Judge: Steven A. Ellis, Case: 21STCV01448, Date: 2023-08-22 Tentative Ruling
Case Number: 21STCV01448 Hearing Date: September 5, 2023 Dept: 29
TENTATIVE
Defendant Harvard-Westlake School’s motion for summary judgment and adjudication are
DENIED.
Background
This case arises out of a motorcycle
accident that occurred at approximately 1:00 am on Sunday, October 18, 2020. (Complaint, p. 4.) Plaintiff Ryan Holowesko (“Plaintiff”) was
riding his motorcycle on Brooklawn Road in Los Angeles, California, when, he
alleges, he drove into a large body of water on the road, lost traction, and
crashed. (Ibid.)
On February 8, 2021, Plaintiff filed a
Complaint against the City of Los Angeles, Harvard-Westlake School, and Does 1
through 100. In the Complaint, Plaintiff
alleges (among other things) that the collection of water in the road was a
result of an improperly maintained sprinkler system. (Ibid.) Plaintiff asserts causes of action against
the defendants for general negligence and premises liability. (Ibid.)
On March 5, 2021, the City of Los Angeles
filed its answer. On March 9, 2021,
Harvard-Westlake School filed its answer.
On June 7, 2023, Defendant Harvard-Westlake
School (“Defendant”) filed a motion for summary judgment or, in the
alternative, for summary adjudication. On July 28, Plaintiff filed an
opposition and objections to Defendant’s evidence. On August 17, Defendant filed a reply.
The matter was initially set for hearing on
August 22, 2023. Due to an oversight of Defendant’s
counsel, one of the declarations in support of the motion was served but not filed
with the Court. Accordingly, the Court
continued the hearing and allowed Defendant to file the missing
declaration. Defendant did so, and the
Court may now proceed to the merits.
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
850-51; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510,
1520.) 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.)
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 850-51.) 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.)
Evidentiary
Objections
Plaintiff submits
Objections Nos. 1 through 25 to evidence submitted by Defendant. 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).)
The Court SUSTAINS
Objection Nos. 6 (lack of foundation/personal knowledge as to what information
was or was not provided to Defendant), 7 (hearsay), 8-9 (hearsay to the extent
offered as substantive evidence for truth of the matter asserted),10 (as to
Rappoport, hearsay to the extent offered as substantive evidence for truth of
the matter asserted; as to Oseguera, lack of foundation/personal knowledge);
The Court OVERRULES
Objections Nos. 1-5, 11-15, 16 (with the understanding that the phrase “assumed
the risk” is meant in a factual, and not a legal, sense), 17-25.
Discussion
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 36.) 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.)
“A plaintiff alleging injuries based on a dangerous condition must
prove the defendant either: (1) created the dangerous condition, or (2) knew or
should have known of the dangerous condition.” (See Peralta v. Vons
Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[A] defendant is entitled to
judgment as a matter of law if the plaintiff fails to show that the dangerous
condition existed for at least a sufficient time to be discovered by ordinary
care and inspection.” (Ortega, supra, 26 Cal.4th at 1207.)
“Whether a dangerous condition has existed long enough for a reasonably prudent
person to have discovered it is a question of fact for the jury.” (See id.)
“The owner must inspect the premises or take other proper action to ascertain
their condition, and if, by the exercise of reasonable care, the owner would
have discovered the condition, he is liable for failing to correct it.” (See id.)
“A store owner exercises ordinary care by making reasonable inspections of the
portions of the premises open to customers...” (See id. at 1205.) “[A]s
to business invitees, the owner should conduct frequent inspections.” (See id.
at 1207.)
1. Duty of Care
Plaintiff was riding his motorcycle
on Brooklawn Avenue, drove into some accumulation of water on the road, skidded,
and fell off of his motorcycle, causing injuries to him. (See SUMF Nos. 6-11.)
Defendant argues that it owed
no duty of care to Plaintiff because the water accumulated in a “low-lying area
… within the City’s Right of Way.” (SUMF
No. 43.) Water runs off from various
sources, including but in no way limited to Defendant’s property (SUMF No. 39),
and Defendant argues that it “did not have control over the culvert drainage”
(Mem. at 9).
