Judge: Lynne M. Hobbs, Case: 23STCV13016, Date: 2023-08-15 Tentative Ruling

Case Number: 23STCV13016    Hearing Date: March 26, 2024    Dept: 30

ANN GELFAND, et al. vs LOS ANGELES DEPARTMENT OF WATER AND POWER, A PUBLIC ENTITY

Tentative

Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication is GRANTED in part and DENIED in part. It is granted as to the negligence cause of action and as to any negligence cause of action under a vicarious liability theory under Government Code Sections 815.2, 815.4, or 820. The motion for summary adjudication is denied as to the causes of action for dangerous condition of public property and loss of consortium. 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

Defendant’s Objections to Plaintiff’s Evidence are OVERRULED.

Discussion

Defendant LADWP moves for summary judgment, or adjudication arguing that Plaintiff’s second cause of action for negligence fails because Defendant cannot be liable for common law negligence.

As to the first cause of action for dangerous condition of public property, Defendant argues that: (1) aloft power lines do not present a substantially dangerous condition when used with due care; (2) there is no evidence that Defendant had notice of, or created, a dangerous condition prior to the lines falling at the intersection; and (3) there is no evidence that LADWP had sufficient time to remedy the dangerous conditions between the time the power lines fell and the time they were dragged into contact with Ms. Gelfand.

Defendant also moves for summary adjudication of the claim for loss of consortium, arguing it is derivative of the cause of action for negligence/dangerous condition of public property.

The complaint alleges that on March 1, 2023, at approximately 2:00 p.m., Plaintiff Ann Gelfand, a pedestrian, was walking at or around the southeast corner of Kilkea Drive and Clinton Street in Los Angeles, California ("subject location") when she suffered serious electrical shock injuries after a loose "live" wire came down, struck her, entangled her, electrocuted her, and threw her to the ground. This wire was owned and operated by Defendant Los Angeles Department of Water and Power ("LADWP"). Various dangerous conditions existed at the subject location, including in the following respects: the failure to have the electricity powered off once notified of the hanging power line; and allowing the wire that electrocuted Plaintiff to come into contact with her. The complaint further alleges that the subject location was dangerous.

Defendant presents the following evidence. Electrical lines serviced and maintained by the LADWP run on the north side of Clinton. (Hernandez Decl. 2:22-24.) The power lines consist of primary and secondary lines, which are active and can explode if they touch. (Id. at 2:24-25.) For that reason, electrical poles positioned approximately mid-block in the right-of-way between the sidewalk and curb keep the electrical lines taut and aloft. (Id. at 2:25-27.)

LADWP first received notice of a power outage at 12:41 p.m. (Giovacchini Decl. 2:25-27, Ex 4.) At 12:53 p.m., a customer living at 8167 Clinton Street, a house on the north side of the street between La Jolla and Kilkea reported that a mylar balloon interacted with power lines, caused them to explode, and fall across the Clinton-La Jolla intersection west of the electric pole positioned mid-block between La Jolla and Kilkea. (Id. at 2:27-3:3, Ex. 5.) With severe winds on March 1, 2023, causing downed power lines throughout the City and LADWP crews responsible for West Los Angeles working elsewhere, LADWP dispatch assigned the incident to Keith Hernandez and his five-person crew, who typically work in the central Los Angeles area. (Hernandez Decl. 2:12-18.)

Hernandez arrived at the Clinton-La Jolla intersection with two others, all in separate trucks. (SSUMF No. 1.) Upon arrival, Hernandez saw that there were downed power lines across the Clinton-La Jolla intersection, west of the electrical pole positioned mid-block between La Jolla and Kilkea. (SSUMF No. 2.) The trio arrived before the two qualified electrical workers (“Journeymen”) who are responsible and equipped to cut power to active, downed lines. (Hernandez Decl. 3:2-3.) While they waited for the Journeymen, Hernandez’s team secured the Clinton-La Jolla intersection to protect pedestrians and drivers from the fallen power lines. (Hernandez Decl. 3:4-6.)

