Pending - Other Pending
Personal Injury - Uninsured Motor Vehicle
CHRISTOPHER K. LUI
BEVERLY HILLS CITY OF
WALLIS ANNENBERG CENTER FOR THE PERFORMING ARTS DOE1
GORDON ROGER L. ESQ.
GORDON EDELSTEIN KREPACK GRANT
NEBENZAHL MICHAEL RALPH
NEBENZAHL MICHAEL R.
7/9/2019: Minute Order
7/26/2019: Motion for Summary Judgment
7/26/2019: Separate Statement
3/16/2018: INFORMAL DISCOVERY CONFERENCE FORM FOR PERSONAL INJURY COURTS
4/16/2018: AMENDMENT TO COMPLAINT
7/6/2018: PROOF OF SERVICE SUMMONS
7/10/2018: AMENDED PROOF OF SERVICE SUMMONS
7/16/2018: ANSWER TO FIRST AMENDED COMPLAINT
8/27/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT
9/6/2018: NOTICE RE: TRIAL CONTINUANCE
9/18/2018: SUBSTITUTION OF ATTORNEY
9/18/2018: NOTICE OF CHANGE OF FIRM AND ADDRESS
12/13/2018: Substitution of Attorney
2/25/2019: Notice of Deposit - Jury
3/13/2019: Minute Order
Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal[+] Read More [-] Read Less
Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial[+] Read More [-] Read Less
Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference[+] Read More [-] Read Less
Hearingat 13:30 PM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment[+] Read More [-] Read Less
DocketMotion for Summary Judgment; Filed by Beverly Hills, City of (Defendant); Wallis Annenberg Center for the Performing Arts Doe1 (Defendant)[+] Read More [-] Read Less
DocketSeparate Statement; Filed by Beverly Hills, City of (Defendant); Wallis Annenberg Center for the Performing Arts Doe1 (Defendant)[+] Read More [-] Read Less
DocketNotice (Notice of Ruling re Motion to Continue Trial); Filed by Beverly Hills, City of (Defendant); Wallis Annenberg Center for the Performing Arts Doe1 (Defendant)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion to Continue Trial (and Related Dates, Including Discovery Cut-Off) - Held - Motion Granted[+] Read More [-] Read Less
DocketMinute Order ( (Defendants City of Beverly Hills and Wallis Annenberg Center ...)); Filed by Clerk[+] Read More [-] Read Less
Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Motion for Summary Judgment[+] Read More [-] Read Less
DocketDEFENDANT CITY OF BEVERLY HILLS' NOTICE OF MOTION AND MOTION TO COMPEL PLAINTIFF'S FURTHER RESPONSES TO FORM INTERROGATORIES (SET ONE); DIANNA MANUKYAN'S DECLARATION IN SUPPORT THEREOF; AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $1,485.00[+] Read More [-] Read Less
DocketAnswer to First Amended Complaint; Filed by Beverly Hills, City of (Defendant)[+] Read More [-] Read Less
DocketANSWER OF DEFENDANT CITY OF BEVERLY HILLS TO PLAINTIFF'S FIRST AMENDED COMPLAINT[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketFirst Amended Complaint; Filed by Allan Boodnick (Plaintiff)[+] Read More [-] Read Less
DocketProof of Service (not Summons and Complaint); Filed by Allan Boodnick (Plaintiff)[+] Read More [-] Read Less
DocketPROOF OF SERVICE - SUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Allan Boodnick (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
Case Number: ****8922 Hearing Date: February 06, 2020 Dept: 28
Motion for Summary Judgment
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On April 24, 2017, Plaintiff Allan Boodnick (“Plaintiff”) filed a complaint against Defendant City of Beverly Hills. The complaint alleges premises liability and negligence for Plaintiff falling from stepping on an unexpected curb-like structure when stepping off a walkway on May 22, 2016.
On November 1, 2017, Plaintiff filed a first amended complaint (“FAC”) against Defendant City of Beverly Hills alleging premises liability for a dangerous condition of public property.
On April 16, 2018, Plaintiff filed an amendment to the FAC renaming Doe 1 as Defendant Wallis Annenberg Center for the Performing Arts (“Wallis”).
On July 26, 2019, Defendants City of Beverly Hills and Wallis Annenberg Center for the Performing Arts filed a motion for summary judgment pursuant to California Code of Civil Procedure section 473c.
Trial is set for April 10, 2020.
Defendant Wallis asks the Court to enter summary judgment against Plaintiff and in Defendant Wallis’ favor because it is not a public entity.
