Judge John J. Kralik, Case 19STCV18187 2023-01-13 Tentative Ruling

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Plaintiff Tim Simonec is alleged to be an individual with a disability. Mr. Simonec alleges that on May 10, 2018, he was riding his motorized scooter southbound on the sidewalk when he was presented with perilous and hazardous conditions, including but not limited to a ramp with a dangerous height and insufficient clearance/space for him to pass safely with his scooter on the sidewalk in front of the property at 736 N. Buena Vista, Burbank, CA (“Buena Vista Property”), which is owned by Defendant Helen J. Griffen Trust. He alleges that the dangerous condition was compounded and made even more hazardous by concrete blocks abutting from the Buena Vista Property, which unlawfully reduced the clearance space needed for him to safely pass the area in his electric scooter. In an attempt to navigate around the ramp, Mr. Simonec was required to maneuver his scooter towards the left, which caused his scooter to come into contact with concrete blocks abutting from the Buena Vista Property and he was thrown onto the street with his scooter landing on top of him.

Defendant City of Burbank is alleged to have built the curb ramp and sidewalk in front of the Buena Vista Property some time prior to 1900. Plaintiffs allege that City conducted a 2000 Alley Reconstruction Project (bid Schedule No. 1066) (“Alley Project”) between 2000 to 2002. Defendant Toro Enterprises, Inc. (“Toro”) is alleged to have been contracted by City in 2000 to 2002 for repair work related to Project bid Schedule No. 1066, wherein Toro performed worked on the alley adjacent and connected to the ramp and sidewalk located in front of the Buena Vista Property where Plaintiff’s fall occurred on May 10, 2018.

Plaintiff Janet L. Simonec is the wife of Tim Simonec. Mrs. Simonec alleges the 7^th cause of action for loss of consortium.

The second amended complaint (“SAC”), filed March 17, 2022, alleges causes of action for: (1) violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. against City; (2) violation of California’s Disabled Persons Act, Civil Code, § 54 against City; (3) violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. against City; (4) dangerous condition of public property against City; (5) negligence against all Defendants; (6) premises liability against all Defendants; and (7) loss of consortium against Toro, Jerry Hannigan, Sean Castillo, Kleinfelder, Inc., and Eileen D. Kenny individually and as successor trustee of the Helen J. Griffen Trust. The 1^st to 4^th causes of action are asserted against City. The 5^th and 6^th causes of action are asserted against all Defendants. The 7^th cause of action is asserted against Defendant Toro Enterprises, Inc., Jerry Hannigan, Sean Castillo, Eileen D. Kenny individually and as successor trustee of the Helen J. Griffen Trust, and the Helen J. Griffen Trust.

On July 3, 2019, Defendant/Cross-Complainant City of Burbank (“City”) filed a cross-complaint against the Helen J. Griffen Trust for: (1) indemnification; (2) apportionment of fault; and (3) declaratory relief. On July 2, 2020, City filed an Amendment to the Cross-Complaint naming Eileen D. Kenny, individually and as successor trustee of the Helen J. Griffen Revocable Trust dated August 22, 1996 as Doe 1.

On April 22, 2022, Defendant Toro Enterprises, Inc. (Doe 2) (“Toro”) filed a motion for summary judgment, seeking summary judgment in its favor and against Plaintiffs Tim Simonec and Janet L. Simonec. Toro moves on the ground that: (1) there is no evidence that Toro owed a duty of care to Mr. Simonec; (2) there is no evidence that Toro owned, controlled, operated, maintained, or managed the alleyway-driveway entrance and/or the sidewalk located in front of the subject property where Plaintiffs allege the subject incident occurred; and (3) thereby, Mr. Simonec’s claims for negligence and premises liability against Toro fail. As a result, Toro argues that Mrs. Simonec’s derivative claim for loss of consortium also fails.

With the reply brief, Toro submitted evidentiary objections to Plaintiff’s exhibits submitted with the opposition brief.

o Objection No. 6-10 are regarding the deposition of Mr. Moheize on the grounds that pages 82, 101/103, 148, and 151 were not included in Exhibit 2; these pages were cited in Plaintiff’s additional material fact nos. 5, 7, and 8. Objection Nos. 6-10 are sustained on the basis that the exhibit pages were not provided. However, the Court notes that in the reply brief, Toro provides pages 101 and 103 of Mr. Moheize’s deposition transcript.

· Objection Nos. 11-12 to Exhibit 4 (Rough Draft Deposition of Corrigan) are overruled.

· Objection No. 13 to Exhibit 5 (Email Correspondence between Toro and Burbank) is overruled.

Toro moves for summary judgment on the 5^th, 6^th, and 7^th causes of action alleged in the SAC for negligence, premises liability, and loss of consortium.

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.)

