Judge: John J. Kralik, Case: 19STCV18187, Date: 2023-01-20 Tentative Ruling


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Case Number: 19STCV18187    Hearing Date: January 20, 2023    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

TIM SIMONEC, et al.,

                        Plaintiffs,

            v.

 

CITY OF BURBANK, et al.,

 

                        Defendants.

 

 

  Case No.:  19STCV18187

 

  Hearing Date:  January 20, 2023

 

 [TENTATIVE] ORDER RE:

MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

 

 

BACKGROUND

A.   Allegations of the Operative Complaint

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.  Kleinfelder allegedly provided City with an inspector that specialized in the area of construction to perform inspections by foot of designated areas evaluating City's sidewalks for trip hazards.  (SAC, ¶24.)  At issue here is the 5th cause of action for negligence, where Plaintiffs allege that "Defendants" (generally) owed a duty of care to all reasonably foreseeable persons to own, keep safe, maintain, inspect, repair, design, engineer, construct, and control the subject area.  (SAC, ¶77.)  

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

The second amended complaint (“SAC”), filed March 17, 2022 2021, 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 1st to 4th causes of action are asserted against City.  The 5th and 6th causes of action are asserted against all Defendants.  The 7th 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. 

B.    Cross-Complaint

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. 

C.    Motion on Calendar

            On October 28, 2022, Defendant Kleinfelder, Inc. (“Kleinfelder”) filed a motion for summary judgment or, alternatively, for summary adjudication on the following grounds:

·      1. There are no triable issues of material fact as to Mr. Simonec’s claim of negligence against Kleinfelder as he cannot prove that Kleinfelder owed a legal duty, breached that duty, and caused or contributed to his injuries.

·      2. There are no triable issues of material fact as to Mr. Simonec’s claim for premises liability against Kleinfelder as he cannot prove that Kleinfelder owned, controlled, possessed, operated, maintained, or managed the curb ramp and/or sidewalk at or near the Buena Vista Property.

·      3. There are no triable issues of material fact as to Mrs. Simonec’s claim for loss of consortium because it is derivative in nature. Since Mr. Simonec’s claims for negligence and premises liability against Kleinfelder fail, Mrs. Simonec’s loss of consortium claim also fails.

            On January 6, 2023, Plaintiffs filed opposition papers.

On January 13, 2023, Kleinfelder filed reply papers.

DISCUSSION

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

A.   Negligence

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.) 

Kleinfelder provides the following facts in support of its motion. 

Facts 1 to 4 are undisputed.  On May 10, 2018, Mr. Simonec was riding his motorized electric scooter on sidewalk southbound on N. Buena Vista St., on the eastside of the street, towards the Buena Vista Property.  (Kleinfelder Fact 1.)  After passing an alleyway, Mr. Simonec approached a curb ramp and maneuvered his scooter to the left to pass through.  (Id. at 2.)  While attempting to pass through the curb ramp, Mr. Simonec’s scooter hit a cement block located at or near the Buena Vista Property.  (Id. at 3.)  After hitting the cement block, Mr. Simonec was thrown sideways onto Buena Vista St. and the scooter landed on top of him.  (Id. at 4.) 

On or about January 13, 2 014, Kleinfelder contracted with City to provide liaison services in relation to Bid Schedule No. 1388—Sidewalk Repair Project (Zones 9-13) (“Sidewalk Repair Project”).  (Id. at 5.)  The purpose of the Sidewalk Repair Project was to identify trip hazards on residential streets caused by tree root upheaval or other factors for repair.  (Id. at 6.)  Kleinfelder did not perform any construction work nor did it hire any individuals or companies to perform construction work in relation to the Sidewalk Repair Project.  (Id. at 7.)  Kleinfelder merely acted as a liaison between City, Toro, and City residents through the Sidewalk Repair Project, as well as obtained quantities.  (Id. at 8.)  City was solely responsible for determining areas that needed repair and the scope of such repairs in relation to the Sidewalk Repair Project. (Id. at 9.)  City project manager, Omar Moheize, indicated that there was no reason to conduct repairs to the curb at or near the Buena Vista Property.  (Id. at 10.)  Kleinfelder did not own, possess, control, operate, maintain, or manage the curb ramp and/or sidewalk at or near the Buena Vista Property.  (Id. at 11.) 

Kleinfelder argues that it did not owe a duty to Mr. Simonec to protect him and did not cause his alleged injuries.  Kleinfelder relies on the Professional Services Agreement that it entered into with City on January 31, 2014.  (Balatero Decl., Ex. G [Professional Services Agreement].)  According to the Professional Services Agreement, Kleinfelder’s responsibilities were as follows:

Kleinfelder, Inc. (Consultant) will provide construction inspection services for sidewalk repair in zones 1 and 20. Consultant will monitor and document the contractor's [City’s] daily work activities and perform quantity calculations and monitor the construction schedule as work progresses. If requested by the City, Consultant will hold weekly construction meetings with the contractor to review construction progress, review quantity calculations, and assist with progress payment requests. Additionally, Consultant will act as a liaison between the City and the contractor. Tasks will consist of the following:

1. Attend (2 each) pre-construction meeting

2. Attend weekly progress meetings

3. Assist engineer with proposed change orders

4. Assist engineer with request for information (RFls)

5. Provide quantity calculations

6. Review contractor payment requests

7. Review work schedule (progress report)

8. Prepare daily field reports

9. Prepare project punch list

10. Other duties as requested

Consultant will be available to the engineer on an as-requested basis through the duration of the project construction activities. Inspector will be required to be onsite on a full-time basis during construction activities. Consultant will maintain copies of construction documents for reference during construction activities. Original contract documentation can be forwarded to the City on a weekly basis if requested, for engineering review. Consultant may utilize onsite electronic media (computers and fax machines) to expedite correspondence with the project engineer during construction activities.

