Judge: Steven A. Ellis, Case: 21STCV07226, Date: 2024-08-05 Tentative Ruling
Case Number: 21STCV07226 Hearing Date: August 5, 2024 Dept: 29
Motion for Summary Judgment filed by the Gold Cross-Defendants
TENTATIVE
The Motion for Summary Judgment filed by the
Gold Cross-Defendants is DENIED.
Background
On February 24, 2021, Plaintiffs Raumak and
Neama Rahmani (collectively “Plaintiffs”) filed the complaint against City of
Los Angeles (“City”) and Does 1 through 100, asserting causes of action for (1)
dangerous condition of public property; (2) violation of statutory duty under
Streets and Highway Code; (3) violation of statutory duty under Municipal Code;
(4) violation of statutory duty under Government Code, (5) general negligence,
(6) premises liability, and (7) loss of consortium. According to the Complaint,
Plaintiff Raumak Cynthia Rahmani (“Raumak”) suffered severe injuries when
riding a Razor scooter on the sidewalk near 10558 Ohio Avenue in Los Angeles.
After City’s demurrer was sustained with leave
to amend (in part), Plaintiffs filed the First Amended Complaint (“FAC”) on January
28, 2022, asserting causes of action for (1) dangerous condition of public
property, (2) general negligence, (3) premises liability, and (4) loss of
consortium against the same defendants.
On February 28, 2022, City filed its answer and
a cross-complaint against Roes 1 to 10 for indemnification, apportionment of
fault, and declaratory relief.
On November 22, 2022, City amended its
cross-complaint to name Mitchell M. Gold as Roe 1, Geraldine A. Gold as Roe 2,
and the Gold Trust as Roe 3(collectively the “Gold Cross-Defendants”). Mitchell
and Geraldine Gold filed an answer to the cross-complaint on February 28, 2023.
The Gold Trust filed an answer to the cross-complaint on April 3, 2023.
On August 18, 2023, Plaintiffs amended the FAC
to name Mitchell Gold, individually, as Doe 81; Geraldine Gold, individually,
as Doe 82; Mitchell Gold, as Co-Trustee of the Gold Trust, as Doe 83; and Geraldine
Gold, as Co-Trustee of the Gold Trust, as Doe 84. These defendants filed an
answer to the FAC on September 20, 2023.
On May 24, 2023, the Gold Cross-Defendants
filed this motion for summary judgment as to City’s cross-complaint. City filed
an opposition on July 24, 2024. The Gold Cross-Defendants filed a reply an
objections to evidence on July 31.
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 or cross-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 or cross-defendant has met that burden, the burden
shifts to the plaintiff or cross-complainant 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.)
Objections to Evidence
The Gold Cross-Defendants assert three objections to the
Declaration of David Whyte, submitted by City with its opposition. 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 OVERRULES the objections. Mr. Whyte has appropriate credentials and his
testimony relates to a subject that is sufficiently beyond common
experience that the opinion of an expert witness would assist the trier of act;
is based on information of the type on which an expert may reasonably rely; is
based on reasons supported by the information on which the expert relies; and
is not speculative. (Evid. Code, §§ 801-802; Sargon Enterprises v. USC
(2012) 55 Cal.4th 747, 771-21.) The objections of the Gold Cross-Defendants go
to the weight to be given to Mr. Whyte’s expert opinion testimony, not its
admissibility, and the Court does not weigh evidence on a summary judgment
motion.
Discussion
Plaintiff
Raumak Rahmani alleges that she was injured due to a defect or dangerous
condition on the sidewalk in front of property owned by the Gold
Cross-Defendants. (Cross-Defendants’ Statement of Undisputed Material Facts [“SUMF”],
No 1.) Plaintiffs allege that the cracking or offset in the sidewalk was the
result of tree roots growing under the sidewalk from a tree owned and
maintained by City on the parkway. (SUMF, No 2.)
In
its cross-complaint against the Gold Cross-Defendants, City asserts causes of
action for indemnification, apportionment of fault,
and declaratory relief.
“The
elements of a cause of action for indemnity are (1) a showing of fault on the
part of the indemnitor and (2) resulting damages to the indemnitee for which
the indemnitor is contractually or equitably responsible. Equitable indemnity
principles govern the allocation of loss or damages among multiple tortfeasors
whose liability for the underlying injury is joint and several.” (Expressions
at Rancho Niguel Ass'n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th
1135, 1139.)
