This case was last updated from Los Angeles County Superior Courts on 11/02/2020 at 08:39:15 (UTC).

GREGORY A JOHNSON VS CITY OF LOS ANGELES ET AL

Case Summary

On 03/22/2018 GREGORY A JOHNSON 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 Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8847

  • Filing Date:

    03/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

JOHNSON GREGORY A.

Defendants and Respondents

DOES 1-200

LOS ANGELES CITY OF

AVILES ADALBERTO

PONCE SAN JUANITA AKA SAN JUANA AMAYA AKA SAN J AMAYA AKA SAN J PONCE

CITY OF LOS ANGELES

PONCE[DOE 1] SAN JUANITA AKA AKA AKA

AVILES - SUMMARY JUDGMENT ADALBERTO

Defendant and Cross Plaintiff

CITY OF LOS ANGELES

Cross Defendant

ROES 1 TO 25

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MAKLEY ROBERT E.

LAW OFFICE OF BERGLUND & JOHNSON

MAKLEY ROBERT EUGENE JR

Defendant and Respondent Attorneys

DIKRAN H SASSOUNIAN

SASSOUNIAN DIKRAN H

MONTY LAUREEN A.

Defendant and Cross Plaintiff Attorney

SASSOUNIAN DIKRAN H

 

Court Documents

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

8/31/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

7/20/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Reply - REPLY REPLY TO PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ADALBERTO AVILES; MEMORANDUM OF POINTS AND AUTHORITIES

7/6/2020: Reply - REPLY REPLY TO PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ADALBERTO AVILES; MEMORANDUM OF POINTS AND AUTHORITIES

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/03/2020

4/3/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/03/2020

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/16/2020

4/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/16/2020

Minute Order - MINUTE ORDER (COURT ORDER)

4/16/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Informal Discovery Conference Form for Personal Injury Courts

2/25/2020: Informal Discovery Conference Form for Personal Injury Courts

Declaration - DECLARATION OF LAUREEN A. MONTY, ESQ.

2/11/2020: Declaration - DECLARATION OF LAUREEN A. MONTY, ESQ.

Declaration - DECLARATION OF CHRIS NELSON

2/11/2020: Declaration - DECLARATION OF CHRIS NELSON

Declaration - DECLARATION OF GUY STIVERS

2/11/2020: Declaration - DECLARATION OF GUY STIVERS

Amendment to Complaint (Fictitious/Incorrect Name)

8/2/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice of Posting of Jury Fees

9/3/2019: Notice of Posting of Jury Fees

Answer

9/3/2019: Answer

DECLARATION OF NON SERVICE

10/1/2018: DECLARATION OF NON SERVICE

CROSS-COMPLAINT PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

5/1/2018: CROSS-COMPLAINT PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT

5/1/2018: ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT

DECLARATOPM OF NON SERCVICE

4/17/2018: DECLARATOPM OF NON SERCVICE

COMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL 1. NEGLIGENCE;ETC

3/22/2018: COMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL 1. NEGLIGENCE;ETC

32 More Documents Available

 

Docket Entries

  • 03/23/2021
  • Hearing03/23/2021 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 03/08/2021
  • Hearing03/08/2021 at 10:00 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/31/2020
  • Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Trial Setting Conference - Held

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  • 08/31/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 07/29/2020
  • DocketNotice of Ruling; Filed by Adalberto Aviles - SUMMARY JUDGMENT (Defendant)

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  • 07/20/2020
  • Docketat 2:30 PM in Department 32, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Held - Motion Granted

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  • 07/20/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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  • 07/06/2020
  • DocketReply (REPLY TO PLAINTIFF?S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ADALBERTO AVILES; MEMORANDUM OF POINTS AND AUTHORITIES); Filed by Adalberto Aviles - SUMMARY JUDGMENT (Defendant)

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  • 07/06/2020
  • DocketObjection (DEFENDANT?S OBJECTIONS TO PLAINTIFF?S EVIDENCE SUBMITTED IN SUPPORT OF OPPOSITION TO DEFENDANT?S MOTION FOR SUMMARY JUDGMENT); Filed by Adalberto Aviles - SUMMARY JUDGMENT (Defendant)

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  • 05/27/2020
  • Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Advanced and Vacated

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53 More Docket Entries
  • 05/01/2018
  • DocketCROSS-COMPLAINT PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

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  • 04/26/2018
  • DocketDECLARATION OF NON SERVICE

