Judge: Cherol J. Nellon, Case: 21STCV44397, Date: 2023-04-13 Tentative Ruling

Case Number: 21STCV44397    Hearing Date: April 13, 2023    Dept: 28

Defendants Tobin Belzer and Jesse D. Ruskin’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On December 3, 2021, Plaintiff Mary Jo Geddes (“Plaintiff”) filed this action against Defendants Tobin Belzer (“Belzer”), Jesse D. Ruskin (“Ruskin”) and City of Los Angeles (“City”) for premises liability and government liability pursuant to government code §§ 830, 835, 835.2 and 815.4.

On February 23, 2022, Belzer and Ruskin filed an answer. On April 26, 2022, Belzer and Ruskin filed a Cross-Complaint against Cross-Defendant the City for indemnity and contribution. On June 6, 2022, the City filed an answer.

On April 14, 2022, the City filed an answer and a Cross-Complaint against Cross-Defendants Roes 1-10 for indemnification, apportionment of fault and declaratory relief. On April 26, 2022, Belzer and Ruskin filed an answer, despite not being named Cross-Defendants.

On January 25, 2023, Belzer and Ruskin (“Moving Defendants”) filed a Motion for Summary Judgment to be heard on April 13, 2023. On March 29, 2023, Plaintiff filed an opposition. On April 3, 2023, Moving Defendants filed a reply.

Trial is scheduled for October 10, 2023.

PARTY’S REQUESTS

Moving Defendants request the Court grant summary judgment as there is no dispute of material facts.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Plaintiff’s Objections

Sustained: 1,

Overruled: 2, 3, 4, 5, 6

Moving Defendants’ Objections:

Sustained: 5, 10, 12, 15

Overruled: 14

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

A landowner does not have any duty to repair abutting sidewalks along a public street and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks. (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326.) The Sidewalk Accident Decisions Doctrine limits actions against property owners arising from a defect in public sidewalks, except where the property owner created the defect or exercised control over the abutting sidewalk. (Williams v. Foster (1989) 216 Cal.App.3d 510, 516-517.) Exceptions may include if the owner alters the sidewalk, damaged the sidewalk or created a special hazard on the sidewalk. Sexton v. Brooks (1952) 39 Cal. 2d 153, 157; Moeller v. Fleming (1982) 136 Cal. App. 3d 241, 245; Lee v. Ashizawa (1964) 60 Cal. 2d 862, 865.

DISCUSSION

Moving Papers

Plaintiff alleges that she tripped and fell due to an uplifting on the public sidewalk adjacent to Moving Defendants’ property. (UMF 6.)

A landowner has no duty to repair abutting sidewalks, so long as the property owner has not created the defect or exercised control over the abutting sidewalk. Moving Defendants own the adjacent property but do not own the subject sidewalk nor the adjacent parkway. (UMF 11, 13.) The City maintains and controls the subject sidewalk. (UMF 15.) Thus, Moving Defendants may only be liable if they created the defect or exercised control over the subject sidewalk; the evidence supports that Moving Defendants have done neither, shielding them from liability.

Moving Defendants’ expert found that the uplift was caused by a tree planted by a party other than Moving Defendants. (UMF 7, 8, 12.) The uplift was specifically caused by the roots of a carob tree planted in the parkway immediately adjacent to the sidewalk; the roots grew under the sidewalk in search of water. (UMF 8, 10.) Moving Defendants did not control, maintain or manage the parkway or parkway trees, and thus have not affirmatively created the subject defect. (UMF 13.)

The evidence indicates that Moving Defendants never took control of the subject sidewalk in any matter that would impose duty upon them. (UMF 14.) Moving Defendant did not perform any maintenance on the sidewalk, nor did they make any alterations or repairs. (UMF

14.) Therefore, there is no evidence to support liability against Moving Defendants. The burden shifts to Plaintiff.

Plaintiff’s Opposition

Plaintiff argues that Moving Defendants failed to provide proof that the City planted the subject tree, as it is “well established in the City of Los Angeles, the original developer of a property is generally the party that plants trees in abutting parkway of a property.” No evidence is offered in support of this statement. The Court also finds this to be irrelevant to this ruling. Plaintiff does not argue that there is evidence that Moving Defendants planted the tree. Nor does Plaintiff argue that Moving Defendants controlled the subject tree. Who actually planted the tree is irrelevant; the fact that the evidence shows Moving Defendants did not plant the tree establishes that they did not create the subject condition. Additionally, the fact Moving Defendants do not own the plot of land the tree was planted on also shows they did not control the subject dangerous condition. The actual owner of the tree is unimportant to determination of Moving Defendants’ liability, so long as they are not the owners.

Plaintiff argues that Moving Defendants’ duty of care stems from Los Angeles Municipal Code § 62.01, that holds that “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.” In order for a municipality to impose a wholly new duty upon the property owner regarding a duty to repair sidewalks to protect a third-party from injury, the subject municipal code must have clear and unambiguous language stating as such. (Williams v. Foster (1989) 216 Cal.App.3d 510, 517.) LAMC § 612.104 does not have clear and unambiguous language imposing such a duty. There is no statement as to duty to or liability for injuries to third parties. The only discussion as to failure to repair is LAMC § 62.104(c)(3), which states that should the lot owner fail to complete the repair, the Board has the authority to perform the work required at the lot owner’s expense. The fact that Moving Defendants were on notice as to any hazardous condition did not create a duty to third parties, as Moving Defendants did not create the subject condition or control the abutting sidewalk.

Plaintiff finally argues that Defendants did control the subject sidewalk because they installed “pavers” in the area near where the subject sidewalk is uplifted. (Ex. B.) The subject pavers consist of two sets of four concrete blocks placed next to the subject sidewalk in the

parkway area between the sidewalk and the street. Plaintiff cites to Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, in support of finding that this presents a triable issue as to control over the subject sidewalk and parkway. However, Alcaraz differs in meaningful ways from this case. In Alcaraz, the plaintiff was injured by a broken water meter box on the subject parkway adjacent to the landlord’s property; the Court determined that defendants controlled the subject area because, following the plaintiff’s injury, defendants constructed a fence enclosing that entire lawn. In this case, Moving Defendants placed four concrete pavers on the parkway prior to the injury and a small caution sign (that is easily removable) following the incident. A small caution sign supported by light metal poles is not sufficient to indicate control over a subject property; if it was, any individual who has ever placed a temporary campaign sign at a park would be potentially liable for any injuries occurring at said park. It is not the same as a fence, which is generally a more permanent improvement to a property denoting ownership or control. The pavers were installed on the parkway, not the sidewalk, which was the actual site of the injury. Similarly, the pavers are placed on top of the soil, rather than installed within said soil. They are easily removable and do not permeate the earth, like a fence would. There is not a clear indication of control of an area or an attempt to keep others from the property, affirmatively showing possession or ownership.

Plaintiff also did not demonstrate any control over the tree or the area of the parkway where the tree was planted. That particular area is the actual cause of the dangerous condition. Moving Defendants did not take affirmative steps to remove the subject tree following the injury, indicating they do not have the control or authority to do so. Finally, when addressing the allegedly dangerous sidewalk, Moving Defendants contacted the City to indicate the sidewalk was in need of repairs—they did not obtain their own contractors, again providing evidence that Moving Defendants were not in control of the subject area.

The Court finds that the evidence shows there is no dispute as to material fact. Moving Defendants have met their burden. The Court grants summary judgment.

CONCLUSION

Defendants Tobin Belzer and Jesse D. Ruskin’s Motion for Summary Judgment is GRANTED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.