Judge: Michael E. Whitaker, Case: 20STCV19088, Date: 2023-05-10 Tentative Ruling

Case Number: 20STCV19088    Hearing Date: May 10, 2023    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. 

 NOTE:  TWO TENTATIVE RULINGS BELOW

TENTATIVE RULING - NO. 1

MOTION

Defendants Maple Street Burbank Homeowners Association and Ross Morgan & Company, Inc. (collectively, Defendants) move to continue the trial, and all other trial related deadlines, which is currently set for June 30, 2023, to August 30, 2023.  Plaintiff Ulrike Zillner (Plaintiff) partially opposes the motion.  Defendants reply.

ANALYSIS

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.  Whether the parties have stipulated to the postponement is a relevant factor for consideration.  (See Code Civ. Proc., § 595.2, but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory”].)  

Here, Defendants seek a continuance of trial to accommodate defense counsel’s travel schedule and to further allow sufficient time for defense counsel to prepare for trial.  Defendants advance the declaration of Jacqueline Bouche (Bouche), counsel for Defendants, who avers the purpose of the continuance is to allow her and her family to travel out of the country from June 16, 2023 to July 5, 2023.  (Declaration of Jacqueline Bouche, ¶ 5.)  Counsel further states the continuance is necessary to allow her to take and defend at least six expert depositions, draft and file motions in limine, and file all documents necessary for the joint binders in order to prepare this matter for trial.  (Declaration of Jacqueline Bouche, ¶ 5.)  Counsel anticipates that she will be filing at least two motions to compel against Plaintiff due to Plaintiff’s refusal to attend the orthopedic and neurological Independent Medical Examinations (IME) set by Defendants for May 5, 2023 and May 29, 2023.  (Declaration of Jacqueline Bouche, ¶ 7.)  

Plaintiff partially opposes Defendants’ motion to continue trial, stating she is agreeable to a trial continuance to July 17, 2023 rather than August 30, 2023.  Plaintiff is amenable to continuing the trial date to allow Defense counsel to proceed with her travel schedule, however Plaintiff argues Defendants have not provided sufficient reason to continue the trial date for two months, and further to extend discovery deadlines and cutoffs.

In reply, Defendants contest Plaintiff’s proposed July 17, 2023 trial date because Defendants counsel would still be out of the country for the Final Status Conference for that trial date.  Defendants further emphasize that their counsel could not sufficiently prepare for trial within the proposed time constraints.  Defendants again note that they may need to file two motions to compel IMEs which will necessitate a longer trial continuance and continuance of expert discovery.

On May 4, 2023, Defendants filed a supplemental reply confirming that Plaintiff declined to attend her first IME scheduled for May 5, 2023.  Defendants again advance the declaration of Bouche who avers that Plaintiff’s counsel sent an email on May 3, 2023, indicating Plaintiff would not attend the May 5, 2023 IME.  (Declaration of Jacqueline Bouche, ¶ 2.)  Bouche states on May 4, 2023, her office acquired the first available reservation for a Motion to Compel IME hearing, November 20, 2023.  (Declaration of Jacqueline Bouche, ¶ 3.)   Yet the Court will  not consider continuing the trial past November 20, 2023 as Defendants have not filed and served the aforementioned motion. 

Accordingly, the Court finds Defendants have shown good cause for a trial continuance pursuant to California Rules of Court, rule 3.1332.

CONCLUSION AND ORDER

Therefore, the Court grants Defendants’ motion to continue trial and orders as follows:

·         The trial date, currently set for June 30, 2023, is continued to August 30, 2023 at 8:30 AM in Department 32.

·         The Final Status Conference, currently set for June 16, 2023, is continued to August 16, 2023 at 10:00 AM in Department 32.

·         Non expert discovery shall close per the current trial date of June 30, 2023, except for a physical examination of Plaintiff as demanded by Defendants.  

·         Expert discovery shall close per the current trial date of June 30, 2023, except for the completion of expert witness depositions which shall be scheduled and completed on or before August 9,2023. 

·         Per the Discovery Act, the parties shall meet and confer forthwith to schedule and complete all discovery to obviate the need for a further continuance of the trial.

·         No further continuance of the trial absent sufficient good cause.

Defendants shall provide notice of the Court’s orders and file a proof of service of such.

