Judge: Lee S. Arian, Case: 21STCV33481, Date: 2024-12-03 Tentative Ruling

Case Number: 21STCV33481    Hearing Date: December 3, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION FOR SUMMARY JUDGMENT¿AND SUMMARY ADJUDICATION 

Hearing Date: 12/3/24¿ 

CASE NO./NAME: 21STCV33481 RICKI WILLIAMS vs CITY OF INGLEWOOD

Moving Party: Defendant City of Inglewood 

Responding Party: Plaintiff¿ 

Notice: Sufficient¿ 

Ruling: GRANTED 

Background

Plaintiff Ricki Michaele Williams alleges that she is visually- impaired and on September 16, 2020, she tripped and fell into a "ditch (open trench)" located “at or near” the intersection of S. Osage Avenue and E. Nutwood Street in the City of Inglewood, California (“Subject Location”), resulting in injuries.

Plaintiff asserts two causes of action against the City of Inglewood: (1) dangerous condition of public property and (2) violation of the Unruh Civil Rights Act.

Legal Standard 

In reviewing a motion for summary judgment or adjudication, 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).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.) 

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 court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

Undisputed Facts

        The parties do not dispute that the open ditch in question was not created by the City of Inglewood (“City”) but was instead part of a project conducted by Centurylink/Level 3 Communications (“Centurylink”) for the placement of fiber optic conduit within streets throughout the City of Inglewood. The City’s role regarding the project was limited to issuing a permit and fulfilling certain inspection obligations. Spefically:

        In February 2020, Centurylink obtained a permit from the City for the placement of fiber optic conduit within streets throughout Inglewood (the “Centurylink Project”), including the portion of E. Nutwood Street at the “Subject Location.” (UMF 5.) Centurylink and its contractors were required to comply with the permit and its corresponding requirements. (UMF 5.)

        The Centurylink Project was a private project, not a City project. No contractor involved in the project was hired by the City, and no work was performed by or on behalf of the City. (UMF 6.) Consequently, no employee of the City’s Public Works Department participated in any work on the Centurylink Project at the Subject Location. (UMF 7).

        The City did not design, plan, build, construct, or maintain any trench or ditch at the Subject Location. These responsibilities, including securing the trench and ensuring public safety, were entirely undertaken by Centurylink and its contractors under the permit requirements. (UMF 8, 10.) None of the materials used at the construction site were purchased or owned by the City. (UMF 9.)

Initial Burden

The key issue here is the extent of the City’s control over the Centurylink Project and whether such control could impose liability for Plaintiff’s alleged injuries. The City presented evidence demonstrating that its responsibilities were limited to issuing the permit and monitoring the progression of the work through a City Inspector to confirm compliance with the plans and specifications submitted by Centurylink. (Decl. Fernandez, ¶ 6.)

The City presented evidence that its inspection duties did not extend to ensuring the safety of the premises, including securing the trench where Plaintiff allegedly fell, during the construction phase. Under the permit terms, ensuring site safety was the sole responsibility of Centurylink and its contractors. (Id. ¶ 5.) The City has provided evidence that its limited role, confined to permit issuance and technical compliance review, does not meet the threshold of control necessary to establish liability.

In light of this evidence, the City has met its initial burden to demonstrate that it did not exercise control over the trenches that caused the accident or other aspects of the construction site that could have prevented the incident. Therefore, the burden shifts to Plaintiff to establish a triable issue of fact regarding the City’s alleged control and resulting liability.

Triable Issue of Fact

Plaintiff argues that "[w]hile Fernandez does state in paragraph 5 that the requirements are typically the responsibility of the permittee, he does not exclude the City." However, Plaintiff fails to address paragraph 6 of Fernandez's declaration, where he explicitly states: "The City did not design, plan, build, construct, or maintain any trench or ditch located at the Subject Location—all of the above were the responsibility of Centurylink and its contractors pursuant to the permit and permit requirements."

