Judge Elaine W. Mandel, Case Number: 22SMCV00483, Date: 2023-10-25 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV00483, Date: 2023-10-25 Tentative Ruling

Case Number: 22SMCV00483 Hearing Date: December 5, 2023 Dept: P

Tentative Ruling

Pourmola v. City of Los Angeles, Case No. 22SMCV00483

Hearing Date December 5, 2023

Supplemental Briefing Re: Defendants’ Motion for Summary Judgment

Plaintiff Pourmola alleges a sewer line under Kenter Avenue became blocked and backed up, causing an overflow and damaging his property. Pourmola alleges defendant City of Los Angeles failed to properly maintain the line. On October 25, 2023 the court denied the City’s summary judgment motion as to inverse condemnation action and ordered supplemental briefing as to other claims.

Nuisance

To prevail on a nuisance claim, plaintiff must establish defendant engaged in conduct that is (i) intentional and unreasonable, (ii) unintentional but caused by negligent or reckless conduct, or (iii) the result of abnormally dangerous activity. Lussier v. San Lorenzo Valley Water Dist. (1988) 209 Cal.App.2d 92, 100.

Pourmola relies on the declaration of Fahad Vakil, who allegedly spoke to a City worker who said the neighborhood flooded due to City work, and the City redirected sewer lines due to the heavy rain. Vakil decl. ¶¶3-7. The court’s prior tentative ruling concluded statements regarding conversations with an unnamed City worker was inadmissible hearsay.

In the supplemental brief, Pourmola argues the person was a City employee, since he was working on a manhole close to the Kenter line, and a truck with the City logo was parked nearby. Vakil decl. ¶¶5-6. Pourmola argues these statements may be attributed to the City and admissible as statements by a party opponent.

A party employee’s out-of-court statements can only be party admissions if the employee was authorized to speak on the party’s behalf. Osborne v. Todd Farm Service (2016) 247 Ca.App.4th 43, 53. Pourmola provides no evidence regarding the employee’s authority to speak on the City’s behalf, his name, job title or management status. This is not a party admission.

Plaintiff also argues the statements are declarations against interest, a spontaneous statement or a contemporaneous statement. Evidence Code §§1230, 1240 or 1241. Under Evid. Code §1230, an out-of-court statement is admissible “if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant’s pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” Cal. Evid. Code §1230.

Pourmola has not established the employee was authorized to speak on behalf of the City. For his statement to be admissible under §1230, the statement must have been against his individual interest. The unnamed employee’s alleged statements would not expose the employee to civil or criminal liability, damage his pecuniary interest or would expose him to hatred, ridicule or social disgrace. Evidence Code §1230 does not apply.

Section 1240 does not apply because there is no evidence the statement “was made spontaneously” while under “the stress of excitement” caused by an event he was observing. Section 1241’s exception for contemporaneous statements does not apply because Pourmola seeks to admit the employee’s statements to explain the City’s conduct regarding the line; the §1241 exception applies to contemporaneous statements made to explain a speaker’s own conduct. The statements Vakil’s declaration are inadmissible hearsay.

Pourmola cites exhibits 6 and 8, a work order history and wastewater spill report. The parties agree these documents are admissible. However, neither document suggests the City acted negligently, unreasonably or dangerously when maintaining the Kenter line. The work order history shows the City maintained the line and does not show the maintenance was inadequate. While the spill report constitutes evidence a spill occurred, it does not indicate the spill resulted from negligence or unreasonable/dangerous conduct. These documents are not evidence of nuisance liability.

Pourmola cites admissions from City employee declarations that a sewage backup occurred at his property. Neither party disputes that the backup occurred, but neither declaration contains an admission the backup resulted from negligence, unreasonable intentional conduct or inherently dangerous activity. Pourmola has not established a triable issue of fact as to nuisance. Summary adjudication GRANTED as to nuisance.

Trespass

Under Cal. Gov. Code §815.6, “when a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for injury of that kind caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 895-896.

The court previously denied summary judgment on the grounds that the City’s motion failed to address all the statutes cited as a basis for governmental liability. 10/25/23 minute order, pg. 4. In the supplemental briefs, the parties agree Penal Code §602(m) is the statutory basis for the trespass cause of action. See City’s trespass brief pg. 3; Pourmola reply pg. 2.

Section 815.6 applies when a plaintiff cites an enactment that creates a “mandatory duty” that must be discharged by a public entity. The enactment must provide “directions” to a public entity, requiring the entity to take or not take a particular action. Corona v. State of California (2009) 178 Cal.App. 4th 723, 728.

Cal. Pen. Code §602(m) is a general criminal trespass statute. It does not issue “directions” to a public entity and does not impose an affirmative duty on any agency or officer. It is not a “mandatory duty” law under §815.6. Under Pourmola’s argument, any criminal statute or statute providing for civil liability could serve as the basis for governmental liability. This would unreasonably broaden the scope of §815.6. The FAC cites Cal. Civ. Code §3479 in support of its trespass cause of action. FAC ¶61. That statute merely defines nuisance and does not impose a mandatory duty on the City. GRANTED.

Negligence/Dangerous Condition

A public entity is liable for injury caused by a dangerous condition at its property if the dangerous condition was created by a negligent or wrongful act or omission of an employee of the public entity or the entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against it. Gov. Code §835.

The City argues there is no evidence the sewer line constituted a dangerous condition, or if it did, there is no evidence the City created it negligently or had sufficient constructive notice for liability under §835. Pourmola provided insufficient evidence to suggest the City acted negligently.

Pourmola provides evidence to create a triable issue of fact regarding notice. The evidence indicates the City was aware of roots in the sewer line, creating a risk of overflow, prior to the flooding at Pourmola’s property. City MSJ exhibit B, Pourmola exhibits 6 and 8. This is sufficient to create a triable issue of material fact as to whether the City was on notice of a dangerous condition and failed to properly remediate. DENIED.