Department 30, Spring Street Courthouse

August 1, 2022

20STCV33205

Motion for Summary Judgment filed by Defendant Donald Ho, as Trustee of the Ho Family Revocable Trust

The motion is granted with respect to Defendant Donald Ho, as Trustee of the Ho Family Revocable Trust.

Defendant is to file a proposed judgment within 20 days after the date of this order.

Moving party is ordered to provide notice.

On September 1, 2020, Plaintiff Cynthia Chamberlain filed her complaint against Defendants the City of Los Angeles (“City”) and Donald Ho, Trustee of the Ho Family Revocable Trust (“Trust”). This action arises from a slip and fall incident which took place on Beverly Boulevard in Los Angeles in 2019. Plaintiff alleges she fell due to a raised sidewalk when she was walking home with a bag of groceries and became distracted by trash and overgrown trees by the sidewalk. Plaintiff alleges causes of action for premises liability and negligence against Trust.

On April 14, 2021, Trust filed a cross-complaint against City.

On March 21, 2022, Trust filed its motion for summary judgment.

Trust argues that it owed Plaintiff no duty because it did not control the parkway or sidewalk adjacent to the property where Plaintiff was injured and because Trust did not cause or create the conditions of the sidewalk.

Plaintiff argues that Trust did owe a duty to maintain the safety of the sidewalk because Trust and City share control of the sidewalk. Plaintiff contends that the apportionment of liability of each party should be determined at trial.

 

Trust argues that it is not liable for Plaintiff’s injury because Trust does not own or maintain the sidewalk and the injury was not caused by Trust. Trust distinguishes the present case from the cases Plaintiff cites to prove Trust owed a duty to maintain the sidewalk. Additionally, Trust points out that although Plaintiff claims to need more discovery, Plaintiff has not initiated further discovery in the past five months.

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).) 

Trust’s motion turns on whether it owed a duty to Plaintiff to maintain the sidewalk abutting its property.  

The elements 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.) The existence and scope of duty are legal questions for the court. (Id. at p. 36.) 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.) 

“Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490 (citing Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326).) 

However, under Streets and Highways Code section 5610, abutting property owners bear the duty to repair defects in the sidewalk, regardless of whether those owners created the defects. (Id.; see also Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) 

While abutting property owners have a duty to maintain and repair defects in the sidewalk, pursuant to the Sidewalk Accident Decisions Doctrine, abutting property owners are only liable to the public where the property owner created the defect or exercised dominion or control over the abutting sidewalk. (Jordan, supra, 148 Cal.App.4th at pp. 1490-1491 (“[Section 5610] imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk.” (Emphasis in original)); see also Jones v. Deeter (1984) 152 Cal.App.3d 793, 802-803.) 

“A person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has exercised control over that property.” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255 (internal citations omitted.)) “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 (1989) 216 Cal.App.3d 510, 521.)  

To meet its burden on a motion for summary judgment on the grounds that Trust owed no duty of care to Plaintiff, Trust must show that there is no genuine issue of material fact regarding (1) Trust’s contention that it did not own the property on which the sidewalk is located; (2) Trust’s contention that it did not exercise control over the sidewalk; and (3) Trust’s contention that id did not create the hazard of the raised sidewalk.

Plaintiff fell on a sidewalk near a commercial property located at 2201 Beverly Blvd., Los Angeles, CA 90057, which is owned by Trust. (Compl., p.5; UMF No. 13; Ho FROG, Set One responses p. 12:13-20) Donald Ho’s responses to FROGs and SROGs state that Trust does not own the sidewalk in front of its property, neither has Trust ever maintained the sidewalk. (Ho responses to SROGs, Set One, p. 2:19-20 and 3-10; Ho responses to FROGs, Set One, p. 12:19-20.) Trust presents evidence in the form of the Declaration of surveyor Chris Nelson, which states “the location of the alleged incident lies within the city-maintained right-of-way and does not lie within the boundaries of Lots 19 and 20 as shown on said map of Tract No. 12137.” (Nelson Decl., ¶7.)  

Here, Defendant Trust has put forward evidence indicating that it did not own or exercise control over the sidewalk where Plaintiff fell and that it did not create the raised sidewalk. 

To the contrary, the evidence demonstrates that City regularly maintained the area, which was being used as a dumping ground by the public. After her fall, Plaintiff confronted City garbage collectors twice when they were picking up trash and cleaning up debris from the area where she fell. (UMF Nos. 10-12; Chamberlain Depo., p. 123:2-125:5.) The City garbage collectors confirmed the area was being used as a dumping ground by people and made a note about the trash problem and the neglected trees in the area. (Id.)

