Judge Michael E. Whitaker, Case 20STCV24832 2023-05-05 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV24832, Date: 2023-05-05 Tentative Ruling

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.

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

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

Plaintiff Nona Avagyan (Plaintiff), while trying to quickly move out of the path of an oncoming bicyclist, tripped, fell, and suffered injuries on the sidewalk area in front of property owned by Defendant Helene Udy (Udy). Plaintiff filed this action against Defendants City of Los Angeles, County of Los Angeles, and Udy (collectively, Defendants) alleging causes of action for: (1) negligence, (2) premises liability, and (3) dangerous condition of public property. The first and second causes of action are asserted against Udy.

Udy moves for summary judgment on the Complaint. Plaintiff opposes the motion. Udy replies.

Under 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).)

Here, the Court grants Udy’s unopposed request for judicial notice of Lopez vs. City of Los Angeles (2020) 55 Cal.App.5th 244 pursuant to Evidence Code section 452. With respect to Udy’s request for judicial notice of “all pleadings, papers, files of the Court in connection with the subject Motion for Summary Judgment,” the Court denies Udy’s request as too general. Udy failed to specify which pleadings, papers and files the Court should consider in conjunction with the motion.

Further, the Court grants Plaintiff’s unopposed request for judicial notice of Los Angeles Municipal Code section 62.269, subdivision (c) and the City of Los Angeles publication entitled “City of Los Angeles, Residential Parkway Landscaping Guidelines” pursuant to Evidence Code 452.

With respect to Plaintiff’s evidentiary objections to the Declaration of Jacqueline Bouché, the Court rules as follows:

With respect to Plaintiff’s evidentiary objections to the Exhibits to the Declaration of Jacqueline Bouché, the Court rules as follows:

With respect to Plaintiff’s evidentiary objections to the Declaration of Helene Udy, the Court rules as follows:

As to Udy’s objection to the Declaration of William E. Jackson, the Court rules as follows:

“[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”].)

Udy contends that she did not owe a duty of due care to Plaintiff and thus Plaintiff’s causes of action for negligence and premises liability fail. In particular, Udy argues that she did not own, possess or control the sidewalk area that Plaintiff allegedly tripped and fell on, nor did she create the condition which caused Plaintiff to trip and fall,. Therefore, Udy argues that she had no duty of due care to Plaintiff to warn or repair any purportedly dangerous condition within the sidewalk area.

“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”].)

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 maintains that because the area abutting Udy’s property where she tripped and fell is categorized not as a “public sidewalk,” but rather as a “parkway” authorities such as Lopez are not controlling as to the issue of whether Udy had sufficient control over the subject dangerous condition to impose liability upon her. Plaintiff cites to Jones v. Deeter (1984) 152 Cal. App. 3d 798 and Low v. City of Sacramento (1970) 7 Cal.App.3d 826, in support of her proposition that because the purportedly dangerous condition existed on a parkway abutting Udy’s property, rather than the sidewalk, a duty of care should be imposed upon Udy.

However, in Jones v. Deeter, the Court stated the following about Low v. City of Sacramento and the liability attributed to the maintenance of parkways:

The analysis in Low provides a basis for determining when a dangerous parkway condition is attributable to an abutting owner, so as to impose a duty on that owner to alleviate the danger. This determination turns upon the historical patterns of care with regard to local parkways. Thus, in some localities, by virtue of past practice, abutting owners maintain the surface area of parkways. [citation] In such localities, these owners bear a duty to keep these surface areas in reasonably safe condition. Dangerous conditions caused by neglect of this duty are attributable to the abutting owners and may give rise to liability in tort. On the other hand, in localities where the city has habitually maintained the surface of the parkway, it is solely the city's duty to keep this surface area safe for pedestrians; hazards on such areas are not attributable to abutting owners.

Thus, the Court finds that both Jones and Low rely on an analysis of the degree of control a property owner exercises over an abutting parkway in deciding whether a duty of care is imposed. As such the Court finds that even if the subject area is classified as a parkway rather than a sidewalk, neither Jones nor Low, as referenced by Plaintiff, impose with clear and unambiguous language a duty upon property owners such as Udy to maintain an abutting parkway to their property.

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 Udy owed a duty of due care to Plaintiff depends upon her control of the parkway at issue.

Udy advances the following Undisputed Material Facts (hereinafter UMFs) in support of her contention that she did not own or exert sufficient control over the subject property to impose a duty of due care on her in relation to Plaintiff:

· Exhibit A to Plaintiff’s deposition is a photograph that depicts the public sidewalk where the alleged incident occurred (“sidewalk condition”).

· At the time of Plaintiff’s alleged fall, Defendant UDY owned the property located at 5000 Franklin Avenue, Los Angeles, California which is adjacent to the public sidewalk (“Subject Property”).

