Judge Audra Mori, Case 20STCV09375 2022-12-08 Tentative Ruling

Plaintiffs Janette Mora-Gonzalez (“Janette”) and Abraham Gonzalez (“Abraham”) filed this action against defendants City of Los Angeles, Kaiser Foundation Hospitals, County of Angeles, Los Angeles Department of Water & Power, and State of California Department of Transportation alleging causes of action for negligence and premises liability. The FAC alleges that Plaintiffs were riding their bicycles on April 13, 2019, on a public sidewalk abutting a “Kaiser medical facility located generally on the south sidewalk of Pacific Coast Highway, approximately 711' east of Normandie Avenue in Harbor City, CA” when Janette sustained injuries due to a dangerous condition of the public sidewalk. (FAC at p. 6.) Plaintiffs allege that the defendants “either created the dangerous condition and/or knew or through reasonable inspections should have known of the dangerous condition of the public sidewalk and failed to correct or warn of the dangerous condition which had a foreseeable risk of injury to the public, inclusive of the plaintiffs...” (Ibid.) Further, Plaintiffs allege that the “City of Los Angeles, County of Los Angeles, Los Angeles Department of Water & Power, State of California Department of Transportation … are negligent per se for violation of Government Code Sections, including but not limited to, 815.2(a), 815.4, 815.6, 820(a) & 835.,” and that “Kaiser Foundation Hospitals [is] negligent per se for violation of the Los Angeles Municipal Code section 62.104.” (Ibid.) Further, the FAC alleges Abraham “witnessed the injury event to his spouse and suffered injuries commonly referred to as a loss of consortium.” (Ibid.)

At this time, Defendant Kaiser Foundation Hospitals (“Kaiser” or “Defendant”) moves for summary judgment as to all of Plaintiffs’ causes of action.[1] Plaintiffs oppose the motion, and Defendant filed a reply.

Kaiser provides that it owns the private property abutting the public sidewalk where the incident occurred. Kaiser argues it is entitled to summary judgment because it did not owe a duty to Plaintiffs. Kaiser asserts that it never owned or exerted control over the subject sidewalk, and that it did not create the dangerous condition. Additionally, Kaiser contends that it did not owe Plaintiffs a duty under Los Angeles Municipal Code (“LAMC”) § 62.104, California Streets and Highway Code, or the Government Code sections referenced in the FAC.

Plaintiffs argue that Kaiser does not meet its initial burden of presenting evidence showing that Kaiser did not cause or create the uplift in the sidewalk that led to Janette’s crash. Plaintiffs contend that even if the burden were shifted to Plaintiffs, triable issues of material fact exist ass to Kaiser’s involvement in the creation of the sidewalk uplift and defect. Plaintiff asserts there is evidence to show that heavy construction vehicles used during Kaiser’s construction projects between 2012 to 2014 created the uplift, and that there is evidence of ambulances striking the area and roots from Kaiser’s trees further contributing to the uplift. Alternatively, Plaintiffs seek a 45-day continuance to allow them to conduct the deposition of Kaiser’s person most knowledgeable to shed light on Kaiser’s construction activities at the scene of the incident.

Plaintiffs request judicial notice be taken of Plaintiffs’ FAC filed in this matter. The request is granted. (Evid. Code §452(d).)

Plaintiffs submit three objections to Kaiser’s evidence submitted with the motion. Objection 1 to Kaiser’s responses to Plaintiffs’ special interrogatories, set one, (Mot. Miller Decl. Exh. D), is sustained to the extent that Defendant attempts to rely on its own responses as evidence of the truth of the matters stated in the responses. (CCP § 2030.410; Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 740 [party's own form interrogatory responses cannot serve as competent evidence to create a genuine issue of material fact]; see also Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450 [a “party may not use its own interrogatory responses in its own favor” at trial or any other hearing].) Objections 2-3 to the declaration of Robert Calderon (“Calderon”) are overruled, as Calderon establishes sufficient personal knowledge for the statements asserted therein.

Kaiser, in its reply, submits 11 objections to Plaintiff’s evidence.[2] Objection 1 to certain Google images of the subject sidewalk is sustained. Plaintiff does not state how the images were taken, by whom, or that they are true and correct. Plaintiff does not merely use them to show the location of Defendant or the distance between two points, as was the case in U.S. v. Perea-Rey (9th Cir. 2012) 680 F.3d 1179, 1182 & n.1.[3] Rather, Plaintiff seeks to rely upon them to provide detailed facts about what the defect looked like in specific months between 2007 and 2018 without sufficiently establishing that the reliability of what has been provided, or establishing that the photos in fact show what Plaintiffs’ counsel purports they show.[4] Objections 2-10 are directed at additional facts contained in Plaintiffs’ separate statement submitted with the opposition. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections to facts in Plaintiffs’ separate statement. Nonetheless, the Court will review each additional fact to determine whether it is supported by the evidence cited and sufficient to raise a triable issue of material fact. Objection 11 is not material to the disposition of the motion, and thus, the Court declines to rule on it at this time. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citation.]” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081).

