Judge: Melvin D. Sandvig, Case: 20STCV02270, Date: 2022-09-14 Tentative Ruling
Case Number: 20STCV02270 Hearing Date: September 14, 2022 Dept: F47
SUMMARY
JUDGMENT/SUMMARY ADJUDICATION
Motion filed on 3/7/22.
MOVING PARTY: Defendant 1058 Maclay, LLC
RESPONDING PARTY: Plaintiff Elizabeth Corletto
NOTICE: ok
RULING: The motion is denied.
Defendant 1058 Maclay, LLC is reminded to review the
5/3/19 First Amended General Order Re Mandatory Electronic Filing for
Civil. When e-filing documents, parties
must comply with the “TECHNICAL REQUIREMENTS” which are set forth at page 4,
line 4 through page 5, line 12 of the Court’s 5/3/19 First Amended General
Order Re Mandatory Electronic Filing for Civil.
See also CRC 3.1110(f)(4).
Maclay, again, has failed to bookmark the exhibits attached to the declaration
of Marjorie E. Motooka. Failure to
comply with these requirements in the future may result in matters being placed off calendar, matters
being continued so documents can be resubmitted in compliance with these
requirements, documents not being considered and/or the imposition of
sanctions.
This action arises out of a trip and fall incident that
occurred on 1/22/19 on the sidewalk on the south side of Maclay Avenue. (Separate Statement (SS) 1). Plaintiff Elizabeth Corletto (Plaintiff)
alleges that she walked across an iron grate next to the base of a tree owned
by Defendant City of San Fernando (City) in the sidewalk in front of the
building located at 1056-58 N. Maclay Avenue when she tripped and fell because
half of the grate was missing. (SS 2,
4-10). Plaintiff contends that because
of tall overgrown grass, Plaintiff could not see the missing grate or the trip
and fall hazard. (Plaintiff’s Additional
Facts (PAF) 46). As a result of the
incident, Plaintiff suffered various injuries.
(PAF 50). Defendant 1058 Maclay,
LLC (Maclay) owns the building near the City tree where the incident occurred. (PAF 40, 42, 44, 45)
On 8/2/19, Plaintiff filed a claim against the City. On 1/17/20, Plaintiff filed this action
against the City. On 2/25/21, Plaintiff
filed a DOE amendment substituting Maclay in place of DOE 1. On 3/16/21, Plaintiff filed a First Amended
Complaint for: (1) Premises Liability and (2) Negligence. On 4/22/21, Maclay answered the First Amended
Complaint. Maclay and the City filed
cross-complaints.
On 3/7/22, Maclay filed and served the instant motion
seeking an order granting summary judgment in its favor. Alternatively, Maclay requests an order
granting summary adjudication in its favor and against Plaintiff on Plaintiff’s
claim for premises liability, Plaintiff’s claim for negligence, and/or that
Maclay did not owe Plaintiff a legal duty to keep the City’s property safe. Plaintiff has opposed the motion.
In ruling on a motion for summary judgment and/or summary
adjudication, the court must strictly construe the moving party’s evidence and
liberally construe the opposing party’s evidence. Johnson (2008) 43 C4th 56, 64. Conflicting evidence creates a triable issue
of material fact which requires denial of the motion. Scalf (2005) 128 CA4th 1510, 1519; Kids'
Universe (2002) 95 CA4th 870, 881.
A triable issue of material fact exists with regard to
whether the missing grate constituted a dangerous condition. Whether a dangerous condition exists on
property is a question of fact unless the evidence establishes that no
reasonable person would conclude that the condition created a substantial risk
of injury when such property is used with due care and in a reasonably
foreseeable manner. See Mathews
(1992) 2 CA4th 1380, 1382; Government Code 830.2.
A triable issue of material fact exists as to whether it
was reasonably foreseeable that a pedestrian such as Plaintiff would walk on or
step into the planter with the missing grate without looking down. Expert testimony is not necessary to
determine that there are various reasons someone might walk or step on a grate
or into a planter surrounding a tree on a sidewalk (i.e., avoiding something on
the sidewalk be it another pedestrian or some other obstruction; a passenger
stepping out of or into a vehicle parked next to the curb in front of the tree). (See
Ex.1 and 2 to Corletto Decl. for reference to the planter and sidewalk
at issue in this case). Maclay does not
argue that the 5-inch drop created by the missing grate, alone, would not
constitute a dangerous condition. (PAF
46).
A triable issue of material fact also exists as to
whether Maclay owned, possessed or controlled the area where the incident
occurred. One who owns, possesses or
controls land has a duty to act reasonably to protect others from a dangerous
condition on the property. Alcaraz
(1997) 14 C4th 1149, 1162. Conversely, one
cannot be held liable for the defective
or dangerous condition of property which it did not own, possess or
control. Isaacs (1985) 38 C3d
112, 125; Cody F. (2001) 92 CA4th 1232, 1241.
Maclay has failed to present sufficient evidence to
refute the presumption that the owner of land bounded by a road or street is
presumed to own to the center of the way.
See Civil Code 831.
Maclay’s representative, Andrew Thibodeaux, DDS, has submitted a
declaration in support of the motion wherein he states that that Maclay does
not own, manage or control the area where the tree is planted and that he
did not install the grate around the tree where Plaintiff fell, he did
not remove the grate, he does not know who removed the grate, nor does he
know when it was removed. (Thibodeaux Decl. ¶¶5-7). In his declaration, Thibodeaux further
implies that the first time that he contacted the City regarding the missing
grate was after being sued in this action.
(Id. at ¶10).
However, there is evidence that a metal grate similar to
the grate missing around the tree was located on Maclay’s property, that
Thibodeaux was aware of same before the incident, and Thibodeaux contacted the
City more than once regarding the missing grate before the incident. (PAF 52-54, 59-60). Thibodeaux’s declaration is insufficient to
establish that somebody other than him but acting on behalf of Maclay did not
remove the grate and place it on Maclay’s property, thereby causing or
contributing a dangerous condition. As
such, even if Maclay did not own the property where the incident occurred, a
triable issue of material fact exists as to whether it controlled the area so
as to impose a duty on Maclay owed to Plaintiff.
Plaintiff’s objection number 1 to the declaration of
Andrew Thibodeau is overruled. Contrary
to Plaintiff’s assertion, Thibodeaux did not testify that he did not remember
giving a declaration in this case.
Rather, he said he did not know what that is which could merely mean
that because Thibodeaux does not have a legal background, he does not know what
a declaration is. Plaintiff’s objections
numbers 2 and 3 to the Thibodeaux declaration are sustained. Plaintiff’s objections numbers 4-7 to the
Thibodeaux declaration are overruled.
Pursuant to CCP 437c(q), the Court declines to rule on
Defendant’s objections to the declaration of Mark Burns.