Judge: Steven A. Ellis, Case: 20STCV47950, Date: 2025-01-28 Tentative Ruling

Case Number: 20STCV47950    Hearing Date: January 28, 2025    Dept: 29

Ristic v. City of Los Angeles
20STCV47950
Motion for Summary Judgment filed by Defendant 8500 Burton Way LLC
Joinder in Motion for Summary Judgment of 8500 Burton Way filed by City of Los Angeles
Motion for Summary Judgment filed by Defendant Larder Burton Way, LLC

Tentative

The motion for summary judgment of 8500 Burton Way LLC is denied.

The request of City of Los Angeles to join the motion of 8500 Burton Way LLC is granted.  The request of City of Los Angeles for summary judgment is denied.

The motion for summary judgment of Larder Burton Way, LLC is denied.

Background

On December 16, 2020, Ryan Ristic (“Plaintiff”) filed a complaint against City of Los Angeles (“City”), Larder Burton Way, LLC (“LBW”), and Does 1 through 100, asserting causes of action for premises liability (including dangerous condition of public property) and general negligence arising out of an incident on December 21, 2018, in which, Plaintiff alleges, he fell and suffered injuries as a result of a dangerous condition in the sidewalk in front of a restaurant located at 8500 Burton Way in Los Angeles.

On September 16, 2022, LBW filed an answer to the complaint.

On September 26, 2022, City filed an answer to the complaint and a cross-complaint against LBW and Roes 1 through 20. 

On October 14, 2022, LBW filed an answer to City’s cross-complaint.

On October 25, 2023, Plaintiff amended the complaint to name 8500 Burton Way LLC (“8500 Burton”) as Doe 1.

On December 27, 2023, 8500 Burton filed an answer to the complaint.

On April 5, 2024, City amended its cross-complaint to name 8500 Burton as Roe 1.

Currently before the Court and set for hearing on January 28, 2025, are two motions and a joinder.

On March 29, 2024, LBW filed a motion for summary judgment on Plaintiff’s complaint.  The motion was initially set for hearing on April 14, 2025.

Later that same day, on March 29, 2024, 8500 Burton filed its own motion for summary judgment on Plaintiff’s complaint.  The motion was initially set for hearing on September 23, 2024.

On May 13, 2024, the Court reset the hearing date on both motions to October 24, 2024. 

On June 7, 2024, City filed a joinder in 8500 Burton’s motion.

On September 12, 2024, the Court continued the hearing on the motions and the joinder to January 28, 2025.

On January 8, 2025, 8500 Burton filed a partial opposition to LBW’s motion.

On January 14, 2025, Plaintiff filed an opposition to each of the summary judgment motions, as well as to City’s joinder.  Plaintiff also filed objections to evidence.

On January 23, 2025, LBW and 8500 Burton each filed a reply and each also filed objections to evidence.  8500 Burton also filed a request for judicial notice.

(LBW and 8500 Burton are sometimes referred to below as “Defendants.”)

Legal Standard

“The purpose of the law of summary judgment 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “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, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)

A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The party opposing a motion for summary judgment or summary adjudication may not simply “rely upon the allegations or denials of its pleadings” but must instead “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

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.)

Evidentiary Objections 

Plaintiff, LBW, and 8500 Burton each object to evidence.  Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible.  (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.)  The court must “consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained.”  (Code Civ. Proc., § 437c, subd. (c).)

Plaintiff asserts six objections to the expert witness declarations of John Tyson, submitted in support of each of the two summary judgment motions.  The objections are overruled.

LBW asserts fifteen objections to the expert witness declaration of Mark J. Burns.

The Court sustains Objection No. 10 in part.  Mr. Burns offers no foundation as to what City or Defendants actually knew.  The Court disregards the phrase “knew or” in paragraph 18.  The remainder of the objection is overruled.

The Court sustains Objection No. 15.

The other objections are overruled.

8500 Burton asserts twenty-five objections.

Objections Nos. 1 and 2 are to the declaration of Boyce Oandasan.  The objections are overruled.