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  • 04/26/2018
  • DocketDeclaration; Filed by Gregory A. Johnson (Plaintiff)

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  • 04/17/2018
  • DocketDECLARATOPM OF NON SERCVICE

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  • 04/17/2018
  • DocketDeclaration; Filed by Gregory A. Johnson (Plaintiff)

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  • 04/09/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 04/09/2018
  • DocketProof-Service/Summons; Filed by Gregory A. Johnson (Plaintiff)

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  • 03/22/2018
  • DocketSUMMONS

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  • 03/22/2018
  • DocketComplaint; Filed by Gregory A. Johnson (Plaintiff)

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  • 03/22/2018
  • DocketCOMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL 1. NEGLIGENCE;ETC

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Tentative Rulings

Case Number: BC698847    Hearing Date: July 20, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

gregory A. Johnson ,

Plaintiff,

v.

city of los angeles, et al.,

Defendants.

Case No.: BC698847

Hearing Date: July 20, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

NOTICE

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. 

Background

Plaintiff Gregory A. Johnson (“Plaintiff”) filed this action against Defendant Adalberto Aviles (“Defendant”), as well as the City of Los Angeles (“the City”), after he tripped and fell on a sidewalk uplift outside Defendant’s house. Plaintiff asserts causes of action against Defendant for negligence and dangerous condition of public property. Defendant now moves for summary judgment, which Plaintiff opposes. The motion is granted.

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.)  

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.) Plaintiff largely relies on the plain language of Streets and Highways Code, sections 5600 through 5630, arguing that property owners are liable for accidents on adjacent sidewalks. (Plaintiff’s Opposition, pp. 11:14-21, 12:3-8, 22:5-10, 22:12-14.) 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 repair sidewalk defects, absent evidence that they caused or contributed to the defects, there is no direct liability to the pedestrian. Instead, the pedestrian must seek recovery from the City, which may file a cross-claim against the property owner under section 5610. In other words, section 5610 confers a right upon the municipality to seek indemnification and apportionment of fault from the property owner, absent evidence that the property owner caused or contributed to the defect. “Indeed, Streets and Highways code [sic] section 5610 deals only with the maintenance of abutting sidewalks, and the landowner’s duty to the city, not to pedestrians that use the sidewalk. . . . [T]he section was only intended to address sidewalk maintenance and construction, not landowner liability to third parties.” (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1137, citations omitted.) Plaintiff eventually concedes: “The doctrine does not apply, however, when the defect in the sidewalk is somehow attributable to the abutting property owner.” (Plaintiff’s Opposition, p. 18:1-3.)

Defendant proffers evidence that neither he nor his wife caused or contributed to the sidewalk uplift. Defendant proffers a declaration from Guy Stivers, an arborist, who states that the uplift was caused by the roots of a tree in the adjacent parkway. (Declaration of Guy Stivers, ¶¶ 15-16.) Defendant proffers a declaration from Chris Nelson, a land surveyor, who confirms that Defendant does not own the sidewalk or parkway. (Declaration of Chris Nelson, ¶¶ 6-7 & Exh. #3.) Finally, Defendant relies upon his own declaration, in which he states that neither he nor his wife, or anyone acting on their behalf, planted or maintained the vegetation in the parkway, including the tree at issue. (Declaration of Aldaberto Aviles, ¶¶ 13-14.) Defendant also confirms that he did not own, maintain, or control the sidewalk outside his property and did not create the sidewalk uplift at issue. (Id., ¶¶ 13-15.) This evidence is sufficient to satisfy Defendant’s burden of establishing that he did not directly cause or contribute to the sidewalk uplift, and that he was not negligent in managing his property. Plaintiff proffers no evidence to rebut this showing.

Plaintiff argues that Defendant did not plead the Sidewalk Accident Decisions doctrine as an affirmative defense in his answer. This matters not. In answering a complaint, a defendant need only allege facts to support any matter for which the defendant will bear the burden of proof at trial. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) As discussed, Plaintiff bears the burden of proving that Defendant is liable for the sidewalk uplift. Regardless, the Court may consider the Sidewalk Accident Decisions doctrine because “the complaint alleges facts indicating applicability of the defense . . . .” (Wang v. Nibbelink (2016) 4 Cal.App.5th 1, 10.)

