Judge Elaine W. Mandel, Case Number: 22SMCV02951, Date: 2025-01-29 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22SMCV02951, Date: 2025-01-29 Tentative Ruling

Case Number: 22SMCV02951 Hearing Date: January 29, 2025 Dept: P

Tentative Ruling

Alarcon v. City of Los Angeles, case no. 22SMCV02951

Hearing date January 29, 2025

Defendant Johnstone’s Motion for Summary Judgment

Plaintiff Alarcon sues defendants City of Los Angeles and Johnstone for injuries when she tripped and fell on an uplifted sidewalk adjacent to Johnstone’s home. The City and Johnstone cross-complained. Johnstone moves for summary judgment.

Johnstone argues plaintiff’s opposition was filed 6 days late so should not be considered. Johnstone’s reply was submitted timely. “A party cannot defeat summary judgment with late-filed papers unless the court permits the late papers in the interests of justice.” Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765. As Johnstone timely filed his reply, he does not appear to have been prejudiced. The court consider the late-filed opposition on its merits.

Johnstone requests judicial notice of 6 filings in this case and of Los Angeles Municipal Code, Chapter 6, Article 2, section 62.105. Judicial notice of court records is proper. Cal. Evid. Code §452(d). Judicial notice of regulations and legislative enactments issued by or under the authority of any public entity is proper. Cal. Evid. Code §452(b). GRANTED.

Johnstone offers 2 evidentiary objections to exh. 1 of Forstrom’s declaration. OVERRULED.

Pursuant to Code Civ. Proc. §437c(a)(1) a party may move for summary judgment in any action if it is contended that the action has no merit. A motion for summary judgment shall be granted if there is no triable issue of material fact, and the record establishes that as a matter of law, plaintiff cannot prevail on a cause of action. Code Civ. Proc. §437c(c). A defendant met its burden of showing that a cause of action has no merit if the party shows that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action. Once defendant has met its burden, the burden shifts to plaintiff to show a triable issue of material fact exists. Code Civ. Proc. §437c(p)(2).

To establish the claim, plaintiff must prove: (1) a duty of care, (2) breach, (3) causation, and (4) damages. See Regents of University of California v. Superior Court (2010) 183 Cal.App.4th 755; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998. Johnstone argues plaintiff can establish neither the existence of nor breach of duty.

Johnstone argues he does not control the sidewalk, so he owes no duty to plaintiff. E.g., Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255. Johnstone argues the City owed the duty, since the City requires landowners to get a permit before making repairs to public walkways. UMF 17, 26.

Plaintiff argues Cal. Streets & Highways Code §5610 imposes a statutory duty on abutting landowners and creates tort liability where a landowner creates a dangerous condition. See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162. This is a correct statement of the law.

Plaintiff argues a bush in Johnstone’s yard could have caused the uplift. AMF 28. The photos are admissible, as they were produced and verified during the deposition of the City’s PMK Glenn La Coure. Decl. Forstrom para. 3; exh. 2.

Johnstone argues the photos demonstrate a tree in the public parkway, controlled by the City, caused the uplift.

Plaintiff offers no admissible evidence, such as a declaration of an arborist, as to whether the roots of the Johnstone bush and/or City tree caused the uplift. Plaintiff offered no evidence as to the cause of the uplift. The existence a bush on Johnstone’s property, without more, does not create a triable issue of fact as to causation.

Johnstone argues he had no notice of the uplifted sidewalk. For an owner to be liable for injuries suffered by an invitee due to a defective condition, the owner must have actual or constructive knowledge of the condition. Ortega v. K-Mart Corp. (2001) 26 Cal.4th 1200, 1207. To charge an individual with constructive notice of a dangerous condition, plaintiff must have actual facts or circumstances sufficient to put a prudent person on notice as to the existence of the fact. Jones v. Awad (2019) 39 Cal.App.5th 1200, 1209. Johnstone argues he had no notice of prior accidents. UMF 29, 30.

Johnstone further argues the uplifted sidewalk was open and obvious. A harm is typically not foreseeable if the “dangerous condition is open and obvious.” Jacobs v. Coldwell Banker Residential Brokerage Company (2017) 14 Cal.App.5th 438, 447. Plaintiff argues the uplifted sidewalk could not be open and obvious while simultaneously not putting Johnstone on notice. It is a reasonable inference that Johnstone was aware of the uplift, which was in front of his property. However, plaintiff fails to produce any evidence that the bush on Johnstone’s property in any way caused or contributed to the uplift. Additionally, Johnstone is not liable for a dangerous condition on public property absent control or causation for the uplift. For this reason, the motion is GRANTED.