DIANA PEKEL VS COUNTY OF LOS ANGELES

Tentative Rulings

Case Number: 18STLC08076    Hearing Date: July 06, 2020    Dept: 25

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED.  

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a)  OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))  OK

OPPOSITION: None filed as of July 1, 2020   [   ] Late [X] None

REPLY: None filed as of July 1, 2020   [   ] Late [X] None

ANALYSIS:

1. Background

On June 1, 2018, Plaintiff Diana Pekel (“Plaintiff”) filed an action for premises liability and general liability against Defendant County of Los Angeles (“Defendant”). On August 8, 2018, Plaintiff filed a First Amended Complaint (“FAC”) and on August 31, 2018, Defendant filed an Answer.

On December 18, 2019, the Court granted Plaintiff’s counsel’s Motion to be Relieved as Counsel. Plaintiff’s counsel filed a Notice of Order demonstrating Plaintiff was served with the Court’s order on January 7, 2020 by regular mail. (1/7/20 Notice of Hearing and Order.)

On January 27, 2020, Defendant filed the instant Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.)  As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “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).)

1. Discussion

A. First Cause of Action – Premises Liability

In her FAC, Plaintiff alleges that a puddle of liquid spilled in front of the ladies’ restroom at a government facility constituted a dangerous condition under Government Code sections 815.2, subdivision (a), 815.6, 820, subdivision (a), and 835. (FAC, ¶¶ 12, 15.)

Generally, a public entity is not liable for an injury, whether the injury arises from an act or an omission of the public entity, public employee, or any other person. (Gov’t Code, ¶ 815, subd. (a).) However, “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Govt. Code, § 815.6.)

In a negligence action against a public entity, Government Code section 835 applies, which provides:

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff established that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either: (a) 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; (b) the public entity had actual or constructive notice of the dangerous conditions under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

A dangerous condition means “a condition of property that creates a substantial…risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used” (Gov. Code, § 830, subd. (a).)

Defendant presents the following undisputed material facts:

Defendant owned and controlled the Department of Public Social Services (“DPSS”) building located at 9188 Glenoaks Blvd., Sun Valley, CA (the “DPSS Building”), at the time of Plaintiff’s alleged injury. (UMF No. 1, 4.) Plaintiff alleges that on December 11, 2017, she slipped and fell on a puddle of liquid that was 2-3 feet in diameter in front of the restroom at the DPSS office. (UMF Nos. 1-2, 4, 24.) Notably, the Government Tort Claim for Damages Plaintiff submitted on December 21, 2017 states she was injured on December 12, 2017. (UMF No. 3.)

The DPSS Building consists of a ground floor, which is an underground parking lot, and the second floor, the DPSS office. (UMF No. 15.) The elevator opens up directly to the DPSS office. (Id.) Directly across the elevator is a check-in or “navigation” desk at which all visitors are required to check-in. (UMF No. 16.) The check-in desk is always staffed. (Id.) There is no record of Plaintiff signing in at the DPSS office on December 11, 2017 or December 12, 2017, and Defendant’s daily appointment log does not reflect Plaintiff had an appointment on either of those dates. (UMF Nos. 6-7.)

In December of 2017, Pride Industries (“Pride”) provided custodial services, including maintenance of restrooms and corridors, for the DPSS office. (UMF Nos. 11-12.) At least one custodian was assigned to the DPSS Office on all dates it was open in December of 2017. (Id.) In addition, although Pride routinely documented spills or falls, none were documented for December 11, 2017 or December 12, 2017. (UMF No. 13.) Defendant also had a custom and practice of requiring the DPSS Office management team to complete a Security Incident Report for incidents, such as slip and falls, but no such report exists for Plaintiff on either December 11, 2017 or December 12, 2017. (UMF Nos. 9, 18.)

Furthermore, the women’s’ restroom is located about five feet from both the elevator and the check-in desk. (UMF No. 22.) The restroom is also directly across a security office, which has a clear view of the elevator, lobby, and restrooms. (UMF No. 17.) The security office is always staffed by security personnel and sworn deputy sheriffs. (Id.) Despite the close proximity, no one observed or reported the alleged spill or Plaintiff’s alleged fall. (UMF No. 26.)

Based on the above, Defendant has carried its initial burden to demonstrate that no triable issue of material fact exists as to the elements of breach, causation, and damages. The burden now shifts to Plaintiff to demonstrate the existence of a triable issue of material fact as to these elements. As the Motion is unopposed, however, Plaintiff has not carried her burden.

B. Second Cause of Action – General Liability  

Plaintiff’s second cause of action is for general negligence pursuant to Government Code section 815.2, subdivision (a), 815.6, and 820, subdivision (a). (FAC., p. 7:1-9.)

For the same reasons stated above, Defendant has carried its initial burden to demonstrate that no triable issue of material fact exists as to the elements of breach, causation, and damages. The burden now shifts to Plaintiff to demonstrate the existence of a triable issues of material fact as to these elements. As the Motion is unopposed, however, Plaintiff has not carried her burden.

1. Conclusion & Order

For the foregoing reasons, Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED. 

Moving party is ordered to give notice.

Case Number: 18STLC08076    Hearing Date: July 02, 2020    Dept: 25

MOTION FOR SUMMARY JUDGMENT/SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED.

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

OPPOSITION: None filed as of July 1, 2020 [ ] Late [X] None

REPLY: None filed as of July 1, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On June 1, 2018, Plaintiff Diana Pekel (“Plaintiff”) filed an action for premises liability and general liability against Defendant County of Los Angeles (“Defendant”). On August 8, 2018, Plaintiff filed a First Amended Complaint (“FAC”) and on August 31, 2018, Defendant filed an Answer.

