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 Judges overseeing this case are STEPHEN I. GOORVITCH and MICHAEL E. WHITAKER. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
MICHAEL E. WHITAKER
JOHNSON GREGORY A.
LOS ANGELES CITY OF
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
CITY OF LOS ANGELES
ROES 1 TO 25
MAKLEY ROBERT E.
LAW OFFICE OF BERGLUND & JOHNSON
MAKLEY ROBERT EUGENE JR
DIKRAN H SASSOUNIAN
SASSOUNIAN DIKRAN H
MONTY LAUREEN A.
SASSOUNIAN DIKRAN H
4/5/2021: Notice - NOTICE OF HEARING
3/23/2021: Minute Order - MINUTE ORDER (COURT ORDER RE: NOTICE OF SETTLEMENT)
3/1/2021: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
8/31/2020: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)
7/6/2020: Reply - REPLY REPLY TO PLAINTIFFS OPPOSITION TO MOTION FOR SUMMARY JUDGMENT BY DEFENDANT ADALBERTO AVILES; MEMORANDUM OF POINTS AND AUTHORITIES
4/3/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/03/2020
4/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/16/2020
2/25/2020: Informal Discovery Conference Form for Personal Injury Courts
2/11/2020: Declaration - DECLARATION OF LAUREEN A. MONTY, ESQ.
2/11/2020: Declaration - DECLARATION OF CHRIS NELSON
2/11/2020: Declaration - DECLARATION OF GUY STIVERS
8/2/2019: Amendment to Complaint (Fictitious/Incorrect Name)
9/3/2019: Notice of Posting of Jury Fees
10/1/2018: DECLARATION OF NON SERVICE
5/1/2018: CROSS-COMPLAINT PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH
5/1/2018: ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT
4/17/2018: DECLARATOPM OF NON SERCVICE
Hearing07/02/2021 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)Read MoreRead Less
Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Not Held - Continued - Party's MotionRead MoreRead Less
DocketNotice of Ruling; Filed by City of Los Angeles (Defendant)Read MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by ClerkRead MoreRead Less
DocketNotice (of Hearing); Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
Docketat 10:48 AM in Department 32, Michael E. Whitaker, Presiding; Court OrderRead MoreRead Less
Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
DocketCertificate of Mailing for ((Court Order re: notice of settlement) of 03/23/2021); Filed by ClerkRead MoreRead Less
DocketNotice of Settlement; Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
DocketMinute Order ( (Court Order re: notice of settlement)); Filed by ClerkRead MoreRead Less
DocketAnswer; Filed by City of Los Angeles (Defendant)Read MoreRead Less
DocketDeclaration; Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
DocketDECLARATION OF NON SERVICERead MoreRead Less
DocketDECLARATOPM OF NON SERCVICERead MoreRead Less
DocketDeclaration; Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketComplaint; Filed by Gregory A. Johnson (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES AND REQUEST FOR JURY TRIAL 1. NEGLIGENCE;ETCRead MoreRead Less
Case Number: BC698847 Hearing Date: July 20, 2020 Dept: 32
gregory A. Johnson
city of los angeles, et al.,
Case No.: BC698847
Hearing Date: July 20, 2020
[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 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.
“[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.)
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
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