Judge Melvin D. Sandvig, Case 21STCV042128 2022-08-17 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 21STCV042128, Date: 2022-08-17 Tentative Ruling

Case Number: 21STCV042128 Hearing Date: August 17, 2022 Dept: F47

Dept. F47

Date: 8/18/22 (continued from 8/2/22) TRIAL DATE: 3/6/23

Case #21STCV04128

SUMMARY JUDGMENT

Motion filed on 4/4/22.

MOVING PARTY: Defendant Crown Castle Fiber LLC

RESPONDING PARTY: Plaintiff Orlee Bakhshizandeh

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment in favor of Defendant Crown Castle Fiber LLC and against Plaintiff Orlee Bakhshizandeh.

RULING: The motion is granted.

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

This action arises out of a trip and fall incident. Plaintiff Orlee Bakhshizandeh (Plaintiff) alleges that on or about 9/19/20, while participating in a cross-fit class, she was jogging on the sidewalk at or near 9301 Shirley Avenue in Los Angeles, California when she tripped and fell over a vault cover causing her to sustain severe bodily injuries. (Separate Statement (SS) 2, 9). The vault cover where Plaintiff tripped and fell is located on a public sidewalk near a fence on which a sign for Defendant Crown Castle Fiber LLC (Crown Castle) is located. (SS 7).

Plaintiff claims that Crown Castle negligently maintained, managed, controlled and operated the surrounding area and that Crown Castle failed to prevent a dangerous condition, the vault covers. (SS 4). Further, Plaintiff claims that Crown Castle negligently failed to take steps to either make the condition safe or to warn her about the dangerous condition. (SS 4). On 2/2/21, Plaintiff filed this action against Crown Castle and others alleging causes of action for: (1) negligence and (2) premises liability – willful failure to warn. (SS 1).

On 4/4/22, Crown Castle filed and served the instant motion seeking an order granting summary judgment in favor of Crown Castle and against Plaintiff. Plaintiff has opposed the motion.

PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE

On 6/20/22, Plaintiff filed a Request for Judicial Notice (RJN) which listed an 8/2/22 hearing date (the original hearing date for this motion in Department F47). The request begins by stating that Plaintiff will “move for relief with the Court and hereby does request for an Order that the Court take judicial notice of PUBLIC UTILITY CODE §§ 702 AND 2106.” (See Plaintiff’s RJN filed 6/20/22, p.1:23-26). It is not clear why Plaintiff filed this Request for Judicial Notice a month before filing the other opposition documents or what “relief” Plaintiff is seeking by making the request.

Additionally, although the request initially indicates that Plaintiff is requesting that the Court take judicial notice of Public Utility Code 702 and 2106, the request also includes Streets & Highways Code 5610.

Plaintiff’s Request for Judicial Notice is granted as to the content of/language in the subject statutes.

OBJECTIONS

Crown Castle has filed two “objection” documents: (1) Objections to Plaintiff’s Separate Statement of Undisputed Material Facts and (2) Objections to Plaintiff’s Evidence.

The Objections to Plaintiff’s Separate Statement of Undisputed Material Facts are not objections to evidence, but objections to Plaintiff’s reliance on or use of the facts. As such, the Court declines to rule on these “objections.” See CCP 437c(q); CRC 3.1354. However, the Court notes that Plaintiff has failed to properly cite evidence in support of certain facts asserted. See CRC 3.1350(f)(3); (Plaintiff’s Separate Statement 6-10). Where Plaintiff has failed to properly cite evidence to support her opposition arguments, the evidence has not been considered.

Crown Castle has failed to consecutively number its Objections to Plaintiff’s Evidence as required. See CRC 3.1354(b). Regardless, the Court rules on the evidentiary objections.

Crown Castle’s objection to Plaintiff’s Ex.A is overruled as Crown Castle is not actually objecting to the evidence but rather how it was used by Plaintiff. Similarly, Crown Castle’s objection to Plaintiff’s Ex.B is overruled as the objection is based on Plaintiff’s use or non-use of the exhibit (i.e., it is referenced in the opposition points and authorities, but not in the separate statement).

