Judge Kerry Bensinger, Case 21STCV06493 2023-03-07 Tentative Ruling

On February 18, 2021, plaintiff Maria Cervera (“Plaintiff”) filed this action against defendants Our Lady of Lourdes Catholic Church (“Church”) and Archdiocese of Los Angeles (“Archdiocese”) (collectively “Defendants”) for negligence and premises liability. The complaint arises out of injuries Plaintiff suffered when Plaintiff’s foot got caught in a hole on a speedbump while attending a religious service at the Church.

On May 5, 2022, Defendants filed the instant motion for summary judgment. Plaintiff filed an opposition and Defendants filed a reply.

On April 14, 2019, Plaintiff attended mass at Our Lady of Lourdes Catholic Church to celebrate Palm Sunday. (Undisputed Material Fact (“UMF”) No. 2.) It is a tradition at the Church to celebrate Palm Sunday by holding a ceremony to bless palms and to hold a walking procession around the Church. (UMF No. 3.) Plaintiff participated in the walking procession on April 14, 2019, during which she claims that a hole in or about a speedbump in a narrow driveway around the Church caused her to trip and fall. (UMF Nos. 5-6.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

A plaintiff must prove (1) “[a] condition on the property created an unreasonable risk of harm”; (2) that defendant “knew or, through the exercise of reasonable care, should have known about it,” and (3) that defendant “failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.” (CACI No. 1003)

A property owner is not the insurer of the safety of its guests. The owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-40; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”].)

“It is well settled that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in his property…. Moreover, what constitutes a minor [or trivial] defect may be a question of law.” (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388-389.)

Defendants submit twelve objections to the Declaration of Philip Rosescu, filed in support of Plaintiff’s Opposition, and two objections to the Declaration of Shireen Baebee, also filed in support of Plaintiff’s Opposition. The objections are overruled. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 948-949 (noting that inadmissible evidence may be considered in ruling on a summary judgment motion if the defects can be cured at trial.)

As framed by the Complaint, Plaintiff alleges that she was injured while participating in a walking procession at a Palms Sunday Service at Our Lady of Lourdes Church on April 14, 2019. (Complaint, ¶ 6.) Plaintiff alleges she suffered the injuries when the procession entered a narrow driveway by the church and her left foot got caught in a hole near a speedbump, causing her to fall. (Complaint, ¶ 7.) The congregants swarmed the narrow driveway, which forced people to walk shoulder to shoulder and prevented Plaintiff from scanning the floor ahead as one normally would. (Id.) Plaintiff further alleges that Friar David Loftus, along with two altar boys, led the procession into the driveway yet failed to warn the crowd of the presence of a speedbump with a dangerous hole. (Id.)

Defendants move for summary judgment because Plaintiff cannot establish that Defendants created the alleged dangerous condition or had actual or constructive knowledge of the unsafe condition.

Based upon Plaintiff’s testimony, Defendants identify the dangerous condition as a hole in the driveway at or near the speedbump, or the speedbump itself, or some deterioration in the speedbump. Defendants rely upon Plaintiff’s testimony and the declaration of safety expert, John Brault (“Brault”), to negate the allegation of an unsafe condition.

1. The hole in the road. Defendants contend Plaintiff’s testimony forecloses her claim because she is unable to identify that a hole in the driveway caused her to trip. Defendants cite to Plaintiff’s deposition wherein she denied ever seeing a hole in the pavement before, during, or after the incident. (Plaintiff’s Depo., Vol. 1, 77:7-78:8.) Defendants also cite notes from Plaintiff’s healthcare providers wherein Plaintiff reported to a nurse when treated for her injuries that she “does not recall what happened prior to fall” and “does not recall … tripping over anything.” (Grannis Decl., ¶¶ 8-9, Ex. G.)

