Judge Jill Feeney, Case 19STCV15787 2022-08-09 Tentative Ruling

On May 7, 2019, Plaintiff Odelia Asher filed her Complaint against Defendants City of Beverly Hills, City of Los Angeles, Arthur Arkin, and Martin May. As to Defendants Arkin and May, Plaintiff alleges causes of action for premises liability, and negligence. This action arises from a slip and fall accident which occurred in December 2018.

May argues that he owed Plaintiff no duty because he is an abutting owner, had no control over the sidewalk, did not own the sidewalk, and did not create any defects on the sidewalk.

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., section 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., section 437c(c).)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

To prevail on a motion for summary judgment on the grounds that he owed no duty of care to Plaintiff, May must show that he did not control the sidewalk where the injury occurred and that he did not cause the hazard which led to the injury.

“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.) “[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.) “Where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it,” there is not a clear “legal basis for imposing liability for failure to properly maintain the sidewalk.” (Williams v. Foster, 216 Cal. App. 3d at p. 521.)

Under the “sidewalk accident decisions” doctrine, an “abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition.” (Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) However, it is not determinative that the defendant created the condition; absent some affirmative construct or alteration, the defendant must also have negligently created the hazard. (See Lopez v. City of Los Angeles, 55 Cal.App.5th at p. 256-258.) (“an owner or occupier can also be held liable for creating more temporary and fleeting hazards on abutting public property if it acts negligently in doing so.”)

Highways Code section 5610 through 5615 imposes a duty on abutting landowners to keep the sidewalk in a clean and wholesome condition. However, the duty is “owed to the city” and the code sections do “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 abutting landowner. (Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1591.) (See also Schaefer v. Lenahan, 63 Cal.App.2d at p. 332; Williams v. Foster, 216 Cal.App.3d at pp. 521-522.)

Here, May’s evidence shows that Plaintiff tripped and fell on the sidewalk curb located at or near 9479 S. Santa Monica Boulevard, Beverly Hills, CA 90210 after her heel became caught in a depression in the curb. (UMF No. 24, Asher Depo., p. 25:20-21; UMF No. 49.) May is the owner of the property located at 9749 S. Santa Monica Boulevard, Beverly Hills, CA 90210. (UMF No.17; May Decl., ¶2.) May does not exercise control over the curb adjacent to the street. (UMF No. 19; May Decl., ¶5.) May did not create the depression in the curb that Plaintiff tripped on, nor did anyone create the depression at his direction. (UMF Nos. 43, 65, 66; May Decl., ¶¶7, 8.) May did not paint the curb red. (UMF No. 66, May Decl., ¶8.)

May’s evidence shows that he did not own or control the sidewalk and that he did not create the depression in the sidewalk which caused Plaintiff’s injury. Thus, he owed no duty to Plaintiff to maintain the sidewalk. May meets his burden of showing no triable issues of material fact exist over whether he owes a duty to Plaintiff. The burden shifts to Plaintiff.