Crown Castle next makes six objections to Plaintiff’s Ex.D, the declaration of Mark Burns. The objection to ¶5 in the declaration is overruled. The objection to ¶8 is sustained. The objection to ¶11 is overruled. The objection to ¶12 is sustained. The objection to ¶13 is sustained (irrelevant as to Crown Castle). Crown Castle’s objection to the declaration of Mark Burns as used in Plaintiff’s Undisputed Facts 6-10 is overruled as it is not a proper evidentiary objection. Crown Castle then makes one objection to 6 of the exhibits attached to the Burns declaration. One objection to several different pieces of evidence is improper. See CRC 3.1354(b). The objection is overruled.

ANALYSIS

STANDARD ON SUMMARY JUDGMENT

To obtain summary judgment, a defendant need only show that the plaintiff cannot establish an essential element of the cause of action. See Leyva (2018) 20 CA5th 1095, 1102 citing Aguilar (2001) 25 C4th 826, 853-854; CCP 437c(p)(2).

2^NDCAUSE OF ACTION – PREMISES LIABILITY

The elements of a premises liability cause of action are: (1) duty of care, (2) breach of that duty, (3) proximate causation and (4) resulting injury/damage. Kesner (2016) 1 C5th 1132, 1158. Owners and occupiers of land owe a duty of care regarding property they own, possess or control. Alcaraz (1997) 14 C4th 1149, 1162. Such a duty of care includes a duty to avoid exposing persons to risks of injury that occur off of the property, if the landowner’s/occupier’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite. Kesner, supra at 1159. A defendant owes no duty where the evidence establishes that the defendant did not own, possess or control the property where the injury occurred. Southland Corp. (1988) 203 CA3d 656, 664; Preston (1986) 42 C3d 108, 114, 119; Lucas (1993) 15 CA4th 1578, 1587.

Plaintiff has not provided competent evidence to support the conclusion that Crown Castle owned, possessed or controlled the property/sidewalk where she tripped and fell thereby owing her a duty of care. Photographs of the vault covers on which Plaintiff tripped have AT&T markings on them. (SS 15). All of Crown Castle’s equipment in the general vicinity of Plaintiff’s fall is located behind a fence and on a monopole tower which is in the air. (SS 17). The evidence establishes that Plaintiff did not trip and fall behind the fence where Crown Castle maintained its equipment, but rather on a vault cover located on a public sidewalk . (SS 11-13).

Plaintiff’s reliance on Public Utilities Code 2106 and 702 and Streets & Highways Code 5610 to impose a duty on Crown Castle purportedly owed to Plaintiff is unavailing. Public Utility Code 2106 and 702 apply to public utilities. (See Ex.7 to Plaintiff’s Ex.D). There is no evidence that Crown Castle is a public utility. (See Complaint, p.2, no.5.a., no.5.b.). Streets and Highways Code 5610 provides:

The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto. (emphasis added) (See Ex.6 to Plaintiff’s Ex.D).

The foregoing statute “creates a duty on the part of the property owner to keep the sidewalks in repair - but that duty is owed to the city, not to the traveler on the sidewalk. The extent of the liability created is to pay for the repairs, not to pay damages to an individual, nor to reimburse the city if it is compelled to pay such damages.” Schaefer (1944) 63 CA2d 324, 326-332.

Even with regard to the duty owed to the city under Streets and Highways Code 5610, the owner does not have a duty to maintain the adjacent sidewalk with regard to “conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.” See Streets and Highways Code 5610. As noted above, there is no evidence that Crown Castle owned, possessed or controlled the sidewalk where the vault covers are located and Plaintiff’s trip and fall occurred or that Crown Castle placed the vault covers in the location. Therefore, presumably, the vault covers were placed on the public sidewalk by some entity other than Crown Castle with the permission of the city or by the city itself.

Based on the foregoing, Crown Castle owed Plaintiff no duty to maintain, manage, control and/or operate the area where Plaintiff tripped and fell. Similarly, Crown Castle had no duty to prevent or warn of a dangerous condition where the incident occurred. Since Plaintiff cannot establish the essential element of duty, her premises liability cause of action fails. CCP 437c(p)(2).

1^ST CAUSE OF ACTION – NEGLIGENCE

The elements of a negligence cause of action are the same as a premises liability cause of action: duty, breach, causation and damages/injury. Kesner, supra at 1158. As noted above, there is no evidence that Crown Castle owned, possessed or controlled the property where Plaintiff tripped and fell. (SS 16-17).