2. The speedbump. Brault opines the speedbump was not a dangerous condition. Brault points out “[t]he construction of the speed bump violates no building codes.” (Brault Decl., ¶ 24.) The speedbump was “painted with bright yellow paint to render it conspicuous and obvious.” (Brault Decl., ¶¶ 20, 21.) In Brault’s opinion, the procession did not render the speedbump dangerous. (Brault Decl., ¶ 25.) The pavement around the speedbump was not significantly deteriorated, at least not significantly deteriorated enough to render it unsafe. (Brault Decl., ¶¶ 20, 21.)[1] And based upon Plaintiff’s own testimony, she could not have and did not reach the speedbump; therefore, the speedbump could not have caused her to fall. (Brault Decl., ¶¶ 18, 19.)

Even if the speedbump or the surrounding area did present a dangerous condition, Defendants argue they did not have actual or constructive knowledge or notice of the dangerous condition. Defendants present the declaration of Dr. David Loftus, who is responsible for Church’s administration. Fr. Loftus states there were no other falls in the driveway involving the speedbump during Palm Sunday processions or at any other time. (Loftus Decl., ¶ 6.)

Defendants have met their burden to show the dangerous condition did not exist and, even if it did, Defendants did not have actual or constructive notice of the dangerous condition. The burden shifts to Plaintiff to raise triable issues of material facts on both topics.

In opposition to the motion, Plaintiff argues the speedbump in combination with the procession created a dangerous condition, and the Defendants had actual knowledge of both – the speedbump and the procession.

1. The hole in the road. Plaintiff has not identified with sufficient particularity that a hole in the driveway caused her to fall.

2. The speedbump. Plaintiff has sufficiently identified the speedbump and deterioration around the speedbump as the locus of her fall. (Plaintiff’s Depo., Vol. 1, 80:14-81:4.) She also describes the procession as impairing her ability to walk and see the speedbump in front of her. (Plaintiff’s Depo., Vol. 1, 80:2-9.)

Plaintiff offers the declaration of Philip Rosescu (“Rosescu”) in support of her argument that the speedbump, in conjunction with the procession, created a dangerous condition.[2] He opines the subject driveway “is intended for vehicle use only,” however “there is no designated walkway for pedestrians anywhere along the driveway, forcing pedestrians to share the same path of travel as vehicles and as such, forcing pedestrians to encounter various speedbumps which are a known walking hazard.” (Rosescu Decl., ¶ 20.) Rosescu also states the “subject speedbump consists of an abrupt sloped height differential up to 2-1/2 inches.” (Rosescu Decl., ¶ 15.) Combined with the “crowd of approximately 30 people preceding [Plaintiff],” Rosescu opines “entering a 14 foot wide driveway would have forced everyone to walk within extreme close proximity to each other … [and] would have hidden the presence of the speedbump.” (Rosescu Decl., ¶ 14.)

Given that Defendants were aware of the speedbump in their driveway and the volume of participants in the procession, Plaintiff presents a triable issue of material fact whether Defendants knew or should have known this combination (the speedbump plus the procession) created a dangerous condition.[3] That no accident in the Church’s driveway had happened before, while certainly relevant, is not dispositive. Such evidence may bolster Defendant’s case but does not prove definitively that there was no dangerous condition.

Based upon the evidence presented and competing declarations of experts, the Court finds there are triable issues of material facts. The Court cannot find as a matter of law that Defendant is not liable for premises liability.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff challenges the basis for Brault’s opinion on this topic because he surveyed the cite some two years after the fact. However, Plaintiff does not dispute that Brault’s opinion is based partly upon photographs of the alleged incident that Plaintiff produced during discovery.

[2] Given the measurement of the speedbump and the presence of the crowd obscuring Plaintiff’s ability to see the speedbump, this is not a trivial defect case.

[3] Defendant cites to Jones v. Awad (2019) 39 Cal.App.5^th 1200, 1209 (Jones), for the proposition that an expert cannot opine on whether a defendant “would have or should have recognized” a dangerous defect. But Jones does not address this issue. On appeal, appellant did not challenge the trial court’s ruling, and the Court of Appeal does not address nor discuss the issue. Jones is notable, however, for its discussion that a “conspicuous element” would put a reasonably prudent person on notice of a risk of harm. (Id. at p. 1210.) Here, the speed bump coupled with the procession created a conspicuous element and a discernable feature that would notify Defendants of an unreasonable risk of harm.