SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. BACKGROUND 

Plaintiff Arthur Bakrjyan, a minor by and through Guardian Ad Litem Hovanes Bakrjyan, (“Plaintiff”) filed this action against defendants County of Los Angeles (“the County”), City of Los Angeles (“the City”), Richard Ho (“Ho”), and Does 1 to 50 for damages arising from a trip and fall over an uneven and raised sidewalk. Plaintiff alleges that on December 20, 2020, he was riding his bicycle on the sidewalk of Tulsa Street when he tripped and fell on a part of the sidewalk located at 16854 Tulsa Street, Granada Hills, CA 91344. Plaintiff sets forth four causes of action for (1) negligence against Ho, (2) governmental tort liability (Gov. Code § 835) against the City and County, (3) governmental tort liability (Gov. Code § 815.4) against the City and the County, and (4) premise liability against Ho.  

Ho moves for summary judgment against Plaintiff’s complaint on the grounds that he had no duty to maintain or repair the public sidewalk where Plaintiff fell, and that Ho did not create or control the alleged dangerous condition. Plaintiff opposes the motion by filing only a memorandum of points and authorities. Ho filed a reply. 

 

II. MOTION FOR SUMMARY JUDGMENT 

A. Burdens on Summary Judgment 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc. § 437c, subd. (f)(2).)    

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

 

B. Analysis 

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.)  To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.) 

The following facts are undisputed. Ho owned the property located at 16854 Tulsa Street in Granada Hills, California (“the property”) (Ho Decl. ¶ 2.) There is a public sidewalk adjacent to the property, and a parkway strip between the public sidewalk and the street. (Ho Decl. ¶ 3.) There was a tree in the parkway street that fell over in 2017, which was removed by the City of Los Angeles, leaving only a tree stump. (Ibid.) The tree stump has remained in the parkway since 2017. Ho contends he did not owe any duty to Plaintiff as the adjacent property owner for the condition of the public sidewalk, because Ho did not plant the tree in the parkway, did not maintain the tree, nor did he remove the tree. (Ibid.) Ho declares that he waters and mows the grass in the parkway strip, but did not exercise any control over the parkway strip or the tree stump. (Ibid.)  

In support thereof, Ho submits the declaration of and surveyor Gregory Amoroso (“Amoroso”). Amoroso declares that he conducted a land survey of the property line for Ho’s property located at 16854 Tulsa Street in Granada Hills, California in order to determine the property’s boundary line. (Amoroso Decl. ¶ 3.) On November 1, 2022, a survey team under his direction conducted a field survey of the site, which demonstrates that all portions of the concrete sidewalk are outside the property line for 16854 Tulsa Street in Granada Hills, California. (Id.. ¶¶ 7-9.) Ho also submits the declaration of arborist Guy Stivers (“Stivers”), who performed a site inspection of the tree stump in the parkway fronting Ho’s property. (Stivers Decl. ¶¶ 3-4.) Stivers opines that the parkway carob tree damaged the concrete sidewalk, because the roots lifted the sidewalk. (Id. at ¶ 10.) 

“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.)  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.)  

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

First and foremost, Plaintiff’s opposition is procedurally defective. Plaintiff submits only a memorandum of points and authorities. CCP § 437c(b)(3) provides: “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.” (Emphasis added). Plaintiff’s failure to comply with CCP § 437c is already sufficient grounds for the granting of the motion.  

Aside from failing to properly dispute the material facts contained in Ho’s separate statement, Plaintiff provides no evidence or declarations in support of his contention that Ho watering the grass in parkway had, in any way, asserted control over public property. (See Contreras v. Anderson (1997) 59 Cal. App. 4th 188, 198 [“simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property”]; see also Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 1167 [“the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will [not], standing alone, constitute an exercise of control over [the] property....”.].) The mere act of Ho maintaining the lawn in the parkway strip by watering and mowing it, without more, is insufficient to create a triable issue of material fact regarding control. 

Lastly, the Court denies Plaintiff’s request for a continuance so that Plaintiff may depose co-defendant’s person most knowledgeable. CCP § 437c(h) states: “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”  “A party seeking a continuance under that subdivision must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.”  (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270 [internal quotations omitted].)  “In exercising its discretion the court may properly consider the extent to which the requesting party's failure to secure the contemplated evidence more seasonably results from a lack of diligence on his part.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.) Plaintiff has failed to demonstrate how the deposition of co-defendant’s PMK would be essential to opposing the motion, what facts Plaintiff believes exists, and why Plaintiff has yet to obtain those facts.