SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Jaelline Jaffe (“Plaintiff”) filed this action against defendant City of Los Angeles (“City”) for injuries relating to Plaintiff’s trip and fall on a broken upraised sidewalk located on the north sidewalk of Moorpark St. approaching Beeman Ave. The complaint alleges causes of action for general negligence and premises liability. 

Preliminary, the City filed its Answer to Plaintiff’s complaint on July 23, 2020. However, after the Court set a trial date and without obtaining leave of the Court, on June 8, 2021, the City filed a cross-complaint against cross-defendants Jerry Shanks, Socorro Trust, and Roes 1 to 10 for indemnification, apportionment of fault, and declaratory relief. (CCP § 428.50.) Thereafter, the City filed another cross-complaint, without obtaining leave, on June 8, 2022 against Socorro Shanks, The Shanks Family Trust, and Roes 1 to 10 for indemnification, apportionment of fault, and declaratory relief.  

Nevertheless, despite the improper filing, the Court will consider the June 8, 2022 cross-complaint, because Socorro Shanks, individually and as Trustee of The Jerry And Socorro Shanks Revocable Living Trust (erroneously sued as The Shanks Family Trust) (“the Shanks”) filed an Answer to this cross-complaint.  

The Shanks contend there is no precedent to support the argument that a municipally owned parkway tree searching for a water source would impose a legal duty on the adjacent landowner, and that the City’s argument presents a chain of causation issue due to its broadness.  

 

II. Request for Judicial Notice 

The Shanks requests judicial notice be taken of Plaintiff’s complaint, and the City’s cross-complaint filed in this matter. The requests are granted.  (Evid. Code §452(d).)     

 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

 

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

 

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.  Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.  [Citation.]”  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)  There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm.  (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081). 

Courts have held that in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger.  (See, e.g., Sexton v. Brooks (1952) 39 Cal.2d 153, 157.)  “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.”  (Vasilenko, supra, 3 Cal.5th at p. 1084.)  However, after applying the Rowland factors, courts have imposed a duty on adjacent landowners where the landowners magnified the danger of abutting property, obstructed the danger of abutting property, or had control over a condition on their property which would justify imposing a duty. 

“Even if a hazard located on publicly owned property is created by a third party, an abutting owner or occupier of private property will be held liable for injuries caused by that hazard if the owner or occupier has ‘dramati[cally] assert[ed]’ any of the ‘right[s] normally associated with ownership or ... possession’ by undertaking affirmative acts that are consistent with being the owner or occupier of the property and that go beyond the ‘minimal, neighborly maintenance of property owned by another.’ “  (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 258, citing Contreras v. Anderson (1997) 59 Cal.App.4th 188, 199-200.)  Furthermore, “[A]n abutting owner is liable for the condition of portions of the public sidewalk which he has altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed.”  (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 202 (emphasis in original).)   

As to a cross-complaint alleging another is responsible for the plaintiff’s injuries, to state a claim for equitable indemnity, the defendant must allege the same harm for which the defendant may be held liable is properly attributable wholly or partly to the cross-defendant. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445 n. 7.)  “The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.”  (Expressions at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139; Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177 [“A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.”].)    

Furthermore, the elements of contribution are: (1) money judgment; (2) rendered jointly against defendants; (3) in tort action; (4) application of equity principles; (5) payment by tortfeasor of more than pro rata share; and (6) no intentional injury by the tortfeasor.  (CCP §875; General Elec. Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 925.)  Additionally, there are two essential elements for declaratory relief: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [Cross-Complainant's] rights or obligations.”  (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) 

“[I]f the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff's injuries, another defendant may not pursue a claim for indemnity against that defendant.”  (Frank v. State of California (1988) 205 Cal.App.3d 488, 494.)  “ ‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ”  (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1099.)    

Here, Plaintiff alleges that she was injured on April 22, 2017, at approximately 11:20 a.m., on the “north sidewalk of Moorpark St approaching Beeman Ave, when she tripped and fell on broken upraised sidewalk.” (Shanks Exhs. Exh. 7 and 8.) The location of the incident, the north sidewalk of Moorpark Street approaching Beeman Avenue, is directly adjacent to the residential property located at 4400 Beeman Ave., Studio City, CA 91605 (“Shanks’ Property”), which was owned as of April 22, 2017 by the Shanks. (Coffey Decl. ¶¶ 3-6.) The sidewalk at issue is within the City’s right-of-way and is not located within the unencumbered privately controlled portion of the Shanks’ property. (Id. at ¶¶ 7-8.) No landscaping, plants, or roots from the Shanks’ property caused or contributed to the uplifted sidewalk. (Green Decl. ¶ 9.) 

This evidence is sufficient to meet the Shanks’ moving burden to show it did not own, maintain the subject sidewalk, and that the Shanks did not exercise any control over the sidewalk, such that they would owe a duty of care to Plaintiff for the incident on the public sidewalk. The burden therefore shifts to the City to raise a triable issue of material fact in this regard.   

