Judge: Michael Shultz, Case: 23CMCV00066, Date: 2024-07-02 Tentative Ruling
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Case Number: 23CMCV00066 Hearing Date: July 2, 2024 Dept: A
23CMCV00066
Makila Moorer v. City of Compton, Los Angeles Department of Water & Power
[TENTATIVE] ORDER
I.
BACKGROUND
The complaint
alleges that Plaintiff fell into a “sidewalk/utility access hole” allegedly,
owned and maintained by Defendants. Plaintiff alleges the cover over the hole
was in poor condition. (Complaint, ¶¶ 3-5.) Plaintiff alleges a cause of action
for dangerous condition of public property. (Gov Code § 835.)
II.
ARGUMENTS
Defendant, City
of Compton (“City”) argues that the court should impose sanctions of dismissal
as well as monetary sanctions against Plaintiff for failing to dismiss the
complaint after the City gave Plaintiff conclusive evidence that it did not
own, operate, control, or maintain the utility box at issue. Plaintiff did not
conduct an objectively reasonable inquiry before filing the complaint. it is
factually and legally without merit.
In opposition,
Plaintiff argues that the declaration of the City’s Street Superintendent did
not sufficiently establish that Defendant did not own, control, maintain, or
operate the area where Plaintiff fell. The declaration is conclusory. The
utility box was on the City’s sidewalk, which supports that City is a proper
party.
Plaintiff argues
that she attempted to obtain evidence through written discovery and by
deposition relevant to the utility box cover, however, Defendant responded to
all written discovery served on March 17, 2024, with “boilerplate objections” and
refused to produce a person most qualified for deposition. (Samer Habbas decl., ¶¶ 10, 19.) Therefore,
Defendant has not met its burden of showing the complaint is frivolous.
The City did not
file a reply brief by Tuesday, June 25, 2024, five court days before the
hearing. (Code Civ. Proc., § 1005(b).)
III.
LEGAL STANDARDS
An
attorney who signs and presents a pleading to the court certifies that the
pleading has factual and legal merit. (Code
Civ. Proc., § 128.7.) The attorney certifies that the pleading is not being
presented primarily for an improper purpose such as to harass or to cause
unnecessary delay or increase in the cost of litigation. (Id.
subd. (b).)
By
signing the pleading, an attorney also certifies that the claims are warranted
by existing law and that the claims have evidentiary support or would
likely have evidentiary support after a reasonable investigation. (Id.)
The court may impose sanctions for violations of subdivision (b). (Id.)
City
has complied with the statute’s “safe harbor” provision by first serving the
motion on Plaintiff and allowing 21 days for Plaintiff to withdraw the improper
pleading and avoid sanctions. (Id. at subd. (c)(1).)
IV.
DISCUSSION
The
court applies an objective standard to determine whether the attorney submitting
the pleading acted reasonably in investigation and asserting the claim. (Bockrath
v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 82.) A claim is
objectively unreasonable if “any reasonable attorney would agree that [it] is
totally and completely without merit.” (Peake
v. Underwood (2014) 227 Cal.App.4th 428, 440.)
Plaintiff
asserts one cause of action for dangerous condition of public property. (Gov.
Code, § 835.) To prevail on the claim, a plaintiff must plead and prove (1)
the existence of a dangerous condition on the public property at the time of
the injury; (2) the condition proximately caused the injury; (3) the condition
created a reasonably foreseeable risk of the kind of injury sustained; and
either a public employee created the dangerous condition while in the scope of
employment or the entity had actual or constructive notice of the dangerous
condition. (Gov.
Code, § 835.)
To be
liable, the public entity must either own or control the property containing
the dangerous condition "but do not include easements, encroachments and
other property that are located on the property of the public entity but are
not owned or controlled by the public entity.” (Gov.
Code, § 830.)
Contrary
to the City’s argument neither the photograph of the defect nor Mr. Timmons’
declaration “conclusively establish” that the City did not own, control, or
maintain the concrete utility box. (Mot. 6:24-28.) Mr. Timmons speculates that
the utility box was not the City’s property because of the lack of markings
attributable to the City and concludes that the City did not maintain, operate,
or control the subject location. (Timmons Decl. ¶ 5-7.)
The
lack of markings does not necessarily speak to the City’s control over the
location. The photograph of the broken utility box does not show its location relative
to the public sidewalk, whether within the sidewalk or adjacent to the sidewalk.
(Mot., Ex. 6.) The relevant issue is whether the City had notice of the
condition and failed to correct it; "it is not relieved of its
responsibility in this regard merely because the condition was created or
maintained by a property owner who might also be liable to pedestrians for
injuries resulting therefrom."(Marsh
v. City of Sacramento (1954) 127 Cal.App.2d 721, 724.)
Moreover,
public property may be considered dangerous if a condition on adjacent property
“exposes those using the public property to a substantial risk of injury."
(Hedayatzadeh
v. City of Del Mar (2020) 44 Cal.App.5th 555, 563.) Without more, Defendant’s
evidence does not obviate the City’s duty with respect to the condition of the
utility box. City has not met its burden of showing that Plaintiff’s counsel
violated Section 128.7 subd. (b).
Plaintiff
requests imposition of sanctions against Defendant for filing a frivolous
motion. The court has discretion to award a successfully opposing party
attorney’s fees if the motion for sanctions that was brought primarily for an
improper purpose, such as to cause unnecessary delay or increase the cost of
litigation. The motion "shall itself be subject to a motion for sanctions.
It is the intent of the Legislature that courts shall vigorously use its
sanctions authority to deter that improper conduct or comparable conduct by
others similarly situated. (Code
Civ. Proc., § 128.7.)
Attorney fees
may be awarded to the prevailing party on a section 128.7 motions only “if
warranted.” (Musaelian
v. Adams (2011) 197 Cal.App.4th 1251, 1257.) While the filing of the
motion is also subject to the requirements of statute, requests for attorney’s
fees for successfully defending against a the motion “are infrequently granted
where the motion was not clearly frivolous, filed for an improper purpose, or
not well-grounded in fact or law.” (Musaelian
at 1258.) There is insufficient evidence to make those findings.
V.
CONCLUSION
Based on the
foregoing, Defendant’s motion for sanctions is DENIED. Plaintiff’s request for
imposition of sanctions against Defendant is also DENIED.