Judge: Serena R. Murillo, Case: BC721729, Date: 2022-09-19 Tentative Ruling
Case Number: BC721729 Hearing Date: September 19, 2022 Dept: 29
Robert
Wertz Villegas Hernandez v. City of Los Angeles
Motion
for Summary Judgment, or in the Alternative, Summary Adjudication filed by
Defendant Partners Community Management Inc.
TENTATIVE
Defendant
Partners Community Management Inc.’s Motion for Summary Judgment is DENIED.
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.” (Id.) “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,
159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)
Judicial
Notice
The court must
consider all of the evidence set forth in the papers, except the evidence to
which objections have been made and sustained by the court. (Code Civ.
Proc., § 437c(c).) Therefore, Defendant’s request is unnecessary and the
Court declines to rule on the request.
Evidentiary Objections
A.
Plaintiff’s Objections to
Defendant’s Evidence
The
Court notes that Plaintiff’s Objections are not numbered and thus they will be
numbered in the order in which they appear.
· The following objections are overruled: 1, 4,
5, 9, 10, 11, 16, 17, 18, 19, 20, 21
·
The following
objections are sustained: 2, 3, 6, 7, 8, 12, 13, 14, 15
B.
Defendant’s Objections to
Plaintiff’s Evidence:
· The following objections are overruled: 2-19
(moot), 20-29
·
The following
objections are sustained: 1
Discussion
I.
Dangerous Condition of Public Property
“Except as
otherwise provided by statute, a public entity is not liable for an injury,
whether such injury arises out of an act or omission of the public entity or
public employee or any other person.” (Gov. Code § 815.)
Government Code
section 835 states:¿“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 either:
(a) A negligent or
wrongful act or omission of an employee of the public entity within the scope
of his employment created the dangerous condition; or¿
(b) The public
entity had actual or constructive notice of the dangerous condition under
Section 835.2 a sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.”¿
A.
Public Entity Status
The elements of a cause of action for premises liability are
the same as those for negligence: 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¿to¿avoid exposing others to an unreasonable risk of
harm. (Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.) The existence and
scope of duty are legal questions for the court. (Id. at p.
36.) If there is a condition that poses a danger to customers and others
on the premises, the property owner is “under a duty to exercise ordinary care
either to make the condition reasonably safe for their use or to give a warning
adequate to enable them to avoid the harm.” (Bridgman v. Safeway
Stores, Inc.¿(1960) 53 Cal.2d 443, 446.)
“A defendant’s
motion for summary judgment necessarily includes a test of the sufficiency of
the complaint. [Citation.] When a motion for summary judgment is used to test
whether the complaint states a cause of action, the court will apply the rule
applicable to demurrers [or motions for judgment on the pleadings] and accept
the allegations of the complaint as true.” (Prue v. Brady Co./San
Diego, Inc. (2015) 245 Cal.App.4th 1367, 1375 [citation omitted].)
Courts read the allegations liberally and in context when considering
demurrers. (Taylor v. City of Los Angeles Dept. of Water and Power
(2006) 144 Cal.App.4th 1216, 1228.)
Plaintiff’s
complaint alleges a single cause of action for dangerous condition of public
property under Government Code section 835.
Defendant argues
it is not a public entity and, thus, cannot be liable for a dangerous condition
of public property. (UMF No. 9.) Plaintiff argues he has alleged
common law negligence and premises liability against Defendant.
In turning to the
allegations made in the complaint, the Court finds negligence and/or premises
liability is sufficiently alleged against Defendant. The
complaint alleges that on or about March 10, 2018, Plaintiff was on Defendants’
(defined in paragraph 5 as City of Los Angeles and Doe Defendants) sidewalk
located adjacent to 215 W. 7th St., Los Angeles, CA 90014, when he
slipped and fell on the edge of the sidewalk that was in a state of disrepair,
with uneven, unreasonably, and unexpected steep asphalt attached to the edge,
not code compliant, negligently maintained, defectively designed, and painted
with non-slip-resistant paint that was dangerously slippery when wet.
(Complaint, pg. 2, ls. 5; 10.) Thus, because Defendant was substituted as a doe
defendant, the Court finds these allegations are
sufficient in alleging negligence and/or premises liability against
Defendant. As such, Defendant’s motion for summary judgment cannot be
granted simply because it is not a public entity.
II.
Ownership,
Possession, or Control of the Location of the Alleged Dangerous Condition
Defendant also moves for summary
judgment or summary adjudication on the grounds that it did not own, possess,
or control the location where Plaintiff fell, and the incident did not occur as
a result of any action or inaction by Defendant.
The
elements for negligence are: (1) a legal duty owed to the plaintiff to use due
care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County
of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 318.) The elements of a cause of action for
premises liability are the same as those for negligence: duty, breach,
causation, and damages.” (Castellon v. U.S. Bancorp (2013)
220 Cal.App.4th 994, 998 (citing Ortega v. Kmart Corp. (2001)
26 Cal.4th 1200, 1205; Civil Code § 1714(a)).) Those who own, possess, or
control property generally have a duty to exercise ordinary care in managing
the property to avoid exposing others to an unreasonable risk of harm. (Annocki
v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) The general rule is that, absent a statute
indicating otherwise, a defendant cannot be held liable for the defective or
dangerous condition of property which it [does] not own, possess, or control. (Lopez
v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255.)
Defendant argues that it did not own, possess
or control the property where the subject incident occurred. To support this argument,
Defendant submits the declaration of Pete Ong (“Ong”), the Vice President of
Defendant. Ong declares that Defendant did not own, possess, or control
the property where the subject incident occurred. (Ong Decl. ¶¶ 2, 3,
12.) Defendant also submits the City’s Response to Request for
Admissions, Propounded by Defendant. (Defendant’s Evidence, Exh. E.) In this
request for admission, the City admits it has no evidence that Defendant
owns the property. (Id.)
In opposition, Plaintiff
cites to Civil Code section 831, which states: “An owner of land bounded by a
road or street is presumed to own to the center of the way, but the contrary
may be shown.” (Civ. Code section 831.) Plaintiff argues that Defendant’s
above evidence fails to overcome the presumption of ownership of the Subject
Sidewalk/alley apron under Civil Code section 831.
The Court has
sustained Plaintiff’s objections to the declaration of Ong regarding his
statement that Defendant does not own the location where Plaintiff fell, as
there is no foundation for it. What has Ong relied on in making these
statements? Did he rely on a grant deed, surveys, or any other documents
relating to the property in question? The declaration is silent. Ong’s personal
knowledge is not proof of ownership, and there is no evidence that Defendant
did not own 7th Street “to the center of the way,” which encompasses
the sidewalk or alley apron. Lastly, the City’s admission is not enough
to meet Defendant’s burden on summary judgment to show that Plaintiff has no
evidence of ownership. Defendant is moving for summary judgment on Plaintiff’s
complaint, and thus, whether the City has evidence of Defendant’s ownership is
irrelevant to the motion at hand. The Court, therefore, finds that there are
triable issues of material as to whether Defendant owned the area Plaintiff
fell. As such, summary judgment, or in the alternative, summary adjudication is
denied on this basis.
As triable issues of
fact exist as to Defendant’s ownership, the Court need not address the
remaining arguments.
Conclusion
Based on
the foregoing, Defendant’s motion for summary judgment is DENIED.
Moving
party is ordered to give notice.