Judge Anne Hwang, Case Number: 22STCV32520, Date: 2024-08-13 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 alternatively, Summary Adjudication; Memorandum of Points and Authorities; Declaration of Kristine M. Gamboa

On October 4, 2022, Plaintiff Hector Osorio Garcia (“Plaintiff”) filed a complaint against Defendants Jose Luis Lozano, Lorenia J. Lozano, Lorena J. Lozano, Sonora Family Joint Spousal Trust, and Does 1 to 100 for premises liability and negligence.

Plaintiff alleges that on October 5, 2020, he was injured on Defendants’ property at 7169 Dinwiddie St., Downey, CA 90241, after he “tripped due to a trench that presented a dangerous condition.” (Complaint, 4.)

Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trust (“Defendants”) now move for summary judgment, or alternatively, summary adjudication on the following issues: (1) there is no evidence of breach and causation for the premises liability cause of action; (2) there is no evidence of breach and causation for the negligence cause of action; and (3) there is no evidence that Defendants breached the ADA, California Health & Safety Codes, building codes, and/or ordinances.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“[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.)

“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.” (Aguilar, supra, 25 Cal.4th at 855.) Alternatively, “[t]he 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.” (Id.)¿This must be supported with evidence “including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Id. at 854–55 [quoting Code Civ. Proc. § 437c(b)].)

“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 declines to rule on Defendants’ evidentiary objections to the Declaration of Mark J. Burns as it has no effect on 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.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.)¿

“ ‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citation.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

“ ‘[T]he decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”) [italics in original].)¿Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) “In other words, [the] plaintiff must show some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)¿¿

Here, the following is undisputed. Plaintiff has worked various construction jobs for the last seven (7) years, and landscaping jobs the last twelve (12) years, whenever they may arise. (UMF 3.) Plaintiff’s friend, Sergio, gave Defendant LORENIA J. LOZANO sued erroneously and collectively herein as “LORENA J. LOZANO” (“Lorenia”) the Plaintiff’s number so that Plaintiff could give her an estimated cost for pruning palm trees on her Property. (UMF 4.) Plaintiff gave Loreina a call to arrange a time to visit the Property and give Loreina an estimated cost to prune the palm trees on her Property. (UMF 5.) Three days after this phone call, Plaintiff visited the Property (“Estimation Visit”). (UMF 6.) During the Estimation Visit, Plaintiff walked the Property and did not see any trenches, sprinklers sticking up from the ground, roots sticking up above ground, or any other hazards on the Property. (UMF 8.)

On October 5, 2020, Plaintiff arrived at the Property at approximately 8:00 – 8:30 a.m., with his friend, Victor, as he believed the job would require more than one person to complete. (UMF 9.) Loreina instructed Plaintiff that she wanted the palm trees as clean as possible with only three fronds. (UMF 12.) It took Plaintiff approximately 1.5-2 hours to trim the several palm trees in the front of the house on the Property. (UMF 15.) Plaintiff finished pruning the first palm tree, in this second session of palm trees, climbed down the palm tree, stepped onto the ground and was “firmly standing” on the ground. (UMF 17.) It was at this moment that Plaintiff took a step, tripped and fell forward with his left knee. (Pl. Resp. UMF 18.) The Plaintiff admits there was no object that he tripped on. (UMF 20.)

- Plaintiff admits that there was no trench on the Property, rather he simply just tripped. (UMF 22.)

Here, Defendants meet their initial burden to show there is no evidence that Plaintiff tripped due to a condition on Defendants’ property. In pertinent part, when Plaintiff was asked during deposition to explain the allegation in his complaint that he tripped on a “trench”, he responded: “There was no trench. I just tripped.” (Def. Exh. C, Garcia Depo. 81:17-20.) The burden therefore shifts to Plaintiff to establish a triable issue of fact.

In Plaintiff’s separate statement, he disputes that he admitted there was no trench, but referenced the planter as a trench due to its height differential. (Pl. Resp. UMF 22.) As a result, Plaintiff argues the dangerous condition was the fact the planter that contained the trees Plaintiff was pruning was lower than the adjacent cement. During Loreina Lozano’s deposition, she testified to this fact stating that the cement in her backyard is not level with the soil in her adjacent planter; the cement is about two-inches higher. (Pl. Exh. A, Lozano Depo. 28:3-13, 29:4-17.)

In reply, Defendants do not dispute where the fall took place. (Reply, 2.) Instead, they argue that because the complaint referenced a “trench”, Plaintiff is bound to showing there was a trench or anything similarly defined. However, Defendants do not offer a universal definition of a trench, or show they were not aware that Plaintiff was claiming the dangerous condition was the height difference of the planter and cement. (See Pl. Exh. B, Lozano Depo. 33:14-18 [questioning whether Ms. Lozano knew of the drop from her backyard cement into the planter]; Exh. H. Osorio Depo. 67:9-15 [demonstrating on a photograph the area where the incident occurred].)

Therefore, based on Plaintiff’s evidence that he tripped on the height differential, a triable issue of fact exists regarding breach and causation.

In reply, Defendants set forth argument for the first time that the alleged condition was not dangerous since it was “open and obvious.” (Reply at pp. 4-6.) However, even if the Court were to consider this argument, Defendants do not set forth evidence in their separate statement sufficient for the Court to determine this issue as a matter of law.[1] “‘It is ordinarily a question of fact … whether [a] particular danger was obvious, [or] whether an invitee was contributorily negligent ….’ [Citations.]” (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260; see also Curland v. Los Angeles County Fair Ass’n (1953) 118 Cal.App.2d 691, 695–696 [“Whether [a] danger was obvious to plaintiff [is] a question of fact for the jury. [Citations.] Whether a person, under the circumstances, made a reasonable use of his faculties is also a question for the jury. The law presumes that a person possessing the normal faculties of sight must have seen that which was in the range of his sight”].)

As a result, the Court declines to address Defendants’ argument surrounding the violation of statutes as it would have no effect on adjudicating the causes of action.

Accordingly, Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trust’s Motion for Summary Judgment or adjudication is DENIED.

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

[1] Defendants appear to request that the Court find the defect was open and obvious, based solely on the Court’s review of photographs, with no notice to Plaintiff and no evidence submitted in support of this argument other than the photographs. (See Reply at p. 3 [“where photographs of the condition in question are submitted in support of the summary judgment from which the court can conclude that the condition was open and obvious, expert witness testimony to the contrary did not create a triable issue of fact.”].) The photographs do not demonstrate that the defect was open and obvious as a matter of law. (See Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 25 [summary judgment cannot be granted where reasonable minds could differ as to whether the defect was trivial or open and obvious].)

DEPT:	32
HEARING DATE:	August 13, 2024
CASE NUMBER:	22STCV32520
MOTIONS:	Motion for Summary Judgment, or alternatively, Summary Adjudication
MOVING PARTY:	Defendants Jose Luis Lozano, Lorena J. Lozano, and Sonora Family Joint Spousal Trust
OPPOSING PARTY:	Plaintiff Hector Osorio Garcia