Judge Edward B. Moreton, Jr, Case Number: 23SMCV02696, Date: 2025-06-12 Tentative Ruling

Judge: Edward B. Moreton, Jr, Case: 23SMCV02696, Date: 2025-06-12 Tentative Ruling

Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Plaintiff Linda Ghermezian (“Plaintiff”) filed this action against defendants the City of Los Angeles, the City of West Hollywood, the County of Los Angeles, the State of California, The LSMD Fund LA, LLC (“LSMD”), and The RMR Group, LLC (as Doe 1) (“RMR”) on June 14, 2023. She has since dismissed her claims against West Hollywood, the County, and the State. She filed her operative second amended complaint (“SAC”) on May 9, 2024, asserting three causes of action:

(2) Vicarious Liability for Wrongful Acts and Omissions of Public Entity Employees, against the City; and

Plaintiff alleges she slipped and fell on an uplifted sidewalk in the City of Los Angeles, fronting a property owned, operated, or maintained by LSMD and RMR located at 8631 W. 3rd Street, Los Angeles 90048. (The SAC erroneously places the property’s address in the City of West Hollywood; it is in fact in the City of Los Angeles.)

LSMD and RMR (“Defendants”) moved for summary judgment on March 20, 2025. On May 22, 2025, Plaintiff filed her opposition. On May 30, 2025, Defendants replied.

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 Ritchfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. §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. Minor 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).

As to each claim as framed by the complaint, the plaintiff must satisfy the initial burden of proof by presenting facts to establish an essential element or to negate a defense. (Code Civ. Proc. §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 moving party has met that burden, the burden shifts to the opposing party 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.)

Plaintiff’s Objections Nos. 1-4 are sustained, except that Mr. Brault’s testimony is admitted as percipient knowledge of the height of the uplift at the time of his measurement. Expert opinion is otherwise unnecessary.

Plaintiff’s Objections Nos. 5-6 are sustained in their entirety for speculation, conclusion, and unnecessary expert opinion.

Plaintiff’s Objection No. 14 [sic] is sustained as to the second sentence for lack of foundation. As to the first sentence, it is overruled.

Defendant’s objections to the Declaration of Brad P. Avritt are sustained in their entirety. In the bulk of the portions objected to, Mr. Avritt testifies to facts of which he has no percipient knowledge and/or lays no foundation. The other objectionable testimony is legal conclusion, not expert analysis. And in any case, expert opinion is unnecessary to assist a finder of fact to determine whether a sidewalk uplift is foreseeably dangerous.

“The general rule is that, in the absence of statute, there is no common law duty resting upon the owner or occupant of premises abutting on a public street to keep the sidewalk in repair. Consequently, in the absence of statute, it is well settled that such an abutting owner or occupant is not liable to travelers injured as a result of defects in the sidewalk, which defects were not created by the owner or occupant.” (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326 (Schaefer).) Thus, for purposes of this motion, the question for the Court is whether Plaintiff has established some exception to the foregoing “Sidewalk Accidents Decision Doctrine”^{^[1]}, whether in statute or case law, and whether any exception Plaintiff identifies applies to this case.

Schaefer, supra, is the foundational “Sidewalk Accidents Doctrine” case. The appellant there made a functionally identical argument to Plaintiff’s here. The Court of Appeal rejected it. The court found an ordinance imposing a duty of maintenance on landowners created “[a] duty ... owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor to reimburse the city if it is compelled to pay such damages.” (Id., at p. 327.)

Similarly, in Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585 (Selger), the Court of Appeal reversed a jury verdict in a pedestrian’s favor. The trial court had instructed the jury that it could find negligence per se based on an equivalent ordinance requiring store owners to keep abutting sidewalks clean. The decision cited Schaefer and directly applied its rule. (Id., at p. 1590.) The Court of Appeal ruled found the negligence per se instruction to be reversible error.

Contreras v. Anderson (1997) 59 Cal.App.4th 188 (Contreras), Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487 (Jordan), and Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244 (Lopez) all applied Schaefer’s rule – only Jordan permitted liability for a property owner, on distinguishable grounds discussed further below.

