Judge Lynne M. Hobbs, Case Number: 22STCV17257, Date: 2024-01-11 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 22STCV17257, Date: 2024-01-11 Tentative Ruling

Case Number: 22STCV17257 Hearing Date: February 7, 2024 Dept: 30

TAMARA BITNER vs CITY OF LOS ANGELES, et al.

TENTATIVE

Defendants Jeffrey R. Houze and Rachel A. Deutsch’s motion for summary judgment is GRANTED. Moving party to give notice.

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 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 the cause of action or a defense thereto.” (Id.) “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.)

“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, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

Evidentiary Objections

Defendants’ Objection is OVERRULED.

Discussion

Defendants move for summary judgment on the grounds that Defendants do not owe Plaintiff a duty of care because they did not own or control the sidewalk area where Plaintiff fell, and they did not create the alleged dangerous condition.

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) 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 (citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civil Code § 1714(a)).) 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.)

“Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490 (citing Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 325).) However, under Streets and Highways Code section 5610, abutting property owners bear the duty to repair defects in the sidewalk, regardless of whether he created the defects. (Id.; see also Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) While abutting property owners have a duty to maintain and repair defects in the sidewalk, pursuant to the Sidewalk Accident Decisions Doctrine, abutting property owners are only liable to the public where the property owner created the defect or exercised dominion or control over the abutting sidewalk. (Jordan, supra, 148 Cal.App.4th at 1490-91 (“[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.” (emphasis in original)); see also Jones, supra, 152 Cal.App.3d at 802-03.) A municipality may alter these principles by ordinance with clear and unambiguous language imposing liability on a property owner for sidewalk injuries. (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1139 [San Jose ordinance, amended in light of Williams, now imposed tort liability]; see Contreras v. Anderson (1997) 59 Cal.App.4th 188, 195–196 [Berkeley ordinance does not impose tort liability in clear and unambiguous language]; Williams v. Foster (1989) 216 Cal. App. 3d 510, 521–522 [San Jose ordinance merely echoes a duty to maintain provided by statute].). Jordan, supra, 148 Cal. App. 4th at 1490-91.

To meet their burden on summary judgment, Defendants present evidence that Plaintiff’s toe caught the edge of an asphalt patch on the sidewalk in front of moving parties’ home located at 5038 Vincent Avenue in Los Angeles (the property). (Fact No. 1.) The asphalt patch was located on the public sidewalk beyond the property’s property line. (Id., No. 2.) The sidewalk was owned and maintained by the City. (Id., Nos. 2, 5-7.) On March 12, 2016, the City sent a crew that applied an asphalt patch on the sidewalk. (Id., No. 5.) Defendants have not made any changes to the public sidewalk. (Id., No. 4.) Homeowners are not allowed to repair sidewalks without first obtaining a permit from the City of Los Angeles. (Id., No. 7.)

The Court finds that Defendants have presented evidence sufficient to their burden on summary judgment to show that no triable issues of fact exist as to whether they owe Plaintiff a duty. Defendants’ evidence shows they did not create the uplift in the sidewalk where Plaintiff tripped because they did not install the asphalt patch, the City did. Defendants’ evidence also shows that they did not own or control the sidewalk where Plaintiff tripped. The burden shifts to Plaintiff to present triable issues of fact.

In opposition, Plaintiff argues that Los Angeles Municipal Code, section 62.104 places the duty of repair and maintenance of sidewalks upon Defendants.

Under Los Angeles Municipal Code, Chapter VI, Art. 2, Section 62.104, “When a sidewalk, driveway, or curb on any street shall be out of repair or in need of reconstruction, or in a condition to endanger persons or property passing thereon, or in a condition to interfere with the public convenience in the use thereof, the Board may require that the owners or occupants of lots or portions of lots fronting on said sidewalk . . . to repair or reconstruct the sidewalk . . . .” Section 62.104 also sets forth the procedure by which the City of Los Angeles would notify occupants of abutting land of the defect in a sidewalk, the time for repairs, and the consequences of a failure to repair. Los Angeles Municipal Code does not provide any cause of action against the abutting owner for injuries suffered on the sidewalk, but imposes only penalties payable to the City for violation of these ordinances. “Without clear and unambiguous language, the duty to maintain abutting public sidewalks does not extend to members of the public for injuries suffered there.” (Contreras, supra, 59 Cal. App. 4th at 196.)

The Court finds section 62.104 does not impose liability on defendant in clear and unambiguous language. Rather, this section states, “When a sidewalk . . . shall be out of repair or in need of reconstruction, or in a condition to endanger persons or property passing thereon, or in a condition to interfere with the public inconvenience in the use thereof, the Board may require that the owners or occupants of lots or portions of lots fronting on said sidewalk . . . to repair or reconstruct the sidewalk.”

As a result, Plaintiff has failed to present any evidence to create triable issues of fact as to whether Defendants owned or controlled the property where Plaintiff fell, or created the condition. Accordingly, Defendants are entitled to summary judgment.