After securing the intersection, Hernandez assessed the aloft power lines to the east and west of the downed lines and the pole mid-block between La Jolla and Kilkea. (SSUMF No. 3.) Specifically, Hernandez checked for (1) immediate or obvious hazards; (2) damage to the aloft wires east of the pole mid-block between La Jolla and Kilkea and the wires west of the pole mid- block between La Jolla and Harper; (3) other characteristics of the wires, such as sagging or compromised strength, which may result in an explosion or short circuit; (4) broken hardware including broken cross arms, broken insulators; (5) objects in the wires, which would cause a cross-phase and short circuit; and (6) overall condition of the pole including whether it was cracked, broken, or on fire. (SSUMF No. 3.) After looking at the utility pole midblock between La Jolla and Kilkea and the wires connecting to that pole to the east, Hernandez thought the power lines over the Clinton-Kilkea intersection were taut and not at risk of touching, exploding, and falling. (SSUMF No. 4.) Based on his assessment, Hernandez did not secure or close additional intersections, including the one at Clinton and Kilkea. (SSUMF No. 5.)

Minutes after Hernandez secured the Clinton-La Jolla intersection, Plaintiff, who walked from her home located on Kilkea a few houses north of the intersection of Clinton and Kilkea, asked Hernandez’s crew if they knew when power would return. (SSUMF No. 6.) After a LADWP employee responded they did not know when power would return, Plaintiff Gelfand turned around on Clinton and walked east. (SSUMF No. 7.)

After Gelfand began walking toward her home, Hernandez immediately heard an electrical explosion to the east and immediately saw two wires coming down slowly on the northside of Clinton and its intersection with Kilkea. (SSUMF No. 8.) Hernandez saw Gelfand walking toward that intersection and a “brownish” sedan traveling south on Kilkea approaching its intersection with Clinton. (Hernandez Depo. 56:14-22; 58:16-59:7.) With Gelfand in harm’s way, Hernandez immediately ran toward that intersection with his arms up to protect Gelfand. (SSUMF No. 9.)

Although Hernandez hoped he could persuade the sedan to stop, the driver of the sedan did not and drove through the intersection. (Hernandez Depo. 58:16-59:7.) The car caught the power line and dragged it behind the car. (Id. at 48:6-49:22.) The power line, which was being dragged by the sedan, struck Ann as she was crossing the intersection. (SSUMF No. 10.)

I. Cause of Action for Negligence

Defendant first contends that Plaintiff has not cited any statutory basis to assert the second cause of action for negligence against a public entity.

A public entity is not liable for an injury unless that liability is provided for by statute. (Gov. Code, § 815(a).) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

“[T]o state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.]” (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) “Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Ibid.)

Plaintiff has not responded to this argument.

Defendant is a public entity. A review of the Complaint shows that Plaintiff has failed to specify the statute on which the negligence cause of action is based. Plaintiff’s cause of action for negligence thus fails against Defendant as a matter of law, and Defendant is entitled to summary adjudication as to the second cause of action for negligence.

II. Government Code § 835: Dangerous Condition

a. Whether a Dangerous Condition Existed

Defendant argues that although there were downed wires a block west of where Plaintiff was injured, there is no evidence of a dangerous condition.

Government Code § 835 states:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

“A ‘dangerous condition[]’ … is ‘a condition of property that creates a substantial … risk of injury when such property or adjacent property is used with due care’ in a ‘reasonably foreseeable’ manner.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 147-48 [citing Gov. Code § 830(a)].) The existence of a dangerous condition is typically a question of fact but may be decided as a matter of law if reasonable minds can come to just one conclusion. (Id. at 148.) While a dangerous condition most obviously includes “physically damaged, deteriorated, or defective” property, “public property has also been considered to be in a dangerous condition because of the design or location of the improvement, the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.” (Id. at 148-49.) “ ‘A dangerous condition of public property can come in several forms and may be based on an “amalgam” of factors.’ [Citation.]” (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754.)

The Government Claims Act's definition of the “substantial risk of injury” requirement for a dangerous condition on public property means that a condition is dangerous when the risk that an injury will result from the condition is substantial; a condition that creates only a remote possibility of injury is not dangerous even if the extent of injury that may occur is substantial. (Cordova v. City of Los Angeles (2015) 212 Cal.App.4th 243.) A plaintiff seeking to hold a public entity liable for injuries caused by a dangerous condition on public property has the burden to establish that the condition is one which creates a hazard to persons who foreseeably would use the property with due care. (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554.)