“The
comparative fault doctrine is designed to permit the trier of fact to consider
all relevant criteria in apportioning liability. The doctrine is a flexible,
commonsense concept, under which a jury properly may consider and evaluate the
relative responsibility of various parties for an injury (whether their
responsibility for the injury rests on negligence, strict liability, or other
theories of responsibility), in order to arrive at an equitable apportionment
or allocation of loss. (Phipps v. Copeland Corporation LLC (2021) 64
Cal.App.5th 319, 332.)
The
controlling issue raised by the motion of the Gold Cross-Defendants is one of
fault: the Gold Cross-Defendants argue that they owed no duty and/or breached
no duty to Plaintiffs, and therefore they are not at fault and are not a joint
tortfeasor.
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 elements of a cause of action for premises
liability are the same as those for negligence: duty, breach, causation, and
damages. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158-1159; Castellon v.
U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)
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 an important exception: when the abutting property owner
has “exercised control” over the otherwise public property. (Lopez, supra,
55 Cal.App.5th at p. 255.) For this exception to apply, the abutting owner must
take some affirmative action regarding the public property, such as when the
abutting owner has created the hazard or asserted “dominion and control over
the … publicly owned property by effectively treating the property as its own.”
(Id. at p. 256.)
The Gold
Cross-Defendants presented evidence in their moving papers that they do not
own, maintain, control, or possess the sidewalk on which the accident occurred,
and that they did not plant the tree in the parkway whose roots apparently caused
the sidewalk uplift or defect. (SUMF, Nos. 11, 13-14, 16-17; Nelson Decl., ¶ 7;
B. Gold Decl., ¶¶ 12-16.) That evidence is sufficient, on summary judgment, to
shift the burden to City as the non-moving party. (See Code Civ. Proc., § 437c,
subd. (p)(2).)
In response,
City submits two declarations.
Greg Applegate,
a certified arborist, states that he inspected the site on September 13, 2023. (Applegate
Decl., ¶ 6.) Mr. Applegate observed that the tree at issue, a Chinese elm, is
in the parkway, approximately two-and-a-half feed from the sidewalk. (Id.,
¶ 8.) The sidewalk next to the tree has been raised approximately two inches. (Ibid.)
The tree has a shallow root, almost six inches in diameter, that extends from
the truck toward the lifted panel of the sidewalk. (Ibid.) Based on
these facts, Mr. Applegate opines that the root of the Chinese elm tree in the
parkway caused the sidewalk uplift. (Id., ¶ 9.)
David
Whyte, a licensed plumber, testifies that he also conducted an inspection of
the site on September 13, 2023. (Whyte Decl., ¶ 5.) Mr. Whyte observed heavy
root intrusion and cracking in the house drain and the sewer lateral. (Ibid.)
“This condition,” Mr. Whyte testifies, “allows the tree roots to freely and
unrestrictedly absorb nutrients and water from the sewer and drain line” and “would
most certainly accelerate and allow the uncontrollable grown of the tree and
its root system.” (Ibid.) Mr. Whyte concludes that lateral sewer line
had been leaking “and provide moisture for the tree roots to grow under the
sidewalk.” (Id., ¶ 7.)
This evidence,
viewed in the light most favorable to the non-moving party, is sufficient to
create a triable issue on the material fact and whether the Gold
Cross-Defendants, through their actions or inactions, contributed to some
degree to the growth of the roots of the Chinese elm, and thus contributed to
some degree to the offset in the sidewalk. With this evidence, a trier of fact
could reasonably draw the inference that the Gold Cross-Defendants caused or
contributed in part to the sidewalk defect. Whether the City has a strong case
or a weak case is not before the Court.
In the
alternative, the Gold Cross-Defendants argue that they had no notice of the
dangerous condition, as there had not been any prior accidents, trips or falls at
the site of Plaintiff’s accident. (B. Gold Decl., ¶ 17.) Given the size of the
defect (approximately two inches), however, a reasonable trier of fact could
conclude that it did not arise overnight and that the Gold Cross-Defendants must
have been aware of the dangerous condition for a substantial period of time
prior to the accident.
In sum, there are triable issues of whether the
Gold Cross-Defendants caused or contributed, in some degree, to the sidewalk
defect and whether they had knowledge of the condition. Accordingly, the motion
for summary judgment of the Gold Cross-Defendants is DENIED.
Conclusion
The Court DENIES the motion for summary
judgment filed by the Gold Cross-Defendants.
Moving party is ordered to give notice.