Judge: Lisa R. Jaskol, Case: 22STCV26822, Date: 2024-02-01 Tentative Ruling
Case Number: 22STCV26822 Hearing Date: February 1, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On August 18, 2022, Plaintiff Jilla Samani Hakim (“Plaintiff”) filed this action against Defendants City of Los Angeles (“Defendant”) and Does 1-20 for general negligence and premises liability. On January 11, 2023, Plaintiff amended the complaint to include Defendant Steven and Cynthia Lyons Trust (“Trust”) as Doe 1.
On January 23, 2023, Defendant filed an answer.
On August 23, 2023, Defendant filed a cross-complaint against Cross-Defendants Trust and Roes 1-20 for indemnification, apportionment of fault, and declaratory relief. On November 2, 2023, Trust filed an answer to the cross-complaint.
On October 4, 2023, Defendant filed a motion for summary judgment to be heard on December 22, 2023. On December 8, 2023, Plaintiff filed an opposition. On December 15, 2023, Defendant filed a reply. The Court continued the hearing on the motion to February 1, 2024.
Trial is currently scheduled for June 20, 2024.
PARTIES’ REQUESTS
Defendant requests that the Court grant summary judgment.
Plaintiff requests that the Court deny the motion.
DEFENDANT'S EVIDENTIARY OBJECTION
Overruled
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.)
“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) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) 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 of the evidence and all of 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.) “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion. [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.)
B. Negligence and 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.)
C. Government entity liability for dangerous condition of public property
Government Code section 830 provides:
“As used in this chapter:
“(a) “Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.
“(b) ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
“(c) ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”
Government Code section 830.2 provides:
“A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”
(Gov. Code, § 830.2.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On February 8, 2022, Plaintiff was walking on the sidewalk at or near 1422 Saltair Ave, Los Angeles, CA 90025 (“premises”) and tripped over raised concrete, suffering injuries. Defendant (1) negligently owned, maintained, managed and operated the premises and (2) owned public property on which a dangerous condition existed. (Gov. Code, § 815.2, subd. (a).)
B. Undisputed facts
Plaintiff has lived in an apartment on South Saltair Avenue near the premises for more than thirty years. Prior to the accident, Plaintiff very rarely, if ever, utilized the defective sidewalk where her accident occurred.
Plaintiff alleges in her complaint that “raised concrete at or near 1422 Saltair Ave[.], Los Angeles” was a dangerous condition. In her discovery responses, Plaintiff identified “uneven raised concrete at or near 1422 Saltair Avenue, Los Angeles, California” as a dangerous condition.
On February 8, 2022, Plaintiff was walking on the north sidewalk located on 1422 South Saltair Avenue. Plaintiff was alone and was walking towards her car, which was parked on the corner of Rochester Avenue and South Saltair Avenue.
Plaintiff could see the sidewalk in front of her and she was looking straight ahead. No leaves or dirt blocked Plaintiff’s view of the broken part of the sidewalk. Nothing obstructed Plaintiff’s view of the imperfection in the sidewalk.
Exhibit 1 to the Compendium of Evidence constitutes an accurate depiction of the condition of the sidewalk on February 8, 2022. Plaintiff testified that the location where she tripped and fell is highlighted with a red x on Exhibit 1 to the Compendium of Evidence.
Defendant did not receive any service requests for any condition of sidewalk located at 1422 South Saltair Avenue in the five-year time period preceding the date of Plaintiff’s alleged trip-and-fall incident.
C. Legal arguments
1. Dangerous condition of public property claim: trivial defect
“In spite of the fact that defects in sidewalks may be so slight or trivial as to create mere questions of law regarding their dangerous nature, it is, nevertheless, true that when the evidence is so conflicting that different conclusions may reasonably be drawn regarding the dangerous character of the defects, or concerning the question of notice thereof on the part of the officers of the city, the determination of such questions should be left to the jury and their conclusions should not then be disturbed on appeal.” (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 137-38; see Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 28 [“If the ‘court determines . . . sufficient evidence has been presented so that reasonable minds may differ as to whether the defect is dangerous, the court may not rule . . . the defect is not dangerous as a matter of law’”].)
Defendant has not carried its initial burden on summary judgment of showing that the defect in the sidewalk where Plaintiff fell was minor, trivial, or insignificant as a matter of law for purposes of Government Code section 830.2. Defendant relies on the opinion of Mark Blanchette, Ph.D., a biomechanics and safety consultant, who concluded that the elevation change in the sidewalk where Plaintiff fell was approximately 15/16 of an inch. (Blanchette Decl. ¶ 8 & exhibit D3.)
In contrast, Plaintiff has presented evidence that the elevation change was between two and two and a half inches. Plaintiff reliefs on her deposition testimony, where she stated that “the measurement that we took showed between two and two-and-a-half inches.” (Exh. A to Hollomon Dec. pp. 42:25; 43:1-5.)
Defendant objects to Plaintiff’s testimony, citing Evidence Code section 1523, which provides in part that “[e]xcept as otherwise provided by statute, oral testimony is not admissible to prove the content of a writing.” (Evid. Code, § 1523, subd. (a).) Defendant also asserts that Plaintiff’s testimony is speculative and lacks foundation. Evidence Code section 1523 does not apply here, and the testimony is not speculative or without foundation, because Plaintiff may testify about the measurements she took even if she did not provide a photograph that supports her testimony. And in ruling on Defendant’s motion, the Court views the evidence and inferences drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)
Defendant has not shown that Plaintiff is incapable of presenting evidence supporting her assertion that a dangerous condition existed. The Court denies the motion.
2. General negligence claim
As a public entity, Defendant cannot be found liable on a common law negligence theory. However, Defendant has not requested summary adjudication as an alternative to summary judgment. (See L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 10:45, p. 10-17 [“a court cannot grant summary adjudication where the only motion noticed for hearing is for summary judgment”].) Therefore, the Court denies the motion.
CONCLUSION
The Court DENIES Defendant City of Los Angeles’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.