Plaintiff’s claim, however, is
based on his assertion that the source of the water that caused his accident
was excess sprinkler water running off of Defendant’s property. (Complaint, at p. 5.) A landowner owes a general duty of care to
members of the public, and that duty “to
avoid exposing others to a risk of injury is not limited to injuries that occur
on premises owned or controlled by the landowner. Rather, the duty of care
encompasses a duty to avoid exposing persons to risks of injury that occur off
site if the landowner's property is maintained in such a manner as to expose
persons to an unreasonable risk of injury off-site.” (Barnes v. Black (1999) 71 Cal.App.4th
1473, 1478–1479.)
Defendant has not satisfied
its burden on summary judgment to show that Plaintiff cannot establish that
Defendant owed Plaintiff a duty of care.
2. Breach of Duty of Care
In his deposition, Plaintiff
testified about “broken sprinklers” on Defendant’s property. When asked what he meant, Plaintiff testified
as follows:
A.
Well, when sprinklers – a sprinkler’s job is to water
grass and plants and stuff, not the road.
So I mean I’m not a sprinkler expert.
So I don’t know if they were necessarily broker, but they’re not in use
properly.
Q. What makes you believe the sprinklers which were operating on the
night of the incident were not operating properly? Did you see them spraying water into the
street?
A. Yeah.
Q. Okay. So tell me know many
sprinklers were spraying water into the street on the date of the accident?
A. As far as I could tell, all of them.
Q. Give me an approximate of how many there were.
A. More than ten.
(Grigoryan Decl., Exh. A, at
181:22- 182:12.)
On the issue of breach, Defendant
relies on the testimony of its own witnesses.
Juvenal Oseguera, who owns the landscaping company that maintains the
sprinkler system on Defendans’s property, testified that at the time of the
incident, the sprinklers were scheduled to operate on Monday, Wednesday, and
Friday mornings at 1 am, and not at all on the weekends. (Oseguera Decl., ¶¶ 3-4.) (Defendant also asks the Court to consider
the testimony from Jeremy Rappoport on this issue, but he did not inspect the
premises until two years after the accident and so had no personal knowledge of
what did or did not occur on the date of the incident. [Rappaport Decl., ¶¶ 5-8.]) From that testimony, Defendant asks the Court
to draw the inference that the sprinklers were not operating at the time of the
accident, on a Sunday, when the accident occurred.
That is a reasonable
inference, no doubt, but it is directly contradicted by Plaintiff’s first-hand
testimony. On summary judgment, the
Court must view the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in his favor. Based upon its review of the evidence, the
Court concludes that there is a triable issue on the evidence relating to the issue
of breach, and that therefore the Court cannot grant summary judgment to
Defendant based upon an absence of evidence as to this element of Plaintiff’s
causes of action.
3. Causation
Finally, Defendant argues that
Plaintiff “assumed the risk” because of his own unsafe driving at the time of
the accident; according to Defendant, Plaintiff was driving too fast, being
inattentive, and he braked improperly, all of which contributed to his
injuries. (SUMF No. 48.) Further, when operating a motorcycle, Defendant states
that low beams give about 200 feet of visibility onto the roadway in direct
line of site. (SUMF No. 54.) This indicates that while driving down Brooklawn
Drive, Plaintiff should have been able to see the roadway 200 feet ahead, which
would have given Plaintiff enough time to avoid the dangerous condition in the
road. (SUMF Nos. 55-56.)
Although Defendant describes
this as “assuming the risk,” in fact what Defendant is arguing is properly
classified as comparative negligence.
Comparative negligence may well be a proper defense to raise at trial,
but as a general matter, and here, this is a question for the jury. “[T]he
court may rarely decide comparative
negligence questions without
submitting them to the jury.” (Maxwell v. Colburn (1980) 105 Cal.App.3d
180, 186.)¿¿
In sum, Defendant has not met its initial burden to show, through
the evidence in the record, “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 of Civil Procedure, § 437c, subd. (p)(2).) On these facts,
including the evidence cited and discussed above, Defendant owed a duty to
Plaintiff, and there are triable issues as to breach and causation.
Conclusion
Accordingly,
Defendant’s motion for summary judgment is DENIED.
For the same
reasons, Defendant’s motion for summary adjudication is DENIED.