Judge: Anne Hwang, Case: 22STCV21019, Date: 2024-07-02 Tentative Ruling

Case Number: 22STCV21019    Hearing Date: July 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 or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts

3.     Request for Judicial Notice

4.     Declaration of Greg J. Monfette

5.     Declaration of Edward Donahue

6.     Declaration of Sandi Winton

7.     Declaration of Jeffrey Farless

OPPOSITION PAPERS

1.     Plaintiffs’ Opposition to Motion for Summary Judgment

2.     Plaintiffs’ Separate Statement of Disputed Material Facts and Additionally Undisputed Material Facts

3.     Request for Judicial Notice

4.     Plaintiffs’ Objections to Defendant’s Evidence

5.     Declaration of Armen Melkonians P.E.

6.     City of Los Angeles’ Opposition

7.     City of Los Angeles’ Responses and Additional Material Facts

8.     City of Los Angeles’ Objections to Evidence

REPLY PAPERS

1.     Reply Memorandum Against Plaintiffs

2.     Reply to Opposition of City of Los Angeles; Motion to Strike Opposition

3.     Supplemental Request for Judicial Notice

4.     Evidentiary Objections to Evidence in Plaintiffs’ Opposition

5.     Declaration of Edward F. Donahue

BACKGROUND

On June 28, 2022, Plaintiffs Max Rahni and Mahvash Abbas Rashidi (“Plaintiffs”) filed a complaint against Defendants Douglas Emmett 2007 LLC, County of Los Angeles, City of Los Angeles, and Does 1 to 80, for negligence, premises liability, vicarious liability under Government Code section 815 and Dangerous Condition of Public Property. Plaintiffs allege that on June 24, 2021, while walking on a sidewalk adjacent to 1990 S. Bundy Drive, Los Angeles, they fell on an uneven portion of sidewalk. (Complaint ¶¶ 18, 23–24.)

Plaintiffs assert the negligence and premises liability causes of action against Moving Defendant Douglas Emmett 2007 LLC (“Defendant”).

Defendant now moves for summary judgment, or in the alternative, summary adjudication, arguing that that there is no evidence that Plaintiffs were harmed by an act or omission of Defendant. Plaintiff and co-defendant City of Los Angeles oppose. Defendant replies.

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”].)       

PRELIMINARY MATTER

In reply, Defendant argues the Court should disregard the opposition papers of the City of Los Angeles (“City”) because it did not properly add Defendant to its cross-complaint. The Court’s record shows that on October 30, 2023, City filed a cross-complaint against Roes 1 to 20. On November 16, 2023, it filed an amendment to the complaint substituting “Douglas Emmett 2207 LLC as Roe 1 (as opposed to Douglas Emmett 2007 LLC). Nevertheless, Defendant filed an answer to the cross-complaint on November 27, 2023. Though Defendant does not address the significance of its answer, it is undisputed that City is a co-defendant in Plaintiff’s action. Therefore, since City’s interest in this case will be affected by the summary judgment motion, the Court has considered City’s arguments and evidence. (See 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].) However, in light of the ruling herein, the Court does not address City’s evidence in reaching its conclusions.

JUDICIAL NOTICE

The Court denies Defendant’s request for judicial notice of exhibit 1, the Grant Deed.

The Court grants Plaintiffs’ request for judicial notice of Exhibit A and B pursuant to Evidence Code § 452(b). The Court declines to take judicial notice of exhibit C as it has no effect on the ruling herein.

The Court grants Defendant’s Supplemental Request for Judicial Notice as to numbers 1–6, and 9 pursuant to Evidence Code § 452(d). The Court denies the request for judicial notice of numbers 7–8.

EVIDENTIARY OBJECTIONS

The Court declines to rule on Plaintiff’s objections to Defendant’s evidence because consideration of the evidence has no effect on the ruling herein.

Defendant’s objections 1-6 are overruled. Defendant’s objections 7-8 are sustained.

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].) 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 agree on the following undisputed facts. Defendant has been the owner of Cornerstone Plaza, Assessor's Parcel Number ("APN") 4259-020-014, located at 1990 South Bundy Drive, Los Angeles, California 90025, since November 2007. (UMF 1.) Defendant did not plant the trees in the sidewalk outside of the boundaries of APN 4259-020-014 along S. Bundy Drive. Nor did Douglas Emmett Management LLC, Defendant's property manager. (UMF 8.)

Defendant sets forth the following additional facts:

-        The property boundary of APN 4259-020- 014 is marked by a concrete wall which abuts and excludes the sidewalk that runs along South Bundy Drive. (UMF 2.)

-        The sidewalk along S. Bundy Drive, which is outside of the boundaries of APN 4259-020-014, is the property of the City of Los Angeles. (UMF 3.)

-        Neither DE2007 nor DE2007’s property manager, Douglas Emmett Management, LLC (“DEM”), own, possess, or control any part of the public sidewalk or parkway located adjacent to or abutting the Cornerstone Plaza property. (UMF 4.)

-        Neither DE2007 nor DEM have ever exercised control over the public sidewalk or city parkway where Plaintiffs’ incident is alleged to have occurred. (UMF 5.)

-        Neither DE2007 nor DEM inspect, maintain, or repair the city public sidewalk or parkway adjacent to the Cornerstone Plaza property. (UMF 6.)

-        Neither DE2007 nor DEM have ever been requested to or assumed the obligation of the City of Los Angeles’ duties related to the inspection, maintenance, or repair of the city public sidewalk or parkway adjacent to the Cornerstone Plaza property. (UMF 7.)

