Judge Kerry Bensinger, Case 21STCV12624 2023-04-24 Tentative Ruling

On April 2, 2021, Plaintiff Margaret Bock filed this action against defendant City of La Mirada (“City”) and DOES 1 to 50 for (1) general negligence and (2) premises liability. The Form Complaint arises out of injuries Plaintiff suffered when she tripped and fell on an uneven, displaced, and poorly lit portion of a sidewalk on City’s property while walking her dog.

On June 21, 2021, the City filed a cross-complaint against West Coast Arborists, Inc. (“WCA”) for (1) indemnification, (2) apportionment of fault, (3) declaratory relief, (4) breach of contract, and (5) contribution. The City alleges that it entered into an agreement with WCA wherein WCA agreed to defend and indemnify the City for claims asserted by Plaintiff.

On April 15, 2022, the City filed a motion for summary judgment. The Court denied the motion on August 9, 2022, finding the City failed to meet its burden to show the uplift in the subject sidewalk was a trivial defect as a matter of law.

WCA now moves for summary judgment asserting that Plaintiff’s causes of action fail because Plaintiff cannot establish WCA owned the subject sidewalk or that WCA owed Plaintiff a duty of care.

On May 3, 2020, Plaintiff was walking on the sidewalk at or near 14708 Figueras Road, La Mirada, CA (the “subject sidewalk”) when she tripped and fell due to an uneven, displaced and poorly lit portion of that sidewalk (the “subject incident”). (Undisputed Material Fact (“UMF”) No. 2.) At no time did WCA own, legally possess, or otherwise have the right to control the sidewalk where the subject incident occurred. (UMF No. 3.)

The City contracted with West Coast Arborists (“WCA”) to perform certain tree trimming services since about 2000. (UMF No. 4.) WCA and the City entered into a Professional Services Agreement on October 17, 2014, and a subsequent agreement became effective on or about October 13, 2019. (UMF No. 5.) The October 2019 Tree Maintenance Services contract stated, “The Contractor shall immediately correct or report to the Public Works Director/ City Engineer or designee any and all problems or conditions which may tend to create unsafe or hazardous conditions within the public areas maintained by the Contractor. The Contractor shall be liable for any claim arising from failure to correct or report said conditions.” (Plaintiff’s Additional Material Facts (“AMF”) No. 4.) Prior Tree Maintenance Agreements between the City and WCA also required WCA to report hazardous conditions and held them liable for claims arising from a failure to report. (AMF No. 5.) The Tree Maintenance Services contract required WCA to look around the trees for “Hazardous Conditions”. (AMF No. 6.) The City interpreted “Hazardous Conditions” to include root intrusions. (AMF No. 7.) WCA was the only entity that inspected the subject sidewalk between 2016 and 2020. (AMF No. 23.) WCA last serviced the subject tree on December 19, 2019. (AMF No. 14.) WCA did not note any root intrusion when it performed the tree service on December 19, 2019. (AMF No. 18.) The only service WCA performed on the subject tree prior to the subject incident was to trim/prune it. (UMF No. 10.) The City never requested that WCA perform any services related to the roots of the subject tree prior to the subject incident. (UMF No. 11.)

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”].)

“The ‘fundamental element’ for every negligence cause of action is the ‘the existence of a legal duty of care running from the defendant to the plaintiff.’ (Citations omitted.) ‘A duty may arise through statute, contract, or the relationship of the parties.’ (Citations omitted.) California also recognizes a common law duty in certain circumstances based on the theory of negligent undertaking. (Citations omitted).” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920.)

The “negligent undertaking theory of liability is set forth in section 324A [of the Restatement (Second) of Torts].” (Peredia v. HR Mobile Servs., Inc. (2018) 25 Cal.App.5th 680, 687.) “In its entirety, section 324A reads: ‘One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if [¶] (a) his failure to exercise reasonable care increases the risk of such harm, or [¶] (b) he has undertaken to perform a duty owed by the other to the third person, or [¶] (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612-13, footnote omitted (Artiglio); Paz v. State of California (2000) 22 Cal.4th 550, 559 (Paz).)

