Judge Jill Feeney, Case 20STCV01277 2023-02-21 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.

This is an action for premises liability arising from two trip and fall incidents which took place in March and November 2019. Plaintiff David Portillo filed his Complaint against Irene Carpenter on January 10, 2020.

Defendants argue that Plaintiff cannot prove one or more elements of his claims for negligence and premises liability. Defendants argue that their site inspection shows that no part of the parking lot was raised, puckered, or elevated in any manner. Defendants also argue that they had no notice of a dangerous condition. Additionally, Plaintiff can offer no evidence that Defendants were negligent in creating, maintaining, or failing to inspect or correct a dangerous condition.

Plaintiff argues that (1) Defendants fail to discuss Plaintiff’s second incident which took place inside Plaintiff’s apartment in March 2019, (2) Defendants fail to provide evidence that when the parking lot at issue was inspected by their expert it was in the same or similar condition as on the date of the incident, and (3) Defendants’ expert failed to examine the specific area where Plaintiff fell.

Defendants argue that Plaintiff’s expert performed his site inspection in December 2022 and that there is no evidence that the site was in the same condition as it was on the date of the incident in 2019. Defendants also argue that Plaintiff’s expert’s site inspection and findings are flawed and not based on proper evidence.

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).)

Defendants move for summary judgment or summary adjudication on the grounds that they had no notice of a dangerous condition, the parking lot at issue was not in a dangerous condition, and that no negligence on Defendants’ part caused Plaintiff’s fall.

The Court notes that Defendants’ motion fails to address the second alleged trip and fall incident. Plaintiff alleges that he fell a second time in November 2019 on an uneven step. This motion only concerns the first fall in March 2019. Plaintiff alleges he fell after encountering a hole in a parking lot on Defendants’ premises.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their 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.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

A property 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.)

Defendants argue that they could not have had notice of a dangerous condition in the parking lot because the parking lot was not in a dangerous condition at the time of the incident. Defendants provide the expert opinion of Philip Rosescu, who testifies that the “alleged incident area did not constitute a dangerous condition at the time” of Plaintiff’s fall. (Rosescu Decl., ¶10.) Rosescu’s inspection conducted in March 2021 revealed “no defects, deficiencies, or holes,” “minimal cracking,” and “no holes, depressions [or] any abrupt height differentials.” (Id.)

Although Plaintiff argues Rosescu’s declaration is inadmissible as there is no evidence indicating that the parking lot was in the same condition as when he fell, Plaintiff’s own expert conducted his inspection even later in 2022, as will be discussed below.

Because Defendants have provided expert testimony showing there is no dangerous condition in the parking, Defendants meet their burden of showing there are no triable issues of material fact with respect to whether a dangerous condition in the parking lot existed and whether they had notice of a dangerous condition.

The burden shifts to Plaintiff. Plaintiff offers conflicting expert testimony from Gary M. Gsell. Gsell testifies that he conducted an inspection of the parking lot in December 2020 and followed photographs and Plaintiff’s directions to the spot where he fell. (Gsell Decl., ¶8.) Plaintiff allegedly fell as he stepped off the back of his truck and landed on uneven pavement at the edge of a drainage gutter in the parking lot. (Id., ¶11A.) The concrete gutter was 10 inches wide and the edge where the gutter met the asphalt portion of the parking lot was raised above the gutter edge by ¾ of an inch. (Id., ¶13.) The edging of the gutter was jagged and not even. (Id., ¶14.) California Building Code and 2010 ADA Guidelines state that any differentials over ¼ inches require a surface treatment. (Id., ¶14C.)

Plaintiff also provides deposition testimony from Defendant Irene Carpenter. Carpenter states that until 2019, she was the manager of the property where Plaintiff lives and fell. (Carpenter Depo., 11:6-14.) Carpenter visited the property on an irregular basis to check on its condition. (Id., 13:14-21.) From the time she began owning the property in the 1980s to 2019, Carpenter had asphalt laid one time over the original cement. (Id., 13:24-14:13.) Carpenter does not recall when the asphalt was laid. (Id.) Since the asphalt was laid, Carpenter has not had any repairs done to the asphalt. (Id., 14:14-17.) Between March 2018 and March 2019, Carpenter did not check on the condition of the asphalt. (Id., 6:3-6.) Carpenter underwent spinal surgery around 2017 and has not been to the property since then. (Id., 36:7-37:5.)

