Judge: Michael E. Whitaker, Case: 19STCV08535, Date: 2022-10-27 Tentative Ruling

Case Number: 19STCV08535    Hearing Date: October 27, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment or in the alternative Summary Adjudication of the Issues; Memorandum of Points and Authorities; Declaration of Susan K. Andersen
2. Separate Statement of Undisputed Material Facts
3. Evidence in Support of Motion

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Raymond Ghermezian

2. Response to Defendants’ Separate Statement of Undisputed Material Facts

3. Separate Statement of Undisputed Material Facts and References to Supporting Evidence

4. Objections to Defendants’ Evidence

5. Declaration of Brad P. Avrit with Certain Exhibits

6. Declaration of Eris J. Barillas with Certain Exhibits

7. Exhibit Log with Certain Exhibits

REPLY PAPERS:

1. Reply to Late Filed Opposition to Motion for Summary Judgment or in the alternative Summary Adjudication of the Issues

2. Reply to Plaintiff’s Additional Facts

3. Evidentiary Objections to Evidence in Plaintiff’s Opposition

4. Request for Judicial Notice [1]

BACKGROUND

            Mercedes Barahona (Plaintiff) tripped, fell, and suffered injuries on a public sidewalk in front of property owned by Barrington Pacific, LLC and managed by Douglas Emmett Management, LLC (collectively, Movants) in Los Angeles.  Plaintiff filed this action against the City of Los Angeles, County of Los Angeles, and Movants on March 13, 2019, alleging causes of action for: (1) violation of Government Code section 835 et seq., (2) violation of Government Code section 815.2, (3) premises liability, and (4) negligence.  The third and fourth causes of action were asserted against Movants.

            Movants move for summary judgment or in the alternative summary adjudication as to the third and fourth causes of action.  Plaintiff opposes the motion and Movants reply to the opposition. 

EVIDENTIARY OBJECTIONS

            With respect to Plaintiff’s evidentiary objections, the Court rules as follows:

1. Overruled

2. Overruled

3. Sustained (Lack of Personal Knowledge)

4. Overruled

            With respect to Defendants’ evidentiary objections, the Court rules as follows:

1. Overruled

2. Sustained in part as to:  “On November 16, 2021, Aperture employee Eris Barillas ("Ms. Barillas") inspected the subject sidewalk ("Sidewalk") and took photographs and measurements of relevant areas (a true and correct copy attached hereto as Exhibit 'B')”  (Lack of Foundation); otherwise, Overruled

3. Sustained in part as to:  “Ms. Barillas' inspection photographs show a Sidewalk uplift height differential range of 1- 3/8" and 2-3/4” (Lack of Foundation); otherwise, Overruled

4. Overruled

5. Sustained in part as to:  “The Streets Code and the LA Code required Defendant Barrington Pacific as Property Owner and Defendant Douglas Management as Property Manager to maintain sidewalks near the Property in a reasonably safe manner for pedestrians” (Lack of Foundation; Improper Opinion); otherwise, Overruled

6. Overruled in part as to:  “It is reasonably foreseeable that a pedestrian like Plaintiff would traverse the subject Sidewalk area to access the bus stop, nearby vehicles, or nearby businesses”; otherwise, Sustained (Lack of Foundation, Improper Opinion)

7. Overruled

8. Sustained in part as to:  “Defendant Barrington Pacific's and Defendant Douglas Management's failure to sufficiently maintain the subject incident area and/or notify Defendant LA about the Sidewalk uplift as required by the Street Code, LA Code and pursuant to the Street Code and ADA requirements contributed to the Sidewalk uplift's dangerous condition on the date of Plaintiffs fall and was a substantial factor in causing Plaintiff harm” (Lack of Foundation; Improper Opinion); otherwise, Overruled

9. Sustained (Lack of Foundation, Inadmissible Hearsay, Improper Opinion)

10. Overruled in part as to:  “Figure 5 above shows the presence of the Sidewalk uplift as early as April 2014” and “Figure 6 above shows a September 2017 Google Street View image of the Sidewalk uplift. Figure 5 and Figure 6 above show that the Sidewalk uplift still presented a substantial tripping hazard after Defendant LA's 2015 temporary asphalt repair”; otherwise, Sustained (Lack of Foundation, Inadmissible Hearsay, Improper Opinion)

