Judge Lee S. Arian, Case Number: 22STCV29958, Date: 2025-04-30 Tentative Ruling

On September 14, 2022, Plaintiff filed a complaint for damages against Pacific Bell Telephone Company d/b/a AT&T California, VCI Construction, LLC, Arijet Corporation, and the City of Burbank, asserting causes of action for premises liability, negligence, and failure to warn. Plaintiff alleges that as he approached the intersection of Sixth Street and Palm Avenue on his motorized bicycle, his front wheel became lodged in an open trench, causing him to be ejected from the bicycle. The trench was part of an active construction project in which Defendants Arijet Corporation, Pacific Bell Telephone Company d/b/a AT&T California, and VCI Construction, LLC (collectively, “Defendants”) were performing trenching and paving work to install underground cable. VCI was specifically responsible for the asphalt paving that covered the trench. Defendant AT&T obtained the necessary permits for the project from the City of Burbank.

Defendants now move for summary adjudication on Plaintiff’s causes of action for premises liability, negligence, and failure to warn on the ground that they did not own, maintain, manage, occupy, operate, or control the roadway at the intersection of Sixth Street and Palm Avenue where the accident occurred.

“[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.)

“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.)

As a general rule of law, a defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 125.)

The primary evidence offered in support of the contention that Defendants did not own, possess or control the premises at which Plaintiff was allegedly injured consists of declarations submitted by Defendants’ employees. As to VCI Construction, LLC, the Espinosa Declaration states that the permits issued by the City of Burbank imposed “conditions” that Defendants were required to follow and delineated how the construction work was to be performed, including traffic control. (Espinosa Decl. ¶ 5.) The declaration further states that VCI Construction, LLC did not own, maintain, manage, operate, occupy, or control the roadway at the intersection of Sixth Street and Palm Avenue in the City of Burbank, which is the location of the incident alleged in Plaintiff’s complaint. (Espinosa Decl. ¶ 6.)

Similarly, the Moore Declaration, submitted on behalf of Pacific Bell Telephone Company d/b/a AT&T California, states that the permits governed how Defendants were to perform the construction work, including traffic control. (Moore Decl. ¶ 5.) A City inspector also visited the worksite to confirm that the work complied with the permit. (Moore Decl. ¶ 6.) The declaration further asserts that Pacific Bell Telephone Company d/b/a AT&T California did not own, maintain, manage, operate, or control the roadway at the intersection of Sixth and Palm. (Moore Decl. ¶ 8.)

The Morris Declaration, submitted on behalf of Arijet Corporation, makes similar representations. It states that the permits set forth the conditions under which the work was to be performed, including traffic control. (Morris Decl. ¶ 5.) The City of Burbank inspected the site to ensure permit compliance. (Morris Decl. ¶ 6.) Morris also declares that Arijet Corporation did not own, maintain, manage, occupy, operate, or control the roadway at the intersection of Sixth and Palm, where the incident occurred. (Morris Decl. ¶ 8.)

Defendant also submitted the permit issued by the City of Burbank, which states that the contractor is required to post “No Parking” signs and implement traffic control in accordance with the WATCH Manual and MUTCD, including lane closures. (Exhibit 2.) The permit further provides that the contractor must protect existing off-site improvements at all times, protect in-place pedestrian ramps and traffic loops, preserve all survey monuments, protect storm drain laterals and local depressions, and ensure proper project notification to businesses while maintaining driveway and pedestrian access at all times. (Ibid.)

Defendants argue that the City of Burbank retained “control” over the premises based on specific provisions in the permit, the presence of a City inspector at the worksite, and declarations indicating that the City directed how safety at the location was to be managed. This interpretation reflects one accepted meaning of control: the authority to outline the appropriate safety measures. However, control is not limited to such authority. Courts have also recognized that a party who implements safety measures are also found to have control over the premises. Control exists where a public entity or individual has the “power to prevent, remedy or guard against the dangerous condition.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833–834.) In Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 990, the court held that a technical director had control because he was responsible for supervising the installation and operation of trap doors and had the authority to implement safety features that would have prevented or mitigated the dangerous condition. Similarly, a contractor or entity tasked with implementing safety protocols at a worksite can be deemed to have control for purposes of premises liability. police officers. Defendants and their subcontractors were actively working at the site, placing signage, managing dump trucks, and conducting trenching and asphalt operations. (Leavelle Depo., 20:23-25; 21:1–7; 38:19-25; 39:1–7; 40:3–8; 88:13-24; 89:16-21; 21:8-15; 83:20-25 see Ex. 3, Decl. of Levon Kantzabedian ¶ 4); (See also, Ofcr. Munoz Depo., 20:25–21:1-6; 24:7–17; 32:19–21; 89: 9-25, see Ex. 4 to Decl. of Levon Kantzabedian, ¶ 5; (See also, Ofcr. Roberts Depo., 15:2– 25; 24:7–17; see Ex. 5 to Decl. of Levon Kantzabedian, ¶ 6); (See also, Ofcr. Montalban Depo., 8:21– 25; 9:1–25; see Ex. 6 to Decl. of Levon Kantzabedian, ¶ 7); and (See also, Ofcr. Toth Depo., 20:2–17; 22:4–25; 23:8–12; see Ex. 7 to Decl. of Levon Kantzabedian, ¶ 8.)

Defendants have offered no evidence beyond their employees’ conclusory declarations to support the claim that AT&T and its contractors, who were actively performing construction, had no control over the area surrounding the construction site.

Furthermore, the evidence also shows that Defendants had possession of the subject property, and it is Defendants’ burden to negate the possibility that they owned, controlled, or possessed the subject location, which they have not done.

Accordingly, Defendants have failed to meet their initial burden; therefore, the MSA 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. Lee S. Arian

Judge of the Superior Court