Judge: Anne Hwang, Case: 21STCV03620, Date: 2023-09-15 Tentative Ruling

Case Number: 21STCV03620    Hearing Date: March 26, 2024    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 or Alternatively, Summary Adjudication; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Evidence in Support of Motion

OPPOSITION PAPERS

1.      Plaintiff’s Opposition to Motion for Summary Judgment

2.      Plaintiff’s Statement of Genuine Issues Submitted in Opposition

3.      Declaration of Brian T. Dunn and Exhibits

4.      Defendant City of Los Angeles’ Opposition to Defendant’s Motion

5.      Defendant City of Los Angeles’ Opposition to Defendant’s Separate Statement

REPLY PAPERS

1.      Reply to Opposition

2.      Response to Separate Statement

3.      Objection to Evidence

4.      Proposed Order

BACKGROUND

On July 14, 2021, Plaintiff Willie Redmond (“Plaintiff”) filed the operative first amended complaint (“FAC”) against Defendants City of Los Angeles and Does 1 to 100 for dangerous condition of public property, negligence, and premises liability. On July 22, 2021, Plaintiff filed an amendment to the complaint substituting Brian L. Flowers and Rachel B. Flowers, individually and as trustees for The Brian and Rachel Flowers Revocable Trust as Does 51 and 52 respectively. The FAC alleges negligence and premises liability against Does 51 and 52 (“Defendants”). It alleges that on January 29, 2019, Plaintiff was walking on a sidewalk adjacent to Defendants’ property when a tree on Defendants’ property which hung over and obstructed the sidewalk caused him to move around the branches and fall on an adjacent planter. (FAC ¶ 33.)

Defendants now move for summary judgment, or in the alternative, summary adjudication,[1] arguing the following: (1) they did not own or control the property where Plaintiff fell; (2) Defendants did not owe a duty of care as owners of adjacent land; (3) Defendants did not create the dangerous condition because the City trims overhanging trees; and (4) Defendants had no notice of the sidewalk obstructions. Plaintiff and co-Defendant City of Los Angeles oppose.  

OBJECTIONS

            The Court declines to rule on Defendants’ objections to Plaintiff’s evidence because the Court does not rely on such evidence in reaching the ruling herein.

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”].)           

DISCUSSION

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 Due 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].)

Accordingly, the issue is whether the alleged defect “is somehow attributable to the abutting property owner.” (See Jones v. Deeter (1984) 152 Cal.App.3d 798, 803 [distinguishing Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245; “here, the disruptive roots extended from a tree which was located in the parkway, rather than in the defendant’s front yard, as was the case in Moeller. This case turns on this distinction. As explained below, the unsafe condition was caused by the magnolias, here, its attributable to the City, not to defendant. Accordingly, defendant is not liable in tort for injuries caused by this condition.”]; see also Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1335 [liability imposed for fall on sidewalk where there was evidence that adjacent landowner placed sprinklers on either side of the sidewalk and the trees it planted and maintained had caused the sidewalk uplift].)

Plaintiff and Defendants set forth the following undisputed facts. Defendants own 19864 Horace Street, Los Angeles, California. Plaintiff was injured on a sidewalk behind Defendants’ property. (UMF 5.) Defendants did not construct the planter box at or near the scene of the incident. (UMF 9.) Defendants did not purchase or otherwise come into possession of the subject sidewalk prior to the subject incident. (UMF 11.) Defendants did not construct the sidewalk at or near the scene of the incident. (UMF 12.) The sidewalk was the property of the City of Los Angeles. (UMF 13.)

Defendants set forth the following additional facts:

-          The City also trims trees on private property if the trees hang too low over the sidewalk, that people cannot pass by or get under the trees to proceed on the sidewalk. (UMF 16.)

-          In 2004, a citizen reported a tree encroaching on a sidewalk, on Corbin Avenue near Chatsworth Street. The City inspected the area, and found no foliage over the sidewalk. (UMF 18.)

-          If the City receives a service request and a City inspector observes that a tree on private property is causing an obstruction, the City will send a notice to the private property owner that it is the private property owner’s responsibility to maintain the clearance that is obstructed by the tree. Before the subject incident, the City never sent Defendants a notice that their tree obstructed the sidewalk where Plaintiff fell. (UMF 21.)

Here, Defendants have not met their burden of establishing there are no triable issues of fact. Defendants appear to concede that the overhanging tree originates on their property. The unsafe conditions alleged by Plaintiff are that the tree was so overgrown, he could not properly walk on the sidewalk, and fell into a planter. Although Defendants set forth some evidence that the City trims private trees that encroach on sidewalks, Defendants do not establish that this absolves them of any responsibility to maintain trees on their property. (See Jones, supra, 152 Cal.App.3d at 805 [“In settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians. The contrary situation exists when the city has planted the trees on the parkway and has performed all necessary maintenance on them. Under these latter circumstances, the duty to maintain the trees in safe condition rests with the city; dangerous conditions caused by the trees are attributable to the city, not to abutting owners.”].) Defendants do not set forth evidence that the City planted the tree or habitually maintained it.

Although Defendants argue “Defendants had no notice of a dangerous condition,” they rely on Jones, supra, 152 Cal.App.3d at 801 in support of this argument (Motion at pp. 10-11); moreover, the notice of motion asserts that “Defendants did not create a dangerous condition on the sidewalk because the City trim overhanging trees. Defendants had no notice of any sidewalk obstructions because the City had not received any reports of overhanging trees since 2004.” (Notice of Motion at p.2.) Accordingly, to the extent that Defendants argue that the defect is attributable to the City, rather than to Defendants, this argument is addressed above. To the extent Defendants raise some other argument regarding lack of notice because the City did not notify them regarding the overgrown trees, Defendants did not sufficiently present this argument and, in any event, did not present any facts or legal authority for the argument that it is established as a matter of law that they do not have actual or constructive notice of overgrown trees on their property that hang over a sidewalk just because the City did not notify them of such. In their reply brief, Defendants argue that “Plaintiff and the City present no evidence to demonstrate a dispute that Defendants lacked notice of a dangerous condition.” (Opposition at p. 4.) However, Defendants bear the initial burden of production and have produced no facts that they lacked actual notice of the tree overgrowth. Instead, they rely on the argument that before the incident “the City never sent Defendants a notice that their tree obstructed the sidewalk where Plaintiff fell.” (UMF 21.) This does not establish that they had no knowledge of the tree overgrowth. The facts presented by Defendants merely go to whether they were separately told by the City.

Therefore, the motion for summary judgment/adjudication is denied.

CONCLUSION AND ORDER

Based on the foregoing, Defendants Brian L. Flowers and Rachel B. Flowers, individually and as trustees for The Brian and Rachel Flowers Revocable Trust’s Motion for Summary Judgment/Adjudication is DENIED.

            Defendants shall give notice of this ruling and file a proof of service of such.