Judge Timothy B. Taylor, Case 37-2021-00053351-CU-PO-CTL 2023-08-11 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00053351-CU-PO-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 10, 2023

08/11/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00053351-CU-PO-CTL LANDAIS VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/25/2023

Tentative Ruling on Catamaran Defendants' MSJ Landais v. City of SD, Case No. 2021-53351 August 11, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This personal injury accident arises out of a scooter accident in March of 2021 on Mission Blvd. in San Diego. Plaintiff alleges that as she was riding the motorized scooter, 'all of a sudden the wheel struck an uneven portion of the sidewalk and/or walkway and/or debris, causing Plaintiff severe injuries and damages.' The complaint filed December 21, 2021 named several defendants, and the theories against them varied according to their legal status. CalTrans and the County of San Diego have been dismissed, as have Bird Rides and Segway. ROA 16-21, 25-26. The City answered. ROA 15.

The owners/operators of the Catamaran Hotel demurred to the complaint on two grounds. ROA 23-24.

Following full briefing in advance of a hearing on August 19, 2022, the court overruled the demurrer in a detailed ruling. ROA 40. The Catamaran defendants thereafter answered separately through the same counsel. ROA 41-43.

The case was set for trial in April of 2023. ROA 33-37. It has since been continued twice, and the current trial date is January 5, 2024. ROA 45-50, 59-64.

Presently, the Catamaran defendants seek summary judgment on the complaint. ROA 51-58. Plaintiff filed opposition. ROA 67-70. Defendants filed reply. ROA 71-73. The court has reviewed the papers, and no further submissions are permitted in connection with this motion.

2. Applicable Standards.

A. A three-step analysis is employed in ruling on motions for summary judgment. Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373. First, the court identifies the issues framed by the pleadings. Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617. Second, the court determines whether the moving party has established facts justifying judgment in its favor. Id. Third, if the moving party has carried its initial burden, the court decides whether the opposing party has demonstrated the existence of a triable issue of material fact. Id. at 618. To satisfy this burden, the opposing party must Calendar No.: Event ID: TENTATIVE RULINGS

2966011 36 CASE NUMBER: CASE TITLE: LANDAIS VS CITY OF SAN DIEGO [IMAGED] 37-2021-00053351-CU-PO-CTL present admissible evidence and may not rely upon the allegations or denials of its pleading. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849. Summary judgment may only be granted when a moving party establishes the right to the entry of judgment as a matter of law. Code Civ. Proc. § 437c(c).

B. 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. At issue here is the element of duty. 'One who owns, possesses or controls land has a duty to act reasonably to protect others from a dangerous condition on the property.' Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177.

3. Evidentiary Objections.

Both sides objected to each other's evidence. ROA 70, 72. The court has ruled separately on the objections. ROA 74-75.

4. Discussion and Ruling.

The motion for summary judgment is granted.

A. 'A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.' Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.

'Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.' Id. Here, defendants presented evidence showing that they do not own, possess, or control the sidewalk where plaintiff's accident occurred. (Chester Decl., ¶¶ 6-14; McKinnon Decl., ¶¶ 6-14.) Such evidence is sufficient to shift the burden to plaintiff. Code Civ. Proc. § 437c(p)(2). Plaintiff does not dispute defendants' lack of ownership and possession of the sidewalk (see UMF 12, 15), but contends there is a triable issue of material fact regarding whether defendants controlled the sidewalk, thus creating a duty to protect or warn. The court disagrees.

B. Control requires an owner or occupier to take some 'affirmative' or 'positive' action toward the abutting, publicly owned property. Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 256. An owner or occupier of private land who has engaged in affirmative or positive conduct may be held liable for a hazard located on abutting, publicly owned property if the owner or occupier has created that the hazard. Id. Alternatively, an owner or occupier may be liable, even when the hazard was created by a third party, if the owner or occupier has ''dramatically asserted' the rights normally associated with ownership or possession that go beyond the ''minimal, neighborly maintenance of property owned by another.'' Id. at 258 (quoting Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200).

In this case, plaintiff has failed to establish that defendants created the uneven sidewalk. Even if the court considers the speculative statements from plaintiff's expert that tree roots caused the uplift in pavement, it is well-settled that an owner or occupier is liable in such situations only if the offending tree is located on its own side of the sidewalk. Lopez, 55 Cal.App.5th at 258. Plaintiff, however, has not identified any potential offending trees on defendants' side of the sidewalk. To the contrary, the undisputed evidence shows trees located on the opposite side of the sidewalk. (See Defs.' Ex. C; see also Chester Depo. at 16:2-3.) For this reason, plaintiff's reliance Pultz v. Holgerson (1986) 184 Cal.App.3d 1110 – where there were ''two large trees'' on the defendant's abutting property – is misplaced. See Pultz, 184 Cal.3d at 1113.

Plaintiff has also failed to establish that defendants treated the sidewalk as their own such that they may be liable for the trees on the opposite side of the sidewalk. While it is undisputed that defendants occasionally removed shrub trimmings, palm fronds, and litter from the sidewalk (see Chester Decl., see also Chester Depo. at 16:4-9, 17:15-21, 18:4-8, 20:24-21:5), such 'minimal, neighborly maintenance' is Calendar No.: Event ID: TENTATIVE RULINGS

2966011 36 CASE NUMBER: CASE TITLE: LANDAIS VS CITY OF SAN DIEGO [IMAGED] 37-2021-00053351-CU-PO-CTL insufficient to constitute the level of 'control' needed to impose tort liability. Lopez, 55 Cal.App.5th at 260; Contreras, supra, 59 Cal.App.4th at 200. There are no facts suggesting that defendants 'dramatically asserted' any of the rights normally associated with ownership or possession over the sidewalk. Lopez, 55 Cal.App.5th at 260; Contreras, supra, 59 Cal.App.4th at 200.

In this regard, Alpert v. Villa Romano Homeowners' Assn. (2000) 81 Cal.App.4th 1320 is distinguishable.

The defendant in that case planted and maintained trees and vegetation on both sides of the sidewalk, installed sprinklers on both sides of that walkway, and watered and trimmed the trees which grew the roots that caused the sidewalk to be uplifted and cracked. Id. at 1335. The Alpert court found that such 'substantial' activities showed the defendant's responsibility over the sidewalk. Id. The same simply cannot be said about defendants' conduct here.

C. Plaintiff next argues that defendants may be liable because they had actual and/or constructive notice of the uneven sidewalk and thus could have reported it to the City. This argument lacks merit.

Mere use of adjoining property or knowledge that an area of adjoining property is dangerous does not give rise to a duty of care. Instead, 'when it comes to imposing a duty upon an owner or occupier of land to maintain abutting, publicly owned property in a reasonably safe condition, 'the crucial element is control.'' Lopez, 55 Cal.App.5th at 255-56 (quoting Schwartz v. Helms Bakery, Ltd. (1967) 67 Cal.2d 232, 239). For the reasons discussed above, plaintiff has failed to create a triable issue of material fact that defendants controlled the sidewalk. Accordingly, defendants are entitled to summary judgment as a matter of law.

D. This ruling is dispositive as to the Catamaran defendants. Counsel for the Catamaran defendants is directed to submit a judgment of dismissal for the court's signature.

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