On 02/01/2018 DEBORAH BRANCH filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Disposed - Dismissed.
Disposed - Dismissed
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
LOS ANGELES CITY OF
DOES 1 TO 20
LOS ANGELES COUNTY OF
DUNN DENNIS M.
KELLY KATHLEEN C.
CITY OF LOS ANGELES
COUNTY OF LOS ANGELES
CITY OF LOS ANGELES - SUMMARY JUDGMENT
ROES 1 TO 20 INCLUSIVE
DUNN DENNIS M.
KELLY KATHLEEN C.
ROES 1 TO 20
PUCHE SERGIO J. ESQ.
FIORE MAURO J. JR.
NELSON HENRY PATRICK ESQ.
FEUER MICHAEL N. CITY ATTORNEY
FEUER MICHAEL NELSON
FEUER MICHAEL N. CITY ATTORNEY
FEUER MICHAEL NELSON
MCGUIRE STEVEN MICHAEL
1/9/2020: Memorandum of Costs (Summary)
1/9/2020: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT
1/24/2020: Notice of Ruling
12/4/2019: Request for Dismissal
10/22/2019: Declaration - DECLARATION OF GILBERT PEREZ, III, ESQ. AND EXHIBITS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
10/31/2019: Objection - OBJECTION DEFENDANT CITY OF LOS ANGELES OBJECTIONS TO PLAINTIFFS EVIDENCE SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
8/14/2019: Motion for Summary Judgment
8/14/2019: Memorandum of Points & Authorities
8/14/2019: Declaration - DECLARATION DECLARATION OF SHERMAN TORRES IN SUPPORT OF DF CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT
8/14/2019: Declaration - DECLARATION DECLARATION OF RICK ROJAS IN SUPPORT OF DF CITY OF LOS ANGELES' MOTION FOR SUMMARY JUDGMENT
2/25/2019: Motion for Leave to File a Cross-Complaint
6/14/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -
6/15/2018: Summons on Cross Complaint -
7/2/2018: PLAINTIFF'S NOTICE OF POSTING JURY FEES
7/12/2018: PROOF OF SERVICE SUMMONS -
2/1/2018: SUMMONS -
Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
DocketCertificate of Mailing for ((Jury Trial) of 02/03/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Jury Trial)); Filed by ClerkRead MoreRead Less
DocketOrder - Dismissal; Filed by CourtRead MoreRead Less
DocketNotice of Ruling; Filed by Deborah Branch (Plaintiff)Read MoreRead Less
Docketat 10:00 AM in Department 32, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Vacated by CourtRead MoreRead Less
DocketOrder - Dismissal; Filed by CourtRead MoreRead Less
DocketMinute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal; Filed by Deborah Branch (Plaintiff)Read MoreRead Less
DocketNotice (Notice of Entry of Judgment); Filed by City of Los Angeles - SUMMARY JUDGMENT (Defendant)Read MoreRead Less
DocketCross-Complaint; Filed by City of Los Angeles - SUMMARY JUDGMENT (Defendant)Read MoreRead Less
DocketANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIALRead MoreRead Less
DocketAnswer; Filed by City of Los Angeles - SUMMARY JUDGMENT (Defendant)Read MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketCross-Complaint; Filed by City of Los Angeles - SUMMARY JUDGMENT (Cross-Complainant)Read MoreRead Less
DocketAnswer; Filed by County of Los Angeles (Defendant)Read MoreRead Less
DocketDEFENDANT COUNTY OF LOS ANGELES' ANSWER TO PLAINTIFF'S COMPLAINTRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES, STATUTORY LIABILITYRead MoreRead Less
DocketComplaint; Filed by Deborah Branch (Plaintiff)Read MoreRead Less
Case Number: BC692547 Hearing Date: November 06, 2019 Dept: 5
city of los angeles, et al.,
Case No.: BC692547
Hearing Date: November 6, 2019
[TENTATIVE] order RE:
MOTION FOR SUMMARY JUDGMENT
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.
Plaintiff Deborah Branch (“Plaintiff”) filed this action against Defendant City of Los Angeles (“Defendant”) after she tripped and fell on the sidewalk. Defendant moves for summary judgment on Plaintiff’s complaint, which Plaintiff opposes. The motion is granted.
“[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.)
The Court sustains Defendant’s objections to the declarations of Brad Avrit and Eris Barillas for the reasons discussed in this order. Plaintiff filed no objections to Defendant’s evidence.
California Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) Per Government Code section 835, “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 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 condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.) A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity has constructive notice of a dangerous condition only if “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. (Gov. Code, § 835.2, subd. (b).)
“‘Constructive notice,’ under section 835.2, subdivision (b), requires a plaintiff to establish that the dangerous condition 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. Admissible evidence for establishing constructive notice is defined by statute as including whether a reasonably adequate inspection system would have informed the public entity, and whether it maintained and operated such an inspection system with due care.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) A public entity may create “a reasonable inference that the condition was not obvious” by, for example, “show[ing] that [its] workers had been in the area and did not see the condition within at least the one-year period leading up to [an] accident . . . .” (Id. at 318.)
