Judge Lynne M. Hobbs, Case Number: 20STCV47672, Date: 2024-01-08 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV47672, Date: 2024-01-08 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

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.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Case Number: 20STCV47672 Hearing Date: February 26, 2024 Dept: 30

DAVID BAILEY, AN INDIVIDUAL vs LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, A PUBLIC ENTITY, et al.

TENTATIVE

Defendant Los Angeles County Metropolitan Transportation Authority’s motion for summary judgment or, in the alternative, for summary adjudication is DENIED. Moving party is ordered to give notice.

Evidentiary Objections

i. Plaintiff’s objections to Defendant’s evidence

Objection Nos. 1, 2, 3, 4, 5, 6, 7, 8, and 9 (Exhibits A, B, D, F, H, J, and L): OVERRULED.

Objection No. 9 (Exhibit K): SUSTAINED.

The Court does not find the evidence cited in those objections irrelevant or prejudicial.

With regard to Exhibits K and L (cited in Objection No. 9), the Court finds that the exhibits are sufficiently authenticated. “Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.) “Authentication of a writing is required before secondary evidence of its content may be received in evidence.” (Evid. Code, § 1400, subd. (b).) In Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, the California Court of Appeal held that counsel sufficiently authenticated certain exhibits by declaring that they were “true and correct copies” of those documents sent by and received from prior counsel even though a more elaborate authentication could have been presented. (Id. at p. 1409.) “A writing can [also] be authenticated by circumstantial evidence and by its contents.” (People v. Landry (2016) 2 Cal.5th 52, 87.) Here, counsel testifies that Exhibit K “is a true and correct copy of a Prehospital Care Report Summary prepared by the Los Angeles Fire Department, dated March 12, 2020,” and Exhibit L “is a true and correct copy of medical records produced by Arrowhead Regional Medical Center, dated March 13, 2020, and served on May 13, 2022.” (Motion, declaration of Arnold S. Levine (“Levine Decl.”), ¶¶ 12, 13.) The contents of the exhibits also authenticate them. The exhibits show that the documents were produced by the custodian of records for the City of Los Angeles Fire Department (Emergency Medical Services) and Arrowhead Regional Medical Center in response to a deposition subpoenas for production of business records issued by defense counsel’s law firm, Veatch Carlson, LLP.

The Court also finds that Exhibit L fits the business record exception to the hearsay rule. “Hospital records and similar documents are often admissible as business records, assuming a custodian of records or other duly qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception. [Citations.]” (People v. McVey (2018) 24 Cal.App.5th 405, 414 (“McVey”).) “Compliance with a subpoena duces tecum may dispense with the need for a live witness to establish the business records exception if the records are produced by the custodian or other qualified witness, together with the affidavit described in [Evidence Code] section 1561.” (Ibid.) Evidence Code section 1561 requires an affidavit from the custodian of records “stating in substance each of the following: (1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records. (2) The copy is a true copy of all the records described in the subpoena duces tecum or search warrant, or

pursuant to subdivision (e) of Section 1560, the records were delivered to the attorney, the attorney’s representative, or deposition officer for copying at the custodian’s or witness’ place of business, as the case may be. (3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event. (4) The identity of the records. (5) A description of the mode of preparation of the records.” (Evid. Code, § 1561, subd. (a); McVey, supra, 24 Cal.App.5th at pp. 414-415.) Here, Exhibit L, contains a declaration from the Custodian of Records for the Arrowhead Regional Medical Center meets the requirements under Evidence Code section 1561.

However, Exhibit K does not fit the business record exception to the hearsay rule because the Custodian of Records for the City of Los Angeles Fire Department (Emergency Medical Services) does not describe the mode of preparation of the records as required by Evidence Code section 1561.

ii. Defendant’s objections to Plaintiff’s evidence

While the Court “must” rule on all evidentiary objections made at the summary judgment stage, it is permitted to focus its attention on those which are “important.” (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532; see also Code Civ. Proc., § 437c, subd. (q) [the court need only rule those objections to evidence that were material in the disposition of the MSJ].)

Defendant failed to meet its burden of proof, and thus, the burden has not shifted to Plaintiff. Therefore, the Court has not considered or relied upon any of Plaintiff’s evidence. The objections are therefore not material in the disposition of this motion, and the Court declines to rule on them.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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).)

“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 … shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 (“Avivi”).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Proc., § 437c, subd. (c).)

Discussion

Defendant moves for summary judgment or summary adjudication, arguing that Plaintiff’s cause of action for premises liability has no merit because Plaintiff has no evidence that Defendant breached any duty to him or caused his damages. Defendant essentially argues that Plaintiff provides different accounts of what occurred, and the medical records show that he jumped off the train.