In opposition, the City argues the Shanks exercised control over the parkway because the Shanks’ property created a water source for the parkway tree, and that the Shanks’ inefficient conventional pop-up sprinkler system caused the tree roots to grow underneath the sidewalk and uplift it. The City’s expert, Guy Stivers (“Stivers”), opines that feeder roots spread from the tree roots to collect water and transport it back to the tree, and that secondary root growth caused damage to the paving by lifting it. (Stivers Decl. ¶ 6.) Stivers opines that drainage of water from the Shanks’ property would coalesce north of the sidewalk, created a water source, and caused the roots of the parkway tree to travel toward the water source. (Id. at ¶¶ 9, 13.) However, the City cite no authority holding tree roots seeking water from a private landowner’s property supports a finding that the landowner dramatically asserted control and the rights normally associated with ownership or possession over a publicly owned property. (See Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200 [Court found no “dramatic assertion of a right normally associated with ownership or ... possession” by the defendants where although the defendants admitted to trimming a tree, sweeping leaves, and doing some “gardening” on city-owned property, the evidence was nothing more than “neighborly maintenance” and “[s]tanding alone, such evidence cannot support a finding of control over that property.”]; compare with Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1154, 1170 [Evidence that defendants maintained lawn from defendants’ property line to sidewalk, including city-owned portion of the lawn, and that subsequent to injury on the property, defendants constructed a fence that enclosed the lawn, was sufficient to raise triable issue of fact as to whether defendants exercised control over city-owned strip of land.], and Lopez, 55 Cal.App.5th at 258 [“courts have held owners and occupiers liable for a hazard created by a third party on abutting, publicly owned land when the owners or occupiers erected a fence around, as well as maintained, the property … put up a lighted sign to illuminate the property … installed sprinklers, planted trees and maintained the property … or mowed and watered grass, removed debris and repaired damage to the property…”].) It is undisputed that the parkway tree and subject sidewalk are publicly owned. Further, the City presents no evidence of any affirmative action by the Shanks in watering or maintaining the parkway tree, such that it created a duty of care as a results of the parkway tree’s roots. Just because tree roots may have been passively attracted to a water source on the Shanks property does not demonstrate affirmative conduct. Further, the City’s arguments fail every aspect of the Rowland factors in terms of foreseeability of harm to Plaintiff, closeness of connection between the conduct and injury suffered, moral blame, and burden imposing a duty to exercise care. (Rowland, supra, 69 Cal.2d at 113.) 

Lastly, although not directly argued in the City’s opposition, the Court will briefly address LAMC § 62.104 and California Streets and Highway Code § 5610 raised by the moving party. 

California Streets and Highway Code § 5610 states:   

 

The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto. 

LAMC § 62.104(b) provides, “Responsibility for Maintenance. The owner of a Lot shall maintain any Sidewalk, Driveway Approach, Curb Return or Curb on or fronting on the Lot in such condition that the Sidewalk, Driveway Approach, Curb Return or Curb will not endanger any Person or property passing thereon or violate the Americans with Disabilities Act.”   

Neither LAMC § 62.104 or California Streets and Highway Code § 5610 explicitly states that a landowner may be liable to pedestrians or third persons injured on a public sidewalk abutting the owner’s property.  (Cf. Gonzalez v. City of San Jose (2004) 125 Cal.App.4th 1127, 1133 [Owner held liable for failure to maintain city owned sidewalk where ordinance “mandate[d] that an adjacent landowner may be liable to third persons that are injured on a defective city-owned sidewalk.”].)  There is no mandate of liability to third persons in LAMC § 62.104 or California Streets and Highway Code § 5610. This is consistent with case law determining the effect of a city ordinance requiring abutting landowners to maintain city sidewalks. “Some states have statutes expressly making the owner or occupant liable to travelers for injuries occasioned by reason of the defective condition of sidewalks. Under such statutes, of course, abutting owners are liable to travelers for injuries caused by failure to repair. In these cases, however, the statutes not only impose the duty to repair, but expressly provide that such duty is owed to travelers on the sidewalk.”  (Shaefer v. Lenahan (1944) 63 Cal.App.2d 324, 330-31; see also Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589-90 [City ordinance requiring an abutting owner or occupant to maintain sidewalks in a clean and wholesome condition imposes a duty only to the city and does not create a standard of care owed to the traveling public, particularly where the owner did not do any affirmative act affirmatively to create the danger.)   

In the case of Jones v. Deeter (1984) 152 Cal.App.3d 798, the Court of Appeal expressly noted that while Streets and Highway Code § 5610 stated that an abutting owner bears the duty to repair defects in the sidewalk regardless of whether he has created these defects, the duty to repair did not create a duty of care to pedestrians.  (Id. at 803.)  “[I]t would be unfair for such an owner to be held liable to travelers injured as a result of sidewalk defects which were not of the owner's making. Thus the ‘Sidewalk Accident Decisions’ doctrine arose; this doctrine holds that the abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition.”  (Id.)  Consequently, even if a property owner holds legal title to the abutting public sidewalk, “where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it, we see no legal basis for imposing liability for failure to properly maintain the sidewalk or planting strip in the absence of statute or ordinance.”  (Williams v. Foster (1989) 216 Cal.App.3d 510, 521.)    

Based on the foregoing, the City fails to raise a triable issue of material fact as to whether the Shanks’ owned, maintained, or controlled the parkway tree, and subsequently, had a duty of care to Plaintiff because the parkway tree’s roots uplifted the subject sidewalk. Additionally, the City does not create a triable issue of material fact as to whether the Shanks undertook any affirmative action which created the subject sidewalk defect. Because the Shanks establish they did not owe a duty of care to Plaintiff, the Shanks are entitled to summary judgment on the City's cross-complaint for indemnification, apportionment of fault, and declaratory relief.  In the absence of any liability to Plaintiff, the Shanks have no obligation to indemnify the City.  (See Frank, supra, 205 Cal.App.3d at 494.)  Moreover, because the Shanks have no liability, there is no actual controversy to support a cause of action for declaratory relief.  (CCP § 1060.)    

The Shanks, therefore, are entitled to judgment against the City’s cross-complaint as a matter of law.   

 

IV. Conclusion  

Cross-Defendants the Shanks’ motion for summary judgment is GRANTED.   

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

 

Dated this 22nd day of December 2023