Judge: Lisa R. Jaskol, Case: 22STCV29368, Date: 2025-04-04 Tentative Ruling
Case Number: 22STCV29368 Hearing Date: April 4, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 9, 2022, Plaintiff Dalit Meshulam (“Plaintiff”) filed this action against Defendants City of Beverly Hills (“City”) and Does 1-50 for general negligence and premises liability.
On October 4, 2022, the City filed an answer.
On January 19, 2023, Plaintiff amended the complaint to include Defendant Safe Sidewalks Incorporated dba Precision Concrete Cutting (“Precision”) as Doe 1. On May 17, 20223, Precision filed an answer.
On May 10, 2024, Precision filed a motion for summary judgment or, in the alternative, summary adjudication. The motion was set for hearing on December 26, 2024. On December 12, 2024, Plaintiff filed an opposition. On December 20, 2024, Defendant filed a reply. On December 23, 2024, Plaintiff filed objections, which the Court has not considered. The Court continued the hearing to April 4, 2025.
Trial is scheduled for June 16, 2025.
PARTIES’ REQUESTS
Precision asks the Court to grant summary judgment or, in the alternative, summary adjudication.
Plaintiff does not object to summary adjudication of the premises liability claim but asks the Court to deny summary judgment and summary adjudication of the negligence claim.
PRECISION’S EVIDENTIARY
OBJECTIONS
LEGAL STANDARD
A. Summary judgment and summary adjudication
“‘[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 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. 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, 1158.)
“ ‘ “Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....” ' [Citation.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411, quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747.)
“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, 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 (Vasilenko) [generally, there is no right to control another's property].)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On or about October 5, 2021, Plaintiff fell due to an uneven and displaced portion of the sidewalk on Defendants’ property at or near 124 S. Swall Drive, Beverly Hills, CA 90211 (“premises”). Specifically, Plaintiff tripped and fell on an uneven and displaced portion of the sidewalk and was injured.
Defendants (1) negligently maintained, inspected, repaired, managed, supervised, controlled and/or operated the premises, (2) negligently hired, trained, supervised, controlled and/or monitored employees and agents responsible for the maintenance, inspections, repairing, supervision, control and operations, (3) failed to provide a safe, suitable and adequate premises for individuals using the premises, and (4) failed to warn Plaintiff of the risks and dangers of which Defendants knew, or in the existence of reasonable care should have known existed, and which were unknown and not readily apparent to Plaintiff.
Defendants’ failure to warn was a direct legal cause of Plaintiff’s injuries and damages. Defendants had actual and/or constructive notice of the dangerous condition.
B. Undisputed facts
1. Precision
Precision is a sidewalk inspection and repair company based in Agoura Hills, California. It is a private California corporation and is not a public entity.
2. The City’s Sidewalk Policy
On January 1, 2019, the City adopted a sidewalk inspection and repair policy (“Sidewalk Policy”), which was “intended to prevent trip and fall incidents due to the deterioration of aging sidewalks, expansion of roots, and ground settlement. Regular inspections of city-owned sidewalks will be used to document and schedule repairs in order to minimize the possibility of injury to residents and visitors to the City.” Under the Sidewalk Policy, “the Public Works Department shall conduct regular inspections of the sidewalks to ensure pedestrian safety. Defects will be documented and repaired according to the procedures described herein.”
The Sidewalk Policy stated: “An average vertical displacement between sidewalk abutments that is used to evaluate a ‘trivial defect’ is ¾ inch. Deficiencies greater than ¾ inch will be mitigated by grinding, patching, ramping or removal and replacement . . .” Any vertical displacement or uplift of a sidewalk that was less than ¾ inch high was deemed a ‘trivial defect’ which needed to be documented but not repaired, while any vertical displacement or uplift of a sidewalk that was greater than ¾ inch high was a tripping hazard (non-trivial defect) which needed to be mitigated/repaired.
3. The Service Agreements between the City and Precision
On or about December 26, 2019, the City and Precision entered into a contract for Sidewalk Survey Inspection and Trip Hazard Removal (“Service Agreement”) with a termination date of June 30, 2020. The Service Agreement provided that Precision would address sidewalk trip hazards as determined by the City ranging anywhere from 3/4 inch up to 2 1/2 inch within designated work areas.
Under the Service Agreement’s Scope of Work, Precision agreed to “use current standards described in Exhibit A, including Attachment 1 (Sidewalk Policy), in determining tripping hazards” to be repaired, which included: (a) “Differential displacement between sidewalk sections – above ¼ [inch] to ¾ [inch]. These are considered trivial and not to be repaired pursuant to Exhibit A, but CONTRACTOR shall document with an inspection report;” (b) “Differential displacement between sidewalk sections - ¾ [inch] or greater.”
The City’s public sidewalks are split into districts. Precision’s inspections under the Service Agreement would initially encompass 25% of public sidewalks along with three commercial corridors—namely, the Business Triangle, South Beverly Corridor, and Robertson Blvd—in Beverly Hills, with repairs conducted on a district-by-district basis.
The Service Agreement does not prohibit the City from electing to have its own crew correct tripping hazards which Precision discovers.
