On 03/23/2018 HAROLD ZELL ADAMS filed a Personal Injury - Uninsured Motor Vehicle lawsuit against THE AMERICAN GOLD STAR HOME. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DANIEL M. CROWLEY
ADAMS HAROLD ZELL
THE AMERICAN GOLD STAR HOME
SMITH MARC L. ESQ.
GADDINI CHRISTOFFER M. ESQ.
AYOTTE NORMAND A. ESQ.
2/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE NOTICE OF SETTLEMENT OF ENTIRE CASE) OF 02/28/2020
12/20/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL)
11/12/2019: Memorandum of Points & Authorities
11/12/2019: Declaration - DECLARATION DECLARATION OF RONALD R. HEARD-FILING ERROR
11/13/2019: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
11/4/2019: Declaration - DECLARATION OF RONALD R. HEARD
11/4/2019: Objection - OBJECTION PLAINTIFF HAROLD ZELL ADAMS' OBJECTIONS TO DEFENDANT'S EVIDENCE IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
11/4/2019: Brief - BRIEF PLAINTIFF'S INDEX OF EVIDENCE SUBMITTED IN SUPPORT OF OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
11/4/2019: Separate Statement
8/6/2019: Separate Statement
8/6/2019: Notice of Lodging - NOTICE OF LODGING NOTICE OF LODGMENT OF EXHIBITS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
7/16/2019: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE
7/17/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND FSC DATES
7/17/2019: Minute Order - MINUTE ORDER (DEFENDANT AMERICAN GOLD STAR MANOR'S EX PARTE APPLICATION TO ...)
7/2/2019: Notice of Change of Address or Other Contact Information
6/10/2019: Notice of Change of Address or Other Contact Information
5/1/2018: ANSWER TO COMPLAINT
3/23/2018: COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMESIS LIABILITY
Hearing03/23/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: DismissalRead MoreRead Less
Hearing10/30/2020 at 08:30 AM in Department 28 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 28, Daniel M. Crowley, Presiding; Order to Show Cause Re: Dismissal (Settlement) - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Dismissal (Settlement))); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 10:07 AM in Department 28, Daniel M. Crowley, Presiding; Court OrderRead MoreRead Less
DocketCertificate of Mailing for ((Court Order re Notice of Settlement of Entire Case) of 02/28/2020); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Court Order re Notice of Settlement of Entire Case)); Filed by ClerkRead MoreRead Less
DocketNotice of Settlement; Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketOpposition (PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE); Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketNotice of Change of Address or Other Contact Information; Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketAnswer; Filed by The American Gold Star Home (Defendant)Read MoreRead Less
DocketANSWER TO COMPLAINTRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Harold Zell Adams (Plaintiff)Read MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMESIS LIABILITYRead MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC699321 Hearing Date: November 19, 2019 Dept: 4A
Motion for Summary Judgment
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On March 23, 2018, Plaintiff Harold Zell Adams (“Plaintiff”) filed a complaint against Defendant American Gold Star Manor (erroneously sued as The American Gold Star Home) (“Defendant”) alleging negligence and premises liability for a trip-and-fall that occurred on February 1, 2017.
On August 6, 2019, Defendant filed a motion for summary judgement pursuant to California Code of Civil Procedure section 437c.
Trial is set for January 22, 2020.
Defendant asks the Court to grant summary judgment in Defendant’s favor and against Plaintiff on the grounds that the alleged dangerous condition is trivial.
Defendant objects to Philip L. Rosescu, P.E.’s declaration where he states “. . . the height differential was high enough to impede the leg of a walker . . .” as lacking foundation and being irrelevant. These objections are OVERRULED. This declaration has a tendency to prove a fact of consequence relating to whether or not the subject crack in the sidewalk was dangerous in prohibiting a walker to be used seamlessly over the crack. Mr. Rosescu has laid a foundation in making this declaration because he reviewed the moving papers and Plaintiff’s deposition transcript, as stated in paragraph 5 of Mr. Rosescu’s declaration.
