or control the sidewalk, walkway, and parkway adjacent to her property located at 5000 Franklin Ave., Los Angeles, California. (UMF 27.)

-          Defendant UDY has never assumed the obligations of Defendant City’s duties’ concerning the sidewalk, walkway, and parkway adjacent to her property located at 5000 Franklin Ave., Los Angeles, California. (UMF 28.)

Plaintiff offers the following facts:

-          The concrete walkway was not built by the City of Los Angeles. (PUMF 1.)

-          The concrete walkway is not consistent with City of Los Angeles design specifications. (PUMF 2.)

Defendant has established that there are no triable issues of fact that she created the walkway. However, the Court finds a triable issue of fact as to whether her predecessor in interest created the walkway, based on evidence that the City did not build it. If the requirements of “special benefit” and “independent use” are satisfied, it is no defense that the walkway was created when the property was occupied by a predecessor in interest. However, Defendant has set forth no evidence regarding the walkway itself, other than photographs. Defendant bears the initial burden of production to show an absence of a triable issue of fact. Defendant does not address whether (or not) the walkway provides a special benefit or serves a use independent of an apart from the ordinary and accustomed use. As Defendant has not met her burden, the Court denies summary judgment.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Helene Udy’s Motion for Summary Judgment is denied.

            Defendant shall provide notice of the Court’s order and file a proof of service of such.