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 - NO. 2

MOVING PAPERS:

1. Notice of Motion for Summary Judgment; Memorandum of Points and Authorities in Support of Motion for Summary Judgment
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment; Declaration of Mark Blanchette, Ph.D., in Support of Motion for Summary Judgment; Declaration of Christina F. Michael in Support of Motion for Summary Judgment [1]

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Opposition to Separate Statement and Plaintiff’s Statement of Additional Material Facts
3. Notice of Lodging Exhibits
4. Declaration of Mark Burns in Support of Opposition to Motion for Summary Judgment
5. Declaration of Daniel K. Kramer in Support of Opposition to Motion for Summary Judgment
6. Plaintiff’s Objections to Evidence

REPLY PAPERS:

1.      Reply to Opposition to Motion for Summary Judgment [2]

2.      Reply to Plaintiff’s Separate Statement of Additional Material Facts

3.      Evidentiary Objections to Evidence in Opposition to Motion for Summary Judgment

4.      Declaration of Mark Blanchette, Ph.D., in Support of Reply [3]

BACKGROUND

Plaintiff Ulrike Zillner (Plaintiff) sued Defendant Maple Street Burbank Homeowners Association (Maple Street) based on an incident in which Plaintiff sustained injuries when she tripped and fell over a curb/wall bordering a parking entrance.  On May 18, 2022, Plaintiff filed an amendment to the complaint adding Ross Morgan & Company, Inc. as Doe 1.

Maple Street moves for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion. Maple Street replies. 

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[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”].)

EVIDENCE

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

·         Blanchette Decl., ¶ 6 p. 2:12- 14—overruled

·         Exhibit B to Blanchette Decl., ¶ 7 p. 2:15-19—overruled

·         Exhibit F to Blanchette Decl., ¶ 11 p. 3:25-4:2—overruled

·         Blanchette Decl., ¶ 10 p. 3:12- 15—overruled

·         Exhibit E to Blanchette Decl., ¶ 11 p. 3:16-17—overruled

·         Exhibit E to Blanchette Decl., ¶ 10 p. 3:17-18—overruled

·         Exhibit E to Blanchette Decl., ¶ 10 p. 3:18-19—overruled

·         Blanchette Decl., ¶ 10 p. 3:22- 24—overruled

·         Blanchette Decl., ¶ 13 p. 4:8-9—overruled

With respect to Defendant’s evidentiary objections to evidence in Plaintiff’s opposition to motion for summary judgment, the Court rules as follows:

1.      Overruled

2.      Overruled

DISCUSSION

            Plaintiff’s complaint asserts causes of action against Defendants for negligence and premises liability.   Maple Street moves for summary judgment on the complaint on the ground that “any defect in which Plaintiff claims caused her fall constitute a trivial defect as a matter of law.”  (See Notice of Motion, 2:12-13.)   

1. Elements: Negligence and Premises Liability

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.”  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.)  “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.”  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct.  Liability 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.  Thus, liability is based on his or her own failure to act reasonably.”  (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].) 

Maple Street’s moving papers create ambiguity as to what particular defect it is categorizing as trivial.  Resultantly, Maple Street’s basis for asserting the absence of a dangerous condition is unclear.  However, based on a fair reading of the moving papers, the Court understands Maple Street’s contention to be as follows: the lighting at the location of Plaintiff’s trip and fall provided adequate visibility of the subject location, and further made the curb/wall causing Plaintiff’s trip and fall reasonably ascertainable to the average person.  Based on the foregoing, the Court understands Maple Street’s assertion to be, the inadequate lighting of the subject location was trivial as a matter of law and thus did not create a dangerous condition for which Maple Street would be liable.   

2.      MAPLE STREET’S EVIDENCE

Maple Street retained Mark Blanchette, Ph.D. (Blanchette), a biomechanics consultant, to evaluate the circumstances of Plaintiff’s fall, and advances his declaration in which he concludes the lighting at the subject location at the time of the incident was sufficient, making the curb/wall visible to pedestrians.  The following are relevant portions of Blanchette’s declaration in support of the foregoing proposition:

·         At the time of my October 27, 2020 inspection, I used a calibrated Extech EA31 light meter to measure the amount of illuminance present in the area of the incident, specifically at the subject condition . . . The light measurements were taken on the day of my inspection at approximately 7:33 to 7:36 P.M; astronomical twilight ended at 7:29 P.M. Attached hereto as Exhibit E1-5 are annotated copies of photographs taken at the time of inspection depicting the five locations where I measured the lighting. The annotations report the amount of illuminance measured at each location. The minimum amount of illuminance measured at the five locations was on the lower concrete wall section at 0.83 footcandles, respectively. Plaintiff’s response to special interrogatory No. 1 indicates that the subject incident occurred on May 13, 2019 at approximately 12:01 A.M. I am unaware of any changes to sources of artificial illumination in the area of the incident since the time of the incident. Due to the presence of artificial lighting the from buildings adjacent to, and the streetlight above, the area of the incident, it is my opinion that the lighting conditions at the time of my inspection were substantially similar to the time of the incident.