On or about October 13, 2020, when the contracted funds were exhausted under the Service Agreement, it was extended via amendment with a termination date of June 30, 2021 (“Amended Service Agreement”). Under the Scope of Work of the Amended Service Agreement, Precision agreed to “use current standards described in Exhibit A, including Attachment 1 (Sidewalk Policy), in determining tripping hazards” to be repaired, which included: (a) “Differential displacement between sidewalk sections – above ¼ [inch] to ¾ [inch]. These are considered trivial and not to be repaired pursuant to Exhibit A, but CONTRACTOR shall document with an inspection report;” (b) “Differential displacement between sidewalk sections - ¾ [inch] or greater.” Precision also agreed that it would mitigate/repair any sidewalk vertical displacement or uplift between 3/4 inch and one inch high within seven days of Precision finding the sidewalk displacement/uplift, and if it could not mitigate/repair the sidewalk displacement/uplift within seven days, it would mark the sidewalk displacement/uplift with a conspicuous color paint to serve as a visual warning to persons walking on the sidewalk.
In or around November 2020, the City changed the terms of the Service Agreement by instructing Precision to conduct a city-wide inspection of all of the City’s sidewalk districts.
Throughout Precision’s performance under the Service Agreement, Precision would receive direct instruction from the City’s Public Works Department, prioritizing certain districts for inspections and addressing trip hazards within the districts.
4. Precision identifies, measures, and reports the sidewalk uplift on the premises
On January 26, 2021, Precision identified the sidewalk uplift located at the premises. Precision’s employees measured the uplift and determined it to be .875 inches at its highest point (less than one inch). Subsequently, Precision informed the City of the location of the uplift.
Precision did not repair the sidewalk uplift or mark it with a conspicuous color paint between January 26, 2021 and October 5, 2021.
5. Plaintiff trips and falls on the uplifted sidewalk
On October 5, 2021, Plaintiff tripped and fell on the uplifted sidewalk. The uplift where Plaintiff fell was located on a sidewalk which the City owned and controlled.
According to the deposition testimony and photographs taken by witness Andre Cohen, who accompanied Plaintiff on October 5, 2021, it was bright and sunny at the time of the incident. The sidewalk uplift was completely covered with leaves which had fallen off an adjacent tree, preventing Plaintiff from seeing the uplift when she was approaching it.
C. Precision has carried its initial burden on summary judgment or summary adjudication of Plaintiff’s negligence claim
Precision contends that it is entitled to summary judgment or summary adjudication of Plaintiff’s negligence claim because it owed Plaintiff no duty of care. To support this argument, Precision cites evidence that the City owned and controlled owned the premises where Plaintiff fell and that Precision did not own or control the premises. (See evidence cited in Precision’s UMF 21-22.)
Precision also contends that the service agreements between Precision and the City did not impose a duty of care which Precision owed to Plaintiff. Precision relies on Paz v. State of California (2000) 22 Cal.4th 550 (Paz), where the plaintiff was injured in a traffic accident at an intersection controlled by a single stop sign. (Paz, supra, 22 Cal.4th at p. 553.) Alleging the intersection was dangerous because of obstructed sight lines, the plaintiff sued private party defendants who undertook to design and install traffic signals at the intersection as a condition of the City’s approval of their new condominium development. (Ibid.) The defendants did not obtain the permits necessary to complete the traffic signals’ installation until after the plaintiff’s accident. (Ibid.) The plaintiff alleged that the defendants negligently delayed providing the traffic lights, which would have eliminated the dangerous condition before his accident. (Ibid.)
The trial court granted the defendants’ motion for summary judgment. (Paz, supra, 22 Cal.4th at p. 553.) The Court of Appeal reversed. (Ibid.) The Supreme Court granted review and reversed the judgment of the Court of Appeal. (Id. at p. 557.) The Court explained:
“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor’s failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking.” (Id. at p. 559.)
The Court “assume[d] for the sake of discussion that defendants undertook the tasks they are alleged to have performed negligently” and that “defendants’ agreement to install traffic control signals for the City constituted an undertaking ‘to render services to another which [defendants] should recognize as necessary for the protection of [third persons] . . . .’ ” (Paz, supra, 22 Cal.4th at pp. 559-560.)
But the plaintiff could not show that “either (a) the actor’s carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor’s undertaking.” (Paz, supra, 22 Cal.4th at p. 560.)
First, “[t]he evidence fails to support an inference that defendants’ conduct increased the risk of physical harm beyond that which allegedly existed at the intersection.” (Paz, supra, 22 Cal.4th at p. 560.) Second, “[i]n agreeing to the traffic installation condition, [defendants] did not undertake to perform a duty that the City owed to plaintiff” because “cities generally have no affirmative duty to install traffic control signals.” (Id. at p. 561.) Third, the record contained no evidence that the plaintiff “was harmed because either he or the City relied on defendants’ timely installation of traffic control signals.” (Ibid.) In reaching this third conclusion, the Court observed that the City and the defendants “did not make a contract to install the traffic signals.” (Ibid. [“imposing the traffic installation as a condition of development did not give the City a basis for relying on the installation’s being completed at any time before the condominium project’s completion”].) The Court therefore held that the trial court properly granted summary judgment for the defendants. (Id. at p. 562.)