(Professional Services Agreement, § 1.0 at p.2, Ex. A at p.8 [Scope of Services].) Kleinfelder’s representative, Rick Bell, testified that Kleinfelder’s role was as liaison with the City, such that it would gather information from Toro and City residents, relay that information to the City, and back and forth with the City’s engineer.  (Bell Depo. at pp.22-23.)  Mr. Bell testified that Kleinfelder did not have any role to determine whether areas needed repair, was not present to determine if the criteria for repairs was met, and that the City ultimately decided which areas needed repairs.  (Id. at p.30.) 

            Kleinfelder argues that it merely provided consulting services and acted as a liaison for areas that City specifically identified.  In his deposition, Mr. Moheize testified that City’s criteria to ascertain trip hazards on sidewalks and ramps was whether there was a ¾ inch deviation.  (Moheize Depo. at pp.30-31, 33-34; see also Donald-Bradley Urquidez Depo. at pp. 81-82.)  He further stated that there was no reason to mark the Buena Vista Property, as there was no duty to report anything.  (Moheize Depo. at p.155.)  Assistant project manager, Donald-Bradley Urquidez, states that he and Mr. Moheize were in charge of the project.  (Urquidez Depo. at p. 90.)  According to Mr. Urquidez, Kleinfelder’s role was to report on the status of the construction, Kleinfelder did not perform any work on the actual construction of the Sidewalk Repair Project, Kleinfelder was not involved in creating the bid, Kleinfelder did not determine what areas within the City needed to be repaired or worked on as a part of the project, and Kleinfelder did not hire any individuals/companies to perform construction.  (Id. at pp. 117-118.) 

Based on this evidence, Kleinfelder 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.  Kleinfelder has shown that it was retained for consultant and liaison services for the City, the contractor/Toro, and City residents.  While Kleinfelder reviewed Toro’s work progress with respect to Toro’s repair and construction services, Kleinfelder itself did not provide any services to inspect sidewalks to determine whether repairs were necessary nor did it perform (or offer to perform) construction and repair services. 

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

In opposition, Plaintiffs argue that Kleinfelder attempts to downplay its role as a liaison when in reality Kleinfelder’s role included inspection services during construction activities, reviewing construction progress, and acting as a liaison.  Plaintiffs argue that Mr. Moheize hired Mr. Bell to perform inspection services on every sidewalk with the project zone and that he had no reason to believe that an inspection was not conducted.  (Moheize Depo. at pp. 205-206.)  Plaintiffs provide Mr. Bell’s deposition transcript wherein he states that he would walk 30%-50% of the areas with Toro and the City and that they would try to identify things to mark, but that Kleinfelder did not make the determination on what areas needed repairs, rather that was based on the criteria.  (Bell Depo. at pp. 63, 65, 172.)

However, the City inspectors ultimately identified the locations that needed to be repaired by way of its criteria.  Mr. Urquidez (assistant project manager for City) states that the City set the criteria for trip hazards of deviations of higher than ¾ of an inch and that it was either his or Mr. Moheize’s job to determine if something was ADA compliant.  (Urquidez Depo. at pp. 82, 89-90.)  Further, he testified that Kleinfelder would do the inspection reports for the construction, report on the status of the construction, and would not determine areas within the City needed to be repaired.  (Id. at pp. 36, 117-118.)  While Plaintiffs attempt to expand Kleinfelder’s duty to include inspection of each and every sidewalk within the zones to identify which sidewalks needed repair, Plaintiffs have not refuted the terms of the Professional Services Agreement between Kleinfelder and City to show that this was a duty owed by Kleinfelder to the City (and thereby to the public).  At most, Plaintiffs have shown that Kleinfelder would occasionally accompany the City and Toro to walk the sidewalks, but inspection and marking sidewalks was not a duty set out by the parties in the Professional Services Agreement.  Thus, 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 Kleinfelder owed a contractual duty to the City (or Mr. Simonec) to inspect sidewalks and premises.  Whatever effort Kleinfelder offered was at the City’s discretion, and not pursuant to any duty they undertook by contract.  Based on these facts and evidence, Kleinfelder cannot be held liable for failing to perform work that it was not obligated (by contract or otherwise) to perform. 

Considering the arguments, facts, and evidence submitted by the parties, the Court finds that Kleinfelder 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 5th cause of action for negligence.  

B.    Premises Liability

In their opposition brief, Plaintiffs agree to dismiss this cause of action against Kleinfelder.

As such, the motion is granted as to the 6th cause of action for premises liability.

C.    Loss of Consortium

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 claim of negligence against Kleinfelder, 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 7th cause of action.

CONCLUSION AND ORDER

Defendant Kleinfelder, Inc.’s motion for summary judgment or, alternatively, for summary adjudication is granted.

Defendant shall give notice of this order.