Government Code “[s]ection 835, subdivision (b) provides that a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition [1] created a reasonably foreseeable risk of the kind of injury sustained, and [2] the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 68.)

“A ‘dangerous condition’ of public property is defined as ‘a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used.’ ([Gov. Code] § 830, subd. (a).)” (Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1230 (“Hernandez”).)

"'[A] claim alleging a dangerous condition may not rely on generalized allegations [citation] but must specify in what manner the condition constituted a dangerous condition.’ [Citation.]” (Hernandez, supra, 90 Cal.App.5th at p. 1230.) “A plaintiff’s allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. [Citations.] A dangerous condition exists when public property ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.”’ [Citation.]” (Ibid.)

Here, the Complaint alleges that the Premises had an unknown substance that created a slippery and dangerous condition. The Complaint also alleges that Plaintiff was in the process of boarding a Gold Line Train from a platform when he stepped on the unknown substance and sustained injuries, implying that he tripped and fell as a result of stepping on the unknown substance.

Defendant presents evidence that in his Claim for Damages, Plaintiff stated that he slipped/fell while entering a Gold Line train at Union Station at about 3:00 p.m. on March 12, 2020, and added the significant fact that it was raining at the time. (UMF Nos. 4, 5.) In responding to discovery, Plaintiff stated that he was walking along the walkway when he slipped and fell on an unknown liquid on Defendant’s premises. (UMF No. 6.) Defendant also submits Exhibit L, medical records produced by the Custodian of Records for the Arrowhead Regional Medical Center, as evidence, arguing that according to those medical records, Plaintiff was injured after he jumped off a train not from a slip and fall incident. (UMF No. 8.)

First, the complaint, claim, and Plaintiff’s discovery responses do not provide conflicting accounts of what occurred. All of these pieces of evidence essentially say that Plaintiff fell due to a slippery floor. The account from the hospital is obviously different. However, simply because there is conflicting evidence (Plaintiff’s discovery responses vs. the hospital record) does not mean that Defendant has met its burden on summary judgment to show that Plaintiff does not have evidence a dangerous condition existed or that the dangerous condition of a liquid substance on the floor caused his injuries. It is up to the trier of fact to weigh the evidence and determine which evidence is credible and which evidence is not. The Court cannot weigh the evidence or make a credibility determination in this motion.

Defendant also argues that it is impossible for Plaintiff to establish the facts of the incident and what led up to it. He has produced no evidence showing that Defendant had actual or constructive notice of a dangerous condition, or that it was reasonably foreseeable that the condition—whatever it was—caused the kind of injury he suffered. Plaintiff did not interview any individual concerning the incident, did not obtain a written or recorded statement from any individual concerning the incident, and has no documents showing the names and addresses of any witness to the incident. (UMF. No. 2.) Further, when presenting his claim to Defendant, Plaintiff stated that it was raining at the time of the incident. (UMF No. 5.) Further, Plaintiff does not have sufficient information to admit or deny if the condition existed 30 minutes before the incident. (UMF No. 3.)

However, on a motion for summary judgment, Defendant has the initial burden of showing that one or more elements of Plaintiff’s premises liability claim cannot be established or that there is a complete defense to that claim. Only if Defendant meets that burden, the burden shifts to Plaintiff to show that a triable issue of material fact exists as to that cause of action. Here, Defendant has not met its initial burden, let alone shown that “it is impossible” for Plaintiff to establish facts supporting his claim because Defendant does not present any evidence to show that Plaintiff cannot meet his burden. While the Court finds it peculiar that the medical records state he jumped off the train on the date of his alleged injury, again, this Court cannot weigh the evidence in the motion at hand. That is the role of the fact finder at trial. Further, the fact that Plaintiff did not interview any witness concerning the incident is irrelevant; there is no requirement that Plaintiff must have witnesses to prove his premises liability claim. His rendition is competent evidence. Defendant has also failed to explain why Plaintiff stated that (1) it was raining at the time of the incident and (2) he does not have sufficient information to admit or deny that the alleged dangerous condition existed for 30 minutes before the alleged incident is relevant to this action. The Court cannot make arguments for Defendant or connect the dots.

For the reasons set forth above, the Court finds that Defendant has failed to meet its burden of showing that Plaintiff’s premises liability cause of action cannot be established. (Code of Civ. Proc., § 437c, subd. (p)(2).) Therefore, the burden does not shift to 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 of Civ. Proc., § 437c, subd. (p)(2).) Accordingly, the motion is denied.

Conclusion

Defendant Los Angeles County Metropolitan Transportation Authority’s motion for summary judgment or, in the alternative, for summary adjudication is DENIED.