Turning to Plaintiff’s burden, Plaintiff contends that there are triable issues of material fact. Plaintiff contends that the City and Trust “exercise joint control” over the area and are thus both responsible. Plaintiff cites to Streets and Highways code Section 5610 in support of this contention. Plaintiff further contends that there a triable issues of fact regarding ownership and creation of the hazard. 

Plaintiff does not provide evidence demonstrating that Trust owned the sidewalk or maintained it and thus fails to meet her burden. 

In support of her contention that Trust owned and controlled the sidewalk, Plaintiff, in her Separate Statement of Undisputed Material Facts, cites the City’s responses to SROGs, FROGs, and RFAs. (PUMF, Nos. 15, 16)

City’s responses to RFAs at page 2:16-24 and 3:6-13 deny that the City (1) owned the sidewalk, (2) controlled the sidewalk, (3) maintained the sidewalk, and (4) created the condition of the sidewalk. These denials to RFAs by the City do not prove that Defendant Trust owned or controlled the area. 

City’s response to SROGs and FROGs cited Streets & Highways Code sections 5610-5630 and Los Angeles Municipal Code section 62.14:

14.1: The abutting property owner violated Streets & Highways Code §§ 5610 – 5630 and Los Angeles Municipal Code § 62.14, Ordinance 184596.

(City’s responses to FROGs, Set One, p.3:21-22) City cites the same statutes in its responses to SROGs, Set One at p. 3:9-14. City’s responses to FROGs and SROGs constitute legal arguments, not factual evidence that shows Trust owned or controlled the sidewalk. As will be explained below, the referenced code sections do not show ownership or responsibility for the sidewalk. Thus, Plaintiff has not provided any evidence to show Trust owns, controls, maintains, or created a hazard on the sidewalk.

Plaintiff cites Municipal Code section 62.104 and Streets and Highways Code, sections 5610 through 5615, asserting that City and Trust are jointly responsible for repair of unsafe conditions in the sidewalk and parkway.

Although Highways Code section 5610 through 5615 “imposed a duty” on abutting landowners “to keep the sidewalk in a clean and wholesome condition, that duty was owed to the city” and the code sections “did 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.) Municipal Code section 62.104 contains similar provisions which require landowners to maintain abutting sidewalks, but this duty is again owed to City.

Plaintiff fails to cite any legal authority stating landowner should be held liable for injuries which took place on an abutting sidewalk that they did not own or maintain and for hazards they did not create. 

Plaintiff cites cases that are distinguishable from the present case or are irrelevant. Garcia v. Paramount Citrus Assn., Inc. concerns the owner of a private road and extends liability to property offsite if the landowner maintained their property to create an unreasonable risk of injury offsite. (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1453.) Kopfinger v. Grand Central Public Market concerns a property owner whose activities created a hazard related to the victim’s injuries. (Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 859.) In Rosenbaum v. Security Pacific Corp., the court there ruled the defendant was not liable for injury caused by criminal acts which occurred off premises. (Rosenbaum v. Security Pacific Corp. (1996) 43 Cal.App.4th 1084, 1091.) Alpert v. Villa Romano Homeowners Assn. included facts that the defendant there was a homeowner’s association and evidence existed showing it had control over a sidewalk, which imposed a duty to warn pedestrians. (Alpert v. Villa Romano Homeowners Assn (2000) 81 Cal.App.4th 1320, 1341.) Lastly, Gonzales v. City of San Jose is irrelevant because it concerns a different municipal code in a different city. (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1134.)

Here, Trust owed a duty to City, not Plaintiff. Plaintiff also fails to present evidence that Trust created the hazard which caused Plaintiff’s injuries. 

Plaintiff claims she requires additional discovery from those involved in Trust’s property over the course of the past 20 years to determine whether Trust performed any specific acts of maintenance or general control over the sidewalk at issue. (Opposition, p.10.) Plaintiff’s request is not well taken given that she has not initiated any further discovery in the past five months. (See Reply at 3:25-4:2.) Moreover, Plaintiff does not identify any individuals other than Donald Ho whom she proposes to depose or issue discovery requests to in order to obtain these new facts. Plaintiff also fails to explain why the deposition of Donald Ho or any other relevant individual has not gone forward previously.

 

.For the reasons set forth above, the motion for summary judgment is granted.