Courts have held that in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger. (See, e.g., Sexton v. Brooks (1952) 39 Cal.2d 153, 157.) “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.” (Vasilenko, supra, 3 Cal.5th at p. 1084.) However, after applying the Rowland factors, courts have imposed a duty on adjacent landowners where the landowners magnified the danger of abutting property, obstructed the danger of abutting property, or had control over a condition on their property which would justify imposing a duty.

“Even if a hazard located on publicly owned property is created by a third party, an abutting owner or occupier of private property will be held liable for injuries caused by that hazard if the owner or occupier has ‘dramati[cally] assert[ed]’ any of the ‘right[s] normally associated with ownership or ... possession’ 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.’ “ (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 258, citing Contreras v. Anderson (1997) 59 Cal.App.4th 188, 199-200.) Furthermore, “[A]n abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.” (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 202.)

In this case, at around 3:00 p.m. on April 13, 2019, Plaintiffs rode their bicycles home from Janette’s workplace, and as Janette was riding on the “(south) side of the Pacific Coast Highway sidewalk,” she hit a bump and did not remember anything afterward. ((Mot. Undisputed Material Facts (“UMF”) 1, 3.) Janette rode over an uplift on the public sidewalk, which caused her to veer into the public street and be hit by a moving vehicle. (Mot. UMF 4.) Kaiser South Bay Medical Center is owned and operated by Defendant; Defendant is a private nonprofit entity. (Mot. UMF 5-6.) Defendant Kaiser submits the declaration of Calderon, who is the Facility Services Director for Kaiser South Bay Medical Center; Calderon attests that Kaiser does not own, control, or maintain the public sidewalk adjacent to Kaiser South Bay Medical Center, and that Kaiser has never exercised control or performed any maintenance, repair, alterations, or construction on any part of the subject sidewalk. (Mot. UMF 7-8.) Calderon states that all maintenance, repair, alternations, renovations or construction performed by Kaiser at Kaiser South Bay Medical Center has been solely within the boundaries of Kaiser South Bay Medical Center’s own premises. (Mot. UMF 9.) Kaiser has never received written notice or verbal instruction to maintain or repair the sidewalk by the Board of Public Works, and on December 14, 2018, Kaiser reported the subject sidewalk to the City of Los Angeles and believed that the sidewalk “was referred to CalTrans for repair.” (Mot. UMF 10-11.)

This evidence is sufficient to meet Defendant Kaiser’s moving burden to show it did not own, maintain the subject sidewalk, and that Kaiser did not exercise any control over the sidewalk, such that it did not owe a duty of care to Plaintiffs for the incident on the public sidewalk. The burden therefore shifts to Plaintiff to raise a triable issue of material fact in this regard.

In opposition, Plaintiffs do not dispute Kaiser’s assertion that it did not own, control, or maintain the sidewalk adjacent to its property with any competent evidence. (Opp. Plaintiff’s Separate Statement UMF 7.) Rather, Plaintiffs primarily argue that there are triable issues of material fact as to whether Kaiser created the defect on the sidewalk. More specifically, Plaintiff speculates that Kaiser might have been responsible in several different ways for the defect.

First, Plaintiffs assert that Google images captured of the subject sidewalk in November 2014 show the presence of several orange cones over the sidewalk defect. (Opp. Pl.’s UMF 8.) As Defendant’s objections to the images have been sustained, the image does not create a triable issue of fact . However, even if the subject image were considered, the relevant image shows a fence with a green tarp on Defendant’s property separating it from the public sidewalk. (Opp. Pl.’s Separate Volume of Exhibits Exh. 1.) There are four orange cones visible in the image: two are on Defendant’s property, a third appears to be on the sidewalk directly next to the fence, and the fourth is near a fire hydrant next to the street. (Ibid.) There is no cone placed directly on the subject uplift on the sidewalk. As Plaintiffs acknowledge, there is no evidence of who placed the cones there or how long they were there.[5] (See Opp. at p. 18:6-9.) The Facility Services Director for Kaiser South Bay Medical Center provides that Kaiser has never exercised control or performed any construction on any part of the subject sidewalk. (Mot. UMF 7-8.) Plaintiffs cite no authority holding that the placement of cones on the sidewalk in the manner depicted in the Google image supports a finding that Defendant dramatically asserted control and the rights normally associated with ownership or possession over the portion of sidewalk involved in Plaintiffs’ incident.[6]

