Judge Randolph M. Hammock, Case 21STCV05092 2022-10-06 Tentative Ruling

Judge: Randolph M. Hammock, Case: 21STCV05092, Date: 2022-10-06 Tentative Ruling

This is a personal injury case. Plaintiff Silva Manvelyan alleges she obtained bodily injuries when she tripped and fell on a defective sidewalk on Hollywood Boulevard. The Defendants are the City of Los Angeles (“City”) and Los Angeles County Metropolitan Transportation Authority (“Metro.”) Plaintiff asserts a single cause of action for dangerous condition of public property.

Defendant first objects to the paragraph in Walker’s declaration stating that “[w]hen the paramedics arrived, I observed two Los Angeles Fire Department male employees come to Ms. Manvelyan’s assistance and heard one of them indicate that he was just at this same location the day before for another injury.” (Decl. ¶ 13.)

The only ground for summary judgment argued in the instant motion is Metro’s purported lack of ownership or control of the dangerous property. These objections may be highly relevant, however, as to the dangerous condition of the property, an issue which is not presently before the court. Accordingly, the court declines to rule on these objections at this stage as they are not material to the disposition of the motion. (See CCP § 437c(q).)

A motion for summary judgment requires 75 days’ notice. (See CCP § 437c(a); see also Frazee v. Seely (2002) 95 Cal.4th 627, 636-637.) The applicable notice period is computed by counting backwards from the hearing date, excluding the day of the hearing. (CCP § 12c.) Importantly, courts may not shorten the 75–day notice period. (McMahon v. Superior Ct. (2003) 106 Cal. App. 4th 112, 115.)

Here, the MSJ’s Proof of Service reflects personal service and electronic service on July 22, 2022. (See P’s Comp. of Exhs., Exh. A.) The Proof of Service does not reflect service by mail or other overnight delivery. Plaintiff argues that the purported personal service in this case was insufficient, and that the motion did not give the requisite notice required if using electronic service. Defendant disagrees.

Under CCP section 1011(a), service on a party’s attorney “may be made at the attorney’s office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof. If there is no person in the office with whom the notice or papers may be left for purposes of this subdivision at the time service is to be effected, service may be made by leaving them between the hours of 9 a.m. and 5 p.m., in a conspicuous place in the office…” (Emphasis added.)

Plaintiff’s counsel, Jon Markarian, attests that he received a “courtesy copy” of the MSJ and supporting documents by email on July 22, 2022, at 7:12 pm. He also states, however, that “[n]either myself, nor any member of my staff and reception was ever personally served Motion or Notice of Motion on July 22, 2022, or at anytime.” (Markarian Decl. ¶ 4.) Rather, he provides a photograph of the “landing” that leads to his office’s reception area, where he says he found a manilla envelope containing the Notice and Motion on Monday, July 25, 2022. (Id., Exh. B.) Counsel contends the door to the reception area locks at 8:00 pm daily Monday-Friday and remains locked until 8:00 am the next morning. (Id.) This suggests the envelope was left outside of reception sometime after hours on Friday, July 22, and then discovered on Monday, July 25, after the weekend.

In Reply, Defendant submits the declaration attorney Clara Porter. Porter was the one who apparently personally delivered the MSJ and supporting documents to Plaintiff’s office. Porter states that once she arrived at the office of Plaintiff’s counsel, she “did not see anyone at either the front entrance or the back entrance to the building.” (Porter Decl. ¶ 4.) The suite for the Markarian Law Firm was closed. (Id.) The door was locked, “and no one responded to [her] knocking.” (Id.) This occurred “well before 8:00 p.m.” (Id.) (Emphasis added.)

The CCP, however, requires service to occur before 5:00 pm. Porter states she dropped off the documents “well before 8:00 p.m.” (Id.) (Porter Decl. ¶ 4.) Reading between the lines, this language clearly suggests service occurred after 5 p.m.