Fernandez further clarifies that the City’s limited role regarding the project was to issue the permit and monitor the progression of the work through a City Inspector to ensure compliance with the plans and specifications submitted by Centurylink. Fernandez’s declaration when read as a whole shows that securing the trench and ensuring site safety were exclusively Centurylink's obligations, not the City’s.

To raise a triable issue of fact, Plaintiff cites to her Disputed Material Facts, Nos. 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 25, 26, and 27, which collectively assert that "[t]he City still maintained control of the project by having City Inspectors at the scene on the day of the Subject Incident."

Plaintiff also points to Exhibit 5 from her deposition, which is a photograph allegedly demonstrating the presence of an open trench without warning signs and scattered plates creating a hazardous condition, known to the City Inspector at approximately 11:47 a.m. on the day of the incident. (See Plaintiff Deposition, 99:2–15; 106:5–25; 107:11–16.[1]) Plaintiff also relies on the declaration of Expert Gary Gsell, who opines that the City failed in its obligations regarding the project. (See Gsell Declaration, ¶¶ 4–17.)

However, these arguments primarily hinge on the City Inspector's presence and awareness of the conditions at the site, which do not, on their own, establish that the City exercised control over site safety or assumed responsibilities beyond those outlined in the permit. The evidence must show more than the City Inspector’s knowledge; the evidence must demonstrate the City’s active involvement or control over the specific safety measures that Plaintiff claims were lacking, specifically with regard to the trench.  Plaintiff provided no such evidence.

For instance, Exhibit 5 shows an open trench; however, as declared by Fernandez, the City’s obligation to inspect is limited to determining whether the work complied with the specifications submitted by Centurylink. The fact that the City Inspector was arguably present at the time of the incident (the Reply appears to indicate that is not accurate) and took photographs does not establish that he was there to inspect whether the site was secured. Plaintiff has not provided any evidence to suggest that the purpose of the inspection deviated from what was outlined by Fernandez’s declaration.

Plaintiff references numerous photographs showing the open trench, but these images pertain to whether the premises were secured—a responsibility that, under the permit, belonged exclusively to Centurylink and its subcontractors. Plaintiff has not presented any affirmative evidence, such as deposition testimony from the City’s PMK, to contradict the City’s position or demonstrate that the City had a duty to ensure the premises were secured.

The last piece of evidence presented by Plaintiff is the declaration of her expert, Gary Gsell.  Gsell seeks to establish that the City Inspector did not do his job in relation to safety of the site.  For the reasons discussed below, Gsell’s effort falls short.

“‘[A] properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact.’”  (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 155 (quoting Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510).)  “‘However, even when the witness qualifies as an expert, he or she does not possess a carte blanche to express any opinion within the area of expertise.  [Citation.]  For example, an expert’s opinion based on assumptions of fact without evidentiary support [citation], or on speculative or conjectural factors [citation], has no evidentiary value [citation] and may be excluded from evidence. [Citations.]  Similarly, when an expert’s opinion is purely conclusory because unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion, that opinion has no evidentiary value because an ‘expert opinion is worth no more than the reasons upon which it rests.’”  (Id. (quoting Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117).)  “‘An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.’”  (Id. (quoting Jennings, supra, 114 Cal.App.4th at 1117-18) (emphasis in original).) 

While Gsell broadly describes general practices for city inspectors, he fails to establish how these general duties create a specific obligation for the City to inspect for site safety or traffic control in this case. His assertion that “the Inspector failed to do his job” is conclusory, unsupported by factual evidence, and assumes a duty without citing any contractual, statutory, or regulatory authority. Although he asserts that inspectors ensure compliance with building codes and safety regulations, Gsell does not connect these general responsibilities to any specific obligations of the City regarding safety or traffic control compliance in this instance. Moreover, his declaration does not address Fernandez’s statement that the City’s inspection role was limited to ensuring compliance with plans and specifications. Gsell cites no statute, ordinance, or legal authority imposing an obligation on the City to inspect for safety or traffic control compliance under these circumstances. As such, Gsell’s opinion is purely conclusory and unaccompanied by a reasoned explanation connecting the factual predicates to the ultimate conclusion. Consequently, his opinion lacks evidentiary value because, as stated in Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, an “expert opinion is worth no more than the reasons upon which it rests.”

