Judge Lee S. Arian, Case Number: 20STCV23331, Date: 2024-01-08 Tentative Ruling

This is an action arising from Plaintiff Cecilia Medina (“Plaintiff”) tripping and falling on a sidewalk located directly adjacent to 3247 E. 4th Street, Los Angeles, CA 90063 (the “Premises”), which Plaintiff alleges occurred on August 21, 2019. On June 19, 2020, Plaintiff filed a complaint against Defendants City of Los Angeles (“City”) and Does 1 to 50, alleging causes of action for: (1) damages for personal injuries against a public entity and employee based on tortious act of employees within scope of employment and (2) premises liability.

The complaint alleges, in part, that Defendants “and each of them, negligently owned, operated, designed, planned, supervised, altered, amended, built, constructed, developed, managed, repaired and maintained the [Premises] in that the [Premises] were in a state of disrepair, uneven, cracked, dangerously sloped, not code compliant, negligently maintained, defectively designed, and in a condition that was likely to cause a slip and fall incident likely to injure pedestrians.” (Complaint, ¶ 12.) Plaintiff alleges that she slipped and fell on the edge of the sidewalk located directly adjacent to the Premises. (Complaint, ¶ 11.)

On November 17, 2021, Plaintiff filed an Amendment to Complaint identifying Francisco Govea (“Govea”) as Doe 1.

On March 3, 2022, Defendant Govea filed a cross-complaint against Defendant City alleging causes of action for indemnity, declaratory relief, and contribution.

On March 22, 2022, Defendant City filed a cross-complaint against Defendant Govea alleging causes of action for indemnification, apportionment of fault, and declaratory relief.

On February 10, 2023, Defendant Govea filed and served the instant motion for summary judgment (the “Motion”). The Motion is made on the grounds that Plaintiff’s action has no merit and there is no triable issue as to any material fact because Defendant Govea “did not own the property where the injury occurred, did not have control over the subject property and did not owe Plaintiff . . . any duty of care.” (Motion, 2:5-10.) Defendant Govea only seeks summary judgment as to the second cause of action for premises liability and does not move for summary judgment as to the first cause of action because “Defendant [Govea] is not a public entity or an employee.” (Motion 3:27-4:8.) The Court notes that the first cause of action is asserted against all defendants.

On October 6, 2023, the Court issued an order continuing the hearing on the Motion to January 29, 2024.

On January 12, 2024, Plaintiff filed an opposition to the Motion, to which Defendant Govea replied on January 22, 2024.

Plaintiff contends that the Motion should be denied because Defendant Govea’s separate statement in support of the Motion is procedurally defective.

A separate statement in support of a motion for summary judgment “must state in numerical sequence the undisputed material facts in the first column followed by the evidence that establishes those undisputed facts in that same column. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, Rule 3.1350, subd. (d)(3).) A separate statement in support of a motion for summary judgment must set forth material facts and “[e]ach of the material facts stated shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).) “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” (Ibid.)

Here, while Defendant Govea’s separate statement in support of the Motion cites various exhibits, the separate statement does not cite the specific portions of such exhibits. Thus, Defendant Govea has only presented generalized citations to exhibits but does not direct the Court to the relevant portions of such exhibits. Defendant Govea has not complied with California Rules of Court, rule 3.1350(d)(3) and Code Civ. Proc. § 437c(b)(1).

Although the Court finds that the separate statement is procedurally defective, the evidence proffered by Defendant Govea is before the Court. The Court therefore exercises its discretion and will not deny the Motion on procedural grounds. The Court will assess the merits of the Motion.

However, the Court reminds Defendant Govea to comply with the requirements of the Code of Civil Procedure and the California Rules of Court.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)

“As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 849.) “[T]he plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “A mere scintilla of evidence does not create a conflict for the jury’s resolution.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “An issue of fact . . . is not created by speculation, conjecture, imagination or guess work.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.)

Initially, the Court addresses Plaintiff’s argument that the Motion should fail because under Los Angeles Municipal Code section 62.104(b), no matter if Defendant Govea is deemed to control or own the fronting sidewalk adjacent to the Premises, he is under an obligation to ensure that the condition of the sidewalk will not endanger any person. (Opposition, 9:17-22.)

Los Angeles Municipal Code section 62.104(b) provides that “[t]he owner of a [l]ot shall maintain any Sidewalk, Driveway Approach, Curb Return or Curb on or fronting on the Lot in such condition that the Sidewalk, Driveway Approach, Curb Return or Curb will not endanger any Person or property passing thereon or violate the Americans with Disabilities Act.” If an owner of a property fails to maintain a sidewalk or curb, then a notice of non-compliance will be sent to the owner, and repairs by the Board of Public Works at the owner’s expense may be instituted under Los Angeles Municipal Code section 62.104(c)-(d).

The complaint does not raise Los Angeles Municipal Code Section 62.104(b) as a basis for liability against Defendant Govea. In fact, such municipal code section is not mentioned in the complaint at all. Given that “[t]he function of the pleadings in a motion for summary judgment is to delimit the scope of the issues” (Juge v. County of Sacramento, supra, 12 Cal.App.4th 59, 65), the Court finds that Plaintiff cannot rely on such municipal code section to defeat summary judgment. If Plaintiff wanted to establish such municipal code section as a basis for premises liability against Defendant Govea, Plaintiff should have set forth such allegations in the complaint. Summary judgment proceedings only concern “material factual claims put in issue by the pleadings.” (Juge v. County of Sacramento, supra, 12 Cal.App.4th 59, 65.)

The Court acknowledges the rule that “[i]n the absence of a statute[,] a landowner is under no duty to maintain in a safe condition a public street or sidewalk abutting his property.” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255, citations omitted.)

However, even if Los Angeles Municipal Code section 62.104 had been alleged as a basis for premises liability in the complaint, such municipal code section would not warrant a finding of a duty. A reading of the statute and the enforcement mechanisms therein “creates a duty on the part of the property owner to keep the sidewalks in repair—but that the duty is owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor to reimburse the city if it is compelled to pay damages.” (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 327.) Los Angeles Municipal Code section 62.104 does not explicitly state that a property owner owes a duty to those walking on the sidewalks abutting a property.

Defendant Govea contends that the element of duty cannot be established and therefore Plaintiff’s cause of action for premises liability fails as a matter of law.

“To succeed in a negligence action, a plaintiff must show the following: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached the duty; and (3) the breach proximately or legally caused the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) “The elements of a cause of action for premises liability are the same as those for negligence.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207, citations omitted.) “Whether an individual owes a duty of care is a question of law.” (Ibid., citation omitted.)

“A defendant cannot be held liable for [a] defective or dangerous condition of property which it [does] not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720, citation omitted.)

“As applied to persons who own or occupy land, California tort law imposes a duty to maintain land in their possession and control in a reasonably safe condition.” (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 254-55, citations omitted.) However, “[a] person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has exercise[d] control over th[at] property.” (Id. at p. 255, citations omitted.) “That is because a person who exercises supervisory control over property has the power to keep it in a reasonably safe condition, which makes it just to impose a duty to exercise due care in the management of th[at] property.” (Ibid, citations omitted.) An owner or occupier of property exerts control over abutting, publicly owned property where “the owner or occupier . . . take[s] some affirmative or positive action toward the abutting, publicly owned property.” (Id. at p. 256, citations omitted.)

There are two situations where an owner or occupier of private land will be deemed to be held liable “for a hazard located on abutting, publicly owned property: (1) when the owner or occupier has created that hazard . . . or, (2) if the hazard was created by a third party, when the owner or occupier has dramatic[ally] assert[ed] dominion and control over the abutting, publicly owned property by effectively treating the property as its own.” (Ibid., citations omitted, internal quotations omitted, emphasis in original.) In assessing whether a private landowner has treated abutting, publicly owned property as his own, an act must “go beyond the minimal, neighborly maintenance of property owned by another.” (Id. at p. 258, citations omitted.) Liability for hazards created by a third party on abutting, publicly owned land has been imposed where the owners “erected a fence around, as well as maintained the property . . . put up a lighted sign to illuminate the property . . . installed sprinklers, planted trees and maintained the property . . .or mowed and watered grass, removed debris and repaired damage to the property.” (Ibid., citations omitted.)

Defendant Govea presents evidence that the area where Plaintiff claims she fell is in the right of way of Defendant City, and Defendant City admitted that the area of the sidewalk where Plaintiff alleges she fell is dedicated to Defendant City. (Garibyan Decl., ¶ 5, Exhibit B at 4:11-19.) Plaintiff testified at deposition that she slipped and fell on the curb area while walking at or near the property located at 3245/3247 East 4th Street, Los Angeles, CA. (Garibyan Decl., ¶ 6, Exhibit C at 10:1-9 and 18:1-23.) Plaintiff also testified at deposition that the curb area was really slippery due to some “sand” that was at or around the curb, which caused her to fall. (Garibyan Decl., ¶ 7, Exhibit D at 22:2-10.) Defendant presents evidence that Defendant City owned, controlled, and maintained the sidewalk and curb area where Plaintiff fell, which is evidenced by Defendant City’s responses to Requests for Admission, Set One. (Garibyan Decl., ¶ 5, Exhibit B at 4:11-19.) Defendant Govea also presents the declaration of a professional land surveyor, Chris Nelson (“Nelson”), who declares that the alleged incident lies within Defendant City’s maintained right of way. (Nelson Decl., ¶ 7.) Defendant Govea also presents evidence that Defendant City patched up the sidewalk with asphalt but did not repair the curb, and Defendant City left the eroded curb without repair. (Garibyan Decl., ¶¶ 10-11.)

Defendant Govea has met his burden in showing that he did not owe a duty to Plaintiff because he did not own or otherwise control the sidewalk and curb area where Plaintiff fell. The burden now shifts to Plaintiff to show a triable issue of material fact.

Plaintiff presents evidence that Defendant Govea and his sister, Rita Rodriguez, manage the Premises together, and Defendant Govea owns the Premises. (Avila Decl., ¶ 1, Exhibit A at 47:4-18.) As to the management of the Premises, Defendant Govea testified at deposition that he cleans the hedges, sweeps, and paints and does such tasks every two weeks. (Id., Exhibit A at 9:18-10:5.) Defendant Govea testified that the curb is maintained by Defendant City, but his sister called in June of 2018 about the curbs and the sidewalk, and sometime later, tar or asphalt was put on the cracks because the trees were lifting the sidewalk. (Id., Exhibit A at 15:2-6.) Defendant Govea testified that he noticed tree roots lifting the sidewalk about 10 years ago. (Id., Exhibit A at 15:13-18.) Defendant Govea testified that the condition of the sidewalk has been reported to councilmen and Public Works. (Id., Exhibit A at 17:15-23.) Defendant Govea communicated with the neighbor to the west of the Premises as to the trees causing uneven surfaces on the sidewalk. (Id., Exhibit A at 22:2-7.) Defendant Govea’s sister and Defendant Govea himself have also alerted Public Works as to the condition of the sidewalk. (Id., Exhibit A at 23:3-25.) When Defendant Govea called Public Works, he was not asked to submit a service request. (Id., Exhibit A at 25:6-8.) Defendant Govea testified at deposition that his sister contacts the City departments to get the issue resolved because it is the City’s property, and he was told that he could not fix the cracks in the sidewalk when he inquired. (Id., Exhibit A at 26:17-24.) Defendant Govea’s sister contacted Defendant City at least seven times. (Id., Exhibit A at 28:6-14.) Defendant Govea testified that he has never hired anyone to inspect the sidewalk and he has never placed any caution tape or sign on the Premises alerting the public to the sidewalk area. (Id., Exhibit A at 30:21-24 and 32:2-5.)

Plaintiff also presents the deposition testimony of the West Valley Superintendent, who testified that if a sidewalk is reported as problematic, the location would be referred to the Investigation Enforcement Division to find out who the liable party is, and more than likely, it would be referred back to the adjacent property owner. (Id., Exhibit B at 13:5-15.) The West Valley Superintendent testified at deposition that responsibility for the curb is the adjacent property owner’s responsibility. (Id., Exhibit B at 29:24-30:4.)

The Court finds that even liberally construing the evidence in opposition to the Motion, Plaintiff has not shown a triable issue of material fact as to duty. While Plaintiff has presented evidence as to Defendant Govea’s actions as to maintaining the Premises through sweeping, cleaning the hedges, and painting, such actions were performed on the Premises and not on the sidewalk or curb area. (Avila Decl., Exhibit A at 9:18-10:5.)

Plaintiff has presented no evidence concerning Defendant Govea taking any affirmative acts beyond minimal neighborly maintenance as it pertains to the sidewalk or curb area abutting the Premises. In fact, Plaintiff has presented no evidence of any actions that Defendant Govea took as to: (1) fixing the sidewalk or curb area; or (2) otherwise physically modifying such area. The fact that Defendant Govea called Public Works to report the sidewalk condition and inquired about fixing the sidewalk issue himself does not lead to a finding that he treated the sidewalk and curb area as his own. Moreover, the fact that a sidewalk issue will be referred to the Investigation Enforcement Division who would then likely refer such issue back to the adjacent property owner does not lead to the finding of a legal duty.

In sum, Plaintiff has presented no evidence that Defendant Govea treated the sidewalk and curb area abutting the Premises as his own under Lopez v. City of Los Angeles, supra, 55 Cal.App.5th 244. Plaintiff has not presented substantial responsive evidence that Defendant Govea dramatically asserted dominion and control over the sidewalk and curb area. (Lopez v. City of Los Angeles, supra, 55 Cal.App.5th 244, 256.) Thus, as a matter of law, the Court finds that there is no duty of Defendant Govea to maintain the sidewalk and curb area abutting the Premises.

The Court GRANTS Defendant Govea’s motion for summary judgment as to the second cause of action in the complaint 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 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. Lee S. Arian

Judge of the Superior Court