·         The literature regarding obstacle detection and illumination indicates that an illuminance measure of 0.09 footcandles is sufficient for pedestrians of all ages to safely detect and avoid trip hazards. More specifically, an elevation change of approximately 0.40 inches would be detectable by a pedestrian at a distance of approximately 11 feet away under illuminance conditions ranging from 0.02 to 0.09 footcandles, depending on age.

·         In my opinion, the subject condition at the time of the incident does not constitute a dangerous condition, which is a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. I conclude this for several reasons. First, the height differential from the lower concrete wall section to the asphalt is approximately 3 inches and the height differential from the higher concrete wall section to the asphalt is approximately 5 and 3/8 inches, and the literature reports that pedestrians, exercising reasonable care by looking where they are walking, are able to perceive such obstacles and avoid tripping on them. Second, at the time of the alleged incident, the level of illuminance was greater than has been reported as being sufficient to detect trip hazards. Third, Plaintiff testified that the only reason she fell was because she couldn’t see the step. I am not aware of any evidence of barriers or debris that would have affected the conspicuity of the subject condition at the time of the incident. Thus, in connection with reasons one and two above, the subject condition was open and obvious. Fourth, the subject condition is not part of a pedestrian walkway or designated path of travel, rather it is terminus of a wall that borders a vehicular driveway for subterranean parking located in an alley. Aside from the subject matter, I am not aware of any other claims of trips or other injurious events associated with the subject condition.

(Declaration of Mark Blanchette, Ph.D., ¶¶ 10, 12, 13.)

            The Court finds Maple Street has met its burden of production and persuasion to show that the lighting of the subject location at the time of Plaintiff’s trip and fall created sufficient visibility for the reasonable person to ascertain the presence of the curb/wall which Plaintiff tripped over.  Maple Street sufficiently establishes that any defect with the lighting of the subject location is trivial, and has thus shifted the burden to Plaintiff to raise triable issues of material fact as to whether the lighting of the subject location created a nontrivial defect.

3.      PLAINTIFF’S EVIDENCE

            In opposition, Plaintiff advances the declaration of Mark Burns (Burns), a safety and liability expert retained by Plaintiff to investigate the incident at issue.  Plaintiff contends the following excerpts of Burns’ declaration dispute Blanchette’s contention that the lighting of the subject location was sufficient to properly illuminate the subject wall/curb on the night of the incident, creating a triable issue of fact as to whether a dangerous condition existed on Maple Street’s property to cause Plaintiff’s harm: 

·         The Declaration of Mark Blanchette in Support of Defendant’s Motion for Summary Judgment references Illuminance required to detect a pavement obstacle of critical size by S Fotios. In this study, “…detection distance was estimated by further analysis of previous work in which mobile eye tracking was used to investigate the gaze behavior of 40 pedestrians walking outdoors along an urban route of approximately 900 m, in daytime and after dark. The 40 pedestrians followed a near identical route, completing it in both forward and reverse directions on two separate occasions, resulting in the collection of eighty eye-tracking videos.” (a true and correct copy attached herein as Exhibit ‘2’). This study was performed for someone that is walking straight at a height differential on an urban outdoor route 0.56 miles (900 meter) long to determine the minimum amount of illumination required for pedestrian detection. While looking for the obstacle, study participants would log data on a phone application. This study concludes that a pavement obstacle is perceivable at a distance of 3.4 meters (11 feet) with illumination level between 0.22-0.93 lux (0.02-0.09 foot-candle). However, this range of illumination does not consider factors of safety, color contrast, accessibility needs, and approaches to height differentials that are not straightforward. Instead, this range of illumination is the minimum required for detection of an expected pavement obstacle in a specific scenario.