Defendants City of Beverly Hills and Wallis (“Defendants”) ask the Court to enter summary judgment against Plaintiff and in Defendants’ favor because the condition Plaintiff fell from was open and obvious.
Defendant City of Beverly Hills argues it is entitled to summary judgment in its favor and against Plaintiff because it did not have notice of the alleged dangerous condition.
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the 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 “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.” (Code Civ. Proc., ; 437c(p)(2).) “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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)
Dangerous Condition of Public Property
“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code ; 815.)
Government Code section 835 states: ;“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes 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 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 condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” ;
Public Entity Status
The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp ;(2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property ;to ;avoid exposing others to an unreasonable risk of harm. (Annocki ;v. Peterson Enterprises, LLC ;(2014) 232 Cal.App.4th 32, 37.) The existence and scope of duty are legal questions for the court. (Id. at p. 36.) If there is a condition that poses a danger to customers and others on the premises, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. ;(1960) 53 Cal.2d 443, 446.)
“A defendant’s motion for summary judgment necessarily includes a test of the sufficiency of the complaint. [Citation.] When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers [or motions for judgment on the pleadings] and accept the allegations of the complaint as true.” (Prue v. Brady Co./San Diego, Inc. (2015) 245 Cal.App.4th 1367, 1375 [citation omitted].) Courts read the allegations liberally and in context when considering demurrers. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
Plaintiff’s FAC alleges two counts of premises liability for falling after stepping down from a walkway and encountering an unexpected curb-like structure on May 22, 2016. (FAC, pp. 4-6.) The first count alleges Plaintiff was injured from a dangerous condition of public property. (Ibid.) The second count alleges Defendant Wallis was the agent and employee of Defendant City of Beverly Hills. (Ibid.) Both counts are alleged against Defendant Wallis. (Ibid.)
Defendant Wallis argues it is not a public entity and, thus, cannot be liable for a dangerous condition of public property. (UMF No. 3.) Plaintiff does not dispute this. (Plaintiff’s response to UMF No. 3.) However, Plaintiff argues he has alleged common law premises liability against Defendant Wallis.
Admittedly, Plaintiff does not check off Prem.L-2 or Prem.L-3 in the form complaint alleging premises liability based on negligence or a failure to warn, respectively. However, California courts have declined to analyze form complaints differently than any other complaint. (See e.g. People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486 (finding a form complaint to be equally subject to demurrer as any other complaint).)
In turning to the allegations made in the complaint, the Court finds premises liability is sufficiently alleged against Defendant Wallis. The FAC alleges Plaintiff was injured from a dangerous condition on property owned by Defendant Wallis. (FAC, pp. 4-6.) That dangerous condition was an unforeseeable curb-like structure that Plaintiff stepped on when stepping down from a walkway. (Ibid.) The Court finds these allegations are sufficient in alleging premises liability against Defendant Wallis. As such, Defendant Wallis’ motion for summary judgment cannot be granted simply based on its not being a public entity.
Open and Obvious Dangerous Condition
A property owner owes no further duty to make a condition reasonably safe or give an adequate warning of a condition when the danger of the condition is so obvious that the condition itself serves as a warning. (Kinsman v. Unocal Corp (2005) 37 Cal.4th 659, 673.) But the obvious character of the condition does not negate a property owner’s duty of care to remedy a conspicuous danger when it is foreseeable that a person will encounter the danger despite the danger’s obviousness. (Martinez v. Chippeqa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185 (indicating a dangerous condition encountered on a sole access way from the street to the defendant’s building would not negate the defendant’s duty of care owed to the plaintiff; see also Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 123 (finding an employee did not assume the risk of an obvious danger when the employee’s employment required him to encounter a dangerous condition.)
Whether a condition is obvious and whether the obviousness negates a property owner’s duty of care are legal questions for the court. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446-450 (affirming a trial court’s granting of summary judgment based on a finding that a dangerous condition was obvious.) The court in Osborn stated “[a]lthough the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that a danger may cause injury despite the fact that it is obvious (for example, when necessity requires persons to encounter it), there may be a duty to remedy the danger. . . .” (Osborn, supra, 224 Cal.App.3d at p. 122 (emphasis in original).)
