Judge Jill Feeney, Case 19STCV14410 2022-12-06 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

On April 25, 2019, Plaintiff Sparkayla Coleman filed her complaint against the City of Los Angeles and Ghayam Omid alleging causes of action for premises liability and general negligence. This action arises from a vehicle collision near 8501 S. Figueroa St., Los Angeles, CA 90003.

Omid moves for summary judgment on the grounds that there are no triable issues of material fact with respect to Plaintiff’s causes of action for premises liability and negligence. Omid argues that Plaintiff’s cause of action for premises liability fails because he never had notice of any dangerous condition on the premises. He argues that her cause of action for negligence fails because Omid owed no legal duty to Plaintiff, no dangerous condition existed, and if a dangerous condition did exist, Omid had no notice or control over the condition.

Plaintiff argues that Omid’s motion should be denied because Omid’s moving papers fail to shift the burden to Plaintiff and fail to support Omid’s arguments with admissible evidence. Plaintiff also argues that the law imposes a duty of care upon Omid as an abutting landowner to take reasonable steps to protect the public. Plaintiff also argues that she may prove negligence using expert witness opinions.

On reply, Omid argues that Plaintiff’s expert testimony cannot create an issue of material fact because her expert witness did not inspect the premises. Omid also argues that evidence of subsequent remedial measures is not admissible to show feasibility in the absence of a declaration that prevention was not possible.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

Defendant Ghayam Omid moves for summary judgment on the grounds that there are no triable issues of material fact with respect to Plaintiff’s causes of action for premises liability and negligence.

The Court initially notes that Plaintiff’s allegations of premises liability and negligence are duplicative. They are based on the same theory of recovery and the same facts. Accordingly, the Court treats both of Plaintiff’s causes of action for premises liability and negligence as one.

The elements of premises liability are duty, breach, causation of the injury, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205.) “An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe for their¿[customers’]¿use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443, 446.) “[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.)

Courts have held that in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger. (Sexton v. Brooks (1952) 39 Cal.2d 153, 157.) “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084.)

Because the owner is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it. (Ortega, 26 Cal.4th at 1203, 1206.)

Here, Plaintiff’s Complaint states that Defendant Omid negligently managed the premises at 8501 S. Figueroa St., Los Angeles, CA 90003 by permitting oversized vehicles to park on public streets, failing to have marked set back designations from the exits and curb, and failing to barricade the driveway or warn of the dangerous condition. Plaintiff alleges that the oversized vehicles parked on either side of the exit to the property limited the view of vehicles exiting the property rendering it a dangerous condition.

Omid first argues that he did not owe Plaintiff a legal duty to barricade the driveway or to warn of any danger. The Court notes that it is undisputed that there was a second entrance/exit to the shopping plaza as the driveway in question was closed after the accident.

Omid’s evidence shows that he has owned the premises in dispute for almost 30 years. (UMF No. 9.) On July 7, 2018, an unknown vehicle struck Plaintiff as she was making a right, eastbound turn onto West 85th street. (UMF Nos. 1-2.) Plaintiff could not see the eastbound traffic and was struck when she attempted her turn. (Id.) The camper which allegedly blocked Plaintiff’s view was legally parked. (UMF No. 37.)

The issue here is not as to Defendant’s control/duty over public streets. The issue here is Defendant’s duty with respect to his own driveway. Plaintiff alleges that Defendant failed to barricade the driveway and/or warn of the dangerous condition of limited visibility.

Defendant contends that as a legal matter as an adjacent landowner he owed no legal duty of care to Plaintiff for an accident that occurred on the street due to parked vehicles over which Defendant had no ownership or control.

Although that is the general rule with respect to duty, there is an exception to that rule. “A landowner's duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner's property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite. [Citations.]” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 38 quoting Barnes v. Black 71 Cal.App.4th 1473, 1477.)

It can be argued that on facts of this case, as in the Annocki case, “the property configuration here allowed patrons to leave . . . premises in a manner that was unsafe to themselves and others.” (Id.) Hence, the Court cannot find that as a matter of law that Defendant had no duty to Plaintiff and hence Defendant has not met its burden in this regard.

Defendant also contends that no dangerous condition existed, but cites only to the lack of restrictions on the parking of oversized vehicles by the curb to either side of the driveway in support of this position. (Motion at Page 7.). The lack of parking restrictions/a parking set back does not demonstrate the lack of a genuine issue of material fact with respect to the existence of a dangerous condition as to Defendant and thus Defendant has not met his burden with respect to this matter.

With respect to notice, Defendant has proffered evidence indicating that he did not have actual notice of the obstructed view when exiting the driveway. The issue here is constructive notice. In determining whether a landowner should have known of the condition that created the risk of harm depends “whether, under all the circumstances, the condition was of such a nature and existed long enough that the defendant had sufficient time to discover it and, using reasonable care: repair the condition or protect against harm from the condition or adequately warn of the condition.” (CACI No. 1011). Further, a property owner must make reasonable inspection to discover unsafe conditions. (Id.) If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that the landowner using reasonable care would have discovered it. (Id.)

Here, Defendant has not demonstrated the lack of a genuine issue of material fact as to constructive notice of this condition. Indeed, Defendant does not discuss the issue of constructive notice at all. Hence, Defendant has not met his burden in this regard.

Finally, Defendant contends that there is no triable issue of material fact on the issue of causation. Defendant argues that Plaintiff cannot prove causation because Defendant did not park the oversized vehicles or control the street where the vehicles were parked. (Motion at Page 9.) These arguments do not demonstrate that no triable issue of material fact exists as to causation.