Objections Nos. 3 through 18 are to the declaration of Mr. Burns. 

The Court sustains Objection No. 13 in part.  Mr. Burns offers no foundation as to what City or Defendants actually knew.  The Court disregards the phrase “knew or” in paragraph 18.  The remainder of the objection is overruled.

The Court sustains Objection No. 18.

The other objections to the declaration of Mr. Burns are overruled.

Objections Nos. 19 through 25 are to the declaration of Plaintiff’s counsel Tommy Troncoso.  The objections are sustained.

Request for Judicial Notice

8500 Burton requests that the Court take judicial notice of an order granting motions for summary judgment in a case entitled McKinley v. 8500 Burton Way, LLC (Case No. 19STCV01699).  The request is granted.  The Court takes judicial notice of the fact of the rulings and conclusions in the order (made in September 2020) and the fact that a lawsuit was filed against City and 8500 Burton in 2019 relating to a sidewalk defect in the same area.  The Court notes, however, that a prior ruling of the Los Angeles County Superior Court is not binding or precedential authority, and the Court does not take judicial notice that the rulings or conclusions of the Court are or were correct.

Discussion

Plaintiff alleges in his complaint that on December 21, 2018, he fell as a result of a dangerous condition in the sidewalk in front of a restaurant at 8500 Burton Way.  LBW and 8500 Burton each move for summary judgment; City joins the motion of 8500 Burton.

For ease of discussion, the Court begins with 8500 Burton’s motion, then addresses City’s joinder, and then concludes with LBW’s motion.

8500 Burton’s Motion for Summary Judgment

Plaintiff’s accident occurred between in the afternoon of December 21, 2018, between 1 and 4 pm. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 1, 10; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 1.)  The weather was clear.  (DSUMF, No. 15.)  There was no debris or other items covering the sidewalk defect.  (DSUMF, No. 16.)

At the time of the accident, Plaintiff was riding an unmotorized Razor scooter on the public sidewalk in front of the patio area of LBW’s restaurant.  (DSUMF, Nos. 9, 11; PSAMF, No. 1.)  8500 Burton owned the property that was leased to LBW for the restaurant.  (PSAMF, Nos. 1-3.)

The wheel of the scooter hit and became caught in the sidewalk defect, and Plaintiff fell and sustained injuries.  (DSUMF, No. 12; PSAMF, No. 4.)

Shortly before the accident, as Plaintiff approached the restaurant, there were seven or more pedestrians on the sidewalk.  (DSUMF, No. 13; PSAMF, No. 11.)  Because of the restaurant’s outdoor patio, the pedestrian traffic “funnels” in front of the restaurant.  (PSAMF, No. 16.)  Although a sidewalk is typically 36 to 60 inches in width (or more), the width of the sidewalk in front of the patio was only approximately 24 inches.  (PSAMF, Nos. 20-26.)

As Plaintiff rode his scooter, he testified that he was looking at the pedestrians as well as the sidewalk in an attempt not to bump into any pedestrians or hit anything dangerous.  (DSUMF, No. 14; PSAMF, No. 13.)  Plaintiff did not see the sidewalk defect before the accident.  (PSAMF, No. 14.)  Plaintiff testified that he “couldn’t see the part of the sidewalk that was damaged because it was the same color as the other part of the cement.  It was kind of camouflaged in.”  (Plaintiff’s Depo., at 27:14-17; PSAMF, No. 16.)

After the accident, Plaintiff saw that the sidewalk was broken, with “a chunk of the sidewalk missing,” resulting in a “hole” or a divot, and that “one part” of the sidewalk “was elevated higher than the other.”  (Plaintiff’s Depo., at 27:18-24; PSAMF, No. 15; DSUMF, No. 17.)

Prior to the accident, Plaintiff had not traveled on this sidewalk or seen the sidewalk defect. (PSAMF, No. 44.)

