Judge: Anne Hwang, Case: 21STCV36494, Date: 2024-04-26 Tentative Ruling

Case Number: 21STCV36494    Hearing Date: April 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 in the alternative, Summary Adjudication; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Randall Clement in Support

4.      Compendium of Evidence in Support of Motion

OPPOSITION PAPERS

1.      None filed.

REPLY PAPERS

1.      None filed.

BACKGROUND

On October 4, 2021, Plaintiff Nasrin A. Sarabi (“Plaintiff”) filed a complaint against Defendants Boulevard Investment Group, Inc., City of Los Angeles, and Does 1 to 50 for negligence and premises liability after allegedly falling on a lifted portion of sidewalk. Plaintiff alleges this fall took place on February 16, 2020, at 18250 Roscoe Boulevard, Northridge, California. (Complaint, 4.) On October 18, 2021, Plaintiff filed an amendment to the complaint, substituting Roscoe Etiwanda Medical, LLC, as Doe 1. On November 29, 2021, Boulevard Investment Group, Inc. and Roscoe Etiwanda Medical, LLC (“Defendants”) filed an answer. Defendants then filed a cross-complaint against City of Los Angeles (“City”). On December 8, 2021, City filed an answer and cross-complaint against Defendants.

Defendants now move for summary judgment, or in the alternative, summary adjudication, against Plaintiff’s complaint and City’s cross-complaint, arguing they owed no duty to Plaintiff since they did not own, control, or possess the sidewalk where the injury occurred, and did not cause the injury. No opposition has been filed.

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].)

Defendants argue they did not own, control, or possess the sidewalk where Plaintiff fell. Defendants set forth the following facts:

-          Defendant Roscoe Etiwanda Medical, LLC (“Etiwanda Medical”) owns the building located at 18250 Roscoe Boulevard, Northridge, California 91325 (“Property”). (UMF 1.)

-          Defendant Boulevard Investment Group, Inc. (“Boulevard Investment”) has been the property manager for the Property from March 1, 2018 to the present. Hereinafter, Etiwanda Medical and Boulevard Investment may sometimes be referred to collectively as “Defendant Moving Parties.” (UMF 3.)

-          There is a concrete sidewalk adjacent to the Property on Roscoe Boulevard (“Subject Sidewalk”). (UMF 4.)

-          Plaintiff was shown [a photograph of the site of the fall] and testified that the Black Asphalt that she tripped on is marked with the yellow X. (See UMF 9.)

-          Plaintiff further testified that the bad Black Asphalt appeared the same on the day of the Incident as it does in the photographs below. (UMF 10.)

-          Defendant Moving Parties retained the services of Chris Nelson of Chris Nelson & Associates, Inc., a professional land surveyor licensed in the State of California, who performed a land survey to establish the City of Los Angeles right of way line and the boundary line of the Property in order to determine the location of the Subject Sidewalk in relation to the southerly right of way line of Roscoe Boulevard being the northerly boundary line of the Property. (UMF 11.)

-          On August 16, 2022, Mr. Nelson conducted the land survey and subsequently prepared the below map delineating the northerly boundary line of the Property in relation to the Subject Sidewalk which illustrates that the Subject Sidewalk and the location of the Incident occurred within the City of Los Angeles right of way line, not within the boundary line of the Property. (UMF 13.)

-          Defendant Moving Parties did not install the Black Asphalt and did not maintain, repair, or otherwise exert any control over the Subject Sidewalk owned by the City of Los Angeles at any time. (UMF 14.)

Here, Defendants have met their initial burden of establishing no triable issue of fact. The facts presented show that Plaintiff’s fall did not occur on Defendants’ property, but on abutting public property. Defendants present evidence they did not create the alleged dangerous condition (i.e. the asphalt on the sidewalk) and did not exert control over the sidewalk. Therefore, the burden shifts to Plaintiff and/or City to establish a triable issue of fact. Since no oppositions have been filed, they fail to meet their burden.

Therefore, the motion for summary judgment is granted. Because the motion is granted, the Court declines to address Defendants’ argument surrounding causation.  

Defendants also seek summary judgment against City’s cross-complaint. The cross-complaint contains causes of action for indemnification, apportionment of fault, and declaratory relief. These causes of action seek to hold Defendants responsible in whole or in part, for any liability that may be imposed on City for Plaintiff’s injury. In light of the Court’s ruling on the motion for summary judgment of Plaintiff’s underlying complaint and the nature of the claims in the cross-complaint, Defendants have met their burden in establishing no triable issue of fact on the cross-complaint. (See Children's Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787 [“As against the indemnitee, the indemnitor may invoke any substantive defense to liability that is available against the injured party. . . . ‘[I]f the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff's injuries, another defendant may not pursue a claim for indemnity against that defendant.’ [Citation.]”].) City does not oppose this motion and fails to meet its burden. Therefore, the motion for summary judgment as to City’s cross-complaint, is granted.[1]

CONCLUSION AND ORDER

Based on the foregoing, Defendants Boulevard Investment Group, Inc. and Roscoe Etiwanda Medical, LLC’s Motion for Summary Judgment of Plaintiff’s complaint and City of Los Angeles’ cross-complaint is GRANTED. Defendants shall file and serve proposed judgments within 10 days.

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