Allegations that a city negligently maintained and controlled an intersection in dangerous and defective condition by permitting sign and trees to obstruct visibility of drivers, that the city knew or should have known that condition was present at time of accident, and that plaintiffs' injuries occurred as proximate result of that dangerous condition, were sufficient to state a cause of action for dangerous condition of public property. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839-40; see also Feingold v. Los Angeles County (1967) 254 Cal.App.2d 622, 625-26 [alleged inability of one of the drivers to see the other for some period of time or space after such driver is committed to the intersection created a dangerous condition of public property].)

Here, Defendant argues that although there were downed wires a block west of where Plaintiff was injured, there is no evidence of a dangerous condition. Upon arrival at the Clinton-La Jolla intersection, Hernandez testified he checked the wires aloft east and west of that intersection. (SSUMF No. 3.) East of that intersection, Hernandez checked the utility pole midblock on Clinton between La Jolla and Kilkea for broken cross arms, broken insulators, objects in the wires that would cause a cross-phase and a short circuit. (Id.) He also checked the overall condition of that pole, including whether it was cracked, broken, or on fire. And he looked at the wires east of that pole held aloft by the utility pole. (Id.) He noticed nothing indicating the lines east of that pole – above the Clinton-Kilkea intersection – would fall. (Id.) No defect existed.

The Court finds that Defendant has met its burden on summary judgment to show that there are no triable issues of material fact as to whether the location was dangerous because Hernandez inspected the utility pole, and its wires, and noticed nothing indicating the lines would fall. The burden shifts to Plaintiff to present triable issues of material fact.

To support their contention that the location was dangerous, Plaintiffs argue that various factors made the location dangerous. Plaintiffs present evidence that Hernandez was aware of the risks posed by the first two downed wires and was rightly concerned that there would be other live wires in the surrounding area. (PUF No. 6.) He knew that when there is a downed power line, there is a risk of other power lines going down while a crew works to repair the first line. (PUF No. 7.) Additionally, high wind conditions at the time of the incident placed extra stress upon the remaining portion of the wires. (PUF 8.) LADWP should have searched for further failures along the line for at least a block or two, including the intersection of Clinton Street and Kilkea Drive. (PUF No. 8.) Yet, LADWP failed to properly secure the incident site, despite the initial wire failure and high winds alerting Hernandez to the heightened risk of another wire failing. (PUF No. 11.)

The Court finds that there are triable issues of material fact as to whether the location was dangerous due to a combination of various factors: the first downed power line, the risk of other power lines going down after one goes down, and the severe winds.

b. Notice

Defendant also moves for summary judgment on the ground that it did not create the alleged dangerous condition of public property and had no actual or constructive notice of the alleged dangerous condition.

Government Code section 835 provides that “a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Govt. Code, § 835.)

Notice, in the context of Section 835 liability, is defined in Government Code § 835.2 as follows:

“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.

(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” On the issue of due care, admissible evidence includes but is not limited to evidence as to:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate

(considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.

(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”

(Gov. Code, § 835.2(a)-(b).)

“Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.” (State v. Superior Court for San Mateo County (1968) 263 Cal.App.2d 396, 400.) The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident, and the secondary element is the method of inspection. (Ibid.)

Defendant argues that it did not create the condition. All evidence indicates the power lines at Clinton-La Jolla fell because of an explosion due to an interaction with a mylar balloon. There is no evidence that any LADWP employees touched or did anything else to the power lines at Clinton-Kilkea or the mid-block pole to cause the lines to fall. (SSUMF Nos. 2-8; Hernandez Decl. 2:27-3:19.)

Defendant also argues it had it had no actual or constructive notice that the aloft lines at the Clinton-Kilkea intersection were in a dangerous condition. As he stated in his declaration, Hernandez inspected the utility pole midblock between La Jolla and Kilkea, and he saw nothing indicative the lines would fall. (SSUMF Nos. 2-5.) He inspected the lines held aloft by that utility pole above Kilkea, and he saw nothing indicating the lines would fall. (Id.) No triable issue of fact exists that the LADWP had actual notice.