Moreover, even if Defendant’s obligations extended to inspecting the security of the site, case law establishes that such limited involvement does not equate to control.

Both Defendant and Plaintiff cite the same passage in Juchert v. California Water Service Co. (1940) 16 Cal.2d 500, 514, where the California Supreme Court rejected the argument that the state shared control over the defendant’s water pipes. The Supreme Court concluded:

"There is no showing that the state highway department ever exercised any control over the pipe other than in a supervisory capacity during its installation. The mere fact that permission would have to be requested from the highway department to open the gravel strip in which the pipe was laid would not take the pipe from defendant's exclusive control, especially where it was not shown that such permission was more than a mere formality or would ever be denied."

(Id. at 514.)

Plaintiff cites Juchert to argue that the City "abrogated its responsibility" by not preventing the hazard. This misinterprets Juchert, which held that supervisory or administrative involvement, such as permitting or inspections, does not establish control. Similarly, the City’s limited role in issuing permits and monitoring compliance does not equate to active control over the trenches or responsibility for their safety. Plaintiff’s argument conflates oversight with control, which Juchert clearly rejected.

Plaintiff also fails to address or distinguish Alameda County Flood Control and Water Conservation Dist. v. Superior Court (1986) 183 Cal.App.3d 424, 431, which held that inspections alone are insufficient to establish control over property. In Alameda, the court found that despite conducting inspections, the district did not assume control over the culvert. Similarly, even if the factual record showed that Defendant had a duty to inspect the premises for traffic control, case law consistently establishes that such inspections do not amount to control for the purposes of governmental liability.

Because Plaintiff failed to raise a triable issue related to  control, summary adjudication is granted as to the first cause of action.

Unruh Act

In Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 676 clarified the Unruh Act does not apply to public entities by stating:

the Legislature is capable of bringing government entities within the scope of specific legislation when it intends to do so, and it has done so with other antidiscrimination legislation. (See, e.g., Wells, supra, 39 Cal.4th at pp. 1190–1191 [discussing application of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) to public entities].) In the context of the Unruh Civil Rights Act, however, “the statutory list of [covered entities] contains no words or phrases most commonly used to signify public school districts, or, for that matter, any other public entities or governmental agencies.” (Wells, at p. 1190.) The Act does not — as does FEHA, for example — define the covered entities to include “the state or any political or civil subdivision of the state, and cities.” (Gov. Code, § 12926, subd. (d).) As we have previously explained, “[t]he specific enumeration of state and local governmental entities in one context [such as the California Fair Employment and Housing Act], but not in the other [here, the Unruh Civil Rights Act], weighs heavily against a conclusion” that the coverage provisions should be understood as identical. (Wells, at p. 1190, 48 Cal.Rptr.3d 108, 141 P.3d 225.) That is especially true where, as here, the statutes’ coverage provisions were drafted by the very same Legislature during the same legislative session; the legislative history is, thus, strong evidence that the Legislature crafted language for FEHA to explicitly cover governmental entities, while simultaneously crafting language for the Unruh Civil Rights Act that sets forth different coverage. This history shows that the Unruh Civil Rights Act is focused on the actions of private actors. Its predecessor statute was enacted in response to the curtailment of the federal government's ability to legislate on the conduct of private entities, and we find nothing in the legislative history of the Act to indicate that it drastically expanded California's public accommodation law by imposing liability on public entities.

The Supreme Court’s decision in Brennon B. makes clear that the Unruh Act does not apply to public entities, such as the City. Accordingly, summary adjudication is appropriate as to the second cause of action.

Therefore, the City’s motion for summary judgment is granted.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.