Judge William A. Crowfoot, Case 19STCV26888 2023-03-13 Tentative Ruling

Judge: William A. Crowfoot, Case: 19STCV26888, Date: 2023-03-13 Tentative Ruling

Plaintiff Timothy Andrew Northup (“Plaintiff”) filed this action on July 31, 2019 against City of Los Angeles, County of Los Angeles, and City of Pico Rivera, alleging (1) dangerous condition of public property, (2) vicarious liability for the wrongful acts or omissions by public entity employees, (3) premises liability, and (4) negligence. Plaintiff alleges that Defendants negligently maintained a sidewalk surface, causing Plaintiff injuries.

On October 16, 2019, Plaintiff dismissed County of Los Angeles. On April 22, 2021, Plaintiff dismissed City of Los Angeles. On May 27, 2021, Plaintiff amended the complaint to add Naomi Arias as Doe 1. On December 6, 2022, the Court granted City of Pico Rivera’s motion for summary judgment, and on January 4, 2023, the Court entered judgment in favor of City of Pico Rivera.

On January 18, 2023, Plaintiff filed a Notice of Intention to Move for a New Trial following the Summary Judgment. Plaintiff moved for an order deeming the motion timely filed, which the Court granted on February 8, 2023.

A motion for new trial may be granted in modifying or vacating a decision based on one of the following: (1) irregularity in the proceedings of the court by which either party was prevented from having a fair trial; (2) misconduct of the jury; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) newly discovered evidence; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict or other decision; and (7) error in law. (Code Civ. Proc., § 657.) A granting of summary judgment despite there being evidence showing a triable issue of material fact exists is an “error in law.” (See Tortorella v. Castro (2006) 140 Cal.App.4th 1, 10-13.)

Plaintiff argues that a new trial should be granted on the following grounds: (1) insufficiency of evidence to justify the decision and (2) error in law.

Plaintiff argues that the Court improperly sustained Defendant’s objections to the Declaration of Kay Greeley and that the Court improperly relied upon Union Bank v. Superior Court (1995) 31 Cal.App.4th 573. Plaintiff argues that these errors were prejudicial and led the Court to erroneously conclude that there were no triable issues of material fact.

In opposition, Defendant City of Pico Rivera argues that there was no error in law or insufficiency in the evidence because (1) the Court properly excluded the Greeley Declaration because it did not contain the mandatory requirement of Code of Civil Procedure section 2015.5 and the Court properly excluded the declaration because Ms. Greeley did not attach any of the documents upon which she relied; and (2) Plaintiff does not provide any legal or factual basis as to why it was error for the Court to rely upon Union Bank.

As a preliminary matter, Plaintiff has not provided this Court with adequate reasons for a new trial based on insufficiency of the evidence. “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict…unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.) Plaintiff has not provided any reasons Defendant’s evidence was insufficient to justify the verdict.

Under the “error in law” ground for new trial, a court may grant a new trial if its original ruling, as a matter of law, was erroneous. (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1.) The trial court cannot grant a new trial except where error alleged is somehow prejudicial.

In the Summary Judgment Minute Order, the Court granted summary judgment as to the only properly pleaded cause of action – dangerous condition of public property. The Court granted summary judgment when Defendant put forward evidence that (1) Plaintiff did not have any measurements or estimates of the raised sidewalk and thus could not prove that the sidewalk was in a dangerous condition, (2) that Plaintiff admitted he did not know how long the alleged dangerous condition had existed, and (3) that Plaintiff could not show actual or constructive notice. The Court found that, excluding Ms. Greeley’s declaration, Plaintiff had not put forward any proof of actual or constructive notice.

Plaintiff argues that the Court made an error in law by excluding Ms. Greeley’s declaration. The Court originally continued the hearing to allow for Plaintiff’s counsel to file supplemental documents, including a supplement to Ms. Greeley’s declaration. However, after these documents were filed, the Court still sustained Defendant’s objections to Ms. Greeley’s declaration due to “Plaintiff’s failure to authenticate the images and attach the exhibits that Greeley relied upon.” (12/6/22 Minute Order.)

Plaintiff argues that the documents are properly authenticated. Attached as Exhibit C to Ms. Greeley’s Declaration were Google Maps Street View images. Ms. Greeley stated in her declaration that she “routinely uses and relies on Google Earth Pro, Google Maps, including Street View…to acquire historic images of private property and public infrastructure… In my experience, the accuracy of Google Earth and Google Street View images (the images themselves and the dates when the images were captured) are reasonably indisputable” (Greeley Amended Decl. ¶ 19, Exhibit C.)

Authentication of a photograph is required before it may be admitted into evidence. (Evid. Code §§ 250, 1401.) A photograph or video recording is typically authenticated by showing it is a fair and accurate representation of the scene depicted. (In re K.B. (2015) 238 Cal.App.4th 989.) Authentication of a photograph does not require the testimony of the one who took the picture, and the showing may be made by the testimony of anyone who knows that the picture correctly depicts what it purports to represent. (People v. Goldsmith (2014) 59 Cal.4th 258; People v. Chism (2014) 58 Cal.4th 1266.)

Plaintiff alleges that he tripped and fell on a sidewalk on February 8, 2019. Greeley attaches photos from Google Maps that purportedly depict the sidewalks in front of several addresses. The first image, which appears to be from July 2007, has two different addresses on it; the top says “5323 Bridgeview Ave” while the bottom says “5318 Bridgeview Ave.” The second image is supposedly from September 2012 and again has two addresses: (1) 5312 Bridgeview Ave and 5318 Bridgeview Ave. The third image is dated July 2016 and names 5317 Bridgeview Ave and 5318 Bridgeview Ave. The fourth image includes 5312 Bridgeview Ave and 5318 Bridgeview Ave. Only the fifth image, from February 2019, shows an offset in a sidewalk in front of 5318 Bridgeview Avenue. Greeley offers no explanation for the different addresses on these images and, even if she did, her declaration would still be insufficient to raise a triable issue of material fact. A public entity has constructive notice of a dangerous condition if it is established that the condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code, § 835.2 subd. (b).) The Google images, even if they depict an offset, do not demonstrate that the alleged defect was of an “obvious nature.”

Thus, the Court cannot find that the exclusion of the Google images in particular or Greeley’s Amended Declaration as a whole was an error in law or prejudicial.

Plaintiff argues that the Court relied on Union Bank erroneously to assert that Plaintiff’s “factually devoid” responses satisfied Defendant’s burden of proof. Plaintiff argues that “factually devoid” responses are not a sufficient basis to grant summary judgment when Plaintiff had not had an adequate opportunity to conduct discovery.

However, the Court cannot find that this determination was an error as a matter of law. Plaintiff puts forth no evidence to show he lacked adequate time to either oppose the motion or conduct discovery.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court