Judge: Richard S. Whitney, Case: 37-2021-00030081-CU-PO-CTL, Date: 2024-01-26 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 25, 2024

01/26/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00030081-CU-PO-CTL POWERS VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT JAMES R. PEELER'S MOTION FOR SUMMARY JUDGMENT is DENIED.

Defendant JAMES R. PEELER ('Defendant') asserts there are no issues of fact as to his liability to Plaintiff SHERI POWERS ('Plaintiff') because the alleged defect was trivial and Defendant did not owe a duty to Plaintiff due to a lack of legislation and because Defendant did not create the purported dangerous condition. Defendant's request for judicial notice is granted. Plaintiff's requests for judicial notice are granted to the extent permitted (excluding assertions of fact). (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) In ruling on a summary judgment motion, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The Court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must '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.) Defendant first argues he did not owe a duty to maintain the sidewalk and did not cause the alleged dangerous condition. 'At common law, abutting property owners and occupants had no affirmative duty to maintain or repair a public sidewalk and were not liable for injuries occurring there which resulted from the mere failure to maintain it.' (Williams v. Foster (1989) 216 Cal.App.3d 510, 515.) 'The common law governs in the absence of legislation on the subject.' (Id.) However, '[a] person who owns or occupies land will owe a duty to maintain abutting, publicly owned property in a reasonably safe condition if that person has 'exercise[d] control over th[at] property.'' (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255 [Citation omitted].) Plaintiff does not dispute there is a lack of legislation on the subject – Plaintiff does not point to any legislation imposing a duty on Defendant to maintain or repair the sidewalk. However, Plaintiff asserts Defendant contributed to the creation of the dangerous condition.

Williams involved an uneven sidewalk made by roots of a tree planted in front of a defendant property owner's property (the city involved cross-complained against the defendant property owner, similar to this case). (Williams, supra, 216 Cal.App.3d at 512–513.) The appellate court stated that 'since there is Calendar No.: Event ID:  TENTATIVE RULINGS

3035197  51 CASE NUMBER: CASE TITLE:  POWERS VS CITY OF SAN DIEGO [IMAGED]  37-2021-00030081-CU-PO-CTL no evidence that [the defendant property owner] acted negligently with respect to his property or did anything other than merely failing to maintain the sidewalk and parkway, the nonsuit should have been granted.' (Id. at 522–523.) In contrast, '[i]n settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians.' (Jones v. Deeter (1984) 152 Cal.App.3d 798, 805.) Plaintiff has raised issues of fact as to maintenance of the area of the sidewalk where Plaintiff tripped.

Defendant planted palm trees that overlapped the sidewalk and Defendant maintained and trimmed the palm trees and grass where Plaintiff fell. (Plaintiff's Additional Material Facts [AMF] Nos. 37-41; Defendant's Separate Statement of Undisputed Material Facts [SSUMF] Nos. 18-19.) As this Court noted in its ruling on another motion for summary judgment, The size of the defect is only one circumstance to be considered, as no court has fixed an arbitrary measurement in inches below which a defect is trivial as a matter of law and above which it becomes a question of fact whether or or [sic] not the defect is dangerous. All of the circumstances surrounding the condition must be considered in the light of the facts of the particular case.

(Beck v. City of Palo Alto (1957) 150 Cal.App.2d 39, 43–44.) While Defendant may not have caused the size of the sidewalk differential, there are disputes of fact as to whether Defendant caused circumstances that contributed to the purported dangerous condition. (See AMF Nos. 39-46; Plaintiff's response to SSUMF No. 5.) Contrary to Defendant's assertions, Plaintiff has raised triable issues of fact as to whether the circumstances created by Defendant were a substantial factor in Plaintiff's fall. (AMF Nos. 37-46.) Defendant has not shown, as a matter of law, Plaintiff would have tripped even without the other contributing factors of palm fronds and grass overgrowth or that their contribution was 'negligible or theoretical.' (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978; Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.) Defendant also urges the Court to decide the defect is trivial as a matter of law.

Ordinarily the existence of a dangerous condition is a question of fact. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810 [205 Cal.Rptr. 842, 685 P.2d 1193].) However, as the Peterson court observed, whether a condition is dangerous may ' 'be resolved as a question of law if reasonable minds can come to but one conclusion.' ' (Ibid.; see also Gray v. Brinkerhoff (1953) 41 Cal.2d 180, 183 [258 P.2d 834]; Barrett v. City of Claremont (1953) 41 Cal.2d 70, 73 [256 P.2d 977]; Jordan v. City of Long Beach (1971) 17 Cal.App.3d 878, 882-883 [95 Cal.Rptr. 246].) '[I]t is for the court to determine whether, as a matter of law, a given defect is not dangerous.

(Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) Defendant cites to the same evidence the City of San Diego used in its motion to support that the sidewalk differential was trivial. (SSMUF No. 6.) As this Court previously found, Plaintiff has raised an issue of fact as to the height of the sidewalk differential. (Plaintiff's response to SSUMF No. 6.) Further, Plaintiff has also raised issues of fact as to the surrounding circumstances that could have contributed to the purported dangerous defect. (AMF Nos. 37-46.) The motion is denied.

Defendant's Objections to Evidence: Objection 1-37: Overruled.

Objection 38: Sustained as to 'not trivial' characterization to the extent it attempts to address the legal standard but overruled as to the remainder.

Objection 39-45: Overruled.

Objection 46: Sustained as to 'not trivial' characterization to the extent it attempts to address the legal Calendar No.: Event ID:  TENTATIVE RULINGS

3035197  51 CASE NUMBER: CASE TITLE:  POWERS VS CITY OF SAN DIEGO [IMAGED]  37-2021-00030081-CU-PO-CTL standard but overruled as to the remainder.

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