Judge: Lisa R. Jaskol, Case: 20STCV45997, Date: 2024-02-16 Tentative Ruling

Case Number: 20STCV45997    Hearing Date: February 16, 2024    Dept: 28

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND 

On December 2, 2020, Plaintiff Ilian Balfour (“Plaintiff”) filed this action against Defendants City of Los Angeles (“City”), Sarin Garash, and Does 1-40 for dangerous condition of public property and negligence. 

On January 29, 2021, Garish Sarin, erroneously sued and served as Sarin Garash (“Sarin”) filed an answer and a cross-complaint against Cross-Defendants City and Roes 1-20 for indemnity and contribution. 

On February 11, 2021, the City filed an answer and a cross-complaint against Cross-Defendants Zoes 1-10 for indemnification, apportionment of fault, and declaratory relief. 

On December 20, 2022, Sarin filed a motion for summary judgment to be heard on June 1, 2023. The Court continued the hearing to February 16, 2024.  On February 1, 2024, Plaintiff filed an opposition.

On January 29, 2024, based on the parties' stipulation, the Court granted Plaintiff leave to file a first amended complaint.  On January 30, 2024, Plaintiff filed a first amended complaint against Defendants City, Sarin, and Does 1-10 for dangerous condition of public property and negligence. 

The trial is scheduled for April 16, 2024. 

PARTIES’ REQUESTS 

Sarin asks the Court to grant summary judgment. 

Plaintiff asks the Court to deny the motion. 

LEGAL STANDARD 

A.      Summary judgment 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.) 

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.) 

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)  

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.) 

B.   Premises liability 

 “The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

“A defendant's control over property is sufficient to create a duty to protect owed to persons using the property.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497 (Colonial Van & Storage), citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, 1166; Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (Soto) [“the rationale being that whoever has the means to control the property can take steps to prevent the harm”].) “Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property.” (Ibid., citing Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 [“ ‘[t]he law does not impose responsibility where there is no duty because of the absence of a right to control’ ”]; Soto, supra, 45 Cal.App.5th at p. 177; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [generally, there is no right to control another's property].) 

“ ‘In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.’ ” (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487, quoting Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) 

DISCUSSION 

A.   Undisputed facts 

Plaintiff alleges: 

·       Plaintiff suffered injuries on or about November 11, 2019, at approximately 7:30 p.m., when he tripped and fell over a “large unlevelled portion” of the sidewalk, measuring 4 ½ inches in height, located at 7281 Fountain Boulevard in Los Angeles.

·       Roots from hedges on Sarin’s property grew under the sidewalk and the roots of both the hedges and a tree in the parkway caused the concrete panel of the sidewalk to rise.  

·       The sidewalk running parallel to the hedges was poorly lit due to shade from the hedges on Sarin’s property and the tree in the parkway.

·       The City owned, maintained and controlled the sidewalk at the subject location.

·       The City owned the tree and maintained in the parkway.

·       Sarin owned, maintained, and controlled the hedges running parallel to the sidewalk. 

It is undisputed that Sarin did not own, control or maintain the sidewalk. 

The area where Plaintiff fell was dark due to overgrown hedges on the right side of the sidewalk and foliage growing from the stump of a cut-down tree in the parkway on the other side of the sidewalk. The lack of light on the sidewalk prevented Plaintiff from seeing the 4-inch raised concrete panel on the sidewalk. Plaintiff had not seen the area of the uplifted sidewalk prior to the night of November 11, 2019. 

Due to the dimmed light that night, when Plaintiff looked at the sidewalk it appeared to be level.  But as he stepped forward, his foot hit the raised concrete slab of the sidewalk, causing him to trip and fall and suffer injuries. 

The raised concrete panel of the subject sidewalk was caused by both the jacaranda tree in the parkway and the oleander hedges on Defendant’s property.

The hedges growing on Sarin’s property, adjacent to the defective sidewalk, were over 10 feet in height with a bushy top and were “encroaching into the sidewalk 4” to 5.”  (PUMF 7.) The hedges obscured the light from the street lamps and the light from the moon from shining onto the sidewalk and caused Plaintiff to trip and fall on the uplifted concrete slab of the sidewalk. 

After Plaintiff’s fall, Sarin retained a professional land surveyor who concluded that the incident occurred within the right-of-way maintained by the City.

Sarin has owned his property on Fountain for over 8 years. Sarin had rented the property to tenants at the time of Plaintiff’s fall. 

On approximately January 9, 2019, Sarin was informed that the sidewalk between the area where the City removed the tree in 2018 and Sarin’s property was damaged.  Sarin notified the City about the damaged sidewalk. 

According to the service request dated January 9, 2019, a representative of the City of Los Angeles noted: “Upon inspection Div 108 found an off-grade sidewalk” and “The sidewalk has been inspected and referred to Bureau of Engineering for consideration for the sidewalk repair program.” 

Sarin was not involved in the City’s post-accident repair of the sidewalk. He has never been billed for the sidewalk repair and he has never paid for any sidewalk repair. 

B.   Sarin has not carried his initial burden on summary judgment 

Sarin argues that he did not own, maintain or control the public sidewalk adjacent to his residential property and had no duty to repair any defect existing on the sidewalk.  In addition, he did not plant, own, or maintain the tree adjacent to the sidewalk that allegedly caused the sidewalk to become uneven.  Indeed, Sarin informed the City about the defective sidewalk about ten months before Plaintiff’s accident. 

After Sarin moved for summary judgment, Plaintiff applied for and received leave to file a first amended complaint that included a new theory of liability.  The first amended complaint alleges that hedges on Sarin’s property blocked the light on the adjacent public sidewalk, preventing Plaintiff from seeing the defect in the sidewalk before he fell.  Because Plaintiff obtained leave to file the amended complaint while the summary judgment motion was pending, Plaintiff may raise these newly-pleaded facts in opposition to the motion.  (See Vulk v. State Farm General Insurance Company (2021) 69 Cal.App.5th 243, 256; L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 10:51.5, pp. 10-22 to 10-23.) 

Plaintiff’s evidence supports an inference that the hedges on Sarin’s property caused or contributed to Plaintiff’s accident.  Sarin has not presented evidence that negates this theory of liability.  Therefore, Sarin has not carried his initial burden on summary judgment.  The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Garish Sarin’s motion for summary judgment. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.