However, Defendant frames the dangerous condition here too narrowly. The complaint additionally alleges the location was dangerous. There is no dispute that Defendant did have actual notice of the dangerous condition of the location because Defendant’s employees arrived after a call informing them of a downed line. As there is evidence of actual notice, the fact that Defendant did not create the dangerous condition is not dispositive. Thus, Defendant failed to meet its burden to show it did not have actual notice of the dangerous condition.

i. Whether Defendant Had Notice a Sufficient Time Prior to the Injury to Have Taken Measures to Protect Against the Dangerous Condition

Defendant argues that Plaintiffs cannot show Hernandez had notice of the downed wires with sufficient time to protect Plaintiff prior to her injury. Only seconds elapsed between the time that the power wires exploded and fell on the ground at the Clinton-Kilkea intersection and Plaintiff’s electrocution. (SSUMF No. 13.) Instantly aware of the danger posed by the downed lines, Hernandez chose to do the most effective thing he could do: he immediately ran towards Plaintiff and the intersection, waving his arms to warn the driver of the sedan and Plaintiff. (SSUMF No. 8-10.) Hernandez could not have turned off the power in the seconds which elapsed between the fallen power lines and Plaintiff’s injury. (SSUMF No. 13.) The fact that Hernandez’s warnings went unheeded and Plaintiff was injured does not make Hernandez or the LADWP liable. And Plaintiffs cannot point to a single fact suggesting otherwise.

Again, Defendant frames the dangerous condition too narrowly. The complaint additionally alleges the location was dangerous. Plaintiff’s evidence shows that LADWP was alerted of a live downed high voltage wire at the Subject Location at 12:41 p.m. and LADWP did not arrive there until two hours after that, at 2:30 p.m., just one hour prior to the Subject Incident, which occurred at 3:43 p.m. (PUF Nos. 1, 2, 23, 29.)

As such, there are triable issues of material fact as to whether Defendant had sufficient time to secure the area to prevent any incidents from occurring. Defendant was notified of the issue approximately three hours prior to Plaintiffs’ injury. Plaintiffs contend that Defendant could have closed off the nearby intersections including the intersection where Plaintiff was injured, contact the switching station to immediately open the circuits to de-energize the lines, or extricate Plaintiff from the zone of danger after seeing her enter it. None of these measures would have taken long at all.

II. Vicarious Liability under Government Code Sections 815.2, 815.4, or 820

As referenced above, a public entity is not liable under California law for any injury arising out of an act or omission of the public entity or public employee unless provided by statute.

Defendant argues that Plaintiffs allege Hernandez or any other LADWP employee were negligent in performing their job duties. (SSUMF No. 14.) Plaintiffs claim a LADWP employee “negligently, careless, and/or recklessly owning, designing, maintaining, ... servicing, inspecting, repairing, modifying, altering...” the Clinton-Kilkea intersection and presumably, the power lines above that intersection. (Compl. ¶17, 5:20-25.) Plaintiffs concede that the LADWP’s employees and agents acted “within the course, scope, and authority,” (Compl. ¶19, 6:4-5), and as a matter of California law, this concession invalidates a claim under Sections 815.2, 815.4, or 820.

The Court notes that in Longfellow v. San Luis Obispo County (1983) 144 Cal.App.3d 379, the Court of Appeal affirmed that claims against public entities arising from property defects must be based on that condition—and cannot be based on theories of vicarious liability:

With respect to Plaintiffs’ cause of action pursuant to section 815.2 of the Government Code, the law was settled by Van Kempen v. Hayward Area Park Etc.

(1972) 23 Cal.App.3d 822, that public entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in sections 830 to 835.4 of the Government Code. A public employee is not liable for injuries caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of employment.

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)

Plaintiff has not responded to this argument.

As such, as a matter of law, Defendant is entitled to summary adjudication as to any negligence cause of action under vicarious liability theories.

III. Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

Defendant contends that if the Court determines the dangerous condition of public property claim fails, Plaintiff Martin Gelfand’s loss of consortium claim also must fail since it is derivative of Plaintiff Ann Gelfand’s personal injury action.

However, as discussed above, Defendant is not entitled to summary adjudication as to the cause of action for dangerous condition of public property. Therefore, Defendant is also not entitled to summary adjudication as to Martin’s cause of action for loss of consortium.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is DENIED. Defendant’s motion for summary adjudication is GRANTED in part and DENIED in part. It is granted as to the negligence cause of action and as to any negligence cause of action under a vicarious liability theory under Government Code Sections 815.2, 815.4, or 820. The motion for summary adjudication is denied as to the causes of action for dangerous condition of public property and loss of consortium.