Second, Plaintiffs assert that at the time of the incident there were trees, shrubbery and foliage on Kaiser’s property planted adjacent to the subject sidewalk, whose roots likely worsened the uplift over the years. Plaintiffs’ expert opines that the Google images show, “[t]he uplift can be seen worsening throughout the years likely due to … roots from trees and shrubbery.” (Opp. Pl.’s Separate Volume of Exhibits Exh. 6, Burns Decl. ¶ 9.) The objection to the Google images was sustained. However, even were they considered, there are no trees depicted in any of Google images submitted by Plaintiff beside the sidewalk uplift. Thus, the expert appears to be engaging in speculation unsupported by facts. (Id. at Exh. 1.) While the images show some shrubbery and small plants on Defendant’s property adjacent to the sidewalk, there is no evidence or explanation as to how the shrubbery or plants depicted can create a defect of the type at issue here, which Plaintiffs’ expert describes as an “uplift measured 5-5/8 inches in the eastbound direction and 11 inches in the westbound direction… the sidewalk’s slopes measured 15.3% in the eastbound direction and 27.2% in the westbound direction.” (Opp. Pl.’s Separate Statement UMF 21.) “An expert's opinion ‘unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion’ lacks evidentiary value and may be deemed conclusory. [Citation.]” (Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1456.)

Third, Plaintiffs contends that the uplift was likely worsened due to ambulances making use of the driveway by the sidewalk defect. The objection to the Google images upon which Plaintiffs base their argument was sustained. However, even if considered, the Google images of the sidewalk show there is a driveway to enter Kaiser’s property near the defect. (Opp. Pl.’s Separate Volume of Exhibits Exh. 1.) Plaintiffs’ expert merely opines in a conclusory manner that “[t]he uplift can be seen worsening throughout the years likely due to ambulances …” (Opp. Pl.’s Separate Volume of Exhibits Exh. 6, Burns Decl. ¶ 9.) However, there is no evidence that ambulances in fact used the subject driveway to enter Defendant’s property, or that Defendant was responsible for any such ambulances. Further, Plaintiffs’ expert again fails to provide any reasoned explanation as to how ambulances using the driveway adjacent to the sidewalk could have caused the subject defect. (Pipitone, 244 Cal.App.4th at 1456.) Thus, Plaintiffs merely speculate that ambulances may have contributed to the defect.

Third, Plaintiffs argue that heavy vehicles may have jumped the curb and caused the concrete of the sidewalk to crack, as “[s]idewalks are not designed for large construction vehicles.” (Opp. at p. 16:14-15.) As with the argument concerning the ambulances above, Plaintiffs submit no evidence showing that heavy construction vehicles used the subject driveway to access the property, or that Kaiser was responsible for any such heavy vehicles. Moreover, although Plaintiffs contend that the inadmissible Google images show black markings on the curb indicating contact with tires, it would be mere speculation that any such markings were caused by heavy construction vehicles that may or may not have been at the property, and for which Kaiser may or not have been responsible.[7]

Lastly, Plaintiffs assert, “Sidewalks are not designed for large construction vehicles. In other words, through the use of this entrance ramp by heavy construction machinery to access Defendant Kaiser’s properly [sic] (a use that could only benefit Defendant Kaiser). That use materially altered the sidewalk between 2012 and 2014 and created an actionable hazard.” However, there is no evidence that large construction vehicles accessed Kaiser’s property using this entrance, and there is no evidence that Kaiser altered or constructed any portion of the sidewalk to benefit its property. Further, there is no evidence showing that use of the driveway to access the property by any vehicles caused the subject sidewalk to be used in a manner independent of and apart from the use for which sidewalks are generally designed. (Contreras, 59 Cal.App.4th at 202.) In other words, there is no evidence showing that the sidewalk served a use independent and apart from its ordinary use as a result of anything Kaiser did.

Based on the foregoing, Plaintiffs fail to raise a triable issue of material fact as to Kaiser’s ownership, maintenance, or control of the sidewalk. Nor do Plaintiffs create a triable issue of material fact as to whether Kaiser created the subject defect.

Kaiser further contends that it did not owe a duty to Plaintiff under California Streets and Highway Code § 5610 and LAMC 62.104.

The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.

LAMC § 62.104(b) provides, “Responsibility for Maintenance. The owner of a Lot shall maintain any Sidewalk, Driveway Approach, Curb Return or Curb on or fronting on the Lot in such condition that the Sidewalk, Driveway Approach, Curb Return or Curb will not endanger any Person or property passing thereon or violate the Americans with Disabilities Act.”

