Judge: William A. Crowfoot, Case: 21STCV07334, Date: 2022-12-22 Tentative Ruling

Case Number: 21STCV07334    Hearing Date: December 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On February 24, 2021, plaintiff Byron Merlos (“Plaintiff”) filed this action against defendants City of Santa Monica (“Defendant”) and Cleveland Reclaim Industries, Inc. dba Turtle Plastics (“Turtle Plastics”).  Plaintiff asserted causes of action for:( (1) dangerous condition of public property, (2) negligent installation, (3) strict products liability, (4) negligent products liability, (5) breach of express warranty of merchantability, and (6) breach of implied warranty of merchantability. 

          On April 8, 2021, Defendant filed an answer.  On April 19, 2021, Turtle Plastics filed an answer and a cross-complaint against Defendant and Herc Rentals, Inc. (“Herc”).  On May 17, 2021, Defendant answered Turtle Plastic’s cross-complaint and filed a cross-complaint against Herc.  On August 3, 2021, Plaintiff amended to name Herc as Does 1 and 51.  On October 1, 2021, Defendant named Turtle Plastics as Roe 1 in its cross-complaint.

          On March 8, 2022, the Court approved a stipulation between Defendant, Plaintiff, Herc, and Turtle Plastics to allow Plaintiff to file a First Amended Complaint (“FAC”).  The FAC adds Maria Merlos (“Merlos”) as a plaintiff and a loss of consortium claim.  

          On April 21, 2022, Defendant filed an answer to the FAC.

          On August 29, 2022, Defendant filed this motion for summary judgment.  

          On November 14, 2022, the Court continued the hearing on the motion so that the parties could submit supplemental briefing.  Both Plaintiff and Defendant submitted supplemental briefs on December 15, 2022. 

II.      FACTUAL BACKGROUND

          Defendant is a public entity.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  Within the city of Santa Monica, Ocean Front Walk and Marvin Braude Bike Path (“Bike Path”) run alongside or near the Santa Monica State Beach and provide views of the Pacific Ocean.  (UMF No. 4.)  The Pacific Ocean is a scenic destination.  (UMF No. 5.) 

          The general area of Plaintiff’s incident was renovated last in the 1990s as part of the BIG (Beach Improvement Group) Project.  (UMF No. 8.)  The BIG Project included new paving, lighting, and walls along Ocean Front Walk (formerly known as the Beach Promenade); replacing and refurbishing Muscle Beach equipment; adding a new children’s playground; expanding portions of Ocean Front Walk; and providing improved disability access.  (UMF No. 9.)  In 2019, in an effort to update the Beach Trail and Ocean Front Walk, Defendant embarked on the North Beach Trail Improvement Project (“Project”).  (UMF No. 10.) 

          On August 2, 2020, Plaintiff was riding his bike on the Bike Path in an organized bike ride.  (UMF No. 12.)  Bicycling is one of Plaintiff’s hobbies.  (UMF NO. 13.)  Bike traffic near the area of the Pier was diverted to Ocean Front Walk, as the Bike Path was closed for construction beneath the pier as part of the Project.  (UMF No. 14.)  Plaintiff was on Ocean Front Walk while traveling southbound and while south of the Pier.  (UMF No. 15.)  Plaintiff did not recall seeing any signs redirecting him to the Bike Path and he continued south on Ocean Front Walk.  (UMF No. 17.)  Plaintiff was injured while riding his bike on Ocean Front Walk at or near Hotel Casa Del Mar, after his bike made contact with a temporary hose bridge, causing him to fall.  (UMF No. 18.)  Defendant rented the temporary hose bridge for the purpose of limiting tripping hazards and to cover a hose that had been laid over Ocean Front Walk.  (UMF No. 19.)  A hose was placed over Ocean Front Walk to divert water due to higher flow from the Pico Kenter storm drain, which is near Hotel Casa Del Mar.  (UMF No. 20.) 

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.)

“[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).)  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

Pursuant to Code Civ. Proc., § 437c(q), the Court does not need to rule on Defendant’s evidentiary objections because the evidence objected to is not material to its disposition of the motion.

V.      REQUEST FOR JUDICIAL NOTICE

          Defendant requests the Court judicially notice that the Pacific Ocean is a scenic destination.  The Request is GRANTED.

          Plaintiff requests the Court judicially notice various city council minutes, staff reports, address points on Ocean Front Walk, and maps.  This request is GRANTED.  Plaintiff’s request for the Court to judicially notice the fact that “Ocean Front Walk is a street located in the City of Santa Monica” is GRANTED.

          Defendant’s Supplemental Request for Judicial Notice is DENIED. 

VI.     DISCUSSION

A public entity is not liable for an injury caused by the condition of any unpaved road that provides access to fishing, hunting, camping, hiking, riding (including animal and all types of vehicular riding), water sports, and recreational or scenic areas if such road is not: (1) a city street or highway; (2) a county, state, or federal highway; or (3) a public street or highway of a joint highway district, boulevard district, bridge and highway district, or similar district formed for the improvement or building of public streets and highways.  (Gov. Code, § 831.4, subd. (a).)  The immunity provided by this statute also applies to liability for injuries caused by the condition of any “trail” that is used for any of the above purposes, either paved or unpaved, including bicycle paths.  (Gov. Code § 831.4, subd. (b); Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097.)  This immunity is afforded to encourage public entities to open their property for public recreational use, because the burden and expense of putting such property in a safe condition and the expense of defending claims for injuries would likely cause many public entities to close such areas to public use.  (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413.)  

