Judge: Stephen I. Goorvitch, Case: 21STCV17811, Date: 2023-02-16 Tentative Ruling
Case Number: 21STCV17811 Hearing Date: February 16, 2023 Dept: 39
Nam Mi Lee, et al.
v. City of Los Angeles, et al.
Case No.
21STCV17811
Motion for Summary
Judgment
Plaintiffs
Nam Mi Lee (“Lee”) and Calla Collection USA, Inc. (“Calla”) (collectively,
“Plaintiffs”) filed this action against the City of Los Angeles (the “City” or
“Defendant”), among others, asserting a cause of action for dangerous condition
of public property. Plaintiffs own a
property and allege that the City owned, possessed, and/or controlled an
adjacent property. Plaintiffs allege
that the City had actual or constructive knowledge of a homeless encampment
where the residents routinely started fires.
Plaintiffs allege that on or about October 30, 2020, one of the fires
spread and damaged their building. The
City moves for summary judgment.
“[T]he party moving for summary judgment bears the burden of persuasion
that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law[.] There is a triable issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment
bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of
production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Ibid.)
The City
argues that Plaintiffs’ claim is defective as a matter of law. Government
Code section 835 sets out the exclusive conditions under which a public entity
is liable for injuries caused by a dangerous condition of public property. (Metcalf
v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist.
(1993) 4 Cal.4th 820, 829; see also Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112.) Per Government Code section 835:
“[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: [¶] (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 . . . a sufficient time prior to the injury to have
taken measures to protect against the dangerous condition.”
(Gov. Code, § 835.) However, the dangerous condition must relate
to “the physical condition of the property itself.” (Moncur v. City of Los Angeles (1977)
68 Cal.App.3d 118, 123, citations omitted.) There may be liability when an unreasonable
risk of harm is created by “a combination of defect of property and acts of
third parties.” (Ibid., citations
omitted.) “However, the courts have
consistently refused to characterize harmful conduct on the party of a third
party as a dangerous condition in the absence of some concurrent contributing
defect in the property itself.” (Ibid.,
citations omitted.) Simply, there must be
a defect in the property itself and a causal connection between the defect and
the injury. (Zelig v. County of Los
Angeles (2002) 27 Cal.4th 1112, 1135.) “A
dangerous condition exists when public property is physically damaged,
deteriorated, or defective in such a way as to foreseeably endanger those using
the property itself or possesses physical characteristics in its design,
location, features, or relationship to its surroundings that endanger users.” (Cerna v. City of Oakland (2008) 161
Cal.App.4th 1340, 1347-1348, citing Bonanno v. Central Contra Costa Transit
Authority (2003) 30 Cal.4th 139, 148-149.)
In this case, Plaintiffs allege no
facts suggesting that the property itself caused or contributed to the
fire. Plaintiffs’ separate statement
makes clear that their claim is based exclusively on the actions of third
parties:
-
On
October 30, 2020, a fire broke out at the homeless encampment which spread to
the Premises and which caused substantial property damage and loss of income
respecting Plaintiffs’ business.
(Plaintiffs’ Separate Statement, ¶ 20.)
-
For a
significant period of time prior to October 30, 2020, there had been an open
and obvious homeless encampment at the property adjacent to the Premises, and
it was also open and obvious that the homeless persons had been making
fires. (Id., ¶ 21.)
-
The City
of Los Angeles has not asserted in support of this motion that it took any
remedial action respecting the homeless encampment or use of fires. (Id., ¶ 23.)
-
The City
of Los Angeles did not take measures to remedy the condition of its property
consisting of the presence of homeless persons using open fires posing a risk
of fire to adjacent structures, such as the Premises. (Id., ¶ 24.)
In sum, Plaintiffs’
entire case is based on “the presence of homeless persons using open fires,”
and not any physical condition of the property.
Therefore, Plaintiffs’ motion is granted as a matter of law.
The City also argues that
Calla did not file a government claim, which is required by the Government
Claims Act. Plaintiffs do not dispute
this assertion. Therefore, in the
alternative, the Court grants summary judgment to the City, and against Calla,
on this basis.
Based upon
the foregoing, the Court orders as follows:
1.
The City’s motion for summary judgment is
granted.
2.
Counsel
for the City shall provide notice and file proof of such with the Court.