Judge: Lee S. Arian, Case: 22STCV26613, Date: 2024-08-21 Tentative Ruling

Case Number: 22STCV26613    Hearing Date: August 21, 2024    Dept: 27

Hon. Lee S. Arian, Dept 27 

MOTION FOR SUMMARY JUDGMENT

Hearing Date: 8/21/24¿ 

CASE NO./NAME: 22STCV26613 MOSES KWOK vs BANK OF AMERICA, et al.

Moving Party: Defendant Bank of America

Responding Party: Unopposed

Notice: Sufficient¿ 

Ruling: MOTION FOR SUMMARY JUDGMENT IS GRANTED. 

Background

Plaintiff Moses Kwok filed this lawsuit against several defendants, including Defendant Bank of America, for a single cause of action of premises liability. Plaintiff seeks damages for alleged personal injuries that occurred on October 21, 2020, when he tripped and fell on a curb at the entrance of the Bank of America branch next to the ramp designated for wheelchair access. Defendant Bank of America moves for summary judgment, arguing that in 2019, it renovated its entrance, including the curb and ramp where Plaintiff allegedly fell. These renovations were conducted in compliance with ADA and CBC regulations; therefore, it did not breach any applicable standard of care. Plaintiff did not file an opposition.

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.)¿¿ 

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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.)¿¿ 

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“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.)¿¿ 

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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”].)

Discussion

Defendant presented evidencing showing the following: In 2019, Evans & Sons, Inc. (“Evans”), M. Arthur Gensler Jr. & Associates, Inc. (“Gensler), and BKT Construction Inc., (BKT), completed renovations to the Bank of America building located at 300 N. Atlantic Boulevard in Monterey Park. (Declaration of Paul A. Joelson (“Joelson”), ¶10.) The renovations conducted by Evans, Gensler, and BKT included the removal and re-installation of the concrete walkway, curb, and wheelchair access ramp. Supporting Evidence: (Joelson, ¶10, Exhibit 2.) The California Building Code (CBC) and Americans with Disabilities Act (ADA) provide standards for wheelchair accessibility ramps. (Joelson, ¶12.) Wheelchair access ramps (curb ramps) are used to allow both wheelchairs and pedestrians on foot to access sidewalks in a safe manner per designs set forth by the ADA. (Joelson, ¶13.) The curbs adjacent to the wheelchair access ramp are designed to specific height and slope requirements set for the by the ADA. (Joelson, ¶¶13-16.) On the date of the incident, the wheelchair access ramp and adjoining curbs at the entrance to the Bank of America building on Atlantic in Monterey Park (“the Bank”) were clearly delineated and compliant with all ADA standards and regulations. (Joelson, ¶¶17, 18.)

Neither the CBC nor the ADA require the curb on either side of the ramp in front of the Bank to be painted yellow. (Joelson, ¶17(e).) The contractor delineated the curb in front of the Bank with a raised slope as per ADA requirements. (Joelson, ¶18.) The curb at the bank was not located in a pedestrian walkway. (Joelson, ¶18.) There was no need to post signage for pedestrians on the ramp or curb. (Joelson, ¶18.)

At approximately 12:00pm, October 21, 2020, Plaintiff parked his vehicle in the Bank lot and walked towards the front entrance of the Bank. (Declaration of Adam Popkowski, Exhibit 4 (“Kwok Deposition”) p.41: 4-7; p.45: 18-25; p.61: 16-19.) Plaintiff then walked toward the wheelchair access ramp at the front of the Bank and set his right foot down on the ground within the ramp. (Kwok Deposition, p.65: 4-6, 19-21; p.67: 16-24.) Just prior to falling, Plaintiff greeted the security guard, and did not see the slope of the curb in front of the Bank. (Kwok Deposition, p.75: 17-20.) Plaintiff stepped forward with his left leg, and as he did so, kicked or tripped over the sloping curb to the left of the wheelchair access ramp in front of the Bank. (Kwok Deposition, p.65: 4-6, 19-21; p.67: 16-24.) Defendant Bank of America neither failed to use reasonable care to prevent harm to others, nor did any condition of the property create a dangerous condition or an unreasonable risk of harm. (Joelson, ¶19.)

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) 

Defendant has shown that it exercised ordinary care in the management of its premises. The wheelchair access ramp and curb, where plaintiff fell, were renovated and constructed in compliance with the California Building Code (CBC) and Americans with Disabilities Act (ADA). The curb and ramp were built with a raised slope as mandated by ADA requirements and was not situated in a pedestrian pathway. There was no legal requirement under the CBC or ADA to paint the curb yellow or to post warning signs at the location of the curb or ramp. Defendant has met its initial burden and negated the element of breach in Plaintiff's premises liability claim. Plaintiff did not file an opposition and therefore failed to raise a triable issue of fact. Consequently, the present motion 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.