In support of her case, Plaintiff otherwise cites University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429. This is puzzling. First: that case did not discuss a dilapidated condition on property, but an owner’s duty to protect third parties from assault. Second, the Court of Appeal there directed that summary judgment be granted for the defendant landowner. Finally, the case was later disapproved in Brown v. USA Taekwondo (2021) 11 Cal.5th 204 for imposing a third-party duty too broadly in the absence of a special relationship.

Plaintiff also cites Contreras, supra; as noted above, the Contreras court rejected the same argument Plaintiff is making here.

Plaintiff locates a purported statutory exception to the Sidewalk Accidents Doctrine in Los Angeles municipal law. In this regard, she cites Los Angeles Municipal Code (“LAMC”) § 62.104, discussing property owners’ responsibility to maintain sidewalks fronting their properties. Although Plaintiff does not specify what language in section 62.104 is operative, she presumably relies on subdivision (b):

“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.”

The distinction between Contreras and Jordan, each applying Schaefer, is instructive. In Contreras, the Court of Appeal applied Schaefer’s rule to language equivalent to section 62.104’s:

“ ‘[An adjoining landowner] shall maintain any sidewalk in such a 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 ... .’ ”

And Contreras compared the Berkeley ordinance to the Los Angeles ordinance discussed in Selger, supra, decided in 1990:

“Los Angeles Municipal Code section 41.46 provides: ‘No person shall fail, refuse or neglect to keep the sidewalk in front of his house, place of business or premises in a clean and wholesome condition.’ ”

In neither case did the court find liability for the private property owner based on the relevant ordinance – this is particularly notable in Selger, where the ordinance expressly referred to a landowner’s “neglect”.

Jordan reached the opposite result based on the following language in a Sacramento ordinance:

“ ‘An owner who has a defective sidewalk fronting on such owner's lot, ... shall bear the civil liability, if any, to a person suffering personal injury ... .’ ”

Jordan stated the principle “[a] municipality may alter [the Sidewalk Accidents Decision Doctrine] by ordinance with clear and unambiguous language imposing liability on a property owner for sidewalk injuries.” (Id., p. 1491, italics added.) Sacramento’s did. Here, Los Angeles’ does not.

The language of section 62.104 is not clear and ambiguous. Case law dictates that equivalent ordinance language does not impose liability on property owners under these circumstances.

To avoid the results in Schaefer, Selger, Contreras, and Lopez, Plaintiff argues they are obsolete because section 62.104 was amended in 2020.

The 2020 amendment Plaintiff cites appears in Los Angeles Ordinance No. 186819, effective 12/21/20. The amendment added three words to section 62.104: “fronting the lot.” It did not modify or expand owners’ duties from prior iterations. Section 62.104 otherwise remained untouched since at least 2003, prior to both Jordan and Lopez.

There is also no indication that the Los Angeles City Council intended section 62.104 to impose liability in the manner of Sacramento’s 2007 ordinance. The Council described the purpose of each prior amendment – effective 2003, 2017, and 2020 – as ordinances “to collect certain nuisance abatement and code enforcement costs” from abutting landowners; “to provide a fix and release program for the repair and maintenance of Sidewalks”; and, as relevant, “to require the owner of ... a Lot with a tree causing damage to a Sidewalk to repair the abutting sidewalk ... ”. (Los Angeles Ord. Nos. 175596 [eff. 12/7/03], 184506 [eff. 1/16/17], 186819 [eff. 12/21/20].)

Section 62.104 does not impose liability on Defendants for defects in a sidwalk fronting their property.

Plaintiff next distinguishes her case by arguing Defendants affirmatively contributed to the dangerous condition by permitting pebbles from their landscaping to scatter onto the public sidewalk, directly creating a dangerous condition that at least partly caused Plaintiff’s injury.

But the issues to be determined on a motion for summary judgment are determined by the pleadings. Plaintiff’s landscaping pebbles allegation is not reflected in the operative Second Amended Complaint. Instead, it seems to be a creative last-ditch effort to avoid the result of the analysis above relating the Sidewalk Accidents Doctrine ant the limited exceptions thereto. Accordingly, Plaintiff’s evidence and argument in support of this allegation cannot provide a basis for rebutting Defendants’ showing in support of their motion.

[1] See Contreras v. Anderson (1997) 59 Cal.App.4th 188, 195, fn. 6 [“The Schaefer holding gave rise to the ‘Sidewalk Accident Decisions Doctrine.’ ”].)