Judge Anne Hwang, Case Number: 21STCV41857, Date: 2023-11-28 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. Notice of Motion and Motion for Summary Judgment or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

6. Defendant City of Los Angeles’ Memorandum of Points and Authorities in Opposition

9. City’s Notice of Joinder and Incorporation by Reference of Plaintiff’s Separate Statement of Disputed and Undisputed Facts, Plaintiff’s Objections, Declaration of Ivy Gregoryan

1. Defendant City of Los Angeles’ Supplemental Memorandum re: Consideration of City’s Opposition

On November 12, 2021, Plaintiffs Adrienne Tripp and Hoss Zargaran (Plaintiffs) filed a complaint against Defendants City of Los Angeles, PBM 1, LLC, Peter A. Coeler DBA P.A.C. Properties, and Does 1 to 50 for negligence, premises liability, and loss of consortium. Plaintiffs allege that Adrienne Tripp fell over tree roots on Defendants’ property. Her spouse, Hoss Zargaran, asserts the loss of consortium cause of action. On April 14, 2022, Defendants Peter A. Coeler dba P.A.C. Properties (“Coeler”) and PBM 1, LLC (“PBM”) (collectively, “Defendants”), filed a cross-complaint against City of Los Angeles (“City”). On August 17, 2022, City filed a cross-complaint against Defendants.

Defendants now move for summary judgment, or in the alternative, summary adjudication, against Plaintiffs’ complaint, arguing that they owe no duty since they did not own, control, or manage the subject property where Plaintiff fell. Plaintiffs and City oppose.

This matter was brought for hearing on November 28, 2023. Defendants’ reply objected to opposition papers by City. However, the Court declined to address the objection because no opposition papers had actually been filed by City. At the hearing, City requested a continuance. The Court granted the continuance and allowed the parties to submit a supplemental brief regarding whether the City has standing as a co-defendant to oppose the motion, and whether the Court should consider City’s opposition and evidence.

City’s supplement brief first argues that it has standing pursuant to Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc.¿(1981) 120 Cal.App.3d 622, 630-31 [noting that it was incumbent on co-defendant to vigorously protect its own interest by opposing the motion for summary judgment instead of relying on the plaintiff’s opposition]. Next, City argues the Court should exercise its discretion and allow City’s late-filed opposition and evidence. City cites Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29 primarily for support. However, first, Kapitanski does not involve a co-defendant filing an opposition to supplement evidence brought by a plaintiff. Second, the plaintiff in Kapitanski missed its local rule deadline by filing opposition papers to a summary judgment motion by one day. (Id. at 30–31.) Still, the court used the inquiry under Code of Civil Procedure section 473 for excusable neglect to determine if the trial court abused its discretion in refusing to review the late-filed papers. (Id. at 31.) The court reversed, finding the late filing was reasonable because counsel had been retained days before, and there was an insufficient evaluation of the section 473 factors “particularly where the inconvenience to the court and counsel appears relatively insignificant compared to the substantial prejudice . . . resulting from an adverse judgment.” (Id. at 33.)

Here, City offers the Declaration of its attorney, Hall R. Marston in support. Marston declares he transmitted City’s opposition papers to his assistant on November 14, 2023 for filing using an electronic filing service provider. (Martston Decl. ¶ 3.) On November 22, 2023, he received PBM’s reply papers and observed that PBM referenced the City’s opposition. (Id. ¶ 4.) Marston did not discover that the papers were not filed until reading the Court’s tentative ruling on November 28, 2023. (Id. ¶ 5.) Upon speaking to his assistant, Marston learned that she received a notice from their filing service provider on November 14, 2023 that there was a change in status in one of the filings, but did not investigate the change. (Id. ¶ 6.) Upon investigating, he learned the Court had rejected the electronic filing for misidentifying itself as Plaintiff and checking “Government Exemption” next to Plaintiff’s name. (Id. ¶ 7–8.) Still, City argues that Defendants will not be prejudiced since they already received and considered City’s argument and evidence.

In Defendants’ supplemental brief, they concede that City can file an opposition and the Court can consider the papers. (Def. Supp. Reply, 2.) Additionally, the Court finds that the Declaration of Marston indicates a showing of excusable neglect under section 473. Accordingly, the Court considers City’s late-filed opposition papers.

