Judge: Serena R. Murillo, Case: 20STCV47414, Date: 2022-10-03 Tentative Ruling
Case Number: 20STCV47414 Hearing Date: October 3, 2022 Dept: 29
Lisa Lundie
v. City of Inglewood, et al.
TENTATIVE
Defendant Pinzons, Limited Liability Company’s motion for summary
judgment is GRANTED.
Legal Standard
The purpose of a motion for summary judgment or summary adjudication
“is to provide courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if 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.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on
the moving party to make a prima facia showing that there are no triable issues
of material fact.” (Scalf v D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1519.) A defendant moving for summary judgment or summary adjudication
“has met his or her burden of showing that a cause of action has no merit if
the party has shown that one or more elements of the cause of action . . .
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c(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 Medical Center
(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
467; Code Civ. Proc., §437c(c).)
Discussion
Defendant moves for summary judgment on the basis that it did not own, control, or maintain the
property where Plaintiff fell or create the condition that caused Plaintiff to
trip and fall and therefore did not owe a duty to Plaintiff.
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.)
“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 justified
imposing a duty.
Defendant presents the following
evidence. Plaintiff’s alleged trip and fall occurred on a public sidewalk on
March 22, 2020 at approximately 7:00 a.m. near 701 W. Manchester Blvd, in the
City of Inglewood, California. (Separate Statement of Undisputed Material Facts
No. 1 (“SSUF”).) Defendant owns the property adjacent to the public sidewalk
where Plaintiff’s fall occurred. (SSUF No. 3.) In January of 2020, Aldridge
Electric began work on project 19-0083 also referred to as the Inglewood ITS
Phase 4B Project. (SSUF No. 4.) A construction permit was issued by the City of
Inglewood on November 13, 2019 to Aldridge Electric for the project. (SSUF No.
5.) Aldridge Electric was tasked with installing fiber optics lines under the
sidewalk for the City of Inglewood. (SSUF No. 6.) The City owns the public
sidewalk where the incident occurred. (SSUF No. 7.) The public sidewalk upon
which Plaintiff fell, was possessed and controlled by the City and Aldridge
Electric during the construction project which began in January of 2020 and was
finally completed in June of 2020. (SSUF Nos. 3-20.)
During the project, it was
Aldridge Electric’s responsibility to pothole (dig a hole to locate utilities)
underground, install conduit via directional drilling and remove and restore
the sidewalk. (SSUF No. 12.) Trenching was involved and thereafter the trenches
and potholes were backfilled, and temporary blacktop was placed over excavation
areas. (SSUF No. 13.) Defendant Aldridge Electric’s employees, Jose Marrero and
Andres Garcia, placed the temporary asphalt patches to the sidewalk before
Plaintiff’s fall. (SSUF No. 14.)
On or about February 6, 2020, a
sewer pipe servicing the property of Defendant was struck by a directional
boring machine controlled by Aldridge Electric at or near the sidewalk where
its work was taking place. (SSUF No. 17.) Defendant informed the City that
water pooled in its bathroom and Defendant Master Rooter & Plumbing were
retained by the City or Aldridge Electric to remove and replace the sewer
lateral. (SSUF 18.) Defendant Master Rooter & Plumbing inspected the sewer
line below the sidewalk and preformed repairs. Defendant Master Rooter &
Plumbing had no role in excavation or backfilling any holes near where
Plaintiff fell. (SSUF No. 19.) Defendant did not retain Master Rooter &
Plumbing to repair the sewer lateral line servicing its property. (SSMF No.
20.) On or about April 8, 2020, the City inspected the area where asphalt
patches had been installed by Aldridge Electric. (SSUF No. 21.) The City’s
inspection revealed that sink holes had developed where temporary asphalt
patches had been placed by Aldridge Electric. (SSUF No. 21.) The project was
eventually completed when permanent concrete was poured on the sidewalk in
place of the temporary asphalt patches on or about June 26, 2020. (SSUF No.
22.) Thus, Defendant did not create the sinkhole upon which Plaintiff fell.
(SSUF Nos. 12-17.)
The Court finds that Defendant has met
its burden on summary judgment to show that there are no triable issues of fact
as to whether it owed a duty to Plaintiff in order to maintain her causes of
action for negligence and premises liability, as Defendant did not own,
possess, or control the property where Plaintiff fell and did not create the
alleged dangerous condition. The evidence shows that Defendant was merely an
abutting property owner and did not alter, maintain, or make repairs to the
sidewalk. The burden shifts to Plaintiff.
Plaintiff has not filed an opposition,
and therefore, has failed to present any evidence to establish triable issues
of fact as to whether Defendant owed her a duty. As a result, Defendant is
entitled to summary judgment.
Conclusion
The motion for summary judgment is GRANTED.
Moving party is ordered to give notice.