Judge Anne Hwang, Case Number: 21STCV37804, Date: 2023-09-29 Tentative Ruling

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.

1. Defendant City of Huntington Park’s Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2. Plaintiff’s Response to Defendant’s Separate Statement and Plaintiff’s Additional Facts

5. Pacific Bell’s Evidentiary Objections to City of Huntington Park’s Evidence

2. Response and Objections to Plaintiff’s Response to City’s Separate Statement

5. Declaration of Roger A. Colvin and Exhibit in Support of Reply to Pacific Bell’s Opposition

On April 25, 2022, Plaintiff Patrick Hill (Plaintiff) filed a first amended complaint (FAC) against Moving Defendant City of Huntington Park (City), City of Los Angeles, County of Los Angeles, and Pacific Bell Telephone Company (erroneously sued as AT&T Services, Inc.) for injuries that occurred after Plaintiff fell through a metal plate cover on the sidewalk at 6911 S. Alameda Street, Huntington Park, California, on March 1, 2021.

Against City, Plaintiff claimed a single cause of action for Dangerous Condition of Public Property. City filed a cross complaint against Pacific Bell Telephone Company (Pacific Bell).

City now moves for summary judgment against Plaintiff arguing that no triable issue of fact exists in that City did not own, maintain, or control the manhole and cover where Plaintiff was injured.

“[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”].)

City objects to Pacific Bell’s opposition papers arguing that its motion was made solely against Plaintiff. City cites to Code of Civil Procedure section 437c for the general notion that Pacific Bell’s opposition is inappropriate. The Court agrees and declines to consider Pacific Bell’s opposition papers, particularly in light of the Court’s ruling herein.

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 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 Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿¿

The term “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).)¿¿

Government Code section 830(c) provides, “ ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”

- Plaintiff continued for approximately 40 yards before Plaintiff stepped on a manhole cover which collapsed under Plaintiff. (UMF 7.)

- The manhole cover on the sidewalk was a rectangular metal thing located in the middle of the sidewalk. (UMF 8.)

- Moments before his fall, Plaintiff stepped on the manhole cover and it collapsed. (UMF 10.)

- Plaintiff did not trip on anything before he stepped on the manhole cover. (UMF 12.)

- The collapse of the manhole cover caused Plaintiff to fall and injure himself. (UMF 13.)

- The City did not own the manhole and/or manhole cover on the date of the incident. (UMF 18.)[1]

- The City did not maintain the manhole and/or manhole cover on the date of the subject incident. (UMF 19.)

- Defendant Pac Bell owned the manhole and manhole cover aka splice box where Plaintiff fell on the date of the subject incident. (UMF 20.)

- On or about July 11, 2018, City's Public Works Permit No. 2018-179-6128 was issued to Pacific Bell Company dba ATT California for construction to be performed by Pac Bell along Alameda Boulevard. (UMF 21.)

- As part of this construction project, Pac Bell installed the subject utility manhole cover and vault aka splice box. (UMF 22.)

- All the construction work performed in the project was by Pac Bell, not the City. (UMF 23.)

- Pac Bell is the entity responsible for the care and maintenance of the utility manhole cover and manhole it installed. (UMF 25.)

- On or around July 11, 2018, Defendant City of Huntington Park issued permit no. 2018-1796128 ("Permit") to Defendant Pacific Bell Telephone Company ("PacBell"). (PF 1.)

- The Permit was issued on July 11, 2018, and had an expiration date of January 11, 2019. (PUMF 2.)

- The Permit granted PacBell an encroachment to enter upon the City's property and construct and install an underground utility vault and/or splice box on or around the sidewalk of the 7000 block of Alameda Street, in the City of Huntington Park (Construction Project"). (PUMF 3.)

- The Construction Project required removal and replacement of several sidewalk panels in the public right-of-way of the 7000 block of Alameda Street. (PUMF 4.)

- The Permit required that City must inspect and approve the removal and replacement of sidewalk panels that abutted and were adjacent to the splice box. (PUMF 5.)

- Failure to inspect the removal and replacement of sidewalk panels would result in the work being exposed to ensure it was performed according to City standards. (PUMF 6.)