· UDY has never performed any maintenance, nor has she hired anyone to perform maintenance, on the sidewalk and/or the sidewalk condition.

· UDY has never received notification from the City, or anyone, of any issues/problems with the sidewalk.

· Further, she has not received any notification from the City, or anyone, to perform repairs on the sidewalk condition.

· The sidewalk condition is not located on the Subject Property; it is adjacent to the Subject Property.

· UDY did not cause, create or contribute to the sidewalk condition that Plaintiff blames for her injury.

In opposition, Plaintiff argues that Udy has failed to advance any evidence regarding the ownership, installation, or maintenance of the “parkway” and instead only provides evidence concerning the “public sidewalk.” Plaintiff therefore concludes that Udy has failed to meet her burden of proof.

In support of UMFs 4-8 and 10, Udy advances her own declaration which states the following:

· I own the property located at 5000 Franklin Avenue, Los Angles, CA (“Subject Property”), and I owned the property at the time of Plaintiff’s alleged fall.

· The property is adjacent to the public sidewalk where Plaintiff, Nona Avagyan, alleges she tripped and fell.

· I have never performed any maintenance, on the sidewalk and/or the sidewalk condition. and/or in the area of the herein incident.

· I have never hired anyone to perform maintenance, on the sidewalk and/or the sidewalk condition. and/or in the area of the herein incident.

· I was never made aware by the City of Los Angeles or anyone of any issues/problems with the sidewalk nor have I received any notifications from the City or anyone to perform repairs or maintenance of any kind on the sidewalk in front of the Subject Property.

· I did not create, cause or contribute in any manner to the sidewalk condition that Plaintiff blames for her injury.

(Declaration of Helene Udy, ¶¶ 2-3, 5-6, 10-11.) The Court notes, as Plaintiff highlights in her opposition, that Udy makes no mention in her declaration of the subject parkway, and only references the “sidewalk and/or sidewalk condition/ and/or in the area of the herein incident.” Because Udy’s declaration does not explicitly mention the subject parkway where Plaintiff tripped, there remains a question as to whether Udy created, maintained, or exercised sufficient control over the subject parkway to impose a duty of due care.

The Court further notes that Plaintiff, through the course of the litigation, has made a distinction between the sidewalk and parkway fronting Udy’s property, as illustrated by Udy’s deposition transcript:

Q. Okay. And then from the curb there that you can see has been painted red. It looks like there is some stepping stones that lead to the sidewalk; do you see those?

Q. And do you know what I am talking about when I say parkway as opposed to sidewalk?

(Deposition of Helene Udy, p. 9:7-14; see also pp. 19:19, 20:2, 20:24, 21:5-6, 21:20.) Moreover, the Court notes that the distinction put forward by Plaintiff finds support in the City of Los Angeles, Residential Parkway Landscaping Guidelines. As part of the guidelines, “the term ‘parkway’ is defined as the areas of the street between the back of curb and the sidewalk that is typically planted or landscaped.” (See Plaintiff’s Request for Judicial Notice, Exhibit 2.)

“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.)

Udy advances solely her own declaration in support of UMFs 4-8 and 10. As was previously discussed, Udy’s declaration does not mention the subject parkway where Plaintiff claims to have tripped. Thus, Udy has failed to advance evidence conclusively establishing she did not exercise the requisite control over said parkway to impose a duty upon her to reasonably maintain the subject parkway. In the absence of such evidence, Udy will not be able to persuade the Court that Plaintiff cannot establish Udy had a duty of due care.

In short, because Udy fails to advance sufficient competent evidence that she did not have the requisite control over the subject parkway, the Court finds that Udy has not met her initial burdens of production and persuasion. Consequently, the Court determines that the burden of production does not shift to Plaintiff to produce evidence that raises triable issues of material fact.

Having found that Udy has not met her initial burdens of production and persuasion, the Court denies Udy’s motion for summary judgment. Udy is not entitled to judgment as a matter of law.

[1] Because of errors in the initial Response and Amended Responses to Separate Statement of Material Facts, the Court ordered Plaintiff to file a Second Amended Response to Separate Statement of Material Facts which the Court considered in analyzing the motion.

[2] The Supplemental Reply is not authorized by Code of Civil Procedure section 437c, subdivision (b). Therefore, the Court will not consider it.

[3] Defendant Helene Udy advances additional evidence through the declarations of Helene Udy and Mark Blanchette, Ph.D. in connection with the reply papers. The Court declines to consider the evidence as Plaintiff has not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

DEPARTMENT	32
HEARING DATE	May 5, 2023 ¿ continued from April 4, 2023 and April 18, 2023
CASE NUMBER	20STCV24832
MOTION	Motion for Summary Judgment
MOVING PARTY	Defendant Helen Udy
OPPOSING PARTY	Plaintiff Nona Avagyan