The issue then becomes: what is the legal effect of “personal service” on an attorney that occurs after the 5:00 pm cut-off? On one hand, service outside of this window could be deemed invalid altogether. Another, less harsh result, is that anything served after 5:00 pm must be deemed served the next-day. [FN 1] In either event, the motion did not give the requisite 75-day notice. [FN 2]

Notably, Defendant suggests that even if it failed to comply with 75 or 77-day notice requirement, that failure to comply with the notice requirement is not grounds for dismissal if Plaintiff cannot show prejudice. In support, Defendant first cites to Beroiz v. Wahl (2000) 84 Cal. App. 4th 485. There, a defendant moving for summary judgment “failed to obtain the trial court's permission to file her motion for summary judgment within 30 days of the trial date.” (Id., fn 4.) The court ignored the error and granted summary judgment in the defendant’s favor.

On appeal, the appellants argued that this issue was jurisdictional and required reversal. The Court rejected this argument, first noting that Code of Civil Procedure section 437c, subdivision (a) provides that a summary judgment motion “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (Italics in original) The court also explained that since the trial court had already granted another defendant permission to have its MSJ heard later than 30 days before trial, “the trial court would, in all likelihood, have granted [appellant] an order allowing her to file her motion if she had requested one.” Accordingly, the Court concluded, the error was not jurisdictional.

Plaintiff’s other cited authority is equally off-the-mark. In Lackner v. North (2006) 135 Cal. App. 4th 1188, 1209, the defendant moving for summary adjudication served its motion without the requisite 75-day notice. The plaintiff then moved for a continuance of the hearing on the motion to allow further discovery and to prepare an opposition. The trial court continued the hearing approximately six months. If notice was calculated from the original hearing date, it was improper. If calculated from the rescheduled hearing date, however, then the motion gave the requisite 75-day notice.

On appeal, the Court of appeal held that the 75-day notice is be measured from the date notice is served to the date of the actual hearing, and not from the date of the originally scheduled hearing. The Court explained that the continuance ultimately resulted in notice of in excess of 75-days, which “clearly falls within the purpose” of the statute. (Id. at 1209.)

The present case is distinguishable from Beroiz and Lackner. Importantly, unlike the express language in section 437c(a) which allows a trial court to excuse the 30-day trial cut-off based on “good cause,” there is nothing in the statute that permits the court to adjust the 75-day notice requirement. McMahon v. Superior Ct. (2003) 106 Cal. App. 4th 112, 115, is directly on point. There, the court explained:

[Section 437c(a)] contains three minimum time requirements. However, the subdivision gives trial courts discretion to shorten only two of these time periods—the 60 days that must have elapsed since the general appearance of a party against whom the motion is directed before a summary judgment motion can be filed, and the minimum 30 days before trial when a summary judgment motion can be heard. The subdivision does not contain any language authorizing courts to shorten the 75-day notice period. (Emphasis added.)

To be fair, Plaintiff cannot reasonably claim she was prejudiced by the late notice, which occurred less than 3-hours too late and was accompanied by electronic courtesy copies. But Defendant has not cited any authority saying that prejudice is a factor to be considered in light of the strict 75-day notice requirement. Accordingly, this court finds Defendant did not give the requisite 75-day notice.

Next, the issue of the electronic service. CCP § 437c(a) does not expressly provide for electronic service. However, it is widely accepted that this form of service, available on motions generally, is permitted. Thus, § 1010.6(a)(4)(B) requires that two court days be added to the notice period—accordingly, 77 days for electronic service. Electronic service is complete at the time of transmission or electronic notification of service. If an electronic filing service provider is used, service is complete at the time the provider electronically transmits the document or sends electronic notification of service. Any document that is served between 12:00 a.m. and 11:59:59 p.m. on a court day is deemed served that court day. Any document served on a noncourt day is deemed served on the next court day. (CCP § 1010.6(a)(5); CRC 2.251(i).)