On May 10, 2018, Plaintiff was riding his motorized/electrical scooter on the alleyway-driveway entrance and sidewalk located in front of the Buena Vista Property. (Toro Fact 1.) Upon encountering a sidewalk ramp, Plaintiff maneuvered his scooter left of the sidewalk ramp for passage. (Id. at 2.) While trying to do this, Plaintiff struck a cement block protruding from the Buena Vista Property. (Id. at 3.) Plaintiff fell after hitting the cement block with his scooter landing on top of him. (Id. at 4.)

On September 16, 2013, Toro contracted with the City for the Sidewalk Repair Project (Zones 9-13), Bid Schedule No. 1388. (Id. at 5.) The purpose of the Sidewalk Repair Project was to identify residential sidewalks that posed tripping hazards due to tree root upheaval or other causes and to repair those sidewalks. (Id. at 6.) City’s inspectors would identify the locations which needed to be repaired and this was in the sole discretion of City. (Id. at 7, 9.) Toro would mark the locations at City’s instructions and make repairs on the marked locations. (Id. at 8.) City did not select the subject sidewalk as an area to repair under the Sidewalk Repair Project. (Id. at 10.) Toro did not do any work on the ramp (alleyway-driveway entrance) and the sidewalk located in front of the Buena Vista Property. (Id. at 11.) Toro did not own, possess, or control the subject sidewalk. (Id. at 12.)

Toro argues that it did not owe a duty to Mr. Simonec. Toro argues that the only grounds upon which Mr. Simonec may argue a duty exists is based on a special relationship through misfeasance or nonfeasance. However, Toro argues that it did not work on the alleyway-driveway entrance or sidewalk in front of the Buena Vista Property. It also argues that Mr. Simonec is unable to allege duty based on Toro having to bring the condition of the sidewalk to City’s attention because Toro did not create the sidewalk, did not contribute to the allegedly defective condition, and its scope of work did not include unilaterally inspecting or locating potential trip hazards. Toro provides the deposition transcript of Omar Moheize, City’s project manager for the Sidewalk Repair Project. (Vahdat Decl., Ex. B [Moheize Depo.].) Mr. Moheize testified that City identified the scope of the work, including identifying the locations to be addressed and repaired pursuant to the Sidewalk Repair Project and that City inspectors identified the locations, whereas Toro would mark the locations and make repairs. (Moheize Depo. at p.209.) Mr. Moheize further testified that there was no reason for Toro to have marked the subject area for repair. (Id. at 155.)

According to the contract entered between City and Toro, Toro was contracted to perform specific services to City in Zones 9-13, including “R & R Curb,” “R & R Gutter, Cross Gutter/Spandrel, Local Depression,” “Concrete Grinding,” “Remove Sidewalk and Parkway Improvements,” “Construct PCC Sidewalk,” “R & R Driveway,” “R & R Pedestrian Ramp,” “Crushed Miscellaneous Base,” “R & R AC Pavement (Variable Depth),” and “NPDES Compliance.” (See Vahdat Decl., Ex. D at COB-SIM-0042.) The scope of work described in this bid proposal, which was accepted by the City, did not include any contractual duties to perform inspections and provide recommendations on “dangerous” areas that needed to be repaired. The scope of Toro’s contract did not involve the identification of all dangerous areas in these zones of the city, or even in areas where Toro was specifically directed to perform work. Toro’s contract obligated it only to provide an agreed quantity of construction work.

Based on this evidence, Toro has upheld its initial burden on showing that it did not owe a duty to inspect the premises between Zones 9-13, which includes the subject property at issue. Toro has shown that though it was retained to perform construction and repair work on premises identified by the City, it was not retained to perform work at locations that were not specifically identified by the City.

Thus, the burden shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs provide the (rough draft) deposition transcript of Sean Corrigan, who was involved in the planning phase and approval of the design for the 2013 sidewalk project. (Opp. at p.8.) Mr. Corrigan states that the City used the wisdom and job skills of Toro when they walked and that they agreed on which areas needed to be repaired. (Navarro Decl., Ex. 4 [Corrigan Depo. at p.47].) He states that while the City ultimately decided which areas would require repairs, the decision was a joint decision and the City counted on Toro to give its engineers input on what Toro thought would be the best solution to any particular sidewalk. (Id.; see Pl.’s Additional Material Fact [AMF] No. 6.) Further, according to Mr. Moheize, trip hazards applied to create a safe passageway to pedestrians of all kinds (including people in wheelchairs). (Moheize Depo. at p.146.)

Based on the evidence provided by Plaintiffs, the Court finds that Plaintiffs have not raised evidence to show a triable issue of material fact regarding whether Toro owed a contractual duty to the City (or Mr. Simonec) to inspect sidewalks and premises. While Plaintiffs argue that the City relied on Toro’s wisdom to agree on areas that needed repair, Plaintiffs have not disputed Toro’s evidence that it did not owe any duty to the City or Plaintiffs to make inspections. Whatever informal effort they offered was at the City’s discretion, and not pursuant to any duty they undertook. Based on these facts and evidence, Toro cannot be held liable for failing to perform work that it was not obligated (by contract or otherwise) to perform.