Plaintiff argues that under common law, “a defendant who lacks title to property still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises control over the property.” (Plaintiff’s Opposition, p.9:16-17.) Plaintiff cites several cases in support of his argument, but none involved a public sidewalk or addressed the applicability of the Sidewalk Accident Decisions doctrine. In Alcaraz v. Vece (1997) 14 Cal.4th 1149, the plaintiff stepped into a broken or uncovered utility meter located in the narrow lawn between the sidewalk and the defendant’s property line. In Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, the plaintiff fell on a private walkway. In Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, the plaintiff sued a hospital after he was shot in the parking lot. This distinction is dispositive because these cases did not address the Sidewalk Accident Decisions doctrine.

The remaining cases cited by Plaintiff do not support his position. In Alpert v. Villa Romano Homeowners Assn. (Id., at p. 1335.) As discussed, in the instant case, there is no evidence that Defendant planted or maintained the tree that caused the defect in the sidewalk.

Similarly, in Pultz v. Holgerson The trial court granted summary judgment because there was no triable issue whether the defendant changed or altered the sidewalk. However, the Third District reversed, holding that the defendant did not move for summary judgment on the theory that he failed to manage his property with reasonable care. Moreover, the Third District noted that there was, in fact, evidence to give rise to a triable issue on this point, viz., a declaration from an investigator stating that there were two trees on the defendant’s property whose roots may have caused the cracks in the sidewalk. By contrast, in the instant case, Defendant addresses both potential claims and proffers evidence on each. As discussed, there is no evidence that anything on Defendant’s property caused or contributed to the sidewalk uplift.

Regardless, even accepting Plaintiff’s (incorrect) interpretation of the law, he proffers insufficient evidence to rebut Defendant’s showing that he did not control the sidewalk or parkway. Plaintiff relies on the City’s responses to the Requests for Admission (“RFAs”) in which the City denied that it owned, possessed, or maintained the sidewalk. The mere fact that the City denied these RFAs does not necessarily mean that Defendant owned, possessed, or maintained the sidewalk. Regardless, Plaintiff concedes that these denials were not correct because the City then admitted that it controlled the sidewalk at issue. “Here, while the City has admitted in discovery that it controls the sidewalk, the City denies the control is exclusive.” (Plaintiff’s Opposition, p. 11:4-5.) The City’s position does not necessarily mean that Defendant controlled the sidewalk.

Plaintiff cites Gonzales v. City of San Jose In that case, the Sixth District considered whether San Jose Municipal Code section 14.16.2205 is preempted by Streets and Highways Code section 5610. The Sixth District found that the municipal ordinance was constitutional. Plaintiff then relies on Los Angeles Municipal Codes sections 62.104, 41.46, and 56.08 to impose liability on Defendant. However, those sections are consistent with Streets and Highways Code section 5610 because none imposes direct liability upon property owners to pedestrians. Section 62.104 requires property owners to maintain sidewalks in safe condition. Section 41.46 requires property owners to keep sidewalks clean. Section 56.08 requires property owners to keep sidewalks free of obstructions. Like section 5610, these statutes impose a duty upon property owners to the City, not to pedestrians.

Plaintiff relies on the declaration of Mark J. Burns for the proposition that the area presented a substantial trip hazard for pedestrians. The declaration does not address the dispositive issue: Whether Defendant created or contributed to the sidewalk uplift, either directly or by failing to maintain reasonable control over his property.

Finally, Plaintiff argues that Defendant had a duty to inspect the sidewalk and notify the City of any damage. Plaintiff cites no persuasive authority. Instead, Plaintiff relies on generic authority that “a premises owner owes a duty to persons on its property . . . .” (Plaintiff’s Opposition, p. 14:23.) As discussed, Plaintiff proffers no evidence establishing that the sidewalk and parkway were, in fact, Defendant’s property or that Defendant caused the sidewalk uplift, either directly or through negligent management of his own property.

CONCLUSION AND ORDER

In litigating this motion, Plaintiff relies predominantly on the plain language of Streets and Highways Code, section 5610, which imposes a duty on property owners to maintain the adjacent sidewalk. However, the case law is clear that, under the Sidewalk Accident Decisions doctrine, property owners are not liable to pedestrians absent evidence that they caused or contributed to the sidewalk defect, either directly or through negligent management of their property. Plaintiff proffers insufficient evidence to rebut Defendant’s showing on this point. Nor does Plaintiff cite any authority making clear that a property owner has direct liability to a pedestrian under these circumstances. Therefore, the motion for summary judgment in granted. Defendant shall provide notice and file proof of such with the Court.

DATED: July 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court