“[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”].)

The Court grants Defendant’s request for judicial notice of Plaintiffs’ Complaint and Defendants’ Answer under Evidence Code section 452(d). Defendants’ request for judicial notice of the First Set of Requests for Admission and responses are denied.

The following objections by Plaintiff to Defendants’ evidence are sustained: 1, 9, 10, 11, 12, 13, 14, 22, 23, 24, 25, 26, 27, 35, 36, 37, 38, 39.

The following objections by Plaintiff are overruled: 2, 3, 4, 5, 6, 7, 8, 15, 16, 17, 18, 19, 20, 21, 28, 29, 30, 31, 32, 33, 34.

The Court declines to address Moving Defendants’ objections to City’s evidence because consideration of the evidence does not change the ruling herein.

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 “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].) One dramatically asserts the rights normally associated with ownership “by undertaking affirmative acts that are consistent with being the owner or occupier of the property and that go beyond the “minimal, neighborly maintenance of property owned by another.” [Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200; Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1167; Contreras, at p. 198 [“simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property”].]” (Lopez, supra 55 Cal.App.5th at 258.) While a simple act of mowing a lawn on adjacent property is relevant to the issue of control, it is generally not enough on its own to give rise to a duty. (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1167.)

The parties set forth the following undisputed facts. Plaintiff Adrienne Tripp fell on property (Property) located between a public street and a sidewalk. (UMF 11.) Plaintiff alleges she fell on exposed roots on the Property from a tree (“Tree”). (UMF 6.) This Property is located in front of 15048 Burbank Boulevard, Sherman Oaks, California, which is owned by Moving Defendant PBM (UMF 12, 16.) Moving Defendant Coeler does not own the property at 15048 Burbank Boulevard, or the subject Tree. (UMF 17.) Instead, Coeler is the manager of PBM’s property. (UMF 18.) PBM’s property does not include the property or the Tree where Plaintiff’s fall occurred. (UMF 19, 20.) Instead, the Tree and the property where Plaintiff fell are owned by the City of Los Angeles.[1] (UMF 14.)

- Neither PBM nor COELER maintained the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY. (UMF 26.)

- Neither PBM nor COELER had any obligation to maintain the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY. (UMF 27.)

- Neither PBM nor COELER ever occupied the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY. (UMF 28.)

- Neither PBM nor COELER ever managed the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY. (UMF 29.)

- Neither PBM nor COELER ever controlled the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY. (UMF 30.)

- Neither PBM nor COELER ever treated the SUBJECT PROPERTY, or the TREE located on the SUBJECT PROPERTY, as their own. (UMF 31.)

- Neither PBM nor COELER ever pruned the TREE located on the SUBJECT PROPERTY (UMF 32.)

- Neither PBM nor COELER ever controlled, maintained, altered, repaired, replaced, or added to the SIDEWALK between the SUBJECT PROPERTY and the ADJACENTPROPERTY. (UMF 34.)

Here, Defendants have met their burden in establishing there is no triable issue of fact. First, Defendants have established that the City owns the subject Property. Therefore, the fall is limited to the Property owned by City. Additionally, Defendants offer evidence that it neither planted the tree nor maintained control over the Property. Therefore, the burden now shifts to Plaintiffs.

Plaintiffs argue that Defendants assumed control over the Property. Plaintiffs offer the following facts:

- Defendants, PBM and Coeler, control the SUBJECT PROPERTIES sprinkler system and have taken responsibility for fixing broken sprinklers on the SUBJECT PROPERTY. (PAMF 4.)

- Defendants, PBM and Coeler hired gardeners will cut the grass on the SUBJECT PROPERTY when it is needed because “the City won’t do it.” (PAMF 5.)

- Defendants PBM and Coeler will take care of the sprinklers and also mow the lawn on the SUBJECT PROPERTY because they care about the curb appeal of their property. (PAMF 6.)

- Defendants PBM and Coeler mow the lawn on the SUBJECT PROPERTY and maintain the sprinklers on the SUBJECT PROPERTY because the City “won’t do it.” (PAMF 7.)

