Judge: Michael E. Whitaker, Case: 20STCV24507, Date: 2022-10-20 Tentative Ruling

Case Number: 20STCV24507    Hearing Date: October 20, 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 and/or Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment and/or Adjudication
3. Volume of Evidence in Support of Motion for  Summary Judgment and/or Adjudication
4. Declaration of Vincent Albrigo in Support of Motion for Summary Judgment and/or Adjudication
5. Declaration of John Coffey in Support of Motion for Summary Judgment and/or Adjudication
6. Declaration of Philip A. Kraft in Support of Motion for Summary Judgment and/or Adjudication
7. Request for Judicial Notice in Support of Motion for Summary Judgment and/or Adjudication

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment and/or Adjudication
2. Responses and Additional Material Facts
3. Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment and/or Adjudication
4. Objections to Evidence
5. Declaration of Jonathan Luevano in Support of Opposition to Motion for Summary Judgment and/or Adjudication
6. Declaration of William Candlish in Support of Opposition to Motion for Summary Judgment and/or Adjudication
7. Declaration of Ali Nahass in Support of Opposition to Motion for Summary Judgment and/or Adjudication

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment and/or Adjudication

BACKGROUND

On June 29, 2020, Plaintiff Joan R. Nadish (“Plaintiff”) commenced an action against Defendant City of Los Angeles (“Defendant City”) and Property Owners of Property[1] asserting causes of action for general negligence, premises liability and violation of statutory duties.  In particular, Plaintiff alleges she suffered injuries after tripping and falling on an uneven, lifted section of a sidewalk fronting 22712 Enadia Way. (See Complaint, pp. 5-9.)  Thereafter, Plaintiff filed an amended complaint on October 15, 2020 which eliminated the cause of action for violation of statutory duties.  (See First Amended Complaint, pp. 5-8.) 

            Defendant City filed a cross-complaint against Vincent Albrigo and Rosemarie Albrigo, individually and trustees of the Albrigo Family Trust (collectively, “Defendant Albrigo”) asserting claims for Indemnification, Apportionment of Fault and Declaratory Relief.  (See Cross-Complaint filed on November 16, 2020.)   In turn, Defendant Albrigo filed a cross-complaint against Defendant City alleging claims for Implied and Equitable Indemnity, Contribution and Declaratory Relief.  (See Cross-Complaint filed on February 9, 2021.)   

Defendant Albrigo moves for summary judgment, or in the alternative, summary adjudication, on Plaintiff’s amended complaint and Defendant City’s cross-complaint.  Defendant City opposes the motion. 

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.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“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.) 

REQUEST FOR JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Further, Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

            Based upon the provisions cited above, the Court grants Defendant Albrigo’s request for judicial notice Nos. 1 and 2 per Evidence Code section 452, subdivision (d).  Further, the Court denies Defendant City’s request for judicial notice Nos. 1-3 because the Court finds that the purported images are facts and propositions which are reasonably subject to dispute. 

EVIDENCE 

With respect to Defendant City’s objections to the Declaration of Vincent Albrigo, the Court rules as follows:

1. Sustained – Lack of Foundation/Lack of Personal Knowledge. (See, e.g.,  Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [evidence including declarations proffered on information and belief is inadmissible].) 

    

2. Sustained  - Lack of Foundation/Lack of Personal Knowledge. (See, e.g.,  Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [evidence including declarations proffered on information and belief is inadmissible].) 

1. Overruled

    

2. Sustained  - Lack of Foundation/Lack of Personal Knowledge. (See, e.g.,  Long Beach Unified School Dist. v. Margaret Williams, LLC (2019) 43 Cal.App.5th 87, 105, fn. 9 [evidence including declarations proffered on information and belief is inadmissible].) 

1. Overruled

1. Sustained – Lack of Foundation

1. Sustained – Lack of Foundation

    

   DISCUSSION

    

1. LEGAL STANDARDS - GENERALLY

    

   Defendant Albrigo argues that (a) Defendant Albrigo does not owe a duty of due care or statutory duties to Plaintiff to maintain and/or repair the subject sidewalk (Issues 1-4) and (b) Defendant Albrigo is not jointly liable for Plaintiff’s injuries and cannot be joint tortfeasors with Defendant City (Issues 5-7).  

    

   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.)   Similarly, 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.)

    

   “To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.”  (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).)  In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.”  (Brown, supra, 11 Cal.5th at p. 214.) 

    

2. BURDEN SHIFTING

    

   Defendant Albrigo relies on the same material facts in support of their motion for summary judgment or motion for summary adjudication (Issues 1 – 7) – Undisputed Material Facts Nos. 1-9.  (See Defendant Albrigo’s Separate Statement of Undisputed Material Facts.)    

    

   “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].) 

    

   Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.”  (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.)   Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence.  The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].)  And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.”  (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.) 

    

   Defendant Albrigo advances the Declaration of Vincent Albrigo.  However, Vincent Albrigo’s declaration has (in part) no evidentiary value.  (See the Court’s rulings on Defendant City’s Evidentiary Objections above.)  As such, Defendant Albrigo’s  Undisputed Material Facts Nos. 6, 8 and 9 are without evidentiary support.  In the absence of such material facts, Defendant Albrigo will not be able to persuade the Court that neither Plaintiff nor Defendant City can establish Defendant Albrigo had a duty of due care to Plaintiff or Defendant Albrigo is a joint tortfeasor with Defendant City.

    

   In short, because Defendant Albrigo fails to support all of the facts they claim are material and undisputed with sufficient, competent evidence, the Court finds that Defendant Albrigo has not met their initial burdens of production and persuasion.  Consequently, the Court determines that the burden of production does not shift to either Plaintiff or Defendant City to produce evidence that raises triable issues of material fact. 

    

   CONCLUSION AND ORDER

    

   Having found that Defendant Albrigo has not met their initial burdens of production and persuasion, the Court denies Defendant Albrigo’s motion for summary judgment, or in the alternative, motion for summary adjudication.  Defendant Albrigo is not entitled to judgment as a matter of law. 

    

   The Clerk of the Court shall provide notice of the Court’s ruling.