Judge Lynne M. Hobbs, Case Number: 21STCV40349, Date: 2024-02-07 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV40349, Date: 2024-02-07 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: 21STCV40349 Hearing Date: February 27, 2024 Dept: 30

SABRINA CAMERON vs WISEMAN CONSTRUCTION PROS., et al.

TENTATIVE

Defendant Los Angeles Properties Apts 1, LP’s motion for summary judgment is GRANTED. Moving party is ordered to give notice.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

“On a motion for summary judgment, the 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(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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Evidentiary Objections

Defendant’s objections to Plaintiff’s evidence are OVERRULED.

Discussion

Defendant moves for summary judgment or adjudication, arguing that it did not own, manage or control the public street at or near its property where Plaintiff claims she was struck by Defendant Castillo. Thus, Defendant argues Plaintiff cannot establish two essential elements of her causes of action for premises liability and negligence -- duty and causation.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)

“A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.¿ Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.”¿¿(Donnell v. California Western School of Law¿(1988) 200 Cal.App.3d 715, 720 [citation omitted].)¿ “Without the ‘crucial element’ of control over the subject premises, no duty to exercise reasonable care to prevent injury on such property can be found.”¿¿(Gray v. America West Airlines, Inc.¿(1989) 209 Cal. App. 3d 76, 81 [citation omitted].)¿

In order to “demonstrate actual or legal causation, the plaintiff must show that the defendant’s act or omission was a ‘substantial factor or omission’ in bringing about the injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4thh 763, 774.) “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor.” (Mayes v. Bryan (2006) 139 Cal.App.4thh 1075, 1095, citing CACI No. 430.) “Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Ibid.) “ ‘ “The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” ’ ” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1104, citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.)

Here, Defendant presents evidence that Plaintiff claims she was injured in a motor vehicle collision on December 14, 2019, on Arrow Highway near Bonnie Cove Avenue, in Glendora, California, at or near 20602 Arrow Hwy, in Covina, California, 91764. (UMF 1.) LAPA owned and operated the property located at 20602 Arrow Hwy, in Covina, California 91764. (UMF 2.) LAPA and Positive Investments, Inc., have never owned the public street where Plaintiff claims the incident took place. LAPA and Positive Investments, Inc. have never controlled the public street in the location at issue. LAPA and Positive Investments, Inc. have never managed the public street in the location at issue. (UMF 5.) LAPA and Positive Investments, Inc. employees’ duties do not include monitoring, controlling, or providing any service on the public street located where Plaintiff was injured. (UMF 6.) Defendant presents evidence that Plaintiff’s allegation that Defendant Castillo caused a motor vehicle collision was not the result of any action or involvement by any LAPA agent or employee. (UMFs 4-6.)

The Court finds that Defendant has presented evidence sufficient to show that it did not own, possess or control the public street where the incident took place, and did not cause or contribute to Plaintiff’s injuries involving the collision with Defendant Castillo. The burden shifts to Plaintiff.

Plaintiff contends that Defendant’s failure to enforce its own parking rules caused a dangerous condition to exist (by forcing its residents to park on an “unsafe street” out front), and that Defendant’s negligence proximately caused Plaintiff’s injuries. Plaintiff presents evidence that in or around 2016, Husam Abu Rezeq (hereinafter, “Husam”) moved into a rental property located at 20602 East Arrow Highway, Covina, California 91764 (hereinafter, “the Subject Property”). (Plaintiff’s Additional Material Facts “AMF” 1.) The Subject Property is owned and operated by Defendant LAPA. (Id.) The Subject Property has a total of 44 units, comprised of 39 studio apartments and five (5) one-bedrooms. (AMF 2.) The property has a total of 59 parking spaces. Pursuant to the lease agreement, each tenant “gets one parking spot.” (Id., 3.) In addition, the “House Rules/Obligations of a Resident” expressly provides that “each resident shall use only the parking spot assigned to him. Failure to do so will be considered as illegal parking and such a vehicle may be towed away at the resident’s expense. The terms of both the lease agreement and “House Rules” are clearly communicated to each tenant. (Id., 5.) Notwithstanding, and despite the fact that 39 of 44 units are studio apartments, Defendant LAPA regularly allows several tenants to reside in each unit. In fact, LAPA allows up to four people to reside in its one-bedroom apartments. (Id., 6.) Thus, Plaintiff argues there are never enough open spaces for the residents to park, thus forcing them to park on an adjacent “unsafe” street.

On December 13, 2019 (the night before the incident), Husam and the mother of their infant daughter returned home after a long day. Unfortunately, there were no open parking spaces in the garage/designated parking area. Consequently, both Husam and Plaintiff parked on the street in front of the Subject Property. Early the following morning, Plaintiff went outside to unload the car. While standing on the corner of the sidewalk/curb, another vehicle (traveling eastbound on Arrow Highway) slammed into the rear of a car parked behind her, thus pushing that car forward and “sandwiching” her in-between the two vehicles. The driver of the vehicle fled the scene. (AMF 8.)

There is no duty to provide invitees with onsite parking. (Issakhani v. Shadow Glen Homeowners Assn., Inc., 63 Cal. App. 5th 917, 927.) Such a duty is foreclosed by precedent, (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077), and even if not foreclosed, the so-called Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland) factors counsel against such a duty. (Issakhani, supra, 63 Cal. App. 5th 927.)

