Judge: William A. Crowfoot, Case: 20STCV22452, Date: 2022-10-28 Tentative Ruling

Case Number: 20STCV22452    Hearing Date: October 28, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On June 15, 2020, plaintiff Elena Pescador (“Plaintiff”) filed this action against defendants City of Los Angeles (“City”), County of Los Angeles (“County”), and Los Angeles Unified School District (“Defendant”) (collectively, “Defendants”).  Plaintiff alleges she tripped and fell on a sidewalk near 981 E. 41st Street in Los Angeles, California, adjacent to 1047 E. 41st Street while walking on or about January 19, 2020.  (Compl., ¶ 9.)  Plaintiff alleges that Defendants knew or should have known of the dangerous condition but failed to warn of or remedy the defect.  (Compl., ¶ 10.) 

          On July 14, 2020, County was dismissed from this action.

          On July 14, 2020, Defendant filed an answer to the complaint and a cross-complaint against City and County.  Defendant then dismissed County from its cross-complaint. 

On August 13, 2020, City filed a cross-complaint against Defendant.

On March 18, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication.  Defendant argues that Plaintiff cannot establish that it controlled the public property at the time of the incident, that a dangerous condition existed, or that an employee created the dangerous condition.  Defendant also argues that there is no triable issue of material fact that any employee’s alleged unfitness or incompetence resulted in the harm suffered by Plaintiff.  Last, Defendant moves for summary adjudication of Plaintiff’s third and fourth causes of action for common law premises liability and negligence. 

On October 4, 2022, City filed an opposition to Defendant’s motion.  On October 17, 2022, Plaintiff filed an opposition to Defendant’s motion.  On October 21, 2022, Defendant filed its reply papers.

II.      FACTUAL BACKGROUND

          Plaintiff’s trip and fall incident occurred on January 19, 2020.  (Defendant’s Undisputed Material Fact (“UMF”) No. 2.)  Plaintiff’s trip and fall occurred as she was jogging on the public sidewalk.  (UMF No. 4.)  As she was jogging, her left foot became caught in the uplift on the sidewalk, causing her to fall.  (UMF No. 5.)  There were no trash, leaves, or a bicycle covering the condition of the sidewalk at the time of Plaintiff’s fall.  (UMF No. 8.)  The sidewalk where the alleged incident occurred was open to the public and outside of the Wadsworth Elementary School Campus (“Wadsworth ES”) owned by Defendant.  (UMF Nos. 1, 11.) 

III.     LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

“[T]he initial burden is always on the moving party to make a prima facia 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).)  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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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.     EVIDENTIARY OBJECTIONS

          Having reviewed the evidence that was material to its disposition of this motion, the Court rules on the parties’ evidentiary objections as follows:

          Plaintiff’s Objection Nos. 1 through 4: Overruled. 

V.      DISCUSSION

A. Procedural Issues

City argues that the Court lacks jurisdiction to hear this motion because Defendant did not provide the required 75 day’s notice because the hearing date for this motion was originally scheduled for June 2, 2022.  This is unpersuasive.  The motion was filed on March 18, 2022 and the motion was not heard on June 2, 2022 and then continued, as in Robinson v. Woods (2008) 168 Cal.App.4th 1258.  Instead, the Court set this hearing date on July 13, 2022, after granting Plaintiff’s ex parte application for a continuance.  This minute order provided 107 days’ notice.   

B. Substantive Issues

To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition or the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition.  (Gov. Code, § 835.)

Defendant first argues that Plaintiff cannot establish that it controlled the sidewalk at the time of her incident or that it owed a duty to maintain, manage, or repair the public sidewalk or to warn pedestrians of potential hazards.  A “public entity may not be held liable under section 835 for a dangerous condition of property that it does not own or control.” (Goddard v. Department of Fish and Wildlife (2015) 243 Cal.App.4th 350, 359.)

Defendant contends it never undertook the duty to maintain the sidewalk and, in the event that it became aware of a defect, its protocol was to first notify the City.  Defendant’s plant manager, Jose “Luis” Arellano, is responsible for supervising the maintenance, cleaning, and operation of Wadsworth ES’s campus, including all custodial work, and responding to all radio calls regarding complaints made to the main office about the condition of the school facilities, grounds, and property on the school campus.  (Arellano decl., ¶ 3.)  He declares that he reported the uplift to the City on September 13, 2016, but the City did not repair the area that was reported.  (Arellano Decl., ¶¶ 9, 11, 13.) 

In City’s opposition brief, City argues that Defendant, as the abutting landowner, is legally obliged to maintain the sidewalk in a safe condition, referring to section 5610 of the Streets and Highway Code (“section 5610”) and Los Angeles Municipal Code (“LAMC”) section 62.104.  In Plaintiff’s late-filed opposition brief, which the Court exercises its discretion to consider, Plaintiff also cites to section 5610, and LAMC section 62.104(b), as well as section 303.3 of the Americans with Disabilities Act to argue that Defendant owed a duty of care to maintain the sidewalk abutting its property. 

However, in Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 330-331, the court of appeal held that while abutting owners may be liable to travelers for injuries caused by the defective conditions caused by the failure to repair, these statutes must expressly provide that such duty to third parties is owed, in addition to the duty to repair.  Specifically, the Schaefer court stated:

“[I]t [the Improvement Act of 1911, section 31, currently codified as Streets and Highways Code, section 5610] was not passed for the purpose of transferring the primary duty to repair sidewalks to the property owner, and to relieve the city of that primary duty and responsibility.  The obvious purpose of the statute was to provide a means of reimbursing the city for the costs of the repairs.  To impose a wholly new duty upon the property owner in favor of third persons would require clear and unambiguous language. The present statute, even by implication, creates no such liability. ... It must be held that the complaint herein fails to state a cause of action against respondent Lenahan.”

(Schaefer, supra, 63 Cal.App.2d at p. 332.)

City relies on Gonzalez v. City of San Jose (2004) 125 Cal.App.4th 1127, which upheld the concurrent liability of the city and abutting landowner for their failure to maintain a city-owned sidewalk, under a municipal ordinance.  (Id. at p. 1134.)  However, the ordinance in Gonzalez is distinguishable from LAMC Sec. 62.104(b) because the ordinance in Gonzalez “mandate[d] that an adjacent landowner may be liable to third persons that are injured on a defective city-owned sidewalk.”  (Gonzalez, supra, 125 Cal.App.4th at p. 1133.)  No such mandate of liability to third persons is present in the statutes cited by Plaintiff and City.  Accordingly, neither Plaintiff nor City have shown that a triable issue of material fact exists regarding Defendant’s duty to Plaintiff. 

Defendant’s motion for summary judgment is GRANTED.

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’s 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.