Here, the electronic transmission designated “Courtesy Copy Only” was received by Plaintiff’s counsel on Friday, July 22, at 7:12 pm. Even assuming this “courtesy copy” is valid service, it was still untimely. As discussed above, email service must be received at minimum 77-days before the date of the hearing.

But here, counting backward from October 6, 2022 (but not including that date itself), 77-calendar days places the first permissible date of service as being July 21, 2022. In this case, however, the electronic service occurred during the evening of July 22, 2022. Thus, the electronic service was one-day too late (i.e., only 76 rather than 77-days of notice.)

The bottom line is this: The only personal service took place after 5:00 p.m. on the 75th day prior to the scheduled hearing date. That service was admittedly done by simply leaving the documents in a conspicuous place at an empty office, after that office was closed, after 5:00 p.m. Under the applicable law, that does not effectuate personal service on that day. The electronic service requires an additional 2 days. In either situation, service was not properly effectuated within 75 days. Period.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520). When a defendant moves for summary judgment or adjudication on the basis of an affirmative defense, the defendant has the burden of establishing the undisputed facts support each element of the affirmative defense. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467-68.) Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (§ 437c(o)(2)). Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389). Where a plaintiff cannot establish an essential element of a cause of action, or where a complete defense is shown, a court must grant a motion for summary adjudication. (Code Civ. Proc. § 437c(o)(1)-(2)).

As framed by the pleading, on February 17, 2020, Plaintiff Silva Manvelyan, an 84-year-old woman, was walking westbound on the sidewalk bordering Hollywood Blvd. to catch a Metro bus. (SAC ¶ 11.) She alleges the sidewalk was defectively dangerous— a vertical “electrolier” once bolted to the Sidewalk had been removed, leaving metal screws and pipes that “protrude[ed] about two inches or more vertically aboveground from the base.” (Id.) Plaintiff “did not see the dangerous condition of the Sidewalk,” and “[s]he tripped, fell, and suffered severe bodily injuries.” (Id.) Plaintiff alleges that both Defendants—Metro and the City—“owned, managed, planned, oversaw, and/or directly and/or indirectly controlled the sidewalk at the Location of the Dangerous Condition.” (Id. at 24.) Accordingly, each Defendant “had the power to prevent, remedy or guard against the dangerous condition.” (Id.) Plaintiff seeks damages for her injuries from the City and Metro.

Defendant Metro moves for summary judgment. It argues that it owed Plaintiff no duty of care as a matter of law, because Metro “did not own, maintain or control the subject area where this incident occurred, or own, maintain or control the subject pole that Plaintiff contends constituted a dangerous condition.” (Mtn. 3: 12-14.)

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

For purposes of this section, property of a public entity means real or personal property “owned or controlled by the public entity.” (§ 830, subd. (c).) “A public entity may not be held liable under section 835 for a dangerous condition of property that it does not own or control.” (Goddard v. Dep't of Fish & Wildlife (2015) 243 Cal. App. 4th 350, 358–59.) Control exists if the public entity has the “power to prevent, remedy or guard against the dangerous condition.” (Goddard, supra, 243 Cal. App. 4th at 364.)

(5) “At no time relevant to this action has Metro ever agreed to, or entered into any agreement or contract to, inspect, maintain, repair, or undertake any other obligation regarding the bus stop shelter, bus stop bench, or any electrical or solar lighting poles at Metro Stop ID 15434 where the subject incident occurred” (UMF 10);

(7) “At no point did Metro ever agree to, or enter into any agreement or contract to, inspect, maintain, repair, or undertake any other obligation regarding the exposed mountings and hardware resulting from the removal of the subject pole.” (UMF 12).

Most of this evidence comes from the Declaration of David Daniels, Metro’s Senior Manager for the Facilities Maintenance, Stops & Zones Department. He came to these conclusions “based on [his] review and analysis of documents regarding the relationship between” the City and Metro. (Daniels Decl. ¶ 2.)

Based on the evidence presented, the court finds Metro has met its initial burden to establish that it did not “own or control” the defective property on its face. Accordingly, the burden shifts to Plaintiff to establish a triable issue of disputed material fact.

As noted earlier, the test attaches liability in two distinct ways: ownership or control. Based on the evidence presented by each party, it is unlikely that Plaintiff raises a triable issue of fact on whether Plaintiff “owned” the dangerous property. Plaintiff has produced no evidence by which a reasonable trier of fact could come to this conclusion.

However, the issue of “control” is a different matter. Plaintiff presents evidence that “MTA utilized the electrolier as its bus stop post and attached its bus stop sign directly to it using banding straps.” (P’s Additional Facts in Dispute ¶¶ 2,3.) Prior to the accident, “MTA Stops & Zones field staff observed the dangerous condition, determined it to be a hazard and secured traffic cones to cover the exposed” area, and “requested a crew attend to it.” (Id. at ¶¶ 5, 6, 7.)

It appears based on the evidence in opposition that Metro, at least at one time, had the authority to post signs on the electrolier formerly attached to the protruding bolts. This can be true even if Metro did not own the electrolier itself. The court finds no authority permitting it to determine, as a matter of law, that the sign, electrolier, and bolts attaching the electrolier to the sidewalk must be considered separate and distinct. Rather, the focus is whether Metro controlled the dangerous defect as a whole.

Likewise, the fact that Metro did not have a sign posted on the electrolier at the time of the accident is immaterial. The fact that it used to (and presumably could post one again if it chose to), could support a jury finding that Metro controlled the property.

Going further, Plaintiff’s evidence shows that Metro discovered the dangerous condition, placed a traffic cone over it, and alerted the City to have it repaired. (Plaintiff’s Additional Disputed Facts, 5.) Although the Court appreciates that “simple maintenance” does not constitute an exercise of control over property, “it is considered ‘relevant on the issue of control.’” (Contreras v. Anderson (1997) 59 Cal. App. 4th 188, 198.) This is a relevant fact for the jury to consider.

Finally, the evidence supports a finding that Metro used the area immediately adjacent to the dangerous condition as a bus-stop and dropped passengers off very near—and potentially right in front of—the defective condition. (P’s Additional Disputed Facts 8, 9). “[A]public entity's own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury. (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.) Defendant attempts to distinguish Bonanno by arguing in Reply that “unlike in Bonanno…Metro did not own the subject pole, the bus stop, the sidewalk, bench or any signs.” This may be true, but it does not address the issue of control. Moreover, it does not appear the Bonanno court addressed this issue, if only in passing, as the Court explained it was not “primarily concerned” “with the sufficiency of evidence to show that [the defendant] controlled the location of its bus stop.” (Id. at 147 [emphasis added].)

Plaintiff seeks sanctions against Defendant for what she deems as “bad faith litigation tactics.” However, Plaintiff has not filed a separately noticed motion and has not otherwise abided by the 21-day safe harbor statute. Accordingly, the request for sanctions is defective and is denied.

Furthermore, this Court would respectfully suggest to Plaintiff’s counsel to give greater thought of such requests for sanctions in the future. There was nothing objectively frivolous about this MSJ. Additionally, it simply stretches one’s credulity to even suggest that this MSJ was filed in “bad faith.” Indeed, the only “litigation tactic” was seems to be arguably in “bad faith,” is the Plaintiff’s ill-conceived and ill-fated request for sanctions in connection with this MSJ.

Judge of the Superior Court

FN 1 - For example, California Rules of Court provides that service by fax that is received after 5:00 pm is deemed served on the next court day. (CRC Rule 2.306.) However, it does not appear that the Code or Rules of court expressly address if the same “next-day” rule applies to service on an attorney under CCP section 1011. This court suspects that it does.

FN 2 - If the “personal service” here were deemed sufficient as of Friday, July 22, 2022, then it appears Plaintiff was given exactly 75-days of notice. 75 days prior to October 6, 2022, was July 23, 2022, which was a Saturday. Thus, service had to occur no later than the day prior—Friday, July 22, 2022

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.