Neither LAMC § 62.104 or California Streets and Highway Code § 5610 explicitly states that a landowner may be liable to pedestrians or third persons injured on a public sidewalk abutting the owner’s property. (Cf. Gonzalez v. City of San Jose (2004) 125 Cal.App.4th 1127, 1133 [Owner held liable for failure to maintain city owned sidewalk where ordinance “mandate[d] that an adjacent landowner may be liable to third persons that are injured on a defective city-owned sidewalk.”].) There is no mandate of liability to third persons in LAMC § 62.104 or California Streets and Highway Code § 5610. This is consistent with case law determining the effect of a city ordinance requiring abutting landowners to maintain city sidewalks. “Some states have statutes expressly making the owner or occupant liable to travelers for injuries occasioned by reason of the defective condition of sidewalks. Under such statutes, of course, abutting owners are liable to travelers for injuries caused by failure to repair. In these cases, however, the statutes not only impose the duty to repair, but expressly provide that such duty is owed to travelers on the sidewalk.” (Shaefer v. Lenahan (1944) 63 Cal.App.2d 324, 330-31.)

Plaintiffs, in opposition, merely contend that in their expert’s opinion, “the sidewalk endangered people passing on the sidewalk which is in violation of both the Los Angeles Municipal Code section and the CA Streets & Highways code section.” (Opp. at p. 16:6-8.) As no express duty to third persons is contained in LAMC § 62.104(b) or California Streets and Highway Code § 5610 that makes landowners liable for injuries to third persons, Plaintiffs fail to show Kaiser owed Plaintiffs a duty to maintain or inspect the sidewalk under the ordinance or statute. (See Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589-90 [City ordinance requiring an abutting owner or occupant to maintain sidewalks in a clean and wholesome condition imposes a duty only to the city and does not create a standard of care owed to the traveling public, particularly where the owner did not do any affirmative act affirmatively to create the danger.)

In the case of Jones v. Deeter (1984) 152 Cal.App.3d 798, the Court of Appeal expressly noted that while Streets and Highway Code § 5610 stated that an abutting owner bears the duty to repair defects in the sidewalk regardless of whether he has created these defects, the duty to repair did not create a duty of care to pedestrians. (Id. at 803.) “[I]t would be unfair for such an owner to be held liable to travelers injured as a result of sidewalk defects which were not of the owner's making. Thus the ‘Sidewalk Accident Decisions’ doctrine arose; this doctrine holds that the abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition.” (Id.) Consequently, even if a property owner holds legal title to the abutting public sidewalk, “where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it, we see no legal basis for imposing liability for failure to properly maintain the sidewalk or planting strip in the absence of statute or ordinance.” (Williams v. Foster (1989) 216 Cal.App.3d 510, 521.)

Therefore, because Plaintiffs fail to present any evidence showing that Kaiser owned or controlled the sidewalk, or created the subject defect, Plaintiffs fail to raise a triable issue of material fact concerning whether Kaiser owed Plaintiffs a duty in connection with the incident. As to Abraham’s loss of consortium claim, “[a] cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.) Thus, because Plaintiffs fail to raise a triable issue of fact concerning the claims against Kaiser for the incident, Kaiser is entitled to judgment on Abraham’s loss of consortium claim.[8]

CCP § 437c(h) states: “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].) “In exercising its discretion the court may properly consider the extent to which the requesting party's failure to secure the contemplated evidence more seasonably results from a lack of diligence on his part.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.)

Here, Plaintiffs contend the hearing on this motion should be continued because there is evidence showing that heavy vehicles were involved in the creation of the defect in the sidewalk, and that Plaintiffs timely noticed a deposition of Defendant’s person most knowledgeable to learn what went on at the property between 2012 and 2014. Plaintiffs provide that Defendant objected to the notice, so the deposition did not go forward.