-        The tree at the site identified by Plaintiffs as the alleged accident site, is planted in a tree well in the public sidewalk owned and dedicated to the City often known as the public parkway or right-of-way. (UMF 10.)

-        The roots, and trunk of the Pine tree are the sole cause of all the damage and structural deterioration at the accident site. (UMF 12.)

-        There are no architectural, structural, or arboricultural features on Defendant’s property adjacent to the subject sidewalk that has caused or could cause the observable sidewalk upward displacement and/or structural damage to the City’s sidewalk adjacent to the Defendant’s Property. (UMF 13.)

Defendant has met its initial burden that it did not contribute to the sidewalk uplift, did not own the property where it occurred, and did not maintain control over the area. As a result, the burden shifts to Plaintiffs to establish a triable issue of fact.

Plaintiffs set forth the following facts:

-        The sidewalk was altered by installation of a curb drain for the benefit of the owners of 1990 S. Bundy Drive, Defendant DE2007 LLC. (PAMF 22.)

-        Defendant controlled the condition of the sidewalk by running a curb drain pipe directly underneath the sidewalk causing water seepage and used the drain for its own exclusive benefit. (PAMF 26.)

Plaintiffs rely on the declaration of their expert, Armen Melkonians, a licensed professional civil engineer, who conducted an inspection of the subject sidewalk on July 1, 2021. (Melkonians Decl. ¶ 4.) He observed a 3-inch diameter PVC curb drainpipe located underneath the area where Plaintiffs fell. (Ibid.) He also took photographs during the inspection. (Id., Exh. B.) He opined during the initial inspection that the water coming from Defendant’s property through the drainpipe was seeping around the pipe and under the sidewalk. (Id. ¶ 6.) This caused the sidewalk to swell as the adjacent tree roots sought the water and pushed upward. (Id. ¶ 7.) 

Mr. Melkonians states: “[t]he purpose of a curb drain pipe is to convey surface drainage from a private property to the public street, out letting flows through the pipe from the private property to the adjacent street gutter at the curb face. Curb drains are installed by private property owners in order to convey the flows from the private property to the public street gutter as required by the Bureau of Engineering, Department of Public Works.” (Melkonians Decl. ¶ 5.) Based on his visual inspection, he concludes that the pipe “leads to and drains the approximately 120 linear feet of raised planter areas located on the private property at 1990 South Bundy Drive which are immediately adjacent to and parallel to the public sidewalk.” (Id. ¶ 6.) He opines: “[a]s excess irrigation water has seeped around the outside of the curb drain pipe, under the sidewalk, and immediately adjacent to the 24" diameter pine tree, this has caused swelling and damage to the sidewalk. As the roots of the adjacent pine tree seek the water and nutrients which are seeping around this poorly located curb drain pipe, the roots push against and lift the sidewalk causing the lifting of the sidewalk and the non-trivial grade separation.” (Id. ¶ 7.)

He further opines that “[g]ood civil engineering design practice would require a curb drain pipe to be located a minimum of 6 ft away from a street tree to avoid sidewalk damage.” (Melkonians Decl. ¶ 8.)

The photographs from Mr. Melkonians’ second inspection on April 11, 2024, show the drainpipe protruding in the tree well near the raised sidewalk where the incident occurred. (Melkonians Decl., Exh. C.) A close-up of the pipe shows it is supposed to end at the street curb but is disconnected. However, the photographs from the first inspection do not show the pipe was protruding at the time. (See id., Exh. B.)

In reply, Defendant argues that Mr. Melkonians never observed water coming from this pipe and that his opinion is speculative. However, causation is not raised as an issue in this motion for summary judgment. For purposes of analyzing duty in this summary judgment context, the Court finds sufficient that a civil engineer specializing in drainage has opined regarding the risks here of improper drainage.

Defendant also argues this was never alleged in the complaint and thus outside the pleadings for summary judgment. However, evidentiary facts are not required in the pleading; because the complaint alleges that Defendant created the dangerous condition, it was sufficiently pled. (Complaint ¶ 33, 40.)

Lopez sets worth two ways a defendant could “create” the hazard. The first is by reconfiguring the property “(1) for the owner or occupier's own ‘special benefit’ and (2) in a manner that causes the public property to ‘serve a use independent of and apart from the ordinary and accustomed use for which [that property (e.g., a sidewalk) was] designed.’” (Lopez, 55 Cal.App.5th at 256–57.) The second is by “creating more temporary and fleeting hazards on abutting public property if it acts negligently in doing so.” (Id. at 257; see Barton v. Capitol Market (1943) 57 Cal.App.2d 516, 520 [issue of fact where defendant sprayed oily, greasy and slippery substance on building that ran down sidewalk].)

Here, Plaintiff has set forth evidence to create a triable issue of fact. Specifically, Plaintiff has set forth evidence that the pipe’s purpose was to carry water directly from Defendant’s property to the street gutter. Since it was disconnected in the tree well, it would not achieve its purpose, and purportedly dispensed water directly into the well which, unlike in Lopez, was not the pipe’s ordinary use, but rather arguably created the hazard. Therefore, construing the evidence and all reasonable inferences in favor of Plaintiff, there is a triable issue of fact whether Defendant created or contributed to the sidewalk uplift. As a result, the motion for summary judgment is denied. 

CONCLUSION AND ORDER

Based on the foregoing, Defendant Douglas Emmett 2007 LLC’s Motion for Summary Judgment is DENIED.

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