Judge: Steven A. Ellis, Case: 21STCV14423, Date: 2024-11-08 Tentative Ruling
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ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 21STCV14423 Hearing Date: November 8, 2024 Dept: 29
Bellamy v. City of Long Beach
21STCV14423
Defendant James W. Stewart II’s Motion for Summary Judgment
Tentative
The Motion for Summary Judgment filed by Defendant
James W. Stewart II is granted.
Background
Plaintiff Louise Bellamy (“Plaintiff”) alleges
that on November 10, 2020, she fell and was injured on a public path or walkway
in Long Beach. On April 16, 2021, Plaintiff filed a complaint against the City
of Long Beach (“City”) and Does 1 through 50 asserting causes of action for negligence
and premises liability.
City filed an answer on June 1, 2021.
On December 15, 2021, Plaintiff amended the complaint
to name James W. Stewart II (“Defendant”) as Doe 1.
On June 2, 2023, Plaintiff filed a First
Amended Complaint (“FAC”) asserting the same causes of action against the same
defendants. On June 6 and 29, 2023, Defendant and City filed answers to the
FAC.
On March 1, 2024, Defendant filed its motion
for summary judgment.
No opposition has been filed.
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.)
Discussion
The accident at issue occurred at approximately
midnight on November 10, 2020, on the street in front of 3732 Myrtle Avenue in
Long Beach (the “Property”). (Defendant’s Statement of Undisputed Material
Facts [“DSUMF”], No. 1.) Defendant owned the Property and rented it to
Plaintiff from February 2020 to January 2021. (DSUMF, Nos. 6-7.)
Plaintiff asserts that she was injured when she
stepped off the curb, tripped, and fell in the public street located in front
to the property. (DSUMF, Nos. 1, 3-5.)
In the FAC, Plaintiff asserts cause of action
against Defendant for negligence and premises liability. The basic
elements of a cause of action for negligence or for premises liability 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.)
Defendant moves for summary judgment (or in the
alternative for summary adjudication), arguing that, on these facts, he did not
owe any duty to Plaintiff.
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
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 or street. (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.)
To support his motion, Defendant includes the
deposition of Plaintiff, who states the street is what caused her accident.
(Exh. B, 22:1-3.) Further, Plaintiff states the street was cracked with holes
and dips. (Id., 41:2-15.) Plaintiff states that before she rented the
home, she told Defendant it was a dangerous area to park. (Id., 41:24-25,
42:1-9.) Plaintiff contends Defendant never maintained or repaired the public
road or the curb and gutter in front of the Property. (Id., 71:18-25;
73:4-15.) As for the magnolia tree, whose roots may have caused the defects in
the street, Plaintiff stated that she did not know whether Defendant planted it
and never saw Defendant maintain or trim the tree. (Id., 73:12-15; 74:8-14.)
Defendant also submits the deposition of Robert
Fiege, the person most knowledge for the City of Long Beach. Mr. Fiege states
the City is responsible for all maintenance of the street where the Property
was located. (Exh. C, 38:20-25.) Further, the City was responsible for trimming
of parkway trees; Mr. Fiege identified the magnolia tree in front of the
Property as parkway tree. (Id., 31:8-17; 40:15-23.) Also included with
this deposition testimony is the City’s tree maintenance guidelines including a
description of the City’s care when there is a tree and hardscape conflict.
Defendant provides his declaration, in which he
states he does not own, maintain, or control the public street, curb, or gutter
where Plaintiff fell. (Exh. D, ¶ 5.) Defendant further states that he did not
plant or own the magnolia tree on the parkway and did not control, trim, or
maintain the tree while he owned the Property. (Id., ¶¶7 & 8.) Defendant
states that the street is owned by the City of Long Beach, which is control of
maintaining the street and parkway tree. (Id., ¶¶ 10-12.)
Lastly, Defendant provides the declaration of
land surveyor Chris Nelson. Mr. Nelson contends that after reviewing subdivision
maps and the Tax Assessor’s Map book to show Plaintiff’s accident was in the
right-of-way of the City of Long Beach. (Exh. E, ¶¶4-5, 7.)
On this record, the
Court finds that Defendant has shown that he did not exercise control over the
street, or over the magnolia tree that caused the defect in the street. Defendant
has satisfied his initial burden as a party moving for summary judgment of
showing that duty, one of the elements of each of Plaintiff’s causes of action “cannot be established.” (Code Civ. Proc., §
437c, subd. (p)(2).) This shifts the burden on summary judgment to Plaintiff to
show that a “triable issue of one or more material facts exists” as to the
causes of action in the FAC. (Ibid.) Plaintiff has not filed an opposition to
the motion or otherwise discharged this burden.
Accordingly, the
motion is granted. On this record, Defendant has shown that he is entitled to
judgment as a matter of law on the causes of action against him in the FAC.
Conclusion
The Court GRANTS the motion for summary
judgment filed by James W. Stewart, II.