Crown Castle concedes that it owed a duty of care to Plaintiff, and others, regarding the equipment it owned and/or controlled. (See Motion Memorandum of Points & Authorities, p.11:12-15). The evidence establishes that the equipment owned, possessed and/or controlled by Crown Castle was located behind a locked fence near the trip and fall location and on a monopole tower located in the air. (SS 13, 17). Additionally, photographs of the signs on the fence near where the incident occurred show that Crown Castle warned of dangers related to its equipment. (See Crown Castle’s Ex.F). As such, there is no evidence that Crown Castle breached the duty it owed to Plaintiff and others regarding the property, real and/or personal, it possessed, occupied or controlled. Similarly, there is no evidence that any conduct by Crown Castle caused or contributed to Plaintiff’s injuries.

Based on the foregoing, Plaintiff cannot establish the essential elements of her negligence cause of action as to Crown Castle thereby entitling Crown Castle to summary judgment. CCP 437c(p)(2).

CONCLUSION

Based on the foregoing, Crown Castle’s request for summary judgment is granted.

Dept. F47

Date: 8/18/22 TRIAL DATE: 3/6/23

Case #21STCV04128

SUMMARY JUDGMENT

Motion filed on 5/27/22.

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY: Plaintiff Orlee Bakhshizandeh

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment in favor of Defendant City of Los Angeles and against Plaintiff Orlee Bakhshizandeh.

RULING: The motion is granted.

FACTUAL SUMMARY & RELEVANT PROCEDURAL HISTORY

This action arises out of a trip and fall incident. Plaintiff Orlee Bakhshizandeh (Plaintiff) alleges that on or about 9/19/20, while participating in a cross-fit class, she was jogging on the sidewalk at or near 9301 Shirley Avenue in Los Angeles, California when she tripped and fell over a vault cover/electrical panel surface/grate causing her to sustain severe bodily injuries. (Separate Statement (SS) 1, 6). The vault cover where Plaintiff tripped and fell is located on a public sidewalk. (SS 11).

Plaintiff claims that the City of Los Angeles (the City) negligently maintained, managed, controlled and operated the property/sidewalk where the incident occurred. On 2/2/21, Plaintiff filed this action against the City and others alleging causes of action for: (1) negligence and (2) premises liability – willful failure to warn. (SS 2).

On 5/27/22, the City filed and served the instant motion seeking an order granting summary judgment in favor of the City and against Plaintiff. Plaintiff has opposed the motion.

PROCEDURAL DEFECTS

The City has failed to properly bookmark the exhibits attached to its Compendium of Evidence. (See 5/3/19 First Amended General Order Re Mandatory Electronic Filing for Civil, p.4:4-p.5:12; CRC 3.1110(f)(4)). The bookmarks are not labeled as exhibits and are not linked to the first page of the exhibits identified in the compendium (i.e., Exhibits A-I).

While Plaintiff timely filed her Separate Statement and proposed Order in relation to this motion on 8/4/22, Plaintiff did not file her opposition memorandum of points and authorities with supporting evidence and her Response to Defendant’s Separate Statement until 8/8/22, less than 14 days before the 8/18/22 hearing date. CCP 437c(b)(2).

Despite the foregoing, defects in the moving and opposing papers, all moving and opposing papers/evidence were considered by the Court. See CRC 3.1300(d).

OBJECTIONS

The three objections the City has made to Plaintiff’s evidence do not actually address specific evidence, but seem rather to be objecting to the facts Plaintiff claims the evidence supports. See CRC 3.1354(b). The Court declines to rule on the objections. However, certain of the evidence and/or facts contained in the objections are addressed in the Court’s analysis below.

Additionally, the Court notes that Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts is not in proper form. With regard to facts 3, 4, 5, 9, 10, 11, 13, 14 and 15, Plaintiff fails to “unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’” See CRC 3.1350(f)(2); CCP 437c(b)(3). Additionally, Plaintiff fails to provide the page and line number or paragraph of the evidence relied upon as required. See CRC 3.1350(f)(3).