Section 324A is applied to determine the “duty element” in a negligence action where the defendant has “specifically ... undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully.” (Artiglio, supra, 18 Cal.4th at pp. 614-615.)

“A finding of liability to third persons under the negligent undertaking theory ‘requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking.” (Paz, supra, 22 Cal.4th at p. 559.) Unless all three predicate alternatives in the fifth factor are negated, a defendant may be found to owe a duty to third persons under the negligent undertaking theory.”

In its reply, WCA objects to the following evidence submitted by Plaintiff: (1) Deposition Testimony of Mark Stowell (“Stowell”), (2) Deposition Testimony of Anthony Moreno (“Moreno”), and (3) Google Maps Image (Exhibit M) of the subject sidewalk.

Stowell and Moreno provide testimony on the professional service agreements (“Service Agreements”) between WCA and the City. WCA argues the deposition testimony to which it objects lacks foundation, personal knowledge, and calls for improper opinions because neither Stowell nor Moreno are the City’s persons most knowledgeable regarding the Service Agreements. Objection Nos. 1 and 2 are OVERRULED. Deponents Stowell and Moreno may testify as to their understanding of the Service Agreements. (See also 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).

In its reply, WCA requests that the Court take judicial notice of its own ruling from August 9, 2022, wherein the Court denied the City’s motion for summary judgment. The request is GRANTED. (Evid. Code, § 452, subd. (d).)

As framed by the Complaint, Plaintiff alleges she was injured on May 3, 2020, because of a dangerous condition on defendants’ property. Specifically, Plaintiff tripped and fell on an uneven, displaced, and unlit portion of the sidewalk and suffered serious injuries as a direct consequence. Though not clear from the Complaint, the moving papers and opposition each point to a root intrusion as the physical cause of the uneven sidewalk. Plaintiff alleges she sustained serious injuries and incurred damages as a direct result of defendants’ failure to maintain, inspect, repair, manage, supervise, control, light and/or operate the premises located at or near 14722 Figueras Road, La Mirada, CA 90638.

WCA argues summary judgment is appropriate because Plaintiff cannot establish WCA owed a duty to Plaintiff. The parties focus on and fight over the application of the negligent undertaking doctrine.

“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another.” (Paz, supra, at p. 559.) Here, the undisputed evidence shows WCA undertook for consideration the Service Agreements to supply tree maintenance services and to report hazardous conditions.

“[A] negligent undertaking claim of liability to third parties requires evidence that … (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons.” (Paz, supra, at p. 559.)

Here, the Service Agreements provide that “[t]he Contractor shall be liable for any claim arising from failure to correct or report said [unsafe or hazardous] conditions.” (Macias Decl., Exs. A, B.) A reasonable inference from this language is that the Service Agreements contemplated protecting third persons like Plaintiff who might be injured because of unsafe or hazardous conditions.

“[A] negligent undertaking claim of liability to third parties requires evidence that … (3) the actor failed to exercise reasonable care in the performance of the undertaking.” (Paz, supra, at p. 559.)

WCA contracted to immediately correct or report conditions which may tend to create unsafe or hazardous conditions. On or about the time of the incident, WCA did not report any hazardous conditions to City.[2] The parties dispute the meaning of the term hazardous condition and whether WCA was obligated to report hazardous conditions on the sidewalks. If WCA were obligated to report on hazardous conditions on the sidewalk and if the uplift constituted a hazardous condition, WCA was required to report it. WCA argues the uplift did not constitute a hazardous condition, hence it did not fail to exercise reasonable care in the performance of its undertaking. WCA points to this Court’s prior ruling in support of its position.

