Judge Jill Feeney, Case 21STCV19068 2023-03-22 Tentative Ruling

This is an action for a dangerous condition of public property arising from a trip and fall incident which took place in August 2020. Plaintiff Monique Mayo-Levin filed her Complaint against Defendants the City of Santa Monica and the County of Los Angeles on May 20, 2021.

Defendants move for summary judgment (1) on the grounds that they are not public entities; (2) Defendants did not own, operate, manage, or control the sidewalk where Plaintiff fell; (3) Defendants had no duty to inspect, maintain, or repair the sidewalk where Plaintiff fell; and (4) Defendants did not cause Plaintiff to trip on the sidewalk where she fell.

Plaintiff argues that Defendants had a duty to avoid exposing invitees to the risk of injury caused by the uplifted slab at its main entryway. Plaintiff also cites McDaniel v. Sunset Manor Co. and analyzes the Rowland factors to argue that Defendants owed a duty of care. Plaintiff also argues that the root systems of a nearby tree and hedge plater caused the sidewalk to become uplifted.

Defendants argue that they did not own or control the subject sidewalk and thus owed no duty of care to Plaintiff. Defendants also argue that Plaintiff fails to show their negligence in maintaining the tree and hedge caused the sidewalk to lift because her expert declarations do not contain admissible evidence. Defendants also argue that the Rowland factors do not support a finding that Defendants owed a duty of care. Finally, Defendants argue that they did not cause Plaintiff’s injuries because her expert testimony is speculative and fails to show that the roots caused the sidewalk to lift.

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 467; see also Code Civ. Proc., § 437c(c).)

Defendants first move for summary judgment on the grounds that Gov. Code, sections 815.2, 820, 835, 835.2, and 840.2 do not apply to Defendants because they are not public entities. The parties do not dispute that Defendants are not public entities. Plaintiff’s Complaint alleges that she tripped over a hazardous uneven sidewalk, that Defendants controlled the sidewalk, and that she was injured after falling as a result of the hazardous sidewalk. (Comp., ¶¶7-8.) The Court finds that Plaintiff’s Complaint contains facts sufficient to support a cause of action for negligence, specifically under a theory of premises liability.

“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.)

“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.)

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.) A private abutting landowner is liable in situations where (1) an owner or occupier creates an enduring hazard by constructing or altering the configuration of the public party or (2) when the landowner creates temporary and fleeting hazards on abutting public property and acts negligently in doing so. (See Lopez v. City of Los Angeles, 55 Cal.App.244, 256-258.)

The courts have ruled that a private landowner is liable for injuries caused by tree roots that, with the tree owner’s knowledge, cause a dangerous condition on an adjacent public sidewalk. (Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245.) The court in Moeller relied on Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 360, which established that in negligence cases involving the management of land, the relevant factors include whether the possessor of land acted as a reasonable person under all circumstances, the likelihood of injury to Plaintiff, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition. A land possessor’s lack of knowledge of a dangerous condition is no defense to liability because he has an affirmative duty to exercise ordinary care in maintaining the premises in a reasonably safe condition and must therefore inspect them. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 n.6.)

Here, Defendants’ evidence shows that Defendant Community Corp. is a general partner in Defendant Virginia Village and has an ownership interest in Virginia. (UMF No. 9.) Virginia abuts the subject sidewalk (UMF No. 11.) On August 1, 2020, Plaintiff fell after tripping on a portion of a sidewalk located at Virginia Avenue that was uplifted. (Mayo-Levin Depo., 50:10-12; 51:4-8; 55:10-11.) The weather was clear and dry. (Id., 50:18-22.) There was nothing obstructing Plaintiff’s vision. (Id., 65:7-9.) Plaintiff was focused on reaching a gate to an apartment complex and did not notice what the defect looked like. (Id., 66:2-16.)

Kyong “Peter” Chang, the deputy director of Community Corp., testifies that he never noticed the displacement in the sidewalk. (Chang Depo., 24:15-22.) No one had ever notified him that there was a tripping hazard at the entrance to the Virginia Village Apartments. (Id., 25:1-26:1.) If Chang had received reports from tenants of the hazard, he would have reported it to the city. (Id., 27:10-14.) Chang would only have notified the city if there had been a complaint. (Id., 28:22-24.)

Defendant’s Person Most Qualified (“PMQ”), Miguel Ceballos, testifies that he was the Director of Maintenance at the time of the incident and that he had worked for Defendants for 34 years. (Ceballos Decl., 17:8-18:13.) Prior to the incident, Ceballos did not notice there was a sidewalk displacement. (Id., 68:1-3.) Ceballos did not conduct an investigation of the sidewalk because he believed Virginia was not responsible for the sidewalk. (Id., 60:5-7.)