Plaintiff also provides his own declaration which states that Plaintiff provided photographs of the site where he fell and confirmed that the photographs accurately and generally depict the area of the fall as it existed in March 2019. (Portillo Decl., ¶4.) Plaintiff confirms that in December 2020, he guided his expert, Gsell, to the specific area where he fell. (Id., ¶7.)

Plaintiff’s evidence shows that Plaintiff fell after stepping off of the back of his truck onto the uneven asphalt abutting a concrete gutter. The differential between the asphalt and the concrete was ¾ of an inch. Plaintiff’s expert testifies that this differential constitutes a dangerous condition according to California Building Code and 2010 ADA Guidelines.

Plaintiff provides conflicting expert testimony showing evidence of a dangerous condition. Carpenter’s deposition testimony also shows that the defect existed long enough for Defendants to have had constructive notice of its existence. Therefore Plaintiff meets his burden of showing triable issues of material fact exist over whether a dangerous condition in the parking lot existed and whether Defendants had notice of the condition. Summary judgment is denied.

Defendants dispute the validity of Gsell’s declaration and argue on reply that Gsell’s inspection took place in 2022, not 2020, and that Gsell had no basis to opine that the area where Plaintiff fell was in substantially the same condition as it was in 2019. Defendants’ counsel testifies that he was present at the inspection that took place in 2022. (Green Decl., ¶2-3.) Defendant’s counsel alleges that Gsell blindly guessed where the alleged incident took place. (Id., ¶3.) Additionally, the gutter area described in Gsell’s declaration is far away from the area where Plaintiff parked his truck. (Id., ¶4.)

Even if the inspection was conducted in 2022, Plaintiff confirms in his own declaration that the area Gsell inspected was the area where he fell and was generally in the same condition as it was when he fell in 2019. Additionally, Defendants’ own expert completed his inspection in 2021, two years after the incident took place.

Defendants’ counsel claims Plaintiff’s expert’s photograph of the differential between the asphalt and the concrete is suspect because it appears as if the ruler in the photograph is being lifted to create a false impression of defect. However, this is speculative and there is no other evidence that Gsell’s inspection was defective. An examination of the photograph shows that a level was placed on the asphalt surface and the ruler was used to measure the differential.

Defendants’ claim that Gsell guessed at where the fall took place is also speculative. Plaintiff confirmed in his declaration that Gsell’s photograph depicted the area where he fell. Defendants’ counsel’s claim that the gutter is far from the area where Plaintiff parked his truck is also unsupported. Counsel fails to provide any evidence of where Plaintiff alleged he parked his truck.

Finally, Defendants’ counsel requests that the hearing on this motion be continued to allow him to depose Gsell. Counsel cites St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531. St. Mary involved a dispute over an expert declaration which misstated whether a doctor was ever involved in a medical procedure. The court there held that under the proper circumstances, the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment where there is a legitimate question regarding the foundation of the opinion of the expert. (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.) However, the process should not be utilized to turn summary judgment proceedings into mini-trials. (Id.) Whether to grant discovery in a given case falls within the sound discretion of the trial court based on all facts presented. (Id.)

Here, Plaintiff’s deposition testimony shows that Plaintiff identified the area where he fell as at 10:00 on the photograph on page 58 of his responses to requests for production. (Portillo Depo., 34:7-24.) Plaintiff identified the same location at 11:00 on page 59 of his responses. (Id., 35:24-4.) Plaintiff confirms the same information in his declaration and testifies that Gsell used the photographs to locate where Plaintiff fell and allowed Plaintiff to identify the exact location over the phone. (Portilla Decl., ¶¶5-7.) Gsell also confirms that he relied on the photographs coupled with Plaintiff’s instructions. (Gsell Decl., ¶7.) Because Plaintiff’s and Gsell’s testimony are consistent with respect to the location of Plaintiff’s fall, the Court finds that there is no legitimate question as to the foundation of Gsell’s opinion. After considering all facts presented, the Court declines to allow Defendants to conduct further discovery in support of their motion for summary judgment.