- Defendants PBM and Coeler hire gardeners who will blow leaves off of the sidewalk between the ADJACENT PROPERTY and the SUBJECT PROPERTY. (PAMF 8.)

Plaintiffs have not set forth sufficient evidence to establish a triable issue of fact. Plaintiffs have set forth facts demonstrating “simple maintenance.” While mowing and watering the property are relevant, these acts on their own are not enough to give rise to a duty. Significantly, there is no evidence that Defendants planted the tree, created the defect, or otherwise made an alteration for their own benefit, as opposed to maintaining property owned by the City.[2] (Compare Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1335 [“The facts of this case reveal that VRHA had planted and maintained all of the trees and vegetation in the area, on both sides of the sidewalk, had installed sprinklers on both sides of that walkway, and watered and trimmed the trees which grew the roots which caused the sidewalk to be uplifted and crack, presenting the danger which befell Alpert. Further, VRHA had known for approximately two years prior to Alpert’s fall of the condition of the sidewalk at the location of the fall and elsewhere along the path.”]; Alcaraz v. Vece (1997) 14 Cal.4th 1149 [in addition to maintaining a two-foot-wide strip of land owned by the city, the defendant landowner had constructed a fence around the subject strip of land]; Sexton v. Brooks (1952) 39 Cal.2d 153, 157 [the alteration to abutting property must be for the benefit of the landowner and “serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.”]; Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852 [defendant created the dangerous condition].)

Lastly, Plaintiffs argue that Defendants owe a duty of care because the fall took place in the egress and ingress to Defendants’ property. As stated above, generally, a landowner has no duty to prevent injury on adjacent property. However, a duty may arise “if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38.)

- Plaintiff TRIPP used the SUBJECT PROPERTY as a walkway to get from her care (sic) to Moving Parties property. (PAMF 9.)

Here, unlike in Annocki and Johnston v. De La Guerra Properties (1946) 28 Cal.2d 394, the dangerous condition was not on Defendants’ premises. (See Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1092.) Accordingly, Plaintiffs have not met their burden.

- Moving parties’ property management company applied to the City and received a tree pruning permit for the tree on the parkway. (CAMF 1.)

- The person requesting the tree trimming permit was a former employee of the moving parties’ property management company. (CAMF 2.)

City argues these facts create a triable issue of control. However, the permit appears to be issued November 29, 2011, and relates to work completed on November 30, 2011. (Marston Decl., Exh. A.) It does not appear the permit was used on a continual basis. Therefore, City fails to offer authority that a permit executed nine years before this incident shows that Defendants controlled the subject property.

A loss of consortium cause of action requires a “tortious injury to the plaintiff’s spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) Although a loss of consortium claim is an independent tort that “does not rise or fall with the procedural fate of the injured party’s personal injury claim,” (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1280), here the granting of summary judgment as to Tripp’s negligence and premises liability claims is not on procedural grounds, but rather because there are no triable issues of fact. Accordingly, summary judgment is proper.

Based on the foregoing, Defendants Peter A. Coeler dba P.A.C. Properties and PBM 1, LLC’s Motion for Summary Judgment is GRANTED. Defendants shall file a proposed judgment within 10 days.

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

[1] Plaintiff does not dispute that the City owns the Property and the subject tree. The City objects to the evidence submitted to support the fact that the City owns the Property and the subject tree, namely, the declaration of land surveyor Robert David Hennon. However, while the City disputes these facts based on its evidentiary objections, the City offers no evidence to the contrary. (See City’s Resp. to Sep. St. UMF 14, 17, 19, 20.)

[2] City argues that Defendants altered the property by installing an irrigation system, for their benefit. However, there is no evidence that Defendants (or their predecessors in title) planted the tree for their benefit. (See City’s Opp. at p. 5.)

DEPT:	32
HEARING DATE:	December 11, 2023
CASE NUMBER:	21STCV41857
MOTIONS:	Motion for Summary Judgment, or in the Alternative, Summary Adjudication
MOVING PARTY:	Defendants Peter A. Coeler dba P.A.C. Properties and PBM 1, LLC
OPPOSING PARTY:	Plaintiffs Adrienne Tripp and Hoss Zargaran