Tentative Rulings

Case Number: BC641579    Hearing Date: December 28, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

Background

Plaintiff Christina Passoth (“Plaintiff”) filed this action against Defendant 1017 Maple Avenue, LLC (“Defendant”) after she tripped and fell on a sidewalk outside Defendant’s building. Defendant moves for summary judgment, arguing that it does not own the sidewalk and did not create the sidewalk defects at issue. Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

EVIDENTIARY OBJECTIONS

The Court rules as follows on Defendant’s objections:

Objection #1 – Overruled. Because Gsell is an expert, he may render an opinion. The issues raised by Defendant go to weight, not admissibility. Regardless, the Court would render the same ruling even if it sustained this objection.

Objection #2 – Sustained.

Objection #3 – Sustained.

Objection #4 – Sustained.

Objection #5 – Overruled. Because Gsell is an expert, he may render an opinion. The issues raised by Defendant go to weight, not admissibility. Regardless, the Court would render the same ruling even if it sustained this objection.

Objection #6 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).

Objection #7 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).

Objection #8 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).

Objection #9 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).

Objection #10 – The Court need not rule on this objection, per Code of Civil Procedure section 437c(q).

Objection #11 – Sustained in part and overruled in part. The Court does not consider the portion of this opinion that relies on the expert report of David Whyte. The objection is overruled with respect to the second part: “From an engineering perspective . . . .” Because Rosescu is an expert, he may render an opinion. The issues raised by Defendant go to weight, not admissibility.

Objection #12 – Sustained.

Objection #13 – Sustained.

Objection #14 – Sustained.

Objection #15 – Sustained.

DISCUSSION

Streets and Highways Code section 5610 requires property owners to maintain any adjacent sidewalk in a condition that will not endanger pedestrians or interfere with their use of the sidewalk. (See Sts. & Hy. Code, § 5610.) However, this duty runs to the city rather than to the individual walking on the sidewalk:

Under section 5610 the abutting owner bears the duty to repair defects in the sidewalk, regardless of whether he has created these defects. It was felt, however, that it would be unfair for such an owner to be held liable to travelers injured as a result of sidewalk defects which were not of the owner’s making. Thus the “Sidewalk Accident Decisions” doctrine arose; this doctrine holds that the abutting property owner is not liable in tort to travelers injured on the sidewalk unless the owner somehow creates the injurious sidewalk condition.

(Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) Although property owners owe a duty to remedy sidewalk defects, absent evidence that they caused or contributed to the defects, there is no direct liability to the pedestrian.

Defendant relies on a declaration from Andy Phan (“Phan”), a member of Defendant’s limited liability company, in which he states that Defendant does not exercise possession or control over the sidewalk, and has not altered or modified the sidewalk in any manner. This is sufficient to satisfy Defendant’s burden, shifting the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue.

In opposition, Plaintiff relies on the declaration of Philip L. Rosescu, a civil engineer who reviewed the discovery and inspected the sidewalk at issue. According to Rosescu, there is a drainpipe running under the sidewalk at issue, and the drainpipe directs roof run-off from Defendant’s property onto the street. (Declaration of Philip L. Rosescu, ¶ 13.)

Plaintiff relies on the deposition of David Whyte, a plumbing expert for the City of Los Angeles who inspected the area at issue. Whyte testified as follows:

Well, for my 40 years of plumbing experience, when we see sidewalks that have been cut, jackhammered and so forth for a repair of underground water lines, area drains, and so forth, normally when a drain is repaired, it’s cut properly in a square of semi-good path, the drain line is removed, the ground is compacted, the drain line is put back, packed in sand, it’s compacted some more and the concrete is repaired. From what I’m finding on this job, there was a repair done to this pipe, but there wasn’t proper compaction or support for the concrete, and thus, the concrete has sunk back down and cracked, causing a hazard.

(Declaration of Danielle K. Little, Exh. C, p.14.) He testified that there was no indication of a square cut on the sidewalk and stated that it “was just a generalized repair” that appeared to have been “done with a jackhammer or sledgehammer.” (Id., Exh. C, p.15.) He opines that the repair to the pipe likely was completed when the roof was repaired or shortly thereafter. (Id., Exh. C, p.15.) He provides foundation for this opinion:

So the repair in the pipe probably would have been done when the roof was repaired or after the roof was repaired, because basically, the repair -- if the roof is not draining, then they’re going to go ahead and see where it’s clogged and repair the pipe. When you put that kind of money into a roof on a property, you’re going to darn well make sure that the roof life drains. So it could have been repaired after the roof was done and tested and it clogged or something.

(Id., Exh. C, p.16.) Finally, Whyte opines that the City did not do the work because it was not consistent with how the City’s contractors would perform such work. (Id., Exh. C, p.19.)

Plaintiff relies on the declaration of Gary M. Gsell, a municipal infrastructure assessment consultant who reviewed the discovery in this case. Gsell opines that the “only probable reason” for the condition of the sidewalk was to repair or service the roof drains for Defendant’s property. (Declaration of Gary M. Gsell, ¶ 11.)

Finally, Plaintiff relies on the admissions of Defendant and the deposition of Andy Phan. By and through Phan, Defendant admitted that “former members” of Defendant owned the building at issue from July 16, 2006, to 2014, at which point “membership was transferred to the current members of [Defendant].” (Id., Exh. A.) Phan admitted that during this time period, Defendant repaired the roof. (Id., Exh. B, p.116.) Phan also testified that Defendant’s records were incomplete, and he had no personal knowledge of repairs from 2006 to the time he became a member of the company. (Id., Exh. B, p.130.) Indeed, these facts give rise to a credibility issue with respect to Phan’s testimony that the jury may resolve in favor of Plaintiff.

Based upon the foregoing, there is sufficient evidence to give rise to a triable issue whether Defendant created the sidewalk defect at issue. Therefore, the motion for summary judgment is denied.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is denied. Defendant shall provide notice and file proof of such with the Court.

DATED: December 28, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC641579    Hearing Date: October 20, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Judge Goorvitch was sworn-in as a Superior Court Judge on December 15, 2015.  Prior to that time, Judge Goorvitch made the following campaign contributions to Michael N. Feuer: (1) $100 to Mr. Feuer’s 2008 campaign for the 42nd Assembly District on or about November 9, 2007; (2) $100 to Mr. Feuer’s 2010 campaign for the 42nd Assembly District on or about October 19, 2010; and (3) $100 to Mr. Feuer’s 2013 campaign for Los Angeles City Attorney on or about May 30, 2012.  Judge Goorvitch has no personal relationship with Mr. Feuer and has had no communications with Mr. Feuer since he became the City Attorney.  The Court can be fair and impartial in this matter. 

The Court has no tentative order in this case. The Court orders the parties to appear at the hearing (but authorizes remote appearances). Any party who does not appear, either in person or remotely, shall waive their right to be heard and shall submit to any ruling on this motion.

DATED: October 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court