The immunity granted by this provision is absolute.  (Astenius v. State (2005) 126 Cal.App.4th 472, 476.)  “Whether a property is considered a ‘trail’ under section 831.4 turns on ‘a number of considerations,’ including (1) the accepted definitions of the property, (2) the purpose for which the property is designed and used, and (3) the purpose of the immunity statute.”  (Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 603 [citing Lee v. Department of Parks & Recreation (2019) 38 Cal.App.5th 206, 211].)  The purpose for which an area is being used “is ordinarily viewed as an issue of fact and becomes one of law if only one conclusion is possible.  (Montenegro v. City of Bradbury (2013) 215 Cal.App.4th 924, 929-930.) 

Defendant argues that Ocean Front Walk is a trail subject to trail immunity because it was constructed to serve as a path to be used for recreational purposes and to access the beach.  In the late 1990s and in 2016, staff reports specifically identify the beach and Ocean Front Walk, previously called the Promenade, as a recreational space.  (Compendium, Exs. 5-6.) 

Defendant also argues that the hose bridge was “inherently connected” to the trail and existed only because of its connection to the trail; therefore, the trail immunity applies.  Defendant argues that the hose bridge only existed because of its connection to the trail because it needed to divert water from a storm diversion to the sewer due to higher-than-normal flow.  The storm diversion was on the opposite side of Ocean Front Walk from the sewer manhole and a hose used to divert water was placed over Ocean Front Walk, with a hose bridge placed to cover the hose to limit tripping hazards.  Jeffrey Grooms, who is employed by Defendant as a Wastewater Treatment Plant Operator, declares that a release of water from the Santa Monica Water Treatment Plant in or about early June 2020 was planned and based on his experience, he believed the release of water could result in a flow that would be too high for the existing pumps to handle.  (Compendium, Grooms Decl., ¶ 3.)  He states that there was a need for “assistance to pump water from the Pico Kenter storm diversion/drain to the sewer, which is near Hotel Casa Del Mar.”  (Ibid.)  The sewer manhole was on the opposite side of Ocean Front Walk and he contacted Herc to rent equipment to pump water from the storm drain to the sewer.  (Ibid.)  Because the hose would have to be laid over a walkway, there was a need to cover the hose to limit any tripping hazards; thus, a “ramp” or “hose bridge” was placed over the hose.  (Ibid.)  The equipment was in place from approximately June 3, 2020, to August 17, 2020, and was removed once the flow levels improved.  (Id., ¶ 4.) 

Defendant cites to Reed v. City of Los Angeles (2020) 45 Cal.App.5th 979 as instructive.  In Reed, the plaintiff rode his bicycle on a paved path that ran along a sports field at MacArthur Park.  He rode into a rope tied to a badminton net, which had been stretched across the paved path, and was “clotheslined” by the rope.  (Id. at pp. 981, 984.)  The court concluded that “[a] badminton net is not a dangerous object in its ordinary context. But a badminton net stretched across a trail may create a dangerous condition [...] because it impedes the regular use of the trail.”  However, “[b]ecause the danger here is inherently connected to and exists only because of its connection with the trail, we conclude the doctrine of trail immunity bars [plaintiff’s] claims against the City....”  (Id. at p. 984.)  The court explained that immunity applies where “the conditions causing the injury” “were related entirely to the existence of the trail—if the trail did not exist, the dangerous condition would not have existed—and therefore those conditions were immunized.”  (Id. at 983.)  Here, in Defendant’s view,the hose bridge and Ocean Front Walk are inherently connected because the hose bridge was only placed in anticipation of the pedestrian foot traffic present on Ocean Front Walk, and therefore only existed because of its connection to Ocean Front Walk.   

Last, Defendant argues that applying the trail immunity to Ocean Front Walk arguably is consistent with public policy.  It contends that the sheer volume of visitors to the area, the beachside location (with sand and other debris), the presence of bicyclists, and other the numerous other visitors who walk, run, stroll, and engaging in other activities – all going at different speeds – demonstrates the need for immunity from liability. 

In opposition, Plaintiffs argue that Ocean Front Walk is not a “trail” because it is a pedestrian street.  Plaintiff distinguishes Ocean Front Walk from the Beach Bike Path and states that the Beach Bike Path is a mixed-use recreational trail whereas Ocean Front Walk is a street.  Plaintiffs cite to minutes from Defendant’s city council meetings which refer to Ocean Front Walk colloquially as a street, not a trail.  (Exh. List, Exs. I, J, K, L, M, compare with Ex. P.)  Plaintiffs also argue that Ocean Front Walk is not a “trail” because it has addresses and provides access to numerous businesses and residences that line it.  Plaintiffs add that it is not apparent that Defendant has not held Ocean Front Walk out to be a trail that users would be aware that they are using it at their own risk, but has consistently referred to it as a street. 

Given that Ocean Front Walk provides access to commercial and residential buildings, a reasonable factfinder could infer that the burden or expense of maintaining the paved street is no greater than that required of any other street or sidewalk and that Defendant would not close this area for public use if it were not granted trail immunity.  Plaintiffs correctly emphasize in their supplemental brief that where there is conflicting evidence or opposing inferences, thus raising a triable issue as to a material fact, the motion for summary judgment should be denied and the factual issues resolved by a trial.  (Cleveland v. Internet Specialties West, Inc. (2009) 171 Cal.App.4th 24, 31; Rutledge v. Hewlett-Packard Company (2015) 238 Cal.App.4th 1164, DeJung v. Superior Court (2008) 169 Cal.App.4th 533, 539; Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 354; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)  Here, conflicting evidence has been presented as to the use and purpose of Ocean Front Walk.  Because more than one conclusion is possible as to whether Ocean Front Walk is a trail entitled to immunity, a triable issue of fact exists and summary judgment cannot be granted. 

VI.     CONCLUSION

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

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.