Judge: Michael E. Whitaker, Case: 20STCV49660, Date: 2023-03-13 Tentative Ruling
Case Number: 20STCV49660 Hearing Date: March 13, 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.
TENTATIVE
RULING
|
DEPARTMENT |
32 |
|
HEARING DATE |
March
13, 2023 |
|
CASE NUMBER |
20STCV49660 |
|
MOTION |
Motion
for Summary Judgment |
|
MOVING PARTY |
Defendant
City of Burbank |
|
OPPOSING PARTY |
Plaintiff
Gary D. Gast |
MOVING PAPERS:
OPPOSITION PAPERS:
REPLY PAPERS:
1. Reply in Support of Motion for Summary
Judgement
2. Reply to Separate Statement in
Opposition to Motion for Summary Judgment
3. Responses to Evidentiary Objections in
Opposition of Motion for Summary Judgment
BACKGROUND
Plaintiff Gary D. Gast (Plaintiff) sued Defendant City of Burbank (City)
based on an incident in which Plaintiff allegedly slipped on a metal electrical
box cover (hereinafter, pullbox lid) located in an alley and injured himself. Plaintiff alleges two causes of action for
general negligence and premises liability based on a dangerous condition of
public property against City.
City moves for summary judgment on Plaintiff’s complaint. Plaintiff opposes the motion. City
replies.
LEGAL STANDARDS –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”].)
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).) 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 Defendant’s unopposed request for judicial
notice of Exhibit F, the Claim for Damages to the City of Burbank submitted on
behalf of Plaintiff Gary D. Gast dated May 19, 2020, per Evidence Code section
452, subdivision (h). The Court further
notes that it grants judicial notice of the existence of the Plaintiff’s Claim
for Damages, but not the contents of such claim.
Additionally, the Court grants Defendant’s unopposed request for
judicial notice of Exhibit J, the Google Maps image depicting the pullbox lid
in question, per Evidence Code section 452, subdivision (h), as it relates to
the geographic location of the pullbox lid in the alley near 4013 West Heffron
Drive, Burbank, California.
EVIDENCE
With
respect to Plaintiff’s evidentiary objections to the Declaration of Ayman
Arraj, the Court rules as follows:
2.
Sustained
- Foundation
3.
Sustained
- Foundation
4.
Sustained
– Foundation
5.
Sustained
– Foundation
With respect to Plaintiff’s
evidentiary objections to the Declaration of John Molinar, the Court rules as
follows:
1. Sustained
in part re: “are used
infrequently by pedestrians” - Foundation
2. Sustained - Foundation
3. Sustained - Foundation
4. Overruled
5. Overruled
DISCUSSION
1. FIRST CAUSE OF ACTION ¿ GENERAL NEGLIGENCE
Plaintiff concedes in his
opposition that his negligence cause of action cannot be brought against City
because City is a public entity. However,
City failed to move for summary adjudication.
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.)
“If
summary adjudication is sought, whether separately or as an alternative to the
motion for summary judgment, the specific cause of action, affirmative defense,
claims for damages, or issues of duty must be stated specifically in the notice
of motion and be repeated, verbatim, in the separate statement of undisputed
material facts.” (California Rules of
Court, rule 3.1350(b).)
Here,
City failed to specify the “cause of action, affirmative defense, claims for
damages, or issues of duty” for which it seeks summary adjudication in the
notice of motion. In fact, the Court
finds Defendant’s notice to be devoid of any reference to a motion for summary
adjudication. Thus, the Court, finding
that City’s notice is flawed, in part, cannot grant summary adjudication on the first cause of
action in City’s favor. (See, e.g., Sequoia
Ins. Co. v. Superior Court (1993) 13 Cal.App.4th 1472, 1478; Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 782, fn. 2.)
2. SECOND CAUSE OF ACTION ¿ DANGEROUS
CONDITION OF PUBLIC PROPERTY
Government Code section 815
provides that “[a] public entity is not liable for an injury, whether such
injury arises out of an act or omission of the public entity or a public
employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist.
(1998) 19 Cal.4th 925, 932.) “[D]irect
tort liability of public entities must be based on a specific statute declaring
them to be liable, or at least creating some specific duty of care, and not on
the general tort provisions of Civil Code section 1714. Otherwise, the general
rule of immunity for public entities would be largely eroded by the routine
application of general tort principles.”
(Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th
1175, 1183.)
Government Code section 835
sets out the exclusive conditions under which a public entity is liable for
injuries caused by a dangerous condition of public property. (Metcalf
v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist.
(1993) 4 Cal.4th 820, 829; see also Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112.)
Per Government Code section
835, “a public entity is liable for injury caused by a dangerous condition of
its property if the plaintiff establishes that the property was in a dangerous
condition at the time of the injury, that the injury was proximately caused by
the dangerous condition, that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and that either: [¶]
(a) A negligent or wrongful act or omission of an employee of the public entity
within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the
dangerous condition . . . a sufficient time prior to the injury to have taken
measures to protect against the dangerous condition.” (Gov. Code, § 835, emphasis added.)
A “dangerous condition” is a
condition of public property that “create[s] a substantial (as distinguished
from a minor, trivial or insignificant) risk of injury when such property or
adjacent property is used with due care in a manner in which it was reasonably
foreseeable that it would be used.” (Gov.
Code, § 830.2.)
Moreover, because a property
owner is not the insurer of the safety of its guests, the owner’s actual or
constructive knowledge of the dangerous condition is key to establishing
liability. (Hall v. Aurora Loan
Servs., LLC (2013) 215 Cal.App.4th 1134, 1139; Ortega v. Kmart Corp.
(2001) 26 Cal.4th 1200, 1206.) To that
end, Government Code section 835.2 states that “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of
Section 835 if it had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character. (b) A public entity had constructive notice of a dangerous condition within the meaning
of subdivision (b) of Section 835 only if the plaintiff establishes that the
condition had existed for such a period of time and was of such an obvious
nature that the public entity, in the exercise of due care, should have
discovered the condition and its dangerous character.” (Gov. Code, § 835.2, subds. (a)-(b), emphasis
added.)
“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.)
City contends that there are 35
Undisputed Material Facts which support its arguments that Plaintiff cannot
prevail on either the first or second causes of action. To support its arguments, City advances in pertinent
part the Declaration of Ayman Arraj and
the Declaration of John Molinar.
However, based upon the Court’s rulings on Plaintiff’s evidentiary
objections, Ayman Arraj and John Molinar’s declarations have (in part) no
evidentiary value. (See the Court’s
rulings on Plaintiffs’ Evidentiary Objections above.) As such, City’s Undisputed Material Fact Nos.
19 (in part), 25, 26, 29, 31 and 32 are without evidentiary support. In the absence of such material facts, City will
not be able to persuade the Court that there are no triable issues of material
fact concerning Plaintiff’s claims for general negligence and premises
liability
In short, because City fails
to support all of the facts it claims are material and undisputed with
sufficient, competent evidence, the Court finds that City has not met its
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.
CONCLUSION
AND ORDER
Having found that City has not
met its initial burdens of production and persuasion, the Court denies City’s motion
for summary judgment. City is not
entitled to judgment as a matter of law.
The Clerk of the Court shall
provide notice of the Court’s ruling.