Judge: Lee S. Arian, Case: 22STCV21379, Date: 2024-12-11 Tentative Ruling
Case Number: 22STCV21379 Hearing Date: December 11, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION FOR SUMMARY JUDGMENT
Hearing Date: 12/11/24
CASE NO./NAME: 22STCV21379 DAVID BRIAN RIOS
vs CITY OF LOS ANGELES, et al.
Moving Party: Cross-Defendants Ronald
Merenstein and Rosalien Merenstein
Responding Party: Cross-Complainant City of
Los Angeles
Notice: Sufficient
Ruling: DENIED
Background
On June 30, 2022,
Plaintiff filed the present action against the City of Los Angeles, alleging
injuries sustained from tripping and falling over a raised displacement on the
sidewalk in front of 5655 Halbrent Avenue, Van Nuys, CA 91411. The City
subsequently filed a cross-complaint against Ronald Merenstein and Rosalien
Merenstein (“Cross-Defendants”), the owners of the neighboring property at 5659
Halbrent Avenue, asserting various causes of action, including apportionment of
fault. Cross-Defendants now move the Court for summary judgment, arguing that
they neither owned nor maintained the tree that caused the displacement of the
sidewalk.
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 agree that
on June 6, 2021, Plaintiff was injured after tripping over broken or raised
pavement on the sidewalk in front of 5655 Halbrent Avenue, Van Nuys, CA 91411.
The sidewalk in question is owned by the City. Cross-Defendants lave never
owned 5655 Halbrent Avenue but own 5659 Halbrent Avenue, which is adjacent to
the property where the incident occurred. A root from a 45-foot tall glossy privet
tree caused the uplift in the sidewalk where Plaintiff fell.
Discussion
This motion ultimately
hinges on whether Cross-Defendants maintained or owned the privet tree that
caused the broken or raised pavement in the sidewalk. (Motion at 5.)
Cross-Defendants have
not shown that they do not maintain the subject tree. Although they filed a
declaration, that declaration solely addresses the ownership of 5655 and 5659
Halbrent Avenue. Nothing in the declaration pertains to the maintenance of the
subject tree that caused the displacement. No other evidence establishes that Cross-Defendants
did not maintain the tree in question.
Failure to address this prong of liability is, alone, sufficient to deny
the motion. However, given that both
parties focused on ownership, the Court will address that issue.
As noted in the
preceding paragraph, the primary dispute between the parties concerns the
ownership of the subject privet tree. Cross-Defendants did not produce any
survey or property ownership documents establishing the boundary between 5655
and 5659 Halbrent Avenue or the precise location of the tree in relation to
that boundary. The only admissible evidence suggesting that Cross-Defendants do
not own the subject tree comes from the declaration of Michael Crane, Cross-Defendants’
expert.
Crane determined that a
multi-trunk glossy privet tree approximately 30 feet in height, with a 20-foot
canopy spread and a cumulative diameter of approximately 18 inches, located
behind the concrete wall at 5655 Halbrent Avenue, caused the sidewalk displacement
at issue in this case. (Crane Dec. ¶ 10). Unfortunately, the expert's view of
the tree was obscured, and he was unable to view it more completely because he “was
told [he] he was trespassing and needed to leave.” (Crane Dec. ¶ 5.)
The photograph provided
by the expert shows the subject tree near a fence dividing the properties.
However, as noted above, the trunk of the tree is not visible, as it is
obscured by cypress trees in the foreground. (Crane Dec., Exhibit 2)
Based on the expert
declaration, the Court finds that Cross- Defendants have minimally met their
initial burden of establishing that they do not own the tree. The Court defers
to the expert's opinion based on his professional investigation and
observations. While the evidence presented is far from definitive, it is
sufficient to meet the minimal burden required at this stage.