Based on Paz, Precision argues:
· Plaintiff cannot show that Precision’s conduct
increased the risk of physical harm to Plaintiff.
· Plaintiff cannot show that Precision undertook to
perform a duty that the City owed to Plaintiff because the City “had no
affirmative duty to correct a condition that was only a trivial defect.” (Motion p. 11; see Gary Beneduci dec. ¶ 17 [“On
or about January 26, 2021, the subject sidewalk uplift (‘the uplift’) located
at 124 South Swall Drive was identified by [Precision]. At the time of inspection, employees of [Precision]
measured the uplift and determined it to be .875 inches at its highest point
(less than one inch)”; Precision’s UMF 19.)
· Plaintiff cannot show the City or Plaintiff relied on Precision’s undertaking because “the City did not delegate its entire responsibility for sidewalk maintenance to [Precision]. At the time of the slip and fall incident, [Precision’s] primary focus was to conduct a city-wide inspection and address defects as instructed by the City. The City did not depend on [Precision] to independently repair sidewalk uplifts and other defects; rather, it retained control and directed [Precision] throughout the duration of [Precision’s] performance under the Service Agreement. Furthermore, [Precision] was not the exclusive provider of sidewalk maintenance, as the City itself employed maintenance crews capable of addressing tripping hazards independently.” (Motion p. 12; see evidence cited in Precision’s UMF 11-18.)
In addition, Precision contends that it had no special relationship with Plaintiff which would create a duty of care.
The Court finds that Precision has carried its initial burden on summary judgment or summary adjudication of showing it owed Plaintiff no duty of care, shifting the burden to Plaintiff.
D. Plaintiff has raised a triable issue of fact regarding the negligence claim
Plaintiff contends that Precision voluntarily undertook a duty of care owed to Plaintiff to repair the sidewalk uplift within seven days after Precision found the uplift on January 26, 2021, or (if Precision could not repair the uplift within seven days) to mark the uplift with a conspicuous color paint. To support this contention, Plaintiff cites evidence that, under the City’s Sidewalk Policy, any vertical displacement or uplift of a sidewalk between ¾ inch and one inch high must be mitigated/repaired within seven days of it being found on inspection of the sidewalk. If the sidewalk uplift/defect cannot be repaired within seven days, the uplift/defect must be marked with a conspicuous color paint to serve as a warning to the public.
Plaintiff also cites evidence that (1) the City’s Sidewalk Policy was attached to and incorporated into the Service Agreement’s Scope of Work (see evidence cited in Plaintiff’s additional disputed fact 9) and (2) Gary Beneduci, Precision’s owner, understood when he signed the Service Agreement that the Sidewalk Policy (“Attachment 1”) was being incorporated into the Scope of Work. (Beneduci depo. pp. 24-25.)
This evidence and other provisions of the Sidewalk Policy, Service Agreement, and Amended Service Agreement raise a triable issue of fact concerning whether Precision undertook, for consideration, to render services of a kind Precision “should have recognized as necessary for the protection of third persons.” (See Paz, supra, 22 Cal.4th at p. 559.) Plaintiff also cites evidence that Precision failed to exercise reasonable care in performing its undertaking, resulting in physical harm to Plaintiff. (Opposition pp. 9-10.)
The evidence that the City’s Sidewalk Policy requires the City to mitigate/repair any vertical displacement or uplift of a sidewalk between ¾ inch and one inch high within seven days of it being found, or to mark the uplift/defect with a conspicuous color paint if it cannot be repaired within seven days, together with the evidence that the Sidewalk Policy was incorporated into the Service Agreement and Amended Service Agreement, raises a triable issue of fact concerning whether Precision undertook to perform a duty that the City owed to Plaintiff. (See Service Agreement, exh. 2 at p. COBH00011 [“Pursuant to City Sidewalk Policy, Exhibit A, CONTRACTOR shall make repairs to sidewalks within seven (7) days for a sidewalk differential from ¾ [inch] to 1 [inch]”].)
Plaintiff has raised triable issues of fact concerning each element of a negligent undertaking claim of liability to third parties. (See Paz, supra, 22 Cal.4th at p. 559.) The Court therefore denies Precision’s motion for summary judgment motion and for summary adjudication of Precision’s negligence claim.
E. Plaintiff agrees to summary adjudication of the premises liability claim
Plaintiff
does not oppose Precision’s motion for summary adjudication of Plaintiff’s
premises liability claim. The Court grants
Precision’s motion for summary adjudication of this claim.
CONCLUSION
The
Court GRANTS Defendant Safe Sidewalks Incorporated dba Precision Concrete Cutting’s motion for
summary adjudication of Plaintiff Dalit Meshulam's claim against Defendant Safe Sidewalks Incorporated dba Precision Concrete Cutting for premises
liability.
The
Court DENIES Defendant Safe Sidewalks Incorporated dba Precision Concrete
Cutting’s motion for summary judgment and for summary adjudication of Plaintiff Dalit
Meshulam's claim for negligence.
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.