Judge: Steven A. Ellis, Case: 21STCV20111, Date: 2023-11-29 Tentative Ruling
Case Number: 21STCV20111 Hearing Date: November 29, 2023 Dept: 29
TENTATIVE
The Motion for Summary Judgment filed by
Defendant Artur Serardaryan is GRANTED.
Background
According to the Complaint, Plaintiff Aleatha
F. Tipton (“Plaintiff”) suffered severe injuries after she tripped and fell on
September 16, 2020, on the sidewalk near the intersection of Whitsett Avenue
and Cantara Street in Los Angeles. On May 27, 2021, Plaintiff filed the
Complaint asserting a claim for the dangerous condition of public property
under Government Code section 835 (and other statutes) against Defendants City
of Los Angeles (“City”), County of Los Angeles (“County”), and Does 1 through
20.
On October 1, 2021, the Court, at the request
of Plaintiff, dismissed the claims against County without prejudice.
On November 12, 2021, City filed an Answer and
a Cross-Complaint against Roes 1 through 20. On October 16, 2022, City filed an
Amended Answer.
On May 8, 2023, the Court denied City’s motion
for summary judgment.
On May 8, 2023, City amended the Cross-Complaint
to name Artur Serardaryan (“Defendant”) as Roe 1. On May 23, 2023, Plaintiff amended
the Complaint to name Defendant as Doe 1.
On May 24 and June 8, 2023, Defendant filed
Answers to the Cross-Complaint and Complaint.
On September 12, 2023, Defendant filed a motion
for summary judgment as to the claims in Plaintiff’s Complaint. Defendant also
filed supporting evidence and a Request for Judicial Notice. Plaintiff filed an
opposition and supporting evidence on November 14. The next day, November 15,
Defendant filed an “Amended/Corrected” Request for Judicial Notice. On November
17, Plaintiff filed objections to Defendant’s evidence. On November 22,
Defendant filed a reply and objections to Plaintiff’s evidence.
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/Request for Judicial Notice
Each party
objects to some of the evidence presented by the other. 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
objects to what she describes as “new evidence” that Defendant “filed and
served belatedly,” on November 15, the day after Plaintiff filed her Opposition.
Of course it is true that a party moving for summary judgment must submit his evidence
with the moving papers, and not with the reply (or otherwise after the
Opposition is filed), that is not what occurred here. Defendant submitted all
of his evidence with the moving papers. Defendant filed a Request for Judicial Notice
of nine documents, but he erroneously designated two of them as “Exhibit E” (both
of these documents which were attached to the Request). Defendant corrected the
lettered designation of the documents on November 15, but Defendant did not
submit any new or additional evidence that was not included in his moving
papers. Accordingly, Plaintiff’s objections are OVERRULED, and Defendant’s Request
for Judicial Notice is GRANTED.
Defendant’s
objections to Plaintiff’s evidence are OVERRULED.
Discussion
Plaintiff’s
claim against Defendant sounds in premises liability. 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. (Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.)
Defendant
moves for summary judgment on the ground that he did not owe or breach any duty
of care to Plaintiff. Defendant argues that Plaintiff fell and was injured on
public property, the parkway, and that, as an owner of abutting private
property, he is not liable for Plaintiff’s injuries.
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.)
These rules have
been developed primarily with regard to sidewalks, but the Court is not aware
of any reason that they would not also apply equally to allegedly
dangerous conditions in the parkway next to a sidewalk. (See Jones, supra, 152 Cal.App.3d at pp. 802-806 [abutting
landowner not liable for injuries caused by uplift in sidewalk that resulted
from the disruptive roots of a tree in the parkway].)
For
purposes of this motion, the facts are largely undisputed. Defendant is the
owner of private property at 8142 Whitsett Avenue in North Hollywood.
(Defendant’s Statement of Undisputed Material Facts [“DSUMF”] No. 1.) In front
of his house there is a sidewalk and a parkway, and at the time of the accident
the roots of a tree located in the parkway were exposed and protruded above the
soil. (DSUMF Nos. 3-6.)