On March 27, 2024, Defendants’ expert John Tyson inspected the scene of the accident and took photographs and measurements.  Mr. Tyson “determined that the vertical displacement of the upper plane of the slab was no more than 3/4 of an inch above the plane of the lower surface slab.”  (Tyson Decl., ¶ 7.)  He “further determined that any chips or erosions in the lower slab were limited to a depth of approximately 3/8 of an inch.”  (Ibid.) 

Plaintiff’s expert Mark Burns inspected the scene of the accident on July 22, 2020, and took photographs and measurements.  Taking into account both the depth of the hole or divot and the sidewalk height differential, Mr. Burns estimates that the total size of the defect was approximately 1.125 inches.  (Burns Decl., ¶ 10 & Exh. 2.) 

Plaintiff asserts causes of action against 8500 Burton for negligence and premises liability.  The elements of a cause of action for premises liability and for negligence are the same: (1) the existence of a legal duty; (2) breach of that duty; (3) causation; and (4) resulting damages. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)

8500 Burton now moves for summary judgment on one ground: that it did not breach any duty to Plaintiff because the allegedly dangerous condition was, at most, a trivial defect as a matter of law.

The general rule governing duty is set forth in Civil Code section 1714: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) This establishes what the California Supreme Court has described as the “default rule” that every person has a legal duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

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.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] 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.)

The legal terms “dangerous condition” and “trivial defect” have been developed primarily in cases involving public entity defendants but may also be applied to private entities that own or control property.

In the Government Claims Act, the term “dangerous condition” is defined as a “condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.”¿(Gov. Code, § 830, subd. (a); see also Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 754.)¿“The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” (Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110; Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757.) 

Plaintiff has the burden of proving the existence of a dangerous condition. A court may not presume that there was a dangerous condition merely because the plaintiff was injured. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241 [describing such an argument as “reason[ing] backwards”].)

“A condition is not dangerous … unless it creates a hazard to those who foreseeably will use the property ... with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5; accord Nunez, supra, 81 Cal.App.5th at p. 758.) 

Related to the concept of a “dangerous condition” is the “trivial defect” doctrine. In the Government Claims Act, Government Code section 830.2 provides that a condition is not a “dangerous condition”:

“if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”

(Gov. Code, § 830.2.)

It is impossible to maintain public or private walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at pp. 109-110; Nunez, supra, 81 Cal.App.5th at p. 758; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) In general, the law does not make public or private landowners the “insurers” against injuries arising from trivial defects. (Stack, supra, 91 Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather, the trivial defect doctrine shields the owner from liability for “minor, trivial, or insignificant” defects. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) 

This is not to say that it is impossible for someone to trip, fall, and sustain injuries as a result of a defect that is trivial. (See Nunez, supra, 81 Cal.App.5th at pp. 759-760.) But the duty of care of a public entity (or a private landowner) does not extend to protecting pedestrians or others from minor or trivial defects. (Id. at pp. 757, 759.)

“The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove.” (Huckey, supra, 37 Cal.App.5th at p. 1104; accord Nunez, supra, 81 Cal.App.5th at p. 757.)   

“In appropriate cases, the trial court may determine ... whether a given walkway defect was trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1104.) “‘Where reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.’” (Id. at pp. 1104-1105 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) “If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law.” (Huckey, supra, 37 Cal.App.5th at p. 1105.)  

In cases involving allegedly dangerous conditions on a sidewalk or other walkway, courts often begin their analysis by considering the size of the defect. The size of the height differential, rise, or other defect is in many cases the “most important” factor. (Stack, supra, 91 Cal.App.5th at p. 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at p. 1105 [stating that size of defect “may be one of the most relevant factors”].) As the Court of Appeal has explained, however, “[i]n determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect.” (Huckey, supra, 37 Cal.App.5th at p. 1105 [emphasis in original].) “[A] tape measure alone cannot be used to determine whether the defect was trivial.” (Caloroso, supra, 122 Cal.App.4th at p. 927.) Rather, a “court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident.” (Huckey, supra, 37 Cal.App.5th at p. 1105.) 