The so-called Rowland factors fall into two broad categories— namely, (1) foreseeability-related factors, and (2) other "public policy factors." (Cabral, supra, 51 Cal.4th at pp. 774, 781.) There are three foreseeability-related factors; they are (1) "the foreseeability of harm to the plaintiff," (2) "the degree of certainty that the plaintiff suffered injury," and (3) "the closeness of the connection between the defendant's conduct and the injury suffered." (Rowland, supra, 69 Cal.2d at p. 113; see Cabral, at p. 774.) There are four public policy factors; they are (1) "the policy of preventing future harm," (2) "the moral blame attached to the defendant's conduct," (3) "the extent of the burden to the defendant and [the] consequences to the community of imposing a duty to exercise care with resulting liability for breach," and (4) "the availability, cost, and prevalence of insurance for the risk involved." (Rowland, at p. 113; see Cabral, at p. 781.)

In Issakhani, the Court held that the foreseeability-related factors counsel against imposing a duty upon landowners to provide onsite parking to avoid injury to invitees as they travel from offsite parking locales. The Court of Appeal noted that the third foreseeability factor counsels strongly against imposing a duty. That is because the "connection between the [landowner-]defendant's conduct and the injury suffered" is "attenuated" rather than "close." (Issakhani, supra, 63 Cal. App. 5th at 928.)

The Court of Appeal in Issakhani further held that the public policy factors also counsel against imposing a duty upon landowners to provide onsite parking. It stated:

Imposing a duty to provide sufficient onsite parking to accommodate all invitees would not be especially effective in preventing future harm. Most commercial and residential properties actively used by people consist of structures along with a finite number of parking spaces. Short of requiring landowners to bulldoze structures or excavate and build underground structures to create more parking spaces, imposing a duty upon landowners to set aside enough parking spaces for all invitees is likely to do nothing more than shift the identity of who is forced to park offsite— instead of invitees, it may instead be residents and employees who have to park offsite. But shifting the identity of who has to park offsite would not do much to prevent future harm in the aggregate. Conversely, the persons best suited to prevent future harm from street-crossing accidents, Vasilenko noted, are the "drivers[] and invitees themselves." (Vasilenko, supra, 3 Cal.5th at p. 1090.) Because there are few "reasonable ameliorative steps" available to landowners to create more parking spaces, landowners are not "particularly blameworthy" for failing to take them. (Id. at p. 1091.) Imposing a duty to provide sufficient onsite parking for all invitees would also impose an unacceptably heavy burden, as every business and every multifamily residential dwelling complex would be required to provide parking for every guest, or else face liability for damages incurred when those guests cannot find onsite parking and are injured when trying to access the property from offsite. If, as in Vasilenko, requiring landowners "to continuously monitor the dangerousness of the abutting street and other streets in the area," "to relocate their [offsite] parking lots as conditions change," and potentially "to hire employees to assist invitees with crossing the street" was considered a "significant burden[]" (id. at p. 1090), the burden imposed by the proffered duty here—that is, reconfiguring the property to accommodate parking for every guest or face liability for all accidents arising from their offsite parking—is massive. (See McGarvey, supra, 18 Cal.App.3d at p. 562 [noting similarly unachievable burden].) Indeed, it is this type of "`"potentially infinite liability"'" that "`the concept of duty'" is designed to "`limit.'" (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) Lastly, because insurance could be available to the landowner, the invitee, and the driver, the insurance factor is neutral in the analysis. (Accord, Vasilenko, at p. 1091.) (Issakhani, 63 Cal. App. 5th at 928-929.)

However, the Court of Appeal in Issakhani distinguished that case in one significant way as it concerns the case at hand. It stated that Issakhani’s injury occurred offsite, and “this case therefore presents a different question than cases examining whether a landowner's duty of care extends to deficiencies located on property adjacent to—but not on—the landowner's property. (E.g., Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 256 [defect on abutting public sidewalk]; Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1588 (Selger) [same]; Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 325-326 [same]; Williams v. Foster (1989) 216 Cal.App.3d 510, 515 [same].)

Here, Plaintiff argues that Defendant’s failure to enforce its own parking rules created the dangerous condition (by forcing its residents to park on an “unsafe street” out front), and that Defendant LAPA exercised “dominion or control” over the abutting public property by failing to provide sufficient parking per the terms of its own lease agreement (and thus forcing its residents to park on a public street).

However, to hold an owner or occupier of private land liable for a hazard located on abutting, publicly owned property the owner or occupier must: (1) take some "affirmative" or "positive" action toward the abutting, publicly owned property, and (2) create the hazard, or dramatically assert dominion and control over the abutting property. (Lopez, supra, 55 Cal.App.5th at 256.)

Here, there is no evidence of Defendant taking any affirmative or positive action toward the publicly owned abutting property. Under Plaintiff’s theory, Defendant failed to take action on its own property, leading others to park on public property. Because there is no affirmative act by Defendant, it cannot be said that Defendant created the danger or exerted control over the abutting property.

Plaintiff additionally argues that Streets & Highways Code section 5610 imposes a statutory duty of care on abutting landowners. However, “[Section 5610] imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490-91; see also Jones, supra, 152 Cal.App.3d at 802-03.)

Again, because there is no evidence Defendant took any affirmative or positive action toward the publicly owned street where Plaintiff was injured here, Plaintiff has not met her burden on summary judgment to present triable issues of fact as to whether Defendant LAPA owed her a duty. Further, there is no duty to provide onsite parking. Lastly, Plaintiff’s argument that the failure to enforce its parking rules caused Plaintiff to search for street parking leading to the collision and her injury is speculation and conjecture, and thus fails to present a triable issue of material fact as to causation. Therefore, Defendant is entitled to summary judgment.