Judge Elaine W. Mandel, Case Number: 22SMCV01913, Date: 2024-10-16 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV01913, Date: 2024-10-16 Tentative Ruling

Case Number: 22SMCV01913 Hearing Date: October 16, 2024 Dept: P

Tentative Ruling

Garza v. City of Beverly Hills, Case no. 22SMCV01913

Hearing date October 16, 2024

Defendants Café Istanbul and SKB Tura, Inc.’s Motion for Summary Judgment

Defendant Beverly Place Partners, LLC’s Motion for Summary Judgment

Defendant City of Beverly Hills’ Motion for Summary Judgment

Plaintiff Garza sues defendants City of Beverly Hills, County of Los Angeles, California Department of Public Transportation, property owner Beverly Place Partners, LLC and lessee SKB Tura dba Café Istanbul for negligence and premises liability for injuries sustained when he tripped and fell on a sidewalk crack/uplift/tree well on South Beverly Boulevard.

Plaintiff served defendants City of Beverly Hills, County of Los Angeles, and California Department of Public Transportation with claims pursuant to Gov. Code §911.2 on 4/19/2022. Compl. p. 8. Defendants rejected those claims on 8/24/2022, 5/10/2022 and 7/21/2022. Compl. p. 8. Plaintiff filed this action on 10/17/2022.

Defendants City of Beverly Hills, California Department of Public Transportation, Beverly Place Partners, LLC and SKB Tura dba Café Istanbul separately move for summary judgement under Cal. Code Civ. Proc. §473. Plaintiff opposes defendants’ MSJs and offers the declaration of Alex Zaretskiy, BSME, P.E., CXLT, ACTAR.

Defendants’ Evidentiary Objections to the Zaretskiy Declaration

City: Objections 1-3 OVERRULED, objection 4 SUSTAINED (lack of foundation), objection 5 OVERRULED.

SKB Tura: Objections 1-2 OVERRULED, objection 3 SUSTAINED (lack of foundation), objections 4-7 OVERRULED.

General Law on Summary Judgment

A court determining a summary judgment motion applies a three-step process: (1) identifying the issues framed by the complaint, (2) determining whether moving party made an adequate showing that negates the opponent’s claim, and (3) determining whether opposing party raised a triable issue of fact. Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1662. "In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury." Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619. “The elements of a negligence claim and a premises liability claim are the same.” Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.

Defendant SKB Tura dba Café Istanbul’s Motion for Summary Judgment

Defendant SKB Tura argues plaintiff relies on theories not alleged in the complaint. The operative complaint determines the scope of issues a defendant must address to prevail on a motion for summary judgment. Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.

Plaintiff alleges “the uneven and/or raised and/or broken and/or deteriorating area of the sidewalk and/or walkway” was the cause of his harm. UMF 2. Defendant argues plaintiff’s complaint failed to allege SKB Tura’s café tables partially obscured the sidewalk. Plaintiff argues the allegations are broad and expanded upon during discovery. Plaintiff argues the café tables’ placement created a lack of passable sidewalk space that caused plaintiff to walk over the tree well area and adjacent sidewalk. SSAMF 6. This is within the scope of the complaint.

SKB Tura argues it does not control the sidewalk. UMF 11-14. Plaintiff argues Beverly Hills Municipal Code 5-7-3 imposes on SKB Tura a duty to keep and maintain the right of way abutting the premises in a safe, clean, orderly, sanitary and aesthetic condition. Plaintiff argues BHMC 10-3-3502 requires a 6-foot minimum pedestrian travel aisle be maintained to assure the required pedestrian travel aisle. PMF No. 12.

SKB Tura’s open air dining permit, no. 468-17, permitted the unobstructed path to be decreased to 5 feet 9 inches and identified a 5-foot minimum clear zone between the edge of the tree well and the outdoor dining area. PMF No. 13-14. This is sufficient to establish a triable issue of material fact as to whether SKB Tura controlled the walkway and tree well.

SKB Tura argues plaintiff cannot establish causation, as the café tables did not injure plaintiff, as he moved to the left, continued walking and tripped on the walkway/tree grate, not the tables. UMF 2, 4-6, 10. SKB Tura argues its tables were placed with City permission, and it was unaware of other incidents of trips/falls. UMF 6-9.

Plaintiff argues SKB Tura should have been aware that its placement of the tables caused pedestrians to be forced to walk near/into the tree well area and SKB had control of that portion of the sidewalk. PMF 19. Plaintiff’s expert professional engineer Zaretskiy opines SKB Tura caused a narrowing of the public walkway which in turn caused plaintiff to walk on, and trip over, an uneven tree well. Decl. Zaretskiy paras. 13-14. Zaretskiy notes tree well covers exist so pedestrians may use them as an extension of a public walkway. Decl. Zaretskiy para. 11.

SKB Tura argues Zaretskiy’s opinion is based on the scene of the injury in 2024, two years after plaintiff’s injury. Plaintiff notes Zaretskiy’s opinion cross-referenced photographs produced during discovery and Google Earth images. Decl. Zaretskiy para. 8. Nevertheless, this issue goes to weight of the opinion, not its admissibility.

SKB Tura argues it owed plaintiff no duty and BHMC 5-7-5 only applies to curbs, sidewalks, and driveways. For purposes of summary judgment, the court disagrees with SKB Tura’s assertion. Plaintiff raises a triable issue of material fact as to duty, breach and causation. DENIED.

