Judge: Mark C. Kim, Case: 19STCV16319, Date: 2022-08-25 Tentative Ruling
Case Number: 19STCV16319 Hearing Date: August 25, 2022 Dept: S27
1. Background
Facts
On May 10, 2019, Plaintiffs Deborah
Kern (“Deborah”), Heather Kern (“Heather”), and Glenn Kern (“Glenn”) (“Plaintiffs”)
filed a Complaint. The operative
pleading is the First Amended Complaint (“FAC”), which alleges causes of action
for (1) premises liability, (2) dangerous condition of public property, and (3)
negligent infliction of emotional distress (“NIED”) as to several Defendants,
including Greentech Landscape (“GTL”) and the City of Long Beach (the “City”). The matter arises from Deborah’s trip and
fall on an uneven surface in front of Hotel Maya (the “Hotel”). Plaintiffs allege that defendants failed to
warn of the dangerous condition on the premises, where the landscape’s edging (“bender
board”) was protruding from the grass.
GTL moves the Court for summary judgment,
or, in the alternative, summary adjudication.
Plaintiff and the City oppose the Motion.
2. Motion
for Summary Judgment
a.
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.) Code of Civil Procedure (“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.)
As to each claim as framed by the
complaint, the moving party must satisfy the initial burden of proof by
presenting facts proving the essential elements of a cause of action, negating
the essential elements of a cause of action, or establishing a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1520.) Courts “liberally construe the
evidence in support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
Once the moving party has met that burden,
the burden shifts to the opposing party 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.)
/ / /
b.
Evidentiary Objections
GTL’ filed evidentiary objections to
the declaration of Ryan Radebach, which were included in its reply papers, are
overruled.
c.
Premises Liability
GTL contends that Plaintiffs cannot
establish any of the elements for her premises liability cause of action.
The elements of¿a premises
liability and¿negligence¿cause of action are the same:¿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.)
First, GTL
contends that Deborah cannot establish that it owed a duty to her because GTL
simply maintained the property where Deborah tripped and fell, which included
mowing and edging of grass. In addition,
Deborah does not know what caused her to trip and fall. GTL represents that while the bender board may
have caused Deborah to trip, it was not installed or adjusted by GTL. (GTL UMF No. 36.) Also, there was no notice
that the grass surrounding the bending board was a dangerous condition. (Id. at Nos. 34-35.) GTL presents
evidence that the grass could not have been mowed below the level of the bender
board. (Id. at No 40.) Moreover, there is no evidence that GTL did
not abide by the contract with the City, or that there were any complaints or
maintenance issues by GTL. (Id.
at No 34.)
Second, GTL
contends that Deborah cannot establish that GTL breached a duty as a matter of
law.
Third, GTL
contends that Deborah cannot establish that it proximately caused Deborah’s
damages because GTL’s acts or omissions were not a substantial factor in
bringing about her injury. This cause of
action is premised on GTL’s failure to mow the grass, which hid the bender
board and caused Deborah to fall.
However, there is no evidence that Deborah even tripped on a bender
board, as Deborah does not know what she tripped on, and she never looked down prior
to the incident. (Id. at Nos.
21-23.) Since there are no witnesses to
the incident, Deborah can only speculate as to where she fell.
Accordingly,
GTL has established that it did not owe Deborah a duty or caused Deborah’s injuries. The Court finds that GTL’s conclusory contention
that it did not breach a duty to Deborah is insufficient to shift the burden to
Deborah as to that element. This shifts
the burden to Deborah to establish triable issues of material facts as to the
duty and causation elements.