“These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian’s view of the defect, the plaintiff’s knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents.” (Huckey, supra, 37 Cal.App.5th at p. 1105.) “In sum, ‘[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more [or less] dangerous than its size alone would suggest.’” (Ibid. [quoting Caloroso, supra, 122 Cal.App.4th at p. 927]; accord Nunez, supra, 81 Cal.App.5th at p. 757.) 

On the facts in the record here, the Court cannot conclude that the sidewalk defect at issue here was trivial as a matter of law.  There is evidence that the sidewalk defect in this case consisted of two components: a height differential in the sidewalk panels plus a “hole” where a “chunk” of the sidewalk was missing.  These two components, added together, created a defect that measured at least 1 and 1/8 of an inch.  There is evidence that Plaintiff was not familiar with the area, that the defect was at least partially camouflaged, that there were jagged edges in the defect, and that there was substantial pedestrian congestion as a result of the narrowing of the sidewalk to accommodate a private sidewalk patio at the restaurant leased by 8500 Burton to LBW.  Viewing the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences in his favor, a trier of fact could reasonably conclude that this was a dangerous condition that exposed Plaintiff and others to an unreasonable risk of harm.  Of course, the trier of fact might also reasonably reach the opposite conclusion, but on summary judgment the Court’s role is limited: it cannot weigh the evidence or attempt to predict or anticipate the likely outcome at trial.

Accordingly, 8500 Burton’s motion for summary judgment is denied.

City’s Joinder in 8500 Burton’s Motion

A party may join a motion for summary judgment by filing a joinder that gives the notice required by Code of Civil Procedure section 437c and also filing a separate statement that identifies the evidence demonstrating that the joining party is entitled to summary judgment.¿ (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637.)¿ City has satisfied these procedural requirements for joinder.  The request to join the motion is granted.

On the merits, however, City’s request for summary judgment is denied for the same reason as the motion of 8500 Burton: as stated above, there are triable issues of fact as to whether the sidewalk defect at issue was a dangerous condition rather than a trivial defect.

LBW’s Motion for Summary Judgment

As LBW’s motion is separate from 8500 Burton’s.  Because LBW’s motion is based on a similar but slightly different evidentiary record, the Court begins with a summary of the evidence offered by the parties in connection with LBW’s motion.

In 2012, LBW and 8500 Burton entered into a lease for the location identified as “Space 2” of 8500 Burton Way, Suite 200 (the “Lease”).  (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 4.)  The Lease states that Space 2 includes an exclusive patio area on Burton Way. (DSUMF, No. 5.)  The Lease also defines the “Common Area” to include “adjacent streets and sidewalks” and assigns to 8500 Burton, as landlord, the obligation to to “keep the Common Area in first class condition and repair and free of rubbish.”  (Defendant’s Exhibit A, ¶¶ 6.1, 6.3.)  LBW, however, has the obligation under the Lease to “maintain the [leased] Premises” and to keep them “in good, clean, sanitary and safe order, free of debris (including sidewalks and walkways adjacent to the Premises).”  (Id., ¶ 8.2.)

Plaintiff’s accident occurred between in the afternoon of December 21, 2018, between 1 and 4 pm.  (DSUMF, No. 9; Plaintiff’s Statement of Additional Material Facts [“PSAMF”], No. 1..)  The weather was clear, perhaps overcast, but it was not dark or raining.  (DSUMF, No. 9.)  There was no dirt, leaves, or other debris covering or concealing the sidewalk defect.  (DSUMF, Nos. 11, 18.)

At the time of the accident, Plaintiff was riding an unmotorized Razor scooter on the public sidewalk in front of the patio area of LBW’s restaurant. (DSUMF, No. 12; PSAMF, Nos. 1, 3.)  The wheel of the scooter hit and became caught in the sidewalk defect, and Plaintiff fell and sustained injuries.  (DSUMF, No. 12; PSAMF, No. 4.)

Shortly before the accident, as Plaintiff approached the restaurant, there were seven or more pedestrians on the sidewalk.  (DSUMF, No. 13; PSAMF, No. 11.)  Because of the restaurant’s outdoor patio, the pedestrian traffic “funnels” in front of the restaurant.  (DSUMF, No. 14; PSAMF, No. 16.)  Although a sidewalk is typically 36 to 60 inches in width (or more), the width of the sidewalk in front of the patio was only approximately 24 inches.  (PSAMF, Nos. 20-26.)

As Plaintiff rode his scooter, he testified that he was looking at the pedestrians as well as the sidewalk in an attempt not to bump into any pedestrians or hit anything dangerous.  (PSAMF, No. 13.)  Plaintiff did not see the sidewalk defect before the accident.  (DSUMF, No. 17; PSAMF, No. 14.)  Plaintiff testified that he “couldn’t see the part of the sidewalk that was damaged because it was the same color as the other part of the cement.  It was kind of camouflaged in.”  (Plaintiff’s Depo., at 27:14-17; PSAMF, No. 16.)

After the accident, Plaintiff saw that the sidewalk was broken, with “a chunk of the sidewalk missing,” resulting in a “hole” or a divot, and that “one part” of the sidewalk “was elevated higher than the other.”  (Plaintiff’s Depo., at 27:18-24; PSAMF, No. 15.)

Prior to the accident, Plaintiff had not traveled on this sidewalk or seen the sidewalk defect. (PSAMF, No. 44.)

On March 27, 2024, Defendants’ expert John Tyson inspected the scene of the accident and took photographs and measurements.  Mr. Tyson “determined that the vertical displacement of the upper plane of the slab was no more than 3/4 of an inch above the plane of the lower surface slab.”  (Tyson Decl., ¶ 7.)  He “further determined that any chips or erosions in the lower slab were limited to a depth of approximately 3/8 of an inch.”  (Ibid.) 

Plaintiff’s expert Mark Burns inspected the scene of the accident on July 22, 2020, and took photographs and measurements.  Taking into account both the depth of the hole or divot and the sidewalk height differential, Mr. Burns estimates that the total size of the defect was approximately 1.125 inches.  (Burns Decl., ¶ 10 & Exh. 2.)  Using Google Street View images, Mr. Burns also concluded that the defect “existed in the subject area at least as far back as 2014.”  (Id., ¶ 18 & Exh. 4.)  Mr. Burns also reviewed complaints or reports to the City about a broken or cracked sidewalk in this general area in July 2014, September 2017, April 2018, and May 2018.  (Id., ¶ 20 & Exh. 5.) 

Plaintiff asserts causes of action against LBW for negligence and premises liability.  LBW now moves for summary judgment on three grounds: (1) that under the Lease, LBW did not own, possesses, or control the sidewalk, and therefore LBW owed no duty of care to Plaintiff with regard to any dangerous condition on the sidewalk; (2) that LBW did not breach any duty to Plaintiff because the allegedly dangerous condition was, at most, a trivial defect as a matter of law; and (3) under the Sidewalk Accident Doctrine, it did not owe a duty to Plaintiff because it did not create the allegedly dangerous condition.  LBW also argues that if its motion against Plaintiff is granted, the Court should also dismiss City’s cross-complaint against it.

For ease of discussion, the Court begins with a combined discussion of the issue of control (LBW’s first argument) and the Sidewalk Accident Doctrine (LBW’s third argument).

The law regarding the liability of landowners with regard to defects or dangerous conditions on sidewalks abutting their property is well established in numerous appellate cases. “Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490 (citing Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 325).) By statute, specifically Streets and Highways Code section 5610, abutting property owners have an obligation to repair defects in the sidewalk, regardless of whether they created the defects. (See Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) Nonetheless, the so-called “Sidewalk Accident Doctrine” provides that abutting property owners have no duty to members of the public in tort law, and are not liable to members of the public, unless the property owner created the defect or exercised dominion or control over the abutting sidewalk. (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 255; Jordan, supra, 148 Cal.App.4th at pp. 1490-91 [Section 5610 “imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk”]; see also Contreras v. Anderson (1997) 59 Cal.App.4th 188, 196; Jones, supra, 152 Cal.App.3d at pp. 802-803.) 

Thus, for more than 150 years the general rule has been that “in the absence of a statute, a landowner is under no duty to maintain in a safe condition a public street or sidewalk abutting his property.” (Lopez, supra, 55 Cal.App.5th at p. 255.) “[A] person’s ownership or occupancy of property, without more, is insufficient to impose a duty to maintain abutting, publicly owned property. (Id. at p. 256; see also Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.”]; Williams v. Foster (1989) 216 Cal.App.3d 510, 521 [“we are unwilling to find the duty to maintain the sidewalk established by section 5610 is owed to members of the public in the absence of clear and unambiguous legislative language, especially in view of the long-standing judicial determination that abutters ordinarily have no such duty”].)

This general rule of no duty has two important exceptions, as set forth by the Court of Appeal in the Lopez case.

First, the owner or occupier of abutting private property can be liable for a dangerous condition on a public street or sidewalk when the owner or occupier created the hazard. (Lopez, supra, 55 Cal.App.5th at pp. 256-257.)

Second, the owner or occupier of abutting property can be liable when the owner or occupier has “exercised control” over the otherwise public property. (Id., at p. 255.) For this exception to apply, the owner or occupier must take some affirmative action that “has dramatically asserted dominion and control over the abutting, publicly owned property by effectively treating the property as its own.” (Id., at p. 256.) Performing simple maintenance, itself, is generally not sufficient. (Id., at p. 258.)

Moreover, with leased premises, “absent evidence that a tenant exercised ‘actual’ control of that portion of the premises where the plaintiff was injured, a tenant will not be held liable for the plaintiff’s injuries where the lease does not confer a right of control.”  (Moses v. Roger-McKeever (2023) 91 Cal.App.5th 172, 181.)

LBW is a defendant moving for summary judgment.  It has the initial burden of presenting evidence to show “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, subd. (p)(2).)  Here, on this record, LBW has not met its initial burden. 

LBW presents evidence that the lease assigned certain responsibilities to 8500 Burton (as landlord) and certain responsibilities to LBW (as tenant).  (Defendant’s Exhibit A, ¶¶ 6.1, 6.3, 8.2.)  But LBW does not present any evidence of whether it, in fact, through any act or omission, created or contributed to the creation of the dangerous condition.  Nor does LBW present any evidence of whether it, in fact, exercised any actual control of the public sidewalk abutting its leased premises.  Absent such evidence, the Court has failed to meet its initial burden as a defendant moving for summary judgment, and the Court must deny its request for summary judgment on those grounds.

Separately and independently, LBW argues that the defect in the sidewalk was not a dangerous condition and was, at most, a trivial defect. 

For the same reasons set forth above, however, on the facts in the record here, the Court cannot conclude that the sidewalk defect was trivial as a matter of law.  There is evidence that the sidewalk defect in this case consisted of two components: a height differential in the sidewalk panels plus a “hole” where a “chunk” of the sidewalk was missing.  These two components, added together, created a defect that measured at least 1 and 1/8 of an inch.  There is evidence that Plaintiff was not familiar with the area, that the defect was at least partially camouflaged, that there were jagged edges in the defect, and that there was substantial pedestrian congestion as a result of the narrowing of the sidewalk to accommodate a private sidewalk patio at the restaurant leased by 8500 Burton to LBW.  Viewing the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences in his favor, a trier of fact could reasonably conclude that this was a dangerous condition that exposed Plaintiff and others to an unreasonable risk of harm.  Of course, the trier of fact might also reasonably reach the opposite conclusion, but on summary judgment the Court’s role is limited: it cannot weigh the evidence or attempt to predict or anticipate the likely outcome at trial.

Accordingly, LBW’s motion for summary judgment is denied.

Conclusion

The Court DENIES the motion for summary judgment filed by Defendant 8500 Burton Way LLC.

The Court GRANTS the motion filed by Defendant City of Los Angeles to join the motion for summary judgment filed by Defendant 8500 Burton Way LLC.

The Court DENIES the request of Defendant City of Los Angeles for summary judgment.

The Court DENIES the motion for summary judgment of Defendant Larder Burton Way, LLC.