As stated above, Plaintiffs’ expert speculates as to several reasons why the uplift occurred. The speculation is based in part upon images printed from the Internet which, according to Plaintiffs, have been available to Plaintiffs since they filed the case. However, despite the fact that this action has been pending for the better part of three years, Plaintiffs have not obtained admissible evidence to support their theories in a material way. While Plaintiffs contend that a deposition of Defendant’s person most knowledge did not go forward because Defendant objected to the notice of deposition, Plaintiffs do not specify when they served the relevant deposition notice. As Defendant contends, this action was filed on March 6, 2020, and the Court notes that the hearing on this matter was previously continued for approximately two months pursuant to the parties’ stipulation for Plaintiffs to have additional time to obtain discovery to oppose the motion. (Stip. and Order filed Sept. 15, 2022.) Further, no motion to compel a deposition of Kaiser’s person most knowledgeable was filed. Consequently, it appears that Plaintiffs’ failure to obtain the deposition is due to the fact that Plaintiffs did not seek to obtain the deposition earlier. (Rodriguez, 212 Cal.App.4th at 1038.) This lack of diligence is especially concerning in light of the fact that this matter is set for trial on March 1, 2023, which is less than three months after the hearing on this matter. Moreover, Plaintiffs do not submit any affidavits from which it appears that facts essential to oppose the motion exist but could not have been presented prior to the opposition being due.

Given the closeness of the trial date, Plaintiffs’ lack of diligence in completing discovery prior to the opposition being filed to the motion, and the lack of an affidavit meeting the requirements of CCP § 437c(h), the request for a continuance is denied.

[1] Kaiser’s motion fails to comply with California Rules of Court, Rule 3.1350(g). Kaiser submits more than 25 pages of evidence, but the evidence is not separately bound and with a table of contents. While the Court has discretion to disregard moving, the Court will address the motion. Nevertheless, Kaiser’s counsel is advised that failure to comply with all applicable Rules of Court in the future may result in the Court continuing or taking matters off calendar.

[2] Kaiser did not number the objections. The Court will address the objections in the order they are made.

[3] Although the Court sustains the objections, the images are considered for purposes of argument as discussed further below.

[4] Plaintiffs’ counsel provides that they printed the Internet images from Google Maps, that “[t]he month and date of each capture is indicated in the lower right-hand corner,” and that they cropped out extraneous information. (Opp. Upton Decl. ¶ 5.) According to counsel, “The Images captured are labeled, in order, September 2007, January 2011, July 2011, December 2011, September 2012, November 2014, June 2016, May 2017, and March 2018.” (Id.) Although not binding on this Court, the following authority is instructive on the issue: In discussing possible ways Google Earth photos could be authenticated, the Court in U.S. v. Lizarraga-Tirado (9th Cir. 2015) 789 F.3d 1107, 1110, noted, “Authentication requires the proponent of evidence to show that the evidence ‘is what the proponent claims it is.’ … A proponent must show that a machine is reliable and correctly calibrated, and that the data put into the machine (here, the GPS coordinates) is accurate… So when faced with an authentication objection, the proponent of Google–Earth–generated evidence would have to establish Google Earth's reliability and accuracy. That burden could be met, for example, with testimony from a Google Earth programmer or a witness who frequently works with and relies on the program. (See City of Miami v. Kho (Fla. 3d DCA 2019) 290 So. 3d 942, 945 [Google map not authenticated because date stamp did not establish date it was taken, no evidence of capabilities or condition equipment used to take, and no testimony about procedures used to take it].)

[5] Plaintiffs acknowledge that “there is no evidence that there were any cones in the area at the time of Plaintiff’s incident.” (Opp. at p. 18:8-9.)

[6] See Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200 [Court found no “dramatic assertion of a right normally associated with ownership or ... possession” by the defendants where although the defendants admitted to trimming a tree, sweeping leaves, and doing some “gardening” on city-owned property, the evidence was nothing more than “neighborly maintenance” and “[s]tanding alone, such evidence cannot support a finding of control over that property.”]; compare with Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1154, 1170 [Evidence that defendants maintained lawn from defendants’ property line to sidewalk, including city-owned portion of the lawn, and that subsequent to injury on the property, defendants constructed a fence that enclosed the lawn, was sufficient to raise triable issue of fact as to whether defendants exercised control over city-owned strip of land.], and Lopez, 55 Cal.App.5th at 258 [“courts have held owners and occupiers liable for a hazard created by a third party on abutting, publicly owned land when the owners or occupiers erected a fence around, as well as maintained, the property … put up a lighted sign to illuminate the property … installed sprinklers, planted trees and maintained the property … or mowed and watered grass, removed debris and repaired damage to the property…”].)

[7] The Google images dated “Dec 2011”, “Jun 2016”, “May 2017”, and “Mar 2018” all show black markings on the curb near the sidewalk defect. The “Dec 2011” image would suggest that the markings were there before any alleged construction project at Defendant’s property between 2012 and 2014.

[8] In its motion for summary judgment, Kaiser also argues that it did not owe Plaintiffs a duty under Government Code § 815.2, 815.4, 815.6, 820(a), and 835. However, the complaint does not include any allegations against Kaiser under these provisions, and Plaintiffs do not dispute that these Government Code sections do not apply to Kaiser as a private entity.