But this Court’s August 9, 2022, ruling rejected the City’s argument the uplift constituted a trivial defect. True, poor lighting was the contributory factor that carried the day but the uplift around 1.2 inches at the time of the incident. WCA conflates and attempts to supplant the trivial defect doctrine with the contractual definition of “hazardous condition.” The two concepts may overlap but are distinct. A jury might well find the uplift constituted a hazardous condition within the meaning of the contract, independent of the trivial defect doctrine. The foregoing discussion – whether the uplift was a hazardous condition and whether WCA’s failure to report it was unreasonable – are questions of fact for the jury to decide. Plaintiff offered evidence that WCA serviced the subject tree in December 19, 2019—just over five months before Plaintiff allegedly tripped and fell. A reasonable trier of fact could find that an uplift of some height existed on December 19, 2019, constituted a hazardous condition, and WCA was required to report it pursuant to the Service Agreements.

“[A] negligent undertaking claim of liability to third parties requires evidence that … (4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons.” (Paz, supra, at p. 559.) This element is not in dispute.

“[A] negligent undertaking claim of liability to third parties requires evidence that … (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking.” (Paz, supra, at p. 559.) “Plaintiffs need only establish one of the three [conditions] to satisfy the fifth element.” (Peredia, supra, 25 Cal.App.5th at p. 697.)

Defendant’s evidence in support of the motion for summary judgment did not negate as a matter of law all of the foregoing subparts. With respect to subpart (a), if WCA negligently failed to inform the City of the hazardous condition (the uplift), as it was required by the contract, a trier of fact could reasonably find WCA’s conduct increased the risk of harm to the plaintiff. Similarly, with respect to subpart (c), a reasonable inference from the evidence is that Plaintiff suffered harm because the City relied upon WCA to report hazardous conditions and because WCA failed to report the uplift, the condition was not corrected, and Plaintiff was injured. Indeed, WCA did not address Stowell’s testimony that the City relied on WCA to report hazardous conditions.

WCA relies heavily upon the California Supreme Court’s decision in Paz. While WCA’s reference to the analytical framework set out in Paz is correct, the factual circumstances are different, thus, the result here is different as well. In Paz, plaintiff suffered injuries from a motorcycle accident. Plaintiff sued a private corporation (Stoneman) and a design firm (KOA) who were engaged to install a traffic control signal at the intersection where the accident occurred. Stoneman was developing the condominium project near the subject intersection. To obtain the permit for the project, Stoneman was required to install traffic control signals and to modify the roadway striping at the subject intersection. Stoneman contracted with a civil engineer, who in turn subcontracted with KOA to undertake the traffic signal project. However, at the time plaintiff was injured in the accident, the traffic signals and roadway striping modifications had not been completed. Plaintiff alleged that Stoneman and KOA owed him a duty because they had agreed to install a traffic signal which might have prevented the accident.

The California Supreme Court turned its attention to the fifth element of the negligent undertaking test and found that the defendants demonstrated as a matter of law that none of the three alternative conditions were present. Specifically, the evidence did not support an inference that (1) Stoneman and KOA’s conduct increased the risk of physical harm to plaintiff or other motorists beyond that which allegedly existed at the intersection; (2) Stoneman and KOA did not undertake to perform a duty that the City of Los Angeles owed to plaintiff because cities generally have no affirmative duty to install traffic control signals, and (3) plaintiff nor the City of Los Angeles relied on Stoneman and KOA’s timely installation of the traffic control signals.

Central to the High Court’s ruling was the fact that the City of Los Angeles and Stoneman did not enter into a contract to install the traffic signals. (Paz, 22 Cal.4th at pp. 556, 560-61.) The California Supreme Court stated, in relevant part:

“The City and Stoneman did not make a contract to install the traffic signals. Instead, the City only made the signals a condition of Stoneman’s condominium development project. If Stoneman had abandoned the development project—a decision that real property developers may face if financing becomes uncertain or if litigation entangles a project—Stoneman would not have been obliged to install the traffic signals at all. Thus, imposing the traffic signal installation as a condition of development did not give the City a basis for relying on the installation’s being completed at any time before the condominium project's completion.”

(Id. at p. 561.) As Justice Mosk, concurring in the opinion, succinctly put it, “Stated another way, nothing in the record establishes that by failing to install the traffic signal by January 12, 1991, when the accident occurred, the developer or its agents breached any legal duty contractually imposed or otherwise. This is therefore not a case in which the developer breached an obligation to install traffic improvements before commencing the operation of a commercial or residential development.” (Id. at p. 562, Mosk, J. concurring.)

The present case, however, does present a situation where WCA contracted to report hazardous conditions. Unlike Paz, WCA expressly contracted with the City to report hazardous conditions when providing tree trimming services. Section D of the Service Agreements, titled “Hazardous Conditions and Vandalism”, states: “The Contractor shall immediately correct or report to the City Engineer any and all problems or conditions which may tend to create unsafe or hazardous conditions within the public areas maintained by the Contractor. The Contractor shall be liable for any claim arising from failure to correct or report said conditions.” (Macias Decl., Exs. A, B, emphasis added.) Section 11.0 of the 2019 Service Agreement, titled “Safety Requirements” provides, in relevant part, “The CONTRACTOR shall immediately report to the CITY any hazardous condition noted by the CONTRACTOR.” (Macias Decl., Ex. B.)

WCA relies on the Declaration of Ernesto Macias (“Macias”) to argue that the Service Agreements do not impose a duty on WCA to report sidewalk conditions to City. Macias is the Vice President of Risk Management and Labor Relations at WCA. (Macias Decl., ¶ 2.) In his declaration, Macias states “[t]here are no terms in the [Service] Agreements that require WCA to report on the condition of sidewalks in the City when performing tree maintenance services on City trees including the Subject Tree.” (Macias Decl., ¶ 4.)

The Service Agreements do not expressly require WCA to report on the condition of sidewalks. Nor is the term “hazardous condition” defined in the Service Agreements. However, Mark Stowell (“Stowell”) testified on behalf of the City, that the City defines “hazardous condition” to include “the area maintained by the contractor which is around the tree.” (Stowell Depo., pp. 55:3-19, 77:24-78:8.) Reporting an uplifting of a sidewalk would then require the City to replace the concrete. (Id. at p. 78:10-14.) Stowell further testified that the City relies on contractors like WCA to comply with City’s sidewalk inspection program policy. (Id. at p. 59:1-11, 84:5-14.) WCA does not contend with this evidence. A reasonable trier of fact could find that the Service Agreements required WCA to report hazardous conditions such as root intrusions in the sidewalks. Reporting such a condition would then prompt City to remedy the condition. Having failed to report the root intrusion in the subject sidewalk, WCA could be found to have breached a duty to foreseeable persons like Plaintiff.

In sum, the record supports competing inferences in some instances, and in others, WCA fails to deal with unfavorable evidence. Accordingly, WCA fails to meet its initial burden to negate the essential element of a duty owed to Plaintiff pursuant to the negligent undertaking doctrine.

It is undisputed the City, and not WCA, owned the subject sidewalk. (UMF No. 3.) The parties spend little time discussing this cause of action. While WCA might be able to successfully negate an essential element of this cause of action, namely, that WCA owned or controlled the subject property, WCA noticed a motion for summary judgment, not summary adjudication, and a court cannot grant summary adjudication of a cause of action where the only motion noticed is for a hearing for summary judgment. (Maryland v Cas. Co. v. Reeder (1990) 221 Cal.App.3d 961, 974.) Given the Court’s ruling denying summary judgment on the first cause of action, the Court need not and cannot adjudicate the second cause of action.

Because WCA fails to meet its initial burden to show that it did not owe Plaintiff a duty of care as a matter of law with respect to the first cause of action, the motion for summary judgment is DENIED.

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] The City opposes WCA’s motion in order to protect its asserted cross-claims against WCA. Because the Court finds WCA fails to meet its initial burden, the Court need not and does not address the City’s opposition.

[2] WCA argues Plaintiff lacks evidence there was an uplift in the sidewalk when it performed its inspection in late 2019. At the same time, however, WCA argues it did not have an obligation to report on hazardous conditions on the sidewalk, which might very well explain why there is no direct evidence of the uplift in late 2019. Whether WCA was obligated to report on hazardous conditions related to the sidewalks is a factual dispute between the parties and, as such, inappropriate for summary judgment.