Defendant argues that it had no actual notice of the alleged dangerous condition. Defendant proffers the declaration of Sherman Torres (“Torres”), who is a general superintendent in the Street Maintenance Division of Defendant’s Bureau of Street Services within the Department of Public Works. Torres states Defendant inspects and repairs sidewalks only in response to complaints or requests for service or repair. (Declaration of Sherman Torres, ¶ 2.) Torres states that in the five years prior to Plaintiff’s accident, Defendant did not receive any complaints or notifications regarding the condition of the sidewalk in the block where Plaintiff fell. (Id., ¶ 2.) Defendant also relies on a declaration from Rick Rojas (“Rojas”), who is an investigator with Defendant’s Office of the City Attorney Claims Division. Rojas states that no one aside from Plaintiff has filed a claim with Defendant based on a trip and fall accident in the block where Plaintiff’s accident occurred. (Declaration of Rick Rojas, ¶¶ 5-6.) Defendant’s evidence is sufficient to satisfy its burden of showing that it had no actual notice.
Defendant also argues that it had no constructive notice of the alleged dangerous condition. Defendant proffers a declaration from Thomas L. Parco (“Parco”), who is an architect. Parco states that the height differential between the concrete slabs where Plaintiff tripped was between 9/16 and 3/4 of an inch. (Declaration of Thomas L. Parco, ¶ 8.) This evidence is sufficient to establish that the height differential was not so great as to constitute constructive notice. Therefore, Defendant has satisfied its prima facie burden, shifting the burden to Plaintiff to proffer sufficient evidence to create a triable issue.
In opposition, Plaintiff relies on the declaration of Brad P. Avrit (“Avrit”), who is an engineer. Avrit states that images from Google Street View show that construction occurred in “close proximity” to where Plaintiff fell “approximately a year and a half to two years before” Plaintiff’s accident. (Declaration of Brad P. Avrit, ¶ 11.) Avrit does not state that Google Street View images are evidence “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates . . . .” (Evid. Code, § 801, subd. (b).) Avrit has not proffered any other evidence sufficient to show that the Google Street View image accurately depict construction in the proximity of the area where Plaintiff fell within the two years prior to Plaintiff’s accident. Accordingly, Avrit’s testimony is inadmissible to the extent it is based on this Google Street View images. (Evid. Code, §§ 1400, 1401; People v. Goldsmith (2014) 59 Cal.4th 258, 266.) Regardless, this opinion lacks foundation because Avrit does not state that the sidewalk at issue was replaced. Avrit admits that the sidewalk was replaced at 701 Via de la Paz and the uplift was located at 711 Via de la Paz. (Declaration of Brad Avrit, ¶ 11.) There is no foundation for Avrit to opine that construction at one address necessarily means Defendant was aware of the uplift at a different address.
Avrit also opines that Defendant was on notice of the uplift because of a permit to replace the sidewalk in front of 701 Via de la Paz. The permit is dated April 16, 2015, and Defendant’s Department of Public Works within the Bureau of Engineering issued the permit to Huntington Estate Homes. (Declaration of Brad P. Avrit, Exh. C.) As an initial matter, Avrit does not authenticate this document or provide a sufficient basis for the Court to conclude that it is admissible. Therefore, Avrit’s reliance on this document is improper. (People v. Sanchez (2016) 63 Cal.4th 665.) Putting that aside, this permit does not reflect that any of Defendant’s employees were ever present in the area of Plaintiff’s accident. Indeed, Avrit concedes that the permit shows that Defendant “or a private contractor” replaced the sidewalk. (Declaration of Brad P. Avrit, ¶ 11.)
Even if the Court adopted Plaintiff’s argument that Defendant’s decision to issue a permit for construction at one address necessarily means it was aware of a small uplift in the sidewalk at a different address, Plaintiff would still fail to satisfy her burden. Plaintiff proffers insufficient evidence that the uplift actually existed in 2015 when the construction occurred. Similarly, Avrit does not identify the evidence upon which he bases his conclusion that the uplift existed in 2015, such that Defendant’s employees could have observed it had they been present in the area. For this reason, Avrit’s conclusion “has no evidentiary value.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.)
Avrit states that Defendant’s policy to inspect and repair sidewalks in response to complaints is “wholly inadequate as sidewalks are not inspected consistently on a regular basis and therefore dangerous conditions could easily exist and worsen as what happened in this case.” (Declaration of Brad P. Avrit, ¶ 13.) “Reasonableness . . . is determined by weighing the probability and gravity of potential injury against the practicability and cost of the action.” (Biron v. City of Redding (2014) 225 Cal.App.4th 1264, 1281.) Here, Defendant has introduced evidence that there are 9,313 miles of sidewalks within Defendant’s city limits, and therefore that Defendant lacks the funding and manpower to regularly survey and inspect the sidewalks. (Declaration of Sherman Torres, ¶ 3.) Avrit has not explained the basis for his conclusion that the benefits of regular inspection would outweigh the cost of inspection. Again, his conclusion is speculative and unsupported. The declaration of Eris Barillas is insufficient for the same reasons.
Plaintiff presents evidence that the uplift was as high as 1¼ inches. However, Plaintiff proffers no evidence that an uplift of that size necessarily put Defendant on notice of the uplift. Therefore, Plaintiff has failed to satisfy her burden on this issue.
Based upon the foregoing, the Court grants summary judgment, finding that there is no triable issue whether Defendant had actual or constructive notice of the uplift in the sidewalk. The Court need not reach the issue whether the defect was trivial as a matter of law.
CONCLUSION AND ORDER
Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.
DATED: November 6, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court