Judge Audra Mori, Case 20STCV46284 2022-10-28 Tentative Ruling

Plaintiff Rudolf Okhman (“Plaintiff”) filed this action against defendants City of Los Angeles (the “City”) and SNH Medical Office Properties Trust (“SNH”), erroneously sued as SNH Medical Offices Properties Trust, for injuries relating to Plaintiff’s trip and fall on a sidewalk “in front of and around and leading to the building located at 8631-8635 West Third street Los Angeles, CA 90048-5901.” The complaint alleges a single cause of action for negligence against the City and SNH.[1]

The City has filed a cross-complaint against SNH for indemnification, apportionment of fault, and declaratory relief.

On August 11, 2022, SNH filed the instant motion for summary judgment as to both Plaintiff’s complaint and the City’s cross-complaint. On October 20, 2022, Plaintiff filed a request for dismissal of the complaint with prejudice as to SNH. Consequently, the motion is moot to the extent SNH seeks summary judgment directly as to Plaintiff’s complaint. However, because the cross-complaint by the City against SNH has not been dismissed, the Court will address whether summary judgment is appropriate as to the City’s cross-complaint against SNH. (See Gem Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 428 [“The lack of a lawsuit by the plaintiff does not act as a bar to a complaint for equitable indemnity which seeks to make such determinations.”].)

SNH moves for summary judgment on the ground that it did not own or control the public sidewalk where the incident occurred and did not alter the sidewalk in any way. SNH contends that the evidence shows it owed no duty of care to Plaintiff and did not cause the subject incident. SNH asserts that a tree owned and maintained by the City caused the subject sidewalk uplift that caused the incident. SNH contends that because it owed no duty of care to Plaintiff, and the City’s cross-complaint against SNH is derivative of Plaintiff’s claims, the cross-complaint fails as a matter of law.

SNH requests that judicial notice be taken of Plaintiff’s complaint and the City’s cross-complaint filed in this action. The request is granted as to their existence and allegations.

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 or had control over a condition on their property which would justify imposing a duty.

Moreover, supporting the rule that the duty of an abutter to maintain the sidewalk in a safe condition, if existing, runs with the land, and hence a property owner cannot avoid such duty on the ground that the condition was created by or at the request of his predecessor in title, the courts in a number of cases have held the owner of abutting property liable for injuries resulting from a defective or dangerous condition of the sidewalk although such condition was created by his predecessor in title, particularly where the abutting owner had adopted the nuisance created by the faulty condition or had knowledge thereof prior to the time of the accident, or where, subsequent to his acquiring title, he exercised some general control over the sidewalk. (Sexton v Brooks, supra, 39 Cal.2d 153; Peters v San Francisco (1953) 41 Cal.2d 419.)

As to a cross-complaint alleging another is responsible for the plaintiff’s injuries, to state a claim for equitable indemnity, the defendant must allege the same harm for which the defendant may be held liable is properly attributable wholly or partly to the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445 n. 7.) “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177 [“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”].)

Furthermore, the elements of contribution are: (1) money judgment; (2) rendered jointly against defendants; (3) in tort action; (4) application of equity principles; (5) payment by tortfeasor of more than pro rata share; and (6) no intentional injury by the tortfeasor. (CCP §875; General Elec. Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.) Additionally, there are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Cross-Complainant's] rights or obligations.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.)

“[I]f the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff's injuries, another defendant may not pursue a claim for indemnity against that defendant.” (Frank v. State of California (1988) 205 Cal.App.3d 488, 494.) “ ‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ” (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1099.)

Here, Plaintiff seeks damages for an alleged trip and fall over an uplift in the sidewalk located in front of 8631-8635 West Third Steet in Los Angeles. (Mot. Undisputed Material Facts (“UMF”) 1-2.) The buildings located at 8631-8635 West Third Steet are owned by SNH, but the sidewalk is owned by the City, not SNH. (Mot. UMF 6-7.)

The uplift in the sidewalk was caused by tree roots from a tree owned and maintained by the City; the tree is not owned by SNH. (Mot. UMF 3-5.) There is a planting square between the sidewalk and curb where the incident occurred, and there is a tree located in the planting square between the curb and the sidewalk in front of Defendant’s property. (Mot. UMF 9.) The tree in the subject planting square abutting the sidewalk adjacent to SNH’s property was planted, owned, and maintained by the City, and the roots of the City’s tree caused the uplift in the sidewalk where Plaintiff claims he fell. (Mot. UMF 10-11.) Further, SNH did not do any work on the adjacent sidewalk that would alter it in any way, and at no time did SNH modify the sidewalk where Plaintiff claims he fell in order to benefit SNH’s property. (Mot. UMF 8, 12.) SNH has not done any work on the sidewalk to alter it or take any action that would cause the sidewalk uplift in the area Plaintiff claims he fell. (Mot. UMF 13.)

SNH’s evidence is sufficient to meet its moving burden to show it did not own or control the sidewalk or otherwise modify or alter it. (See Isaacs, 38 Cal.3d at 134.) The burden therefore shifts to the City to raise a triable issue of material fact, but the City did not oppose the motion.

Because SNH establishes it did not owe a duty of care to Plaintiff, SNH is also entitled to summary judgment on the City's cross-complaint for indemnification, apportionment of fault, and declaratory relief. In the absence of any liability to Plaintiff, Defendant has no obligation to indemnify the City. (See Frank, 205 Cal.App.3d at 494.) Moreover, because Defendant has no liability, there is no actual controversy to support a cause of action for declaratory relief. (CCP § 1060.)

SNH, therefore, is entitled to judgment against the cross-complaint as a matter of law.

Defendant SNH’s motion for summary judgment is granted as to the City’s cross-complaint.

Hon. Audra Mori

Judge of the Superior Court

[1] The caption of the complaint asserts it is for “Negligence Premises Liability [sic].” (Compl. at p. 1.)