11. Sustained (Lack of Foundation, Improper Opinion)

12. Sustained (Lack of Foundation, Irrelevant)

13. Sustained (Lack of Foundation)

14. Overruled

15. Overruled

16. Overruled

17. Overruled

18. Overruled

LEGAL STANDARDS –SUMMARY JUDGMENT/SUMMARY ADJUDICATION

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

DISCUSSION

Movants contend as set forth in their memorandum of points and authorities in support of the motion that they did not owe a duty of due care to Plaintiff.  In particular, Movants argue that they did not own, possess or control the sidewalk that Plaintiff allegedly tripped and fell on, and therefore, Movants had no duty of due care to Plaintiff to warn or repair any purportedly dangerous condition with the sidewalk. 

1. ELEMENTS: NEGLIGENCE AND PREMISES LIABILITY

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) 

Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.  (See Rowland v. Christian (1968) 69 Cal.2d 108.)  But liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril.  (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

1. DUTY OF DUE CARE

The duties owed in connection with the condition of land are not invariably placed on the person holding title but, rather, are owed by the person in possession of the land because of the possessor's supervisory control over the activities conducted upon, and the condition of, the land.  This court recognized in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 170 P.2d 5 that a defendant who lacks title to property still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises control over the property. One of the defendants in Johnston operated a restaurant in a portion of a building leased from the owner of the property. A prospective customer of the restaurant fell while walking from her automobile onto an unlit portion of a walkway leading to the restaurant. The walkway was not situated within the premises leased by the defendant. This court observed:  A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control.  Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition. It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.

(Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–1158 [cleaned up] [reversing summary judgment for defendants because there were triable issues of material fact regarding defendants’ alleged control over the subject property]; see also Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244 (hereafter Lopez).)   In Lopez, the Court of Appeal held in pertinent part: 

The owner or occupier of private property has a duty to exercise reasonable care to maintain its property in a reasonably safe condition, but that duty does not generally extend to the publicly owned sidewalks and streets abutting the property unless the owner or occupier has exercised control over that publicly owned property. In this case, a pedestrian tripped and fell in a pothole located on city-owned property where the lip of a driveway and the gutter meet. This appeal therefore presents the question:  Has the commercial business leasing the property that the driveway services exercised control over the location of the pothole (so as to create a duty of care to passersby) when the business has done no more than put the driveway and gutter to their “ordinary and accustomed” uses?  We hold that the answer is no.

(Lopez, supra, 55 Cal.App.5th at p. 250 [cleaned up].)  Further the Lopez court stated:

Does the general duty to maintain the property one owns or occupies extend to abutting property that is owned by others—and, in particular, to abutting property owned by public entities?  The default answer is no. That is because, for more than 150 years, the general rule has been that, in the absence of a statute, a landowner is under no duty to maintain in a safe condition a public  street or sidewalk abutting upon his property.  This general rule has one notable exception:  A person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has exercised control over that property. That is because a person who exercises supervisory control over property has the power to keep it in a reasonably safe condition, which makes it just to impose a duty to exercise due care in the management of that property.

(Id. at p. 255 [cleaned up].)  In opposition, Plaintiff cites to three statutory provisions which she claims imposes a duty of due care on the Movants notwithstanding the general rule noted by the Lopez court.  Specifically, Plaintiff cites to Streets and Highways Code section 5610, [2] Los Angeles Municipal Code section 62.104, [3] subdivision (b), and Sections 303.3 and 303.4 of the Americans with Disabilities Act. [4]  Plaintiff is incorrect. 

            First, the Court of Appeal in Jordan v. City of Sacramento held that Section 5610 does not impose a duty upon an owner of property abutting public property such as a street or sidewalk. 

Under a statute whose origins are nearly a century old, The owners of lots fronting on any portion of a public street when that street is improved shall maintain any sidewalk.  This imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk. This limitation on tort liability to third parties is often referred to as the Sidewalk Accident Decisions Doctrine.

(Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490–1491 [cleaned up] (hereafter Jordan); see also Lopez, supra, 55 Cal.App.5th at p. 259 [“At the outset, we note that there is no statute requiring California property owners to maintain the sidewalks, driveways and gutters abutting their property”].)    

            Second, the Jordan court stated:  “[a] municipality may alter these principles by ordinance with clear and unambiguous language imposing liability on a property owner for sidewalk injuries.  (Jordan, supra, 148 Cal.App.4th at p. 1491.)  Nonetheless, the Court finds that neither the Los  Angeles municipal code nor the American with Disabilities Act, as referenced by Plaintiff, do not with clear and unambiguous language impose a duty upon property owners such as Movants. 

2. CONTROL OF THE SIDEWALK - EVIDENCE

So when does the owner or occupier of private property exert control of abutting, publicly owned property?  As a threshold matter, the owner or occupier must take some affirmative or positive action toward the abutting, publicly owned property.  This threshold requirement flows inexorably from the general rule that a person's ownership or occupancy of property, without more, is insufficient to impose a duty to maintain abutting, publicly owned property. Thus far, courts have identified two situations in which an owner or occupier of private land has engaged in affirmative or positive action sufficient to hold them liable for a hazard located on abutting, publicly owned property: (1) when the owner or occupier has created that hazard, or, (2) if the hazard was created by a third party, when the owner or occupier has  dramatically asserted dominion and control over the abutting, publicly owned property by effectively treating the property as its own.

(Lopez, supra, 55 Cal.App.5th at p. 256 [cleaned up].)  Accordingly, herein, whether Movants owed a duty of due care to Plaintiff depends upon their control of the sidewalk at issue. 

1. MOVANTS’ EVIDENCE

    

   Movants advance the Declaration of Ross Tordecilla (Tordecilla) who is a Community Manager with Douglas Emmett Management, LLC.  In part, Tordecilla states as follows:

    

• There are two assigned day porters who perform daily cleaning and daily sweeping of the subject property.  The day porters may sweep and/or pick up trash outside of the premises that may be on the City’s sidewalk.

   

• Defendant Barrington Pacific, LLC does not inspect, maintain or repair the city public sidewalk adjacent or abutting Defendant Barrington Pacific, LLC’s property other than possibly picking up or sweeping trash outside of its premises. [5]

   

• Barrington Pacific, LLC has never planted any of the trees on the city sidewalk.  Defendant did not plant the single tree which exists at the location of Plaintiff’s fall. 

   

• Defendant Barrington Pacific, LLC does not maintain the planter or the large tree in the planter located next to the incident location.

   

• Defendant Barrington Pacific, LLC did not perform the asphalt patch/repair over the lifted, raised and uneven concrete slabs which form the City sidewalk.

   

• Defendant’s maintenance personnel does not and has never exercised control over the sidewalk where plaintiff’s incident is alleged to have occurred.

   

• Defendant Barrington Pacific, LLC does not own, possess or control the public sidewalk, adjacent to its property.

   

• Defendant has never assumed the obligations of the City of Los Angeles duties concerning the public sidewalk.

   

• Neither Defendant Barrington Pacific, LLC or (sic) Douglas Emmett Management, LLC were ever notified or otherwise informed prior to the subject accident that anyone, including any city official, informed them that the hedges in the planter adjacent to their building located at 11704 Wilshire Blvd, Los Angeles, CA was the cause of the city sidewalk buckling.

   

• Neither Defendant Barrington Pacific, LLC or (sic) Douglas Emmett Management, LLC were ever informed that anyone had ever fallen due to the buckled city sidewalk caused by any action or inaction of Defendant Barrington Pacific.  Had I been notified or made aware of issues concerning the public sidewalk, I would have contacted the City of Los Angeles to request that the City inspect the subject sidewalk and tree. 

   

• Neither Defendant Barrington Pacific, LLC or (sic) Douglas Emmett Management, LLC have ever been notified or otherwise informed of any other trip and fall pedestrian accident relating to the subject tree/sidewalk at issue in this litigation.