The Court declines to rule on the remaining objections because the Court does not rely on the underlying evidence to which objections were asserted.
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.” (Ibid.) “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).)
The elements for premises liability are: 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 a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their [customers’] 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 property owner does not have a duty to make a trivial defect in property safe or give an adequate warning of such a trivial defect. (Cadam v. Somerset Gardens Townhouse HOA (2011) 200 Cal.App.4th 383, 388-389.) A court looks at the totality of the circumstances surrounding the accident in determining whether the condition is dangerous or trivial. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) Depending on the nature of the alleged defect, a court may decide that expert opinion is unnecessary for determining whether a condition is trivial or dangerous. (See Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732 (disregarding expert opinion on whether a condition is dangerous); see also Caloroso, supra, 122 Cal.App.4th at pp. 928-929 (finding no abuse of discretion for the trial court’s reliance on Fielder in disregarding expert opinion of whether a condition is dangerous.) A condition may be deemed trivial as a matter of law when reasonable minds cannot differ. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27.)
Defendant’s undisputed material facts establish the following. On February 1, 2017, Victoria Torsedillas’s walker got caught on an uneven section of sidewalk and Plaintiff’s hand got caught in the walker, which caused Plaintiff to fall. (UMF No. 1, p. 2:8-2:23.) The alleged defect in the sidewalk is an expansion joint between two sections of sidewalk. (UMF No. 3, p. 3:12-3:18.) The height differential between the two sections of sidewalk at the time of the accident was no greater than a quarter of an inch.
The Court notes that Defendant presents many facts that tend to show either that Plaintiff was contributorily negligent or that Defendant did not have notice of the alleged dangerous condition. However, neither of these arguments are made. Thus, the Court does not consider this evidence as it is not relevant to the question at hand: whether the alleged dangerous condition should be considered trivial.
The Court finds Defendant has met its burden. The only evidence showing the alleged dangerous condition was in fact dangerous is that the two sections of the sidewalk bridged by an expansion joint have a height differential of no greater than a quarter of an inch. The Court in Camam v. Somerset Gardens Townhouse HOA (2011) Cal.App.4th 383, 389, held that a walkway separation of no greater than seven-eighths of an inch in depth was a trivial condition in the absence of other factors tending to show dangerousness. Accordingly, the burden shifts to Plaintiff.
Plaintiff’s undisputed material facts establish the following. Plaintiff took photos of the entire expansion joint in the sidewalk where the accident occurred approximately two months after the incident. (PUMF No. 12, p. 7:16-7:22.) At that time, the height differential in the area where the walker’s wheels got caught was approximately one inch. (PUMF No. 14, p. 8:1-8:4.) The height differential was high enough to impede the leg of a walker. (PUMF No. 19, p. 9:3-9:6.)
The Court finds Plaintiff has submitted sufficient evidence to raise a triable issue as to whether the subject crack was a dangerous condition as opposed to a trivial condition. The Court knows of no ruling where binding authority found a height differential of one inch was a trivial condition. There is a dispute as to the height differential at the expansion joint, with Plaintiff testifying that at the edge of the sidewalk where the walker got caught on the joint showed a one-inch differential which he measured about two months after the accident, and Defendant producing photographs tending to show a smaller differential at various points across the sidewalk. Because there appears to be a triable issue about the point in the sidewalk where the walker hit the expansion joint and the height differential at that point on the day of the accident, the Court finds that summary judgment cannot be granted.
The Court also notes Mr. Rosescu’s opinion that the height of the differential as reflected in Defendant’s photographs is sufficient to impede the leg of a walker and finds the opinion to be persuasive as support for the Court’s separate conclusion that there is a triable issue regarding the dangerous character of the condition. The Court does not need to rely on Mr. Rosescu’s declaration, but it is helpful because the facts of this case do not present the typical question of whether a crack in a sidewalk is dangerous for a typical pedestrian, but rather if it is dangerous for a person with a walker. As such, expert testimony is helpful and properly considered.
The motion for summary judgment is DENIED.
Defendant is ordered to give notice of this ruling.