Judge: Michael T. Smyth, Case: 37-2019-00044150-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 02, 2024

05/03/2024  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael T. Smyth

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2019-00044150-CU-PO-CTL LEBOWITZ VS LHD PARTNERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 01/26/2024

Defendant Mesa Shopping Center East, LLC's Motion for Summary Judgment is GRANTED. The court will hear from the parties on the motion to bifurcate.

1. Objections Plaintiff's evidentiary objections are overruled. Plaintiff cites to much of the same evidence that she objects to as unauthenticated, including the deposition transcripts of Elliot Feuerstein and Ed Ruzk as well as the police photos authenticated by Officer Carrington. (See, e.g., ROA 238, Theweny Decl., ¶¶ 2, 10, 12.) By doing so, Plaintiff has admitted the authenticity of these documents. (See Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1527 [citing Evid. Code, 1414].) Moreover, although Defense counsel's declaration could have been more fulsome so as not to raise these issues, she has stated under penalty of perjury that these documents are true and correct copies of what they purport to be and that she could testify as such. (See ROA 223, Smith Decl., generally.) Here, where there does not appear to be any genuine despite regarding the authenticity of these documents, the court will not sustain the objections on authenticity or foundation grounds. Nor does the court find the objected to evidence to be irrelevant or prejudicial. The court sustains Plaintiff's hearsay objections to the degree that the matters included in the cited transcripts are not subject to an exception.

Defendant's Objection No. 1 is overruled except as to the hearsay testimony of interviewees.

Defendant's Objection No. 2 is sustained as it concerns inadmissible subsequent remedial conduct.

(See Evid. Code, § 1151.) 2. Summary Judgment The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A prima facie showing is one that is sufficient to support the position of the party in question; 'no more is called for.' (Id. at 851.) The moving party must show that the undisputed facts, when applied to the issues framed by the pleadings, entitle the moving party to judgment. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 66.) If the moving party carries this burden, it causes a shift, and the opposing party is then subject to its own burden of production to make a prima facie showing that a triable issue of material facts exists. (Aguilar, supra, 25 Cal.4th at 850.) Courts must view the evidence and inferences 'in the light most favorable to the opposing party.' (Id. at 843.) Defendant Mesa argues that it owed Plaintiff no legal duty. The court agrees.

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3092112  12 CASE NUMBER: CASE TITLE:  LEBOWITZ VS LHD PARTNERS INC [IMAGED]  37-2019-00044150-CU-PO-CTL Plaintiff's first and third causes of action for negligence and premises liability involve the same standard, which requires that she prove Defendant Mesa (1) owed her a duty; (2) breached that duty; (3) was a cause of her injury; and (4) damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 ['The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.'].) The question of duty may be decided as a matter of law. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) Civil Code section 1714(a) 'establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.' (Id. at 768.) The so-called Rowland factors, as described in Rowland v. Christian (1968) 69 Cal.2d 108, 'when balanced together, may justify a departure from' that general duty. (See Cabral, supra, 51 Cal.4th at 771.) These factors 'fall into two categories. Three factors-foreseeability, certainty, and the connection between the plaintiff and the defendant-address the foreseeability of the relevant injury, while the other four-moral blame, preventing future harm, burden, and availability of insurance-take into account public policy concerns that might support excluding certain kinds of plaintiffs or injuries from relief.' (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145.) These factors are evaluated at a broad level of generality as to the category of negligent conduct, not necessarily case specific details. (Cabral, supra, 51 Cal.4th at 772.) In Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, the California Supreme Court considered a case where a plaintiff sued a landowner for failing to ensure his safety in crossing an adjacent street.

The Court analyzed the Rowland factors and determined that 'two of the Rowland factors-foreseeability and certainty-weigh in favor of finding a duty, while four-closeness, preventing future harm, burden, and moral blame-weigh against duty, with the insurance factor weighing in neither direction.' (Id. at 1092.) As a result, the Court held 'that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner's premises, so long as the street's dangers are not obscured or magnified by some condition of the landowner's premises or by some action taken by the landowner.' (Id. at 1082.) While the facts here are somewhat different, the legal conclusion is the same. The first two Rowland factors weigh in favor of finding a duty, but four of the factors-closeness, preventing future harm, burden, and moral blame-all weigh against finding a duty.

It is foreseeable that a person could be injured when crossing the driveway exiting from Defendant's shopping center and it is certain that 'Plaintiff was injured when [she] was struck by a car and that [her] injury is compensable at law; this is not a case where the only claimed injury is an intangible harm.' (Vasilenko, supra, 3 Cal.5th at 1085 [quotation marks omitted].) But there is no closeness between Defendant Mesa's conduct and Plaintiff's injury. The 'occurrence of injury results from the confluence of [plaintiff] choosing to cross the street at a certain time and place and in a certain manner, and a driver approaching at that moment and failing to avoid a collision.' (Id. at 1086.) This intervening conduct eliminates any possible closeness absent some evidence that 'the landowner impaired the driver's ability to see and react to crossing pedestrians[.]' (Ibid.) There is no triable controversy that the driveway was a dangerous condition that obscured Plaintiff from drivers or otherwise magnified the risk in crossing the street. It is undisputed that the driveway was controlled by a stop sign and striping. It also appears undisputed that the City of San Diego has never taken any corrective action with respect to the driveway's traffic control.[1] No party has uncovered evidence of any prior accidents at the location. (E.g., ROA 225, Ex. J, E. Feuerstein Depo., p. 39:8; ROA 238, Theweny Decl., Ex. B, Pringle Depo., p. 35:9-11 ['I did a search of the accident history, and I didn't see any other accidents at this driveway besides the one that's happened.'].) Plaintiff argues that there is a triable issue of fact as to whether some obstruction built or maintained by Mesa blocked the tow-truck driver's view of Plaintiff. In support, Plaintiff points out that there are no Calendar No.: Event ID:  TENTATIVE RULINGS

