Judge: Anne Hwang, Case: 21STCV45207, Date: 2023-10-25 Tentative Ruling

Case Number: 21STCV45207    Hearing Date: January 2, 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; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Cao Son Do

4.      Declaration of Daniel Reback

OPPOSITION PAPERS

1.      None

REPLY PAPERS

1.      None

BACKGROUND

On December 10, 2021, Plaintiff Jason Neil Henkey (Plaintiff) filed a complaint against Defendants City of Glendale, Cao Son Do, and Does 1 to 50 for premises liability, dangerous condition of public property, and willful failure to warn. Plaintiff alleges that he tripped on uneven pavement on a sidewalk in front of 426 Coutin Lane, Glendale, California 91206 and that the sidewalk was under the “custody, control, and maintenance” of Defendant Cao Son Do (Defendant).

Defendant now moves for summary judgment arguing that no triable issue of material fact exists because Defendant owed no duty to Plaintiff. The opposition was due December 19, 2023. 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

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.) 

Civil Code section 846 states in relevant part: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.” (Civ. Code § 846(a).)

“The defendant may […] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979, 90 Cal.Rptr.2d 260, 979; see Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 971 [affirming summary judgment because plaintiff was deemed to have admitted that defendant met the applicable standard of care, and there was no evidence that she attempted to withdraw or amend the admission].)

On August 2, 2022, Defendant propounded Requests for Admissions, Set One on Plaintiff. No response was received. (UMF 4.) On December 16, 2022, the Court granted Defendant’s Motion to have Requests Deemed Admitted. (UMF 4; Min. Order 12/16/22.) The following facts were deemed admitted:

-          Defendant did not own the sidewalk where Plaintiff sustained injuries. (UMF 5.)

-          Defendant did not have custody or control over the sidewalk where Plaintiff sustained injuries. (UMF 6.)

-          Defendant did not have a duty to maintain the sidewalk where Plaintiff sustained injuries. (UMF 7.)

-          Defendant did not negligently own, maintain, manage, or operate the sidewalk where Plaintiff sustained injuries. (UMF 8.)

Here, Defendant has met his burden to establish that he did not own or control the subject sidewalk, and thus owes no duty to Plaintiff. Therefore, the burden shifts to Plaintiff. Since Plaintiff does not oppose the motion, he has failed to meet his burden. Accordingly, the Court grants summary judgment in favor of Defendant.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Cao Son Do’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days.

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