Judge: William A. Crowfoot, Case: 20STCV04202, Date: 2022-08-11 Tentative Ruling

Case Number: 20STCV04202    Hearing Date: August 11, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On January 31, 2020, plaintiff Coral Markle (“Plaintiff”) filed this action against defendants Vanowen Gardens, LLC (“Defendant”), the City of Los Angeles, the County of Los Angeles, and Candida Property, LLC.  Plaintiff alleges that on June 17, 2019, she was injured on the public sidewalk on the property located between 14639 and 14635 Vanowen Street in Van Nuys, California.  On May 25, 2022, Defendant filed this motion for summary judgment on the grounds that it did not own, possess, or control the subject property.  The motion is unopposed.

II.          FACTUAL BACKGROUND

At the time of the incident, Defendant owned the property located at 14639 Vanowen Street, Van Nuys, CA 91405 (the “Vanowen Property”).  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  Defendant did not have a property interest in the sidewalk adjacent to the Vanowen Property.  (UMF No. 2.)  Defendant did not own, possess, lease, operate, manage, design, manufacture, maintain, repair, construct or control the sidewalk adjacent to the Vanowen Property.  (UMF No. 3.)  Defendant did not have a property interest in the adjacent property, located at the corner of Vanowen and Tobias.  (UMF No. 4.)  On June 17, 2019, Plaintiff was on her motorized wheelchair traveling on the sidewalk of Vanowen Street.  (UMF No. 5.)  Plaintiff’s motorized wheelchair hit a hole in the sidewalk causing her to fall out of her motorized wheelchair.  (UMF No. 6.)  Plaintiff identified the location of the elevated portion of the sidewalk to be in front of the neighboring property, not in front of Defendant’s property.  (UMF No. 7.)  The area Plaintiff identified as where she fell is on public sidewalk and is 3.5 feet east of Defendant’s eastern property line.  (UMF No. 14.) 

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         DISCUSSION

Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.  Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.  [Citation.]”  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)  Courts have held that in the absence of a staute a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger.  (See, e.g., Sexton v. Brooks (1952) 39 Cal.2d 153, 157.)  “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.”  (Vasilenko, supra, 3 Cal.5th at p. 1084.)  However, after applying the Rowland factors, courts have imposed a duty on adjacent landowners where the landowners magnified the danger of abutting property, obstructed the danger of abutting property, or had control over a condition on their property which would justified imposing a duty.

Defendant contends it did not possess, own, or maintain the sidewalk where Plaintiff fell and that the sidewalk was not even in front of its property.  Dany Hersko, one of Defendant’s managing members, declares that Defendant owned the property located at 14639 Vanowen Street in Van Nuys, but does not, and never did, own possess, lease, operate, manage, design, manufacture, maintain, repair, construct or control the sidewalk in front of the property.  (Barresi Decl., Ex. G (“Hersko Decl.”), ¶¶ 2-4.)  Hersko also declares that Defendant does not have, and never did have, an ownership interest in the adjacent property located on the corner of Vanowen Street and Tobias Avenue, in front of which Plaintiff fell.  (Hersko Decl., ¶ 5.)  Lastly, Hersko declares it does not, and never did, own, possess, lease, operate, manage, design, manufacture, maintain, repair, construct, or control the sidewalk in front of the adjacent property located on the corner of Vanowen Street and Tobias Avenue, in front of which Plaintiff fell.  (Hersko Decl., ¶ 6.)  Defendant also submits the declaration of a land surveyor, Chris Nelson, who states that, based on his review and preparation of maps as well as a land survey that he conducted, the location of the incident is 3.5 feet east of the east property line of 14639 Vanowen Street.  (Barresi Decl., Ex. F, ¶¶ 3-7.) 

Based on Defendant’s submitted evidence, the Court finds that Defendant has met its moving burden to make a prima facie showing that Plaintiff cannot establish it had a duty to maintain the sidewalk where she fell.  As Plaintiff did not oppose the motion, Plaintiff fails to meet her burden to show that a triable issue of material fact.  Accordingly, summary judgment is appropriate. 

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@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.