Plaintiff provides further excerpts from Ceballos’ deposition showing that the hedges abutting the subject sidewalk were maintained by Community Corp. (Ceballos Depo., 45:20-46:24, 39:3-7.) Plaintiff also provides the expert testimony of Gary M. Gsell, who testifies that the concrete slab where Plaintiff fell was raised 1 3/8 inches. (Gsell Decl., ¶11.) Between 2015 and 2020, the trees and the hedges were watered enough for the roots to expand and grow, expanding under the sidewalk. (Id., ¶17.)The soil under the sidewalk swelled when absorbing water and in the winter months when the water in the soil cooled. (Id.) The large root system pushed the concrete slab upwards, resulting in the uplift which caused Plaintiff’s fall. (Id.)

Another expert in trees, Michael J. Hulsey, testifies that the trees abutting the subject sidewalk have roots that expand under the ground beyond the trees’ crowns and would have reached under the sidewalk slab at the entrance of the building. (Hulsey Decl., ¶5.) The hedges abutting the sidewalk have an invasive and aggressive root system. (Id., ¶6.) The roots of the trees and hedges would have grown toward the hedge planter. (Id., ¶7.) The root system combined with expanding soil under the sidewalk would have uplifted the sidewalk. (Id., ¶8.)

Plaintiff’s evidence shows that there is a genuine issue of material fact as to whether the uplifted condition of the sidewalk was caused by the roots of hedges and trees belonging to and maintained by Defendants. Although Defendants did not own or control the sidewalk, the evidence shows that Defendants allowed the root system to grow from 2015 to 2020 and cause the sidewalk to lift, creating the condition which caused Plaintiff’s fall. This evidence is sufficient to show that triable issues of material fact remain over whether Defendants’ negligence in maintaining the abutting tree and hedge caused the sidewalk to lift and created a dangerous condition.

Defendants argue that they owed no duty of care to Plaintiff. However, where abutting property owners have planted trees or maintained them, the abutting owners have a duty to maintain the trees in a safe condition. (Jones v. Deeter (1984) 152 Cal.App.3d 798, 805.) Here, Plaintiff’s evidence shows Defendants planted and maintained the tree and hedge abutting the subject sidewalk and thus owed a duty to maintain them in a safe condition.

Defendants also argue that they had no notice of a dangerous condition. However, Defendants had a duty to perform reasonable inspection of the premises. The evidence shows that Defendants’ employees, Chang and Ceballos, did not perform inspections of the sidewalk abutting the premises because it was city property, and they did not consider the sidewalk to be Virginia’s responsibility. Additionally, there is no evidence of whether Defendants performed inspections of the tree and hedge which caused the sidewalk to lift. Ceballos states in his deposition that he does not know what gardening or maintenance is performed in the area abutting the subject sidewalk and that such maintenance and inspections were overseen by the resident manager, Froylan Miguel. (Ceballos Depo., 45:4-46:1.) The evidence shows that Defendants performed no inspections of the abutting sidewalk and there is no evidence of whether Defendants inspected the tree and hedge which caused the sidewalk to lift. Therefore, there are material issues of material fact remaining over whether Defendants should have known of the defective sidewalk through reasonable inspection.

Defendants next argue that they are not liable for a tree on the other side of the city’s sidewalk and that they did not cause Plaintiff’s injuries. However, they fail to show that the tree and hedge whose root systems lifted the sidewalk were not on their property at the time of the accident. The Court overruled Defendants’ objections to Hulsey’s expert testimony which showed that the tree and hedge roots caused the sidewalk to lift. The Court sustained Defendant’s objections to Gsell’s Google Street View photographs because they were not authenticated. However, Gsell’s observations and opinions based on the photographs are still valid because expert witnesses may base an opinion on matter perceived by or made known to him regardless of whether the matter is admissible. (Evid. Code, section 801.) Thus, Gsell’s opinion that a nearby tree and an abutting hedge on Defendants’ property caused the sidewalk to lift is still valid. Defendants offer no conflicting expert testimony showing the roots did not cause the lifting. Thus, Plaintiff’s evidence is sufficient to show that there are triable issues of material fact over whether the tree and roots on Defendants’ property caused the sidewalk to lift and therefore caused Plaintiff’s injuries.

Both parties also perform analyses of the Rowland factors. However, Rowland only applies in situations that justify a departure from Civ. Code, section 1714. In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, the Supreme Court summarized the so-called Rowland factors: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714.” Here, Defendants had a duty under Civ. Code, section 1714, subd. (a) to exercise ordinary care or skill in the management of their property. The Rowland factors are not applicable here because there is no reason to departure from Civ. Code, section 1714.

Plaintiff meets her burden of showing that Defendants owed a duty of care to maintain their hedges and trees in a safe condition and that there are issues of material fact remaining over whether Defendants’ negligence created the condition which caused her injuries. Summary judgment is denied.