Triable Issue of Fact
Cross-Complainant City argues
that the subject tree is partially located on the property at 5655 Halbrent
Avenue and partially on the property at 5659 Halbrent Avenue. City relies on
Civil Code section 834, which provides: “Trees whose trunks belong to two or
more coterminous owners, belong to them in common.” City contends that the
subject tree is jointly owned by the owners of both 5655 and 5659 Halbrent
Avenue and, therefore, Cross-Defendants are partially liable for causing the
displacement.
To meet its burden, City
introduces the declaration of Guy Stivers, who investigated the location of the
tree and concluded that the privet tree is not situated behind the wall
separating the two properties. (Stivers Decl. ¶ 5.) Instead, Stivers determined
that the tree is located next to the wall, with portions of the trunk extending
onto both the 5659 and 5655 sides. Stivers also submitted a site plan based on
his inspection, which illustrates the location of the privet tree in relation
to the wall and the respective properties. (Stivers Dec., Exhibit 5) Stivers’
declaration indicates that the tree trunk is located adjacent to the wall and
extends onto both properties, thereby raising a triable issue of fact regarding
Cross-Defendants’ ownership of the subject tree.
In their Reply, Cross-Defendants argue that none of the
photos attached to Stivers’ declaration depict the trunk of the 45-foot-tall privet
tree. They contend that, by failing to provide a photo of the tree trunk, the
City’s expert has failed to establish a fundamental foundation for his opinions
regarding the tree's location and ownership. The Court is not persuaded by this
argument for two reasons. First, Plaintiff’s expert also failed to produce any
photographs explicitly showing the location of the tree trunk, thereby
weakening any comparative claim of inadequacy in the City’s evidence. Second,
the foundation for Stivers’ opinions does not rest solely on photographic
evidence but is based on his personal inspection of the site. An expert's
direct observation and assessment during a site inspection provide an adequate basis
for forming opinions. Moreover, just as
the Court relied on Cross-Defendants' expert’s investigation and professional
judgment, the findings and conclusions drawn from Stivers’ inspection similarly
meet the evidentiary threshold.
Cross-Defendants further
argue that Stivers is not a land surveyor and that neither he nor the City has
provided evidentiary support to establish the exact location of the property
line between 5655 and 5659 Halbrent Avenue. However, the Court finds this
argument also unpersuasive. Cross-Defendants’ expert is also not a land
surveyor, and they have similarly failed to provide any documents or other
evidence to definitively establish the boundary line. The only evidence
presented by Cross-Defendants to support their position that they do not own
the subject tree is their expert’s declaration, which asserts that the tree is
allegedly located behind the fence. The Court finds that the City’s expert’s
conclusions, drawn from his professional site inspection, are sufficient to
counter Cross-Defendants’ expert declaration and raise a triable issue of fact.
Cross-Defendants
finally argue that photographs of the properties show that there is no soil in
the Cross-Defendants’ neighboring parking lot, which is completely paved. Thus, while branches of the 45-foot glossy privet
tree at 5655 Halbrent Avenue may have grown over the wall and fence, the trunk
of the tree is located entirely within the soil of 5655 Halbrent Avenue. This assertion, however, is inaccurate.
Photographs reveal a small patch of land with soil at 5659 Halbrent Avenue,
indicating that a portion of a cypress tree is growing beyond the wall into
5659. (Cane Dec., Exhibit 4). In any
event, as state above, the photographs do not show the trunk of the glossy privet
tree, as it is obscured by the cypress tree, which is abutting into 5659.
Overall, the Court
finds it inappropriate to dismiss the cross-complaint on summary judgment based
on the evidence submitted. Cross-Defendants’ contention regarding the boundary
between the two properties is primarily based on the location of the fence, and
their claim of ownership of the tree relies on the tree’s position relative to
the fence. However, City has presented evidence indicating that the tree's
trunk extends to both sides of the fence, thereby raising a triable issue of
fact. The reality is that neither party did much to meet their respective burdens,
but the evidence they did provide, limited as it is, does not lead to a
determination by the Court as a matter of law that Cross-Defendants do not own
the “guilty” tree. Accordingly, the motion for summary judgment is denied.
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.