On December 18, 2019, the Court granted Plaintiff’s counsel’s Motion to be Relieved as Counsel. Plaintiff’s counsel filed a Notice of Order demonstrating Plaintiff was served with the Court’s order on January 7, 2020 by regular mail. (1/7/20 Notice of Hearing and Order.)

On January 27, 2020, Defendant filed the instant Motion for Summary Judgment or, in the Alternative, Motion for Summary Adjudication (the “Motion”). To date, no opposition has been filed.

1. Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Vesely v. Sager (1971) 5 Cal.3d 153.) The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733.)

When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) When a Plaintiff or Cross-Complainant seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought. (Code Civ. Proc., § 437c, subd. (p)(1).) The moving party’s “affidavits must cite evidentiary facts, not legal conclusions or ‘ultimate’ facts” and be strictly construed. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519; Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden. (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.) Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial. (Code Civ. Proc., § 437c, subd. (p).) The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151.) As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute. (Code Civ. Proc., § 437c, subd. (f)(1).) “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).)

1. Discussion

A. First Cause of Action – Premises Liability

In her FAC, Plaintiff alleges that a puddle of liquid spilled in front of the ladies’ restroom at a government facility constituted a dangerous condition under Government Code sections 815.2, subdivision (a), 815.6, 820, subdivision (a), and 835. (FAC, ¶¶ 12, 15.)

Generally, a public entity is not liable for an injury, whether the injury arises from an act or an omission of the public entity, public employee, or any other person. (Gov’t Code, ¶ 815, subd. (a).) However, “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.” (Govt. Code, § 815.6.)

In a negligence action against a public entity, Government Code section 835 applies, which provides:

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff established that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that either: (a) 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; (b) the public entity had actual or constructive notice of the dangerous conditions under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

A dangerous condition means “a condition of property that creates a substantial…risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used” (Gov. Code, § 830, subd. (a).)

Defendant presents the following undisputed material facts:

Defendant owned and controlled the Department of Public Social Services (“DPSS”) building located at 9188 Glenoaks Blvd., Sun Valley, CA (the “DPSS Building”), at the time of Plaintiff’s alleged injury. (UMF No. 1, 4.) Plaintiff alleges that on December 11, 2017, she slipped and fell on a puddle of liquid that was 2-3 feet in diameter in front of the restroom at the DPSS office. (UMF Nos. 1-2, 4, 24.) Notably, the Government Tort Claim for Damages Plaintiff submitted on December 21, 2017 states she was injured on December 12, 2017. (UMF No. 3.)

The DPSS Building consists of a ground floor, which is an underground parking lot, and the second floor, the DPSS office. (UMF No. 15.) The elevator opens up directly to the DPSS office. (Id.) Directly across the elevator is a check-in or “navigation” desk at which all visitors are required to check-in. (UMF No. 16.) The check-in desk is always staffed. (Id.) There is no record of Plaintiff signing in at the DPSS office on December 11, 2017 or December 12, 2017, and Defendant’s daily appointment log does not reflect Plaintiff had an appointment on either of those dates. (UMF Nos. 6-7.)

In December of 2017, Pride Industries (“Pride”) provided custodial services, including maintenance of restrooms and corridors, for the DPSS office. (UMF Nos. 11-12.) At least one custodian was assigned to the DPSS Office on all dates it was open in December of 2017. (Id.) In addition, although Pride routinely documented spills or falls, none were documented for December 11, 2017 or December 12, 2017. (UMF No. 13.) Defendant also had a custom and practice of requiring the DPSS Office management team to complete a Security Incident Report for incidents, such as slip and falls, but no such report exists for Plaintiff on either December 11, 2017 or December 12, 2017. (UMF Nos. 9, 18.)

Furthermore, the women’s’ restroom is located about five feet from both the elevator and the check-in desk. (UMF No. 22.) The restroom is also directly across a security office, which has a clear view of the elevator, lobby, and restrooms. (UMF No. 17.) The security office is always staffed by security personnel and sworn deputy sheriffs. (Id.) Despite the close proximity, no one observed or reported the alleged spill or Plaintiff’s alleged fall. (UMF No. 26.)

Based on the above, Defendant has carried its initial burden to demonstrate that no triable issue of material fact exists as to the elements of breach, causation, and damages. The burden now shifts to Plaintiff to demonstrate the existence of a triable issue of material fact as to these elements. As the Motion is unopposed, however, Plaintiff has not carried her burden.

B. Second Cause of Action – General Liability

Plaintiff’s second cause of action is for general negligence pursuant to Government Code section 815.2, subdivision (a), 815.6, and 820, subdivision (a). (FAC., p. 7:1-9.)

For the same reasons stated above, Defendant has carried its initial burden to demonstrate that no triable issue of material fact exists as to the elements of breach, causation, and damages. The burden now shifts to Plaintiff to demonstrate the existence of a triable issues of material fact as to these elements. As the Motion is unopposed, however, Plaintiff has not carried her burden.

1. Conclusion & Order

For the foregoing reasons, Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED.

Moving party is ordered to give notice.

Case Number: 18STLC08076    Hearing Date: December 18, 2019    Dept: 94

TENTATIVE RULING

Motion of Attorney Julia Mack, Esq. of the Law Offices of Julia Mack to withdraw as counsel for Plaintiff Diana Pekel is GRANTED. ORDER EFFECTIVE UPON FILING OF PROOF OF SERVICE OF THE CORRECTED AND SIGNED ORDER GRANTING THE MOTION ON ALL PARTIES.

Moving party to give notice to client and all parties.