Defendants undisputed material facts establish the following. The curb Plaintiff fell from was adjacent to a driveway for vehicles to use in exiting a garage. (UMF No. 4.) Plaintiff alleges he fell while stepping off of a pedestrian pathway onto the curb of a vehicle exit ramp. (UMF No. 1.) The top of the driveway curb was painted white and the curb Plaintiff fell from was not painted white. (UMF No. 6.) Plaintiff fell at about 1:55 p.m. during daylight. (UMF No. 8.) There were no obstructions to Plaintiff’s view of the curb. (UMF No. 10.) There were no distractions to Plaintiff’s view of the curb. (Ibid.) The curb was not slippery or wet. (Ibid.) The curb did not have any divots, defects, or deformities. (UMF No. 11.) There was a sign across the walkway where Plaintiff fell that stated “NO PEDESTRIANS ON RAMP” and depicted a person walking inside a red circle with a red diagonal line crossed through it. (UMF Nos. 7-8.)
The court finds Defendants have not met their burden of proof that the configuration of the sidewalk to curb to driveway transition did not constitute a dangerous condition as a matter of law. The court notes that the driveway and the sidewalk are constructed of the same grey concrete. Defendants highlighted the existence of the curb by painting the rise of the curb with black paint and the “run” (horizontal surface) of the curb with white paint, making the curb stand out visually from the driveway and the sidewalk. A pedestrian stepping off the curb would therefore have some visual cue that there was a step there As a pedestrian approaches the garage, the sidewalk and the driveway separate vertically, rendering a differential of between them. This differential increases as the pedestrian approaches the garage. The curb below continues with the aforementioned black and white color scheme, continuing to render it visible to the pedestrian. Yet, no such demarcation exists along the edge of the sidewalk. The pedestrian stepping off the sidewalk past its vertical separation form the curb has no visual cue that there is a vertical step between the sidewalk and the curb. Whether or not such demarcation, or some other installation, such as a railing beginning at the point of the differential to the first cement column where the sidewalk enters the garage to prevent pedestrians from stepping off the sidewalk past this point, would have been appropriate under the circumstances are questions of fact for the jury to decide.
In their reply, Defendants cite Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092 for the proposition that a tripping hazard that is open and obvious is trivial as a matter of law. The court disagrees. The Court in Huckey recognized the distinct trivial condition doctrine analysis before deciding the condition at bar was trivial. (Id. at p. 1105 (stating the court must first decide whether the evidence shows the type and size of the defect makes it trivial and, if so, the court then looks at additional factors to see if the condition is trivial as a matter of law).) The court in Huckey considered the height of height differential in the sidewalk, whether there were broken or jagged concrete edges, whether it was slippery, and visual obstructions. (Id. at pp. 1109-1110. In doing so, the Court found the crack to be a trivial condition. The court cannot make the same finding here. The vertical differential at issue here was higher than a curb, and yet Defendants did not paint it to make it more visible.
The court notes that Defendants do not seek summary adjudication and, thus, did not satisfy its procedural obligations in seeking such. Accordingly, the court cannot grant summary adjudication regarding Defendants duty to warn of the dangerous condition. (See Code Civ. Proc.; 437c, subd. (f)(2) (“A motion for summary adjudication . . . shall proceed in all procedural respects as a motion for summary judgment” (emphasis added)).)
Government Code section 835.2 states: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (consideration the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
Defendants’ undisputed material facts also establish the following. No claim has been presented to Defendant City of Beverly Hills at any time alleging the curb Plaintiff fell from constituted a dangerous condition of public property other than Plaintiff’s claim. (UMF No. 12.) No lawsuit has been filed against Defendant City of Beverly Hills alleging the curb Plaintiff fell from constituted a dangerous condition of public property other than Plaintiff’s lawsuit. (UMF No. 13.) The curb was built by a contractor of Defendant City of Beverly Hills and not an employee of Defendant City of Beverly Hills. (UMF No. 14.)
The Court finds Defendant City of Beverly Hills has not met its burden in showing it did not have actual or constructive notice of the alleged dangerous condition. Defendant City of Beverly Hills is liable for the tortious acts and omissions its independent contractors commit to the same extent had its employees committed such tortious acts or omissions. (See Gov. Code ; 815.4.) Moreover, the City of Beverly Hills cannot establish that the condition would not have been discoverable upon a reasonable inspection. Again, the curb is clearly delineated, but the edge of the sidewalk is not. The court cannot find that that fact would not have been apparent upon a reasonable inspection of the premises. As such, there is a triable issue of fact regarding whether Defendant City of Beverly Hills had at least constructive notice of the dangerous condition.
The motion for summary judgment is DENIED.
Defendants are ordered to give notice of this ruling.
Get Deeper Insights on Court Cases