   

• At no time was Defendant Barrington Pacific, LLC, or its agents ever told by anyone, including the City of Los Angeles and/or County of Los Angeles to repair the subject city sidewalk.

   

• The City/County of Los Angeles never informed Defendant Barrington Pacific, LLC or Douglas Emmett Management, LLC that it was obligated to take any action with respect to the subject sidewalk adjacent to Defendant Barrington Pacific’s property.

   

• Defendant Barrington Pacific, LLC has never exercised any control over the public sidewalk in the subject location where Plaintiff fell.

   

• Defendant has not made any repairs to the sidewalk where Plaintiff’s incident occurred. 

(Declaration of Ross Tordecilla, ¶¶ 10-11, 13 (in part), 15-16, 18-20, 23, 24, 27-28 & 30-31.) 

Movants’ evidence is sufficient to meet their burden of persuasion/production of evidence to show that Movants did not exercise control over the sidewalk that Plaintiff tripped and fell on.  Accordingly, Movants have shifted the burden of production to Plaintiff to raise triable issues of material fact.

1. PLAINTIFF’S EVIDENCE

    

   Plaintiff advances the Declaration of Eris J. Barillas (Barillas) who is a forensic expert with Aperture and inspected the subject sidewalk.  But there is no factual information in Barillas’ declaration pertaining to Movants’ control over the sidewalk.  (Declaration of Eris J. Barillas, ¶¶ 2-6.) 

    

   Further, Plaintiff advances the Declaration of Brad P. Avrit (Avrit) who is a licensed civil engineer with Aperture and who has been qualified as a safety engineer, civil engineer and accident reconstruction expert.  (Declaration of Brad P. Avrit, ¶¶ 2-3.)  But similar to Barillas’ declaration, Avrit does not put forward any factual information concerning Movants’ control over the sidewalk.  His opinions subject to the Court’s evidentiary rulings is focused on whether the sidewalk is a dangerous condition.  (Declaration of Brad P. Avrit, ¶¶ 7, 8 (in part), 9 (in part), 10, 11 (in part), 12 (in part), 13, 14 (in part), 16 (in part).) 

    

   In addition, Plaintiff advances her own deposition testimony, but her testimony does not address whether she has any information regarding Movants’ control over the sidewalk.  (See Plaintiff’s Exhibit Log, Exhibit 1.) 

    

   Lastly, Plaintiff proffers the deposition testimony of Gary La Coe (La Coe).  In part, La Coe testified that he has no information about who carried out the asphalt repairs on the sidewalk in question.  (Plaintiff’s Exhibit Log, Exhibit 2, 11:11-18.)  In addition, La Coe stated with respect to sidewalk conditions caused by an adjacent property owner:  “What we do is we're reaction-based and we go and make an assessment for a sidewalk location. We apply repairs as a courtesy to the property owner. usually they're request-based. When we go out there, you know, we make an assessment. And over 90 percent of the time it's a small asphalt repair is what we do.”  (Plaintiff’s Exhibit Log, Exhibit 2, 24:9-23.) 

    

   CONCLUSION AND ORDER

    

   Considering the competent evidence proffered by Movants and Plaintiff, and viewing said evidence most favorably to Plaintiff, the Court finds Plaintiff has not met her burden of production in establishing that there are triable issues of material fact regarding whether Movants controlled the sidewalk on which Plaintiff allegedly tripped and fell on.  Equally important, Movants have met their burden of production/persuasion that there are no triable issues of material fact regarding whether Movants owed a duty of care to Plaintiff by exercising the requisite control over the sidewalk in question.  In short, the record before the Court is devoid of any competent evidence establishing that the Movants created the alleged dangerous condition or dramatically asserted dominion and control over the abutting, publicly owned property by effectively treating the property as their own.

    

   The Court finds as a matter of law that Movants do not and did not owe a duty of due care to Plaintiff vis-a-vis the sidewalk at issue, either to warn of, or to repair, the purported dangerous condition.  Therefore, the Court grants Movants’ motion for summary judgment as to the third and fourth causes of action set forth in Plaintiff’s complaint.  Movants shall provide notice of the Court’s ruling and file a proof of service regarding the same.