- The City controls the sidewalk that the splice box is mounted upon, and the City is responsible for maintaining the sidewalk that the splice box is mounted upon. (PUMF 9.)

- The Permit required that PacBell contact the Engineering Division and notify the Public Works Engineering Division when work was in progress. (PUMF 10.)

- The Permit required that PacBell and the City hold a preconstruction meeting prior to commencement of work. (PUMF 11.)

- The Permit also required that PacBell must notify the City Engineer in writing at least (2) two working days in advance of the time when work was started, and also notify the City Engineer upon completion of work. (PUMF 13.)

- The Permit required that the City perform a final inspection and acceptance of work prior to the close-out of the Permit. (PUMF 14.)

- The Permit cannot be closed out until the City Inspector performs a final inspection of the work to ensure the public right-of-way is safe for the public and pedestrians traversing the sidewalk. (PUMF 16.)[2]

The parties agree that City did not own or maintain the manhole and cover. City argues that the manhole and cover caused Plaintiff’s injuries and City does not control the manhole or cover. Plaintiff argues that the conditions of City’s permit to Pacific Bell, which included the power to perform inspections of Pacific Bell’s work, constituted an exercise of control over the property. Plaintiff further argues that City has not presented sufficient evidence to support its argument that the manhole and cover alone, rather than any portion of the surrounding sidewalk, caused Plaintiff’s injuries.

As an initial matter, the Court agrees that City has not presented sufficient evidence that the “property” at issue is solely the manhole and its cover. City simply relies on Plaintiff’s testimony that the cover collapsed and he fell into it, and that Plaintiff did not trip on anything before he stepped on the manhole cover. However, City has not set forth evidence in its separate statement of undisputed facts that the dangerous condition was the manhole cover alone, rather than the condition of the abutting sidewalk that surrounded the manhole and cover.[3] Moreover, for purposes of its summary judgment motion, City did not dispute that there was a dangerous condition, rather the City’s motion assumed the dangerous condition was on property it did not own or control. (See Notice of Motion.) Accordingly, as Defendant bears the initial burden of establishing that there are no triable issues of fact, the Court does not reach City’s arguments presented in its Reply that Plaintiff has not presented admissible evidence of a dangerous condition. (Reply at pgs. 6-8.)

In addition, both parties rely on the City’s permit to support their respective arguments regarding City’s control over the manhole and cover. City argues that the permit required Pacific Bell to build, install, and maintain the utility vault through the time of the subject incident. Plaintiff argues that the permit required that all work by Pacific Bell shall be subject to monitoring inspection and approval by City. (See, e.g., Sanvictores Decl., Exh. 1 at Attachment A ¶ 13.) Plaintiff argues that as a result, City had the power to prevent or remedy any defect with the installation of the manhole and its cover. Plaintiff has set forth sufficient evidence to raise a triable issue of fact. (Compare Public Utilities Comm’n v. Superior Court (2010) 181 Cal.App.4th 364, 374-75 (California Public Utilities Commission’s regulatory authority insufficient to establish control, where the regulatory authority did not give it power to remedy any dangerous condition; distinguishing where the entity assumed responsibility to approve.).)

Accordingly, the Court finds that City has not set forth sufficient evidence to establish that there are no triable issues of material fact. However, even if it had, Plaintiff has set forth sufficient evidence to establish that there are triable issues of fact, and the Court therefore denies Defendant’s motion for summary judgment.

Based on the foregoing, Defendant City of Huntington Park’s Motion for Summary Judgment is DENIED.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] Plaintiff does not dispute that City did not own or maintain the manhole and cover. (See Plaintiff’s Response to UMF 18, 19.)

[2] Defendant’s objections to Plaintiff’s separate statement of material facts are overruled.

[3] Assuming the dangerous condition was the manhole and its cover, there is also no evidence as to whether the dangerous condition was the result of the installation or the maintenance of the manhole and its cover, or some other reason.

DEPT:	32
HEARING DATE:	September 29, 2023
CASE NUMBER:	21STCV37804
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant City of Huntington Park
OPPOSING PARTY:	Plaintiff Patrick Hill