In
opposition, Deborah contends that GTL owed her a duty because the incident was
foreseeable. Deborah presents evidence
that she walked form the Hotel to look at the bay and Queen Mary, and walked
across the sidewalk into the grassy area, where her foot struck something “hard”
causing her to pitch forward and down onto the rocks, and then into the
water. (Pl. UMF Nos. 43, 45.) Deborah contends that it was foreseeable that
pedestrians would traverse the subject grass area, and approach the dirt and
rocks while gazing out over the water, or simply stroll on the grass. (Pl. UMF No. 45.) Deborah presents evidence that it appears to
be common for pedestrians to approach and walk along, or even on, the rocks in the
subject area, as can be seen by the presence of foot/shoe prints. (Pl. UMF No. 45.)
Factors to consider in determining
whether a defendant owes a duty of care are¿(1) the extent to which the
transaction was intended to affect the plaintiff, (2) the foreseeability of
harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered
injury, (4) the closeness of the connection between the defendant's conduct and
the injury suffered, (5) the moral blame attached to the defendant's conduct,
and (6) the policy of preventing future harm.¿ (Biakanja¿v. Irving¿(1958)
49 Cal.2d 647, 650.)¿
Here, the Court finds that Deborah has
establish a triable issue of material fact that GTL owed her a duty and whether
it caused her injuries.
The Court finds Deborah’s reliance
on Kaney v. Custance (2022) 74 Cal.App.5th 201, 220 as instructive. In Kaney the plaintiff could not remember
her fall, but a reasonable inference could be drawn that the condition of the
stairs caused her fall because she remembered being on the stairs and then waking
up on the floor in pain. Similarly, Deborah
does not know what caused her fall, but she knows that something “hard” caused
her to fall. A reasonable inference could
be drawn that the bender board caused her trip and fall because it was located
in the subject area where she tripped and fell.
While the Court is aware that this doesn’t establish that the bender
board caused Deborah to trip and fall, it presents an issue of fact for a jury
to determine.
In addition, Deborah presents evidence
through her expert that GTL’s conduct of cutting the grass along the bender
board fell below the standard of care because it put aesthetics over the safety
of pedestrians and did not delineate between the grass and the dirt rocks. (Radebach Decl. ¶ 19.) Accordingly, the Court finds that it is
foreseeable that a person may suffer a trip and fall in the subject area if
they are not able to see the bender board because of tall grass.
Thus, GTL’s
Motion for Summary Adjudication as to Deborah’s premises liability cause of action
is DENIED.
d.
Dangerous Condition of Public Property
GTL moves for summary adjudication as
to Plaintiffs’ cause of action for dangerous condition of public property;
however, this cause of action was not asserted against GTL
Accordingly, the Court will not
analyze this cause of action.
e.
Negligent Infliction of Emotional
Distress
GTL contends that Heather and Glenn’s
causes of action for NIED fail because they were not present at the time of the
incident. (GTL UMF No. 42.)
Heather and Glenn’s NIED cause of action
is based on a bystander theory. (See FAC.)
In order to recover on an NIED claim based on
a bystander theory, the plaintiff (1) must be closely related to the injury
victim; (2) must have been present at the scene of the injury-producing event at
the time it occurred and then aware that it was causing injury to the victim;
and (3) as a result, must have suffered serious emotional distress. (Keys
v. Alta Bates Summit Medical Center (2015) 235 Cal.App.4th 484, 488; Thing
v. La Chusa (1989) 48 Cal.3d 644, 667-68.)
Heather presents evidence that she
was present at the scene of the incident with her mother (Deborah) after the incident
occurred. (Pls. Resp. to GTL UMF No.
28.)
Here, Heather and Glen fail to present
evidence that they were present at the scene of the incident at the time that
the incident occurred, and, in fact, testified that they did not see the incident
as it occurred.
Thus, GTL’s Motion for Summary Adjudication
as to Heather and Glenn’s NIED cause of action is GRANTED.
Conclusion
GTL’s Motion for Summary Adjudication
as to Deborah’s premises liability cause of action is DENIED.
GTL’s Motion
for Summary Adjudication as to Heather and Glenn’s NIED cause of action is GRANTED.
Moving Defendant is ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative
as directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative.