Judge: Melvin D. Sandvig, Case: 22CHCV01013, Date: 2024-12-12 Tentative Ruling

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Case Number: 22CHCV01013    Hearing Date: December 12, 2024    Dept: F47

Dept. F47

Date: 12/12/24                                                            TRIAL DATE: 12/12/24

Case #22CHCV01013

 

SUMMARY JUDGMENT

 

Motion filed on 9/25/24.

 

MOVING PARTY: Defendant The Roman Catholic Archdiocese of Los Angeles

RESPONDING PARTY: Plaintiff Yvonne Cruz

NOTICE: ok

 

RELIEF REQUESTED: An order granting summary judgment as to Plaintiff’s 1st cause of action for general negligence and 2nd cause of action for premises liability.

 

RULING:

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of trip and fall incident that occurred on 10/30/20 at San Fernando Mission Cemetery which is owned by Defendant The Roman Catholic Archdiocese (Defendant).  On 10/30/20, Plaintiff Yvonne Cruz (Plaintiff) was visiting several of her family members’ graves at the cemetery.  (Separate Statement (SS) 8).  After decorating her family plots, Plaintiff took 2-3 steps backwards, her heel caught on tree roots which caused Plaintiff to lose her balance, fall and sustain injuries.  (SS 10).

 

Prior to the incident on 10/30/20, Plaintiff had visited the cemetery about 6 times.  (SS 6).  Plaintiff was aware of the tree near her family’s graves and had previously complained about its unkept nature, including its roots.  (SS 5, 7).

 

On 10/28/22, Plaintiff filed this action against Defendant alleging causes of action for: (1) General Negligence and (2) Premises Liability – Negligence (Defendant negligently owned, maintained, managed and operated the cemetery).  On 9/25/24, Defendant filed and served the instant motion seeking an order granting summary judgment as to Plaintiff’s 1st cause of action for general negligence and 2nd cause of action for premises liability.  On 12/2/24, Plaintiff filed and served an opposition to the motion.  On 12/6/24, Defendant filed and served a reply to the opposition.  Also, on 12/6/24, Plaintiff filed and served supplemental declarations in support of the opposition.

 

ANALYSIS

 

Evidentiary Objections 

 

Defendant’s objections, numbers 1, 2 and 7, to the Kasbekar declaration filed on 12/2/24 are overruled.

 

Defendant’s objections, numbers 3, 4, 5 and 6, to the Kasbekar declaration filed and served on 12/2/24 are cured by the Kasbekar declaration filed and served on 12/6/24.  If Defendant requests a short continuance to address such evidence, as indicated below, the Court will refrain from ruling on these objections until such time.  If Defendant decides to proceed with the hearing at this time, the objections will be overruled. 

 

Defendant’s objections, numbers 8, 10 and 11, to the Cruz declaration are overruled.

 

Defendant’s objection, number 9, to the Cruz declaration is sustained as to the portion of the declaration which states “I had not complained about the tree roots in particular” as being contradicted by Cruz’s deposition testimony.  (See Defendant’s Ex.A, p.22:1-6, p.23:10-13).  The objection is otherwise overruled. 

 

Timeliness of Opposition

 

CCP 437c(b) requires that all opposition papers to a motion for summary judgment be filed and served at least 14 days before the hearing date, unless the court shortens the time for good cause shown.  Here, 14 days before the hearing date was Thursday, 11/28/24, Thanksgiving.  Plaintiff did not file and serve her opposition papers until Monday, 12/2/24. 

 

Both Plaintiff and Defendant contend that the filing and service of the opposition papers was untimely.  Plaintiff contends that the delay was caused by counsel’s computer crashing on Wednesday, 11/27/24.  Defendant argues that the opposition should be stricken due to the purported untimely filing and service.  Despite the foregoing, the Court finds that the filing and service of the opposition on 12/2/24 to be timely. 

 

If the due date for an opposition to a motion for summary judgment falls on a holiday, the due date is extended to the next day that is not a holiday.  See Rowan (2020) 54 CA5th 289, 294-295; People v. Financial Casualty & Surety, Inc. (2019) 41 CA5th Supp. 1, 6.  CCP 12a provides that “[i]f the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.”  The foregoing rule applies to all acts required by law, including filing deadlines for court documents.  See Deleon (1983) 33 C3d 456, 457.  Additionally, CCP 12a defines “holiday” to include all Saturdays, Sundays, and holidays specified in CCP 135, which includes Thanksgiving and the day after Thanksgiving.  See Parsons (2022) 86 CA5th 1260, 1266-1267.   

 

Even if the opposition was not timely filed, the Court finds that Plaintiff’s attorney has provided a sufficient excuse for the failure to file the opposition at least 14 days prior to the hearing date – i.e., the crashing of counsel’s computer the on the 15th day before the hearing date (11/27/24), which was the day before Thanksgiving.  Also, there was no way for Plaintiff’s counsel to request an extension of time to file the opposition before filing the opposition on the next court day, Monday, 12/2/24.  Further, the Court finds that Defendant was not unduly prejudiced by the late filing and/or service as Defendant has filed an opposition on the merits without requesting a continuance.

 

However, there is another issue with the opposition papers.  Plaintiff’s counsel failed to attach the exhibits to the Kasbekar declaration filed on 12/2/24 which are referred to and relied on in the opposition.  Plaintiff’s counsel explains that upon reviewing the reply, the mistake was realized and a declaration with the exhibits attached was filed and served on 12/6/24.  The Court does not believe that Defendant was not prejudiced by this failure as Defendant should have had access to all of the exhibits.  (See Supplemental Kasbekar Decl. filed 12/6/24).  However, if Defendant would like a brief continuance to solely address such evidence and its impact on the motion, the Court will discuss same with counsel at the hearing. 

 

Merits

 

Defendant incorrectly claims that “Plaintiff brings this action against [Defendant] for general negligence and premises liability under a single failure to warn theory of liability.”  (See Motion, p.7:21-22; SS 11, 22).  Plaintiff’s premises liability cause of action is based on Defendant negligently owning, maintaining, managing and operating the premises/cemetery.  (See Complaint, p.5 ¶Prem.L-2).  Defendant concedes that Plaintiff’s discovery responses expand on the theories set forth in the complaint.  (Motion, p.8, fn.1).  Since Defendant does not address the allegations regarding its negligent maintenance of the premises, including the tree and the roots over which Plaintiff tripped, the request for summary judgment must be denied.  Plaintiff has not requested summary adjudication in the alternative to summary judgment.    

 

Even if Plaintiff’s claims were limited to a failure to warn theory of liability, Defendant has failed to establish that no triable issues of material fact exist. 

 

The elements of both the negligence and premises liability causes of action are: (1) Defendant owed Plaintiff a legal duty, (2) Defendant breached that duty and (3) the breach proximately caused injury to Plaintiff.  See Kesner (2016) 1 C5th 1132, 1158, 1160-1161.

 

Generally, a landowner owes a duty to exercise ordinary care in managing its premises to avoid exposing others to an unreasonable risk of harm.  Brooks (1989) 215 CA3d 1611, 1619.  An open and obvious danger obviates a landowner’s duty to warn of or remedy the condition.  See Krongos (1992) 7 CA4th 387, 393; Blodgett (1935) 4 C2d 511, 513.  A danger is open and obvious when it is so obvious that a person could reasonably be expected to see it.  Zuniga (2021) 61 CA5th 980, 993-994.  Where reasonable minds could differ on whether a condition is open and obvious or where the evidence does not conclusively establish the open and obvious nature of the condition, a triable issue of material fact exists precluding summary judgment. See Kasparian (2007) 156 CA4th 11, 15.     

 

While the evidence establishes that Plaintiff was aware of the existence of the tree, its overgrown nature, and had even complained about its root(s), a triable issue of material fact exists as to whether the tree root(s) over which Plaintiff tripped were open and obvious on the date of the incident.  (See SS 7, 9, 18, 20).  The evidence before the Court does not establish that Plaintiff saw the tree root(s) on the date of the incident.  Rather, Plaintiff’s declaration submitted in support of the opposition indicates that the tree over which she tripped “was not very long,” was “the same color as the surrounding soil and dead leaves,” and was “partially covered by grass.”  (See Cruz Decl. ¶4).  As such, a triable issue of material fact exists as to whether the root over which Plaintiff tripped was open and obvious on the date of the incident and/or whether it was the same root which Plaintiff had complained about in the past. 

 

Similarly, a triable issue of material fact exists as to whether the alleged failure to warn caused or contributed to Plaintiff’s injuries.  If cones or some other warning devices were placed on or by the specific tree root over which Plaintiff fell, it would have warned her of the danger on the date of the incident.  From Plaintiff’s deposition testimony, it cannot be determined whether she was complaining about the tree because it was unsightly, because it presented a danger, or both.  (See Defendant’s Ex.A, p.22:17-21).

 

CONCLUSION

 

If Defendant wishes to address the exhibits attached to the declaration of Shivali Kasbekar filed and served on 12/6/24 in support of the opposition, a short continuance of the hearing will be granted.  Defendant’s supplemental brief limited to 5 pages and to solely addressing such evidence will be due to be filed and served at least 5 court days before the continued hearing date. 

 

Otherwise, the motion will be denied.