Ultimately, the City’s inspectors identified the locations that needed to be repaired and Toro performed the work at those marked locations. (Toro Fact 7-8.) Plaintiffs even admit in their additional material facts that no documentation was prepared to show that the subject property was inspected by Toro. (Pl.’s AMF 9.) Plaintiffs have not shown that Toro had a duty to inspect the subject premises. Further, the premises were not identified by City as a problematic area for Toro’s construction and repair services. As such, Toro would not have been under any duty or obligation to repair the subject premises since it was not specifically instructed by the City to make any repairs. There is no evidence that Toro was directed to conduct inspections in areas that it was not performing work.

Considering the arguments, facts, and evidence submitted by the parties, the Court finds that Toro upheld its initial burden in showing it did not owe a duty to the City or Plaintiffs to inspect the subject premises. Plaintiffs have failed to produce evidence of triable issues of material fact have been raised concerning duty. Thus, the motion for summary judgment is granted as to the 5^th cause of action for negligence.

The elements of a premises liability claim based on negligence are: (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; and (3) the breach proximately caused injury and damages. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Id.) “Possession ordinarily brings with it the right of supervision and control.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 369.) Generally, the tenant rather than the landlord controls the leased portion of the premises and is liable to third persons injured by their dangerous condition.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 832.) “Thus, in identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid.” (Id.)

Toro argues that it cannot be liable for premises liability because it did not own, possess, or control the subject sidewalk. (Toro Fact 12.) According to Plaintiffs’ SAC, City built the curb ramp and sidewalk in front of the Buena Vista Property. (SAC, ¶18.) Toro argues that it did not have authority, possess, or control the alleyway-driveway entrance or sidewalk in front of the Buena Vista Property. It further argues that it had no involvement in the design, construction, or installation of the alleyway-driveway entrance or sidewalk in front of the Buena Vista Property where Mr. Simonec’s accident occurred. Toro argues that Plaintiff has no evidence that it owned, maintained, controlled, leased, managed, designed, constructed, installed, remodeled, or renovated the subject area where the incident occurred because Toro did not begin its business until 1994, which was decades after the original construction of the subject sidewalk[1]. (Mot. at pp. 10-11; Sean Castillo Decl., ¶2.)

Toro argues that to the extent Plaintiff claims that Toro exercised control over the subject sidewalk, Toro argues that it was City’s concrete contractor and it was only tasked with repairing specific locations as identified by City. As stated above, Mr. Moheize testified that City identified the scope of the work, including identifying the locations to be addressed and repaired pursuant to the Sidewalk Repair Project and that City inspectors identified the locations, whereas Toro would mark the locations and make repairs. (Moheize Depo. at p.209.)

Toro also argues that to the extent Plaintiff alleges that Toro was supposed to identify and assess potential trip hazards, Toro provides Mr. Moheize’s deposition, wherein he testified City’s inspectors and personnel were trained to walk the streets and sidewalks to define the scope of work and trained to follow the criteria of ¾ of an inch for surface deviations. (Moheize Depo. at p.33.) Thus, Toro argues that it was not its responsibility to identify any trip hazards at sidewalk locations.

In opposition, Plaintiffs state in their responsive separate statement that they dispute Toro’s Facts 11 and 12 regarding whether Toro performed any work on subject location and whether it owned, possessed, or controlled the subject sidewalk. They argue in their “supporting evidence” section that no documentation was prepared to prove that the subject location was inspected, as only documentation was prepared for areas that were removed or replaced. They cite to Moheize’s deposition at page 152. However, page 152 of the deposition is not provided. As such, Toro’s Fact Nos. 11 and 12 have not been properly disputed with evidence. (See CCP § 437c(b)(3).) Establishing Toro’s ownership, possession, or control of the subject property is a necessary element for a premises liability claim. Here, Toro has provided evidence in its initial burden showing that it did not own, possess, or control the subject property.[2] In opposition, Plaintiffs have not effectively disputed this material fact or evidence.

The claim for loss of consortium is dependent on the existence of a cause of action for tortious injury to a spouse. (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Mrs. Simonec’s claim of loss of consortium is dependent on the injuries sustained by her husband, Mr. Simonec.

As Plaintiffs have failed to raise triable issues of material fact on their claims of negligence and premises liability against Toro, the Court finds that Plaintiffs have not raised triable issues regarding Mrs. Simonec’s derivative loss of consortium claim. Thus, the motion is granted as to the 7^th cause of action.

[1] When the sidewalk was actually constructed is not provided with Toro’s evidence.

[2] Rather, Plaintiffs’ own evidence in the form of Frank Borjon’s deposition testimony shows that based on his observations during his July 2, 2020 visit, it was clear that Toro did not work on the subject sidewalk because there was a very large power pole at that location. (Navarro Decl., Ex. 1 [Frank Borjon Depo. at p.59].) However, it is not entirely clear who Mr. Borjon is. Based on bits and pieces of the deposition transcript, it appears that he is with Toro. (See Borjon Depo. at pp.59-60.)