3092112  12 CASE NUMBER: CASE TITLE:  LEBOWITZ VS LHD PARTNERS INC [IMAGED]  37-2019-00044150-CU-PO-CTL photographs taken from the position the driver would have been in at the time of the accident and that the driver (another Defendant in the case) told police officers he did not see Plaintiff. But the driver's interview testimony is hearsay and contradicted by Plaintiff's own direct testimony that she believed she made eye contact with the driver[2] and that she did not recall any obstruction blocking her view of the driveway. (See ROA 245, Ex. 4, Lebowitz Depo., p. 75 ['Q: As you approached the driveway where the accident happened, was there anything that obstructed your view of the driveway? A: Not that I can remember.'].) Given that Plaintiff believed she made eye contact, she must have been visible to the driver even if he did not in fact notice her. Other unrebutted expert evidence with respect to view supports that the 'sightlines are excellent' for drivers and pedestrians seeing each other. (E.g., ROA 225, Ex. K, Ruzak Depo, p. 9:2-7.) There is no evidence of any blocked line of sight and the photos submitted by both parties do not support that there was any obstruction from the view of a driver stopped at the stop sign.

Plaintiff's expert has not opined that the driveway is dangerous but testified that the site could be made safer through signage. (ROA 238, Theweny Decl., Ex. B, Pringle Depo., pp. 33-34 ['My opinion on the design of the driveway, the safety of the driveway is that it could be – the safety could be greatly enhanced, and that currently, it's not a very safe driveway.']; id., Ex. F [Pringle's Expert Report].)[3] But the fact that a property or condition could be made safer does not mean it was dangerous to begin with or create a duty for Defendant to have acted differently. The court expects that an expert could always be found to opine that even the safest of activities could be made a little safer.

In Vasilenko, the Court explained that the plaintiff 'also contend[ed] that landowners can warn of the danger of crossing the street, perhaps by posting a sign. But the danger posed by crossing a public street midblock is obvious, and there is ordinarily no duty to warn of obvious dangers.' (Vasilenko, supra, 3 Cal.5th at 1088.) The Court noted that additional precautions are 'unlikely to be as straightforward or beneficial as [plaintiff] makes them out to be.' (Id. at 1091; see also id. at 1088 ['Although some fraction of people may fail to appreciate an obvious danger, to require warnings for the sake of such persons would produce such a profusion of warnings as to devalue those warnings serving a more important function.'].) The same is true here. The stop sign and striping present at the driveway were sufficient to put drivers on notice that they were required to stop for any pedestrians crossing the driveway or cars that may have the right-of-way and additional signs would be of unknown value. Even Plaintiff's expert cannot say that additional signs would have made a difference in this case. (ROA 238, Ex. B, Pringle Depo., p. 49:22-25 ['I can't say for sure what would have happened had there been signs there. It's just my expert opinion that these signs would have made the driveway safer for pedestrians and bikes.'].) Imposing an amorphous duty on landowners to implement additional signage above and beyond that required by law for properties that do not appear to have any history of danger would create a substantial burden and be of questionable benefit in preventing future harm. (E.g., Vasilenko, supra, 3 Cal.5th at 1090-91.) Finally, the court cannot assign any particular moral blame to Defendant Mesa based on these facts. (Ibid.) Accordingly, under the Rowland factors, the court finds that Defendant Mesa did not owe Plaintiff a legal duty.

As for the second cause of action for negligence per se, although Defendant raises it in their motion and the FAC does state that it is 'against All DEFENDANTS,' there is no fact pled in the second cause of action as to Defendant Mesa. To the degree this cause of action was intended against Defendant Mesa, it is meritless based on the allegations.

For the reasons stated at the ex parte hearing on the same issue and because the court does not find that any of the additional evidence sought in discovery would alter the conclusion of this motion, the court denies any continuance.

The motion is granted.

3. Motion to Bifurcate Calendar No.: Event ID:  TENTATIVE RULINGS

3092112  12 CASE NUMBER: CASE TITLE:  LEBOWITZ VS LHD PARTNERS INC [IMAGED]  37-2019-00044150-CU-PO-CTL The court will hear from the remaining parties as to bifurcation.

/n [1] On the other hand, the court agrees with Plaintiff that Defendant is incorrect to claim its expert testified that it 'met or exceeded the City of San Diego's minimum requirements for signage, striping, and traffic controls.' (SSUMF 34.) The cited pages in Mr. Ruzak's testimony do not so state. (ROA 225, Ex. K, Ruzak Depo., pp. 8-9.) [2] This admission is supposedly on page 64 of Plaintiff's deposition transcript (see SSUMF No. 6), but that page is not included in Exhibit C (See ROA 225, Ex. C, Lebowitz Depo. [jumping from page 58 to 65]). However, Plaintiff's papers concede that this is her testimony and therefore the court takes it as true for the purposes of this motion. (See ROA 235, Oppo. at p. 6:14-16 ['Ms. Lebowitz waited for the first vehicle to exit the shopping center then believes she made eye contact with Defendant Caracoza-Taveras and that Defendant Caracoza-Taveras saw her.'].) [3] Mr. Pringle's expert report was not submitted in a declaration to this court or attested to under penalty of perjury, but the court has considered the evidence as it was produced as part of his deposition and because there is no objection.

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