Defendant Beverly Place Partners, LLC’s Motion for Summary Judgment

Defendant Beverly Place Partners, which leases the property to SKB Tura, argues plaintiff fails to establish that it owes plaintiff a duty of care. Beverly Place asserts it does not own, maintain, or control the walkway and/or tree well. UMF 8-11. Beverly Place argues it had nothing to do with placement of tables and chairs on the sidewalk, and SKB Tura – not Beverly Place -- has the outdoor dining permit and places the tables and chairs. UMF 2-7.

Plaintiff argues BHMC 5-7-3 requires landowner Beverly Place to maintain the public walkway, just as SKB Tura is required to do. Zaretskiy opines that, as property owner, Beverly Place has a duty under BHMC to maintaining the walkway. Decl. Zaretskiy para. 12.

Beverly Place cites Seabor v. Hotel Del Coronado (1991) 1 Cal.App.4th 184, 487 to argue it does not control the public walkway nor owe a duty to pedestrians using the walkway. Seabor concerns a crosswalk in a street, not a sidewalk. Further, plaintiff provided evidence that BHMC imposes a duty on landowners, such as Beverly Place.

Beverly Place argues Cal. Streets and Highway Code sec. 5610, cited by plaintiff, does not create a duty of care. Section 5610 does not “expressly or unambiguously create a standard of care for liability in civil damages to pedestrians injured by a condition of the sidewalk not caused by the defendant.” Selger v. Steven Bros. (1990) 222 Cal.App.3d 1585, 1591. Zaretskiy opines Beverly Place, as property owner, should have been aware of the allegedly dangerous conditions caused by the narrowing of the sidewalk. Decl. Zaretskiy para. 14.

An issue of material fact exists, precluding a granting of summary judgment. DENIED.

Defendant City of Beverly Hills’ Motion for Summary Judgment

Defendant City of Beverly Hills argues plaintiff’s complaint varies factually from the allegations of his governmental tort claim, so is barred by Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222. The City further argues plaintiff does not have, and cannot obtain, evidence that the tree well constitutes a dangerous condition or that defendant City had constructive or actual knowledge of the condition.

“As a general rule, no suit for money or damages may be brought against a public entity until a written claim, known as a government claim, is presented to and rejected by that entity.” Hernandez, supra, at 1230-31. The City argues plaintiff’s 4/19/2022 tort claim alleged plaintiff tripped on an uneven sidewalk (UMF 1), yet the complaint alleges plaintiff tripped on a fracture in the tree well. UMF 3. Defendant argues Hernandez bars suit against the City.

Plaintiff Hernandez presented a tort claim alleging he tripped on an uplifted sidewalk, then filed suit alleging he tripped on a hole created by an empty tree well. 90 Cal.App.5th at 1232. Hernandez presents a discrepancy in the alleged cause of injury – an uplifted sidewalk versus a hole where a tree used to be. Here, the tort claim alleged an uneven sidewalk; the complaint alleged an uneven sidewalk adjacent to a tree well and/or tree well cover (see also photograph City, exh. C-1). Per the deposition testimony, plaintiff stated he tripped twice. Plaintiff depo, City exh. C, pp. 27-28. Hernandez is distinguishable.

Zaretskiy notes the tree well is used by pedestrians as a natural extension of a public walkway. Decl. Zaretskiy para. 11. The existence of a seemingly secure cover is likely to induce pedestrians, such as plaintiff, to walk over the cover. The court does not find that tripping on a sidewalk or tripping on a tree well cover set in the sidewalk to be fundamentally different causes of injury.

Defendant City argues to impose liability on the City, plaintiff must prove “the property was a dangerous condition at the time of the injury” and “the public entity had actual or constructive notice of the dangerous condition.” Gov. Code § 835. Defendant City asserts the defect was trivial as a matter of law. Defendant City notes, under Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 111, the most important factor in determining whether a defect is trivial is the size of the defect. Defendant City argues the court should exercise discretion to find the size of the defect was minimal, unobstructed and obvious. Carla Smith, an adjustor with George Hills Co., the City’s independent claims adjustor, states no other claims in their database reference the alleged defect at issue since 2019. Decl. Smith para. 4; UMF 4.

The court declines to decide as a matter of law that the alleged defect was trivial; that is a question of fact for the jury. Simply because there have been no other reported claims is not dispositive.

Defendant City argues it had neither actual nor constructive notice of the alleged defect. UMF 5. Defendant City notes the sidewalk and tree well cover were inspected in 2018, and no dangerous conditions were reported. UMF 8. Defendant argues, under Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320, that to show constructive notice, a “plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious.” Defendant City contends its sidewalk inspection policy does not apply to tree well covers, as they are not part of the public walkway. As previously noted, the court finds this contention unavailing, and plaintiff offered contradictory evidence. See Decl. Zaretskiy para. 14.

Whether the alleged dangerous condition was obvious or existed for a sufficient period of time for the City to have been on notice of it is a factual question. Plaintiff asserts the tree well cover “appeared in a state of damage and disrepair as evidenced by multiple damaged, broken, and uplifted sections as high as 2-inches.” PMF 7. Plaintiff further asserts the “weathered condition of the smooth-edged cracks and breaks of the tree well cover indicate that the condition did not happen due to a recent, singular, or specific event and was thus a long-term and ongoing condition.” PMF 9.

Photos included in defendant City’s MSJ support plaintiff’s arguments, and plaintiff submits personal and expert evidence. This is sufficient to create a triable issue of fact about whether the alleged dangerous condition was obvious and had existed for a sufficient period of time that the City should have been on notice. DENIED.