CCP 437c(h)

Plaintiff’s request for denial of the motion or a continuance under CCP 437c(h) is denied. CCP 437c(h) provides:

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.

Plaintiff vaguely claims that if the Court is not going to deny the motion, “it should allow for the completion of specific discovery on point, including production and/or deposition of witnesses, contractors, and no protective order has been filed related to this injury causing event. Defendant has not produced all documents related to the discovery for the property location at issue, including permits, licenses, inspections, or persons who are involved in the licensing, permitting and/or inspections to verify the responses.” (See Opposition, p.4:22-27). However, the declaration of attorney Alexander Zeesman submitted in support of the opposition does not address the request for a continuance or the discovery purportedly planned/needed to further oppose the motion. (A. Zeesman Decl.).

ANALYSIS

All tort liability against a public entity, such as the City, must be based on statute. Eastburn (2003) 31 C4th 1175, 1183; Fox (1985) 170 CA3d 1238, 1241; Government Code 815. Government Code 835 provides that a public entity may be liable for a dangerous condition of public property. Specifically, 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.

As such, Plaintiff cannot rely on common law principles of tort liability for her claims against the City and the only viable theory as against the City is Count Three – Dangerous Condition of Public Property in Plaintiff’s 2^nd cause of action for Premises Liability.

Government Code 830 provides:

(a) “Dangerous condition” means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

(b) “Protect against” includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.

(c) “Property of a public entity” and “public property” mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.

The existence of a dangerous condition is usually a question of fact, but may be resolved as a question of law if reasonable minds can only come to one conclusion. Peterson (1984) 36 C3d 799, 810; Mittenhuber (1983) 142 CA3d 1, 5. To hold the City liable for dangerous condition of public property, the property must be owned or controlled by the City. See Longfellow (1983) 144 CA3d 379, 383; Tolan (1979) 100 CA3d 980, 984.

The scope of the issues to be addressed on a motion for summary judgment is generally limited to the claims framed by the pleadings. See Howard (2012) 203 CA4th 403, 421; Jacobs (2017) 14 CA5th 438, 444. Plaintiff may not oppose the instant motion on a theory not alleged in the pleadings. See California Bank & Trust (2013) 222 CA4th 625, 637 fn.3. Here, the alleged dangerous condition of public property is/was “an uneven electrical panel surface, which was not bolted down, causing Plaintiff to sustain severe bodily injuries.” (Complaint, p.2 ¶Prem.L-1). The electrical panel surface/grate/vault cover is owned, maintained and controlled by AT&T. (SS 5). In Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, she does not state that she disputes that the electrical panel surface is owned, maintained and controlled by AT&T and the statements in response to the fact seem to be addressing Defendant Crown Castle, not the City.

Plaintiff’s attempt to create a triable issue of material fact as to the City’s ownership, maintenance and/or control of the area where the trip and fall incident occurred fails. Plaintiff argues:

Defendant City did owe a duty to Plaintiff under Streets and Highway Code and Public Utility Code and contemplated by the Willits Memorandum and requirement to have doors in the sidewalk that are flush (Municipal Code). The City owed and breached several duties, including owning a property interest in the sidewalk and leasing or assigning a portion of the City’s sidewalk to a third party who installed it improperly, misaligned and acted as a contractor who would be separately liable. The City controlled the shade tree that was adjacent to the condition, creating a trap and related to the use, safety and compliant standards.

(See Opposition, p.7:21-25).

However, Plaintiff fails to cite authority which supports the argument. Plaintiff’s reliance on Streets and Highways Code 5610 is misplaced as that statute imposes a duty, owed to the city, on owners of property fronting a public street to keep the sidewalks in repair. See Schaefer (1944) 63 CA2d 324, 326-332. Plaintiff then claims that Los Angeles Municipal Code 56.09 27 provides “‘Every such opening in any sidewalk shall be covered with metal trap doors.’ And ‘Every such opening shall have a metal cover flush with the surface of the sidewalk, and its upper surface shall be roughened.’” (See Opposition, p.8:10-12). Plaintiff then claims that relevant sections of the Los Angeles Municipal Code are attached to the motion as Exhibit 5. (Id. at p.8:13). However, “Los Angeles Municipal Code 56.09 27” (or 56.09) is not included in Exhibit 5 to the Burns declaration. Presumably, Plaintiff is intending to rely on Los Angeles Municipal Code 56.09(a) which provides:

No person shall construct or maintain, any permanent opening in any sidewalk, unless the same be constructed and maintained in the manner required by this section.

Every such opening in any sidewalk shall be covered with metal trap doors. The sides or ends of any such door nearest the curb shall not be less than four (4) feet from the outer edge of such curb and no such door shall be more than five (5) feet in width; provided however, that the provisions of this section regulating the width of any such door and its distance from the curb shall not apply to any such door erected, constructed or maintained prior to the passage of Ordinance No. 20,449 (N.S.), approved June 16, 1910. Metal guards of the kind herein described shall be provided and maintained at each such opening. Each such metal guard shall reach to the height of such doors when the same are open and shall be constructed of wire mesh, the meshes of which shall not exceed three inches in the greatest dimension.

In addition to the opening hereinbefore described, an opening through a sidewalk not more than thirty inches in its greatest dimension, may be maintained for the admittance of fuel to the cellar or basement of the building fronting on such portion of such sidewalk. Every such opening shall have a metal cover flush with the surface of the sidewalk, and its upper surface shall be roughened. (emphasis added).

Plaintiff and Mr. Burns fail to address the preceding portion of the code section relied upon and/or adequately explain how the code section imposes a duty on the City with regard to the vault cover over which she tripped and fell which is owned, maintained and controlled by AT&T. (See Burns Decl. ¶11; SS 5). Plaintiff’s reliance on Municipal Code 41.46 with regard to the City is also misplaced as the code section imposes a duty on persons to keep the sidewalk in front of their houses, places of business or premises in a clean and wholesome condition.

Plaintiff also improperly tries to create a triable issue by claiming that the City is somehow responsible for creating a trap based on shade in the area produced by a fence and tree. (See Plaintiff’s Response to SS 3, 11, 13). However, this newly claimed “shade trap” theory is not set forth in Plaintiff’s pleadings or discovery responses. Therefore, Plaintiff cannot rely on it to oppose the motion. California Bank & Trust, supra.

Based on the fact that the City did not own, maintain or control the alleged dangerous condition (the uneven vault cover), it cannot be held liable under a theory of dangerous condition of public property.

Even if the vault cover is considered to be property maintained or controlled by the City or part of the City owned sidewalk, the City is not liable for damages caused by a minor, trivial or insignificant defect. Government Code 830, 830.2, 835; Whiting (1937) 9 C2d 163; Stathoulis (2008) 164 CA4th 559, 566. The trivial defect doctrine allows the court to determine whether a defect is trivial as a matter of law. Ursino (1987) 192 CA3d 394, 399; Caloroso (2004) 122 CA4th 922, 927; Fielder (1977) 71 CA3d 719.

Accepting Plaintiff’s claim that the vault cover created a ¾ inch uplift (Plaintiff’s Response to SS 10), many decisions have held that sidewalk defects greater than an inch were trivial as a matter of law. See Huckey (2019) 37 CA5th 1092; Caloroso, supra at 927 citing Barrett (1953) 41 C2d 70, 74; Fielder, supra at 724, fn.4; Ness (1956) 144 CA2d 668, 669; Balmer (1937) 22 CA2d 529; Dunn (1937) 22 CA2d 51, 54; Meyer (1937) 22 CA2d 46, 50; Nicholson (1936) 5 C2d 361.

Again, Plaintiff’s reliance on shade created by the tree and fence near the location of the incident as “additional aggravating circumstances” which contributed to the dangerous condition is improper as these conditions are not alleged in Plaintiff’s complaint or her discovery responses. Nor are they referenced by Plaintiff’s expert. (Burns Decl. ¶10).

Based on the foregoing, the Court finds that the alleged defect to be trivial as a matter of law.

Whether the City’s had notice of the defect is irrelevant since the defect is trivial. See Barrett (1953) 41 C2d 70, 73; Ursino, supra at 398; Cadam (2011) 200 CA4th 383, 389. Regardless, there is no evidence that the City had notice of the condition or any prior complaints regarding the alleged defect. (SS 14, 15).

CONCLUSION

Based on the foregoing, the City’s request for summary judgment is granted.