On
September 16, 2020, Plaintiff was invited on to Defendant’s property by
Defendant’s son. (Plaintiff’s Statement of Undisputed Material Facts [“PSUMF”]
Nos. 1, 3.) When Plaintiff attempted to cross the parkway from the street to
reach Defendant’s property, she tripped over the exposed tree root on the
parkway, fell, landed on the sidewalk, and sustained injuries. (DSUMF No. 7.) The
sidewalk and the parkway where Plaintiff fell are on public property dedicated
to the City of Los Angeles as a public right-of-way. (DSUMF No. 8.)
Defendant
did not affirmatively create, through either an act or omission, the dangerous
condition alleged by Plaintiff to exist on the parkway at the time of her
accident. (DSUMF No. 18.) Defendant did not plant, prune, water, or otherwise
maintain the tree in the parkway in front of his property. (DSUMF No. 10.) Other
than occasionally sweeping up matter dropped from the trees, Defendant did not
perform any maintenance on the parkway. (DSUMF No. 11.) Prior to the accident,
Defendant had not made any alteration to the parkway. (DSUMF No. 14.) Following
the accident, someone (Plaintiff argues that the Court should infer that it was
Defendant or someone acting at Defendant’s direction) removed the tree root
that Plaintiff had tripped on. (DSUMF No. 14; PSUMF No. 6.)
Based on these undisputed facts, Defendant has
met his initial burden on a motion for summary judgment of showing that Plaintiff
cannot establish the essential elements of duty and breach in her cause of
action against Defendant. (Code
Civ. Proc., § 437c, subd. (p)(2).) This shifts the burden to Plaintiff to show
that a triable issue of one or more material facts exists. (Ibid.)
In her Opposition, Plaintiff makes essentially four
arguments.
First, Plaintiff argues that because she was
invited on to Defendant’s property, she had a special relationship with Defendant
that includes a duty of care. But that duty of care applies to what occurs on Defendant’s
property, not on other property that Defendant does not own or control. (See Petersen
v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 806; Schwartz
v. Helms Bakery (1967) 67 Cal.2d 232, 239 [“The crucial element is control.”].)
Second, Plaintiff argues that Defendant had the
legal right under Los Angeles Municipal Code § 62.169 to “install or modify
parkway landscaping” in front of the property without a permit. But the
exception to the general rule of no duty rule turns on whether the landowner
actually has exercised control over the sidewalk or parkway, not on abstract or
general legal principles. (See Lopez, supra, 55 Cal.App.5th at pp. 255-256; Jones, supra, 152
Cal.App.3d at pp. 804-806.)
Third, Plaintiff
argues that Defendant’s subsequent remediation of the dangerous condition
proves that Defendant controlled the parkway. Even accepting Plaintiff’s
argument that it is a reasonable inference that the remediation was done by or
at the direction of Defendant, this argument is not sufficient to defeat
Defendant’s motion. There is no evidence in the record that shows (or supports
an inference) that prior to the accident, Defendant created the hazard or
actually exercised control or dominion over the parkway. What happened
afterwards might support an argument that Defendant had an abstract legal right
or ability to exercise control over the parkway prior to the accident, but it
does not support an inference that Defendant actually did so.
Fourth, and
finally, Plaintiff cites the factors set forth in Rowland v. Christian
(1968) 69 Cal.2d 108, regarding the establishment of a duty of care or
exceptions to the general duty of care owed by all persons. These factors must
be applied at a fairly general level, not in the specific context of an
individual accident, and here the courts have already developed the general
rules for when a landowner does and does not have a duty of care with regard to
dangerous conditions in abutting public property sidewalks and parkways. The
application of the Rowland factors here does not lead to any different
result.
In sum, Plaintiff has not met her burden of
showing that there are any triable issues of material fact as to the elements
of duty and breach.
Defendant has shown that that there is no
triable issue as to any material fact as to the elements of duty and breach and
that he is entitled to judgment as a matter of law. Accordingly, Defendant’s motion
for summary judgment is GRANTED.
Conclusion
The Court GRANTS the motion for summary
judgment filed by Artur Serardaryan on 9/12/23.
Moving party is ordered to give notice.