Judge Michelle C. Kim, Case 19STCV29982 2023-05-05 Tentative Ruling

Plaintiff Natalia Farr (“Plaintiff”) filed this action against Defendant Lincoln Place Garden “Lincoln Place”) and Aimco Venezia, LLC (“Aimco”) for damages arising from a trip and fall on the lawn of a property located at or near 1050 Frederick St., Venice, CA 90291. Plaintiff alleges the property was in a dangerous condition due to a “grass concealed hole on the lawn.” (Compl. at p. 4.) The complaint alleges causes of action for general negligence and premises liability. On October 15, 2019, Lincoln Place and Aimco filed a cross-complaint equitable indemnity, declaratory relief, and contractual indemnity against Roes 1-25.

As relevant to this proceeding, on April 26, 2021, Plaintiff filed an amendment to complaint naming the F.A. Bartlett Tree Expert Company (“Bartlett”), erroneously served and sued herein as Bartlett Tree Experts, as Doe 2, and Lincoln Place and Aimco filed an Amendment to Cross-Complaint naming Bartlett as Roe 2.

On March 30, 2023, Bartlett filed the instant motion for summary judgment as to Plaintiff’s complaint and Lincoln Place’s and Aimco’s cross-complaint. On March 30, 2023, Lincoln Place and Aimco filed a Request for Dismissal dismissing the cross-complaint with prejudice as to Bartlett. Consequently, to the extent Bartlett seeks summary judgment as to the cross-complaint, the motion is moot.

The Court will address Bartlett’s request for summary judgment against Plaintiff. Any opposition by Plaintiff was due on or before April 21, 2023. On April 28, 2023, Bartlett filed a Notice of Non-Opposition to the Motion providing that Plaintiff did not file an opposition to the motion.

Bartlett argues it is entitled to summary judgment under the completed and accepted doctrine. Bartlett provides that Aimco contracted Bartlett to remove dead trees from a selected area, grind the stumps down, rake mulch into the resulting hole, and remove resulting debris. Bartlett states that an invoice shows the work was completed on April 27, 2016, and that Bartlett never received complaints about the work done at the property, which was completed more than 900 days before Plaintiff’s indent. Additionally, Bartlett asserts that it never owned or controlled the property.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) 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 defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

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.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) 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.)

“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).

Under the Completed and Accepted Doctrine, “when a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed.” (Nieman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962, 969.) The rationale for this doctrine is that “an owner has a duty to inspect the work and ascertain its safety, and thus the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect.” (Id.)

This doctrine only applies to patent defects, not latent defects. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467.) “If an owner, fulfilling the duty of inspection, cannot discover the defect, then the owner cannot effectively represent to the world that the construction is sufficient; he lacks adequate information to do so.” (Id.) Therefore, the liability of a contractor for negligence depends on whether the defect is latent. (See Id. at 1470.) The basis for this doctrine is that “an owner has a duty to inspect the work and ascertain its safety, and thus the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect.” (Jones v. P.S. Dev. Co. (2008) 166 Cal. App. 4th 707, 712, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532.)

“[T]he test to determine whether a construction defect is patent is an objective test that asks ‘whether the average consumer, during the course of a reasonable inspection, would discover the defect ....’ This test generally presents a question of fact, unless the defect is obvious in the context of common experience; then a determination of patent defect may be made as a matter of law (including on summary judgment).” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 256.)

In this case, Lincoln Place is a collection of attached units sprawled across several addresses owned and managed by Aimco. (Mot. Undisputed Material Fact 1.) Aimco contracted with Bartlett in April 2016 to remove tagged trees from a selected area pursuant to a map, grind the stumps down, rake mulch into the resulting hole, and remove resulting debris. (Id. at 2.) The last time Bartlett performed work in the area where Plaintiff claims she fell was on or around April 27, 2016, more than 900 days before the incident. (Id. at 3.) Plaintiff alleges a deep hole in the ground caused her to fall. (Id. at 6.) Aimco paid Bartlett for the work on April 27, 2016, and Aimco never advised Bartlett that it had any issues or complaints with the work that was completed in April 2016. (Id. at 4-5.)

This evidence is sufficient to meet Bartlett’s moving burden to show that its work in the area where Plaintiff fell was completed and accepted by Aimco prior to the incident, and that the alleged defect- a hole where it appeared a tree used to be- would have been obvious. Moreover, the evidence shows Bartlett did not own or manage the subject property where the incident occurred. The burden shifts to Plaintiff to raise a triable issue of fact. Plaintiff does not oppose the motion, and thus, fails to meet the shifted burden.

Defendant Bartlett’s motion for summary judgment is granted as to Plaintiff’s complaint.

Hon. Michelle C. Kim

Judge of the Superior Court