·         In this case, it is my understanding that Ms. Zillner rounded the corner by the dumpster in the alley upon approaching the subject driveway wall (true and correct copy of Plaintiff path attached herein as Exhibit ‘3’). Google Earth shows that the subject driveway wall was only 7 feet away from the wall in front of the dumpster (true and correct copy attached hereto as Exhibit ‘4’). The Plaintiff, assuming a walking pace at a human average of 4.7 ft/s, has less than 1.5 seconds to perceive and react to the low-lying subject driveway wall over a distance of 7 feet. The conditions used for determining the required illuminance by S. Fotios are significantly different to the conditions present during Ms. Zillner’s fall. It is unknown where along the 2,952 foot (900 meter) urban route that obstacle was placed in the study by S. Fotios, but the approach distance must have been much greater than 7 feet. In the study, pedestrians had a full view of an obstacle on the pavement over a large distance and long period of time. Study participants were also looking for the obstacle and expected the presence of a tripping hazard. Typically, pedestrians do not expect tripping hazards which inhibits their perceptions, further differentiating findings in the study from the Plaintiff’s incident.

·         Further, the study specifically states that the illuminance range between 0.02- 0.09 foot-candle is at “the lower end of current recommendations” and that the range of illuminance put forward “could be adopted in some situations”. When conditions are not similar to that of the study, such as in this case, these low-end illumination ranges should not be used.

·         Finally, photographs from Aperture’s inspection on January 14, 2020, show lack of contrast (true and correct copy attached herein as Exhibit ‘5’). The subject driveway wall is painted a dark blue, offering little contrast to the adjacent grey asphalt. The study by S. Fotios acknowledges “detection is also affected by the contrast of the obstacle against its surroundings”. Illumination higher than 0.02-0.09 foot-candle should be used.

·         City of Burbank Streetlight Master Plan 2009 Section 2.4 states illumination levels for streetlights shall conform to Illumination Society of North America (IESNA) standards for roadway illumination (true and correct copy attached herein as Exhibit ‘6’). While streetlights are not used in this situation, this shows IESNA is recognized by the City of Burbank as a reliable guide for illumination. IESNA Figure 29-2 states the minimum illuminance level for hazards requiring slight visual detection during high normal activity level is 1 foot-candle (true and correct copy attached herein as Exhibit ‘7’). Photographs from Aperture’s show that the illumination measured 0.690 foot-candle on the high part of the wall and 0.770 on the low part of the wall on January 14, 2020 (true and correct copy attached herein as Exhibit ‘8’). As such, the illumination present on the date of incident was inadequate to provide safety to pedestrians.

(Declaration of Mark Burns, ¶¶ 9-13.)

            Additionally, Plaintiff advances her own deposition testimony contending that the lighting on the night of the incident was not sufficient to properly illuminate the subject wall/curb, further in contention with Blanchette’s declaration advanced by Maple Street:

            Q.  Why did you trip over this area?

            A.  Because I didn’t see it.

            Q.  Why didn’t you see it?

            A.  I don’t know.  I did not see.

            Q.  Okay.  Are you going to claim that the lightning wasn’t sufficient?

            A.  I believe that was one thing.

            Q.  Okay.  Anything else?

            A.  I believe that curb was in the dark.

(Plaintiff’s Deposition, p. 101:2-10.)

Finally, Plaintiff notes the following additional aggravating factors which she argues in conjunction with the alleged poor lighting create a triable issue of fact as to whether a dangerous condition existed: the subject wall/curb is painted a dark gray-blue, the paint on the subject wall/curb was peeling so the underlying concrete was visible, the curb just across the driveway from the subject curb was painted white and was taller.  (Deposition of Tammy Gamblin, pp. 66:21-67:2, 67:18-68:6, 74:11-15, 75:1-8, 75:14-24.) 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Maple Street and Plaintiff, and viewing said evidence in a light most favorable to Plaintiff, the Court finds that there are triable issues of material fact regarding Maple Street’s Undisputed Material Facts 24 through 26.  Further, in considering the competent evidence proffered by Plaintiff, the Court finds in pertinent part, that Plaintiff’s Additional Material Facts 2-8, 11, and 12 raise triable issues of material fact. 

In short, Plaintiff has met her burden to show that triable issues of material fact exist regarding whether the purported insufficient lighting is trivial or whether the insufficient lighting, in addition to other aggravating factors, presented a dangerous condition to a reasonable person.  Accordingly, the Court is unable to determine that Defendant is entitled to a judgment as a matter of law.  

            Therefore, the Court denies Maple Street’s motion for summary judgment.  The Clerk of the Court shall provide notice of the Court’s ruling.