Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 06:27:56 (UTC).

HESMIG SINANIAN LOPEZ VS CITY OF LOS ANGELES

Case Summary

On 01/18/2017 HESMIG SINANIAN LOPEZ 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 LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7085

  • Filing Date:

    01/18/2017

  • 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 Judges

LAURA A. SEIGLE

AMY D. HOGUE

 

Party Details

Plaintiff and Petitioner

LOPEZ HESMIG SINANIAN

Defendants, Respondents and Cross Defendants

LOS ANGELES CITY OF

DOES 1 TO 50

BEVERLY HILLS KOSHER MEAT LLC

FISCHER FAMILY PROPERTIES III L.P.

WENDER FAMILY TRUST

BERMAN FAMILY TRUST

Defendant and Cross Plaintiff

BEVERLY HILLS KOSHER MEAT LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THALHEIMER BERNARD J. ESQ.

SAYLOR JEFFERSON

THALHEIMER BERNARD JOSEPH ESQ.

Defendant Attorney

HAUSER JOHN AYRE

Cross Defendant Attorney

FEUER MICHAEL NELSON

 

Court Documents

Amendment to Complaint (Fictitious/Incorrect Name)

4/23/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Unknown

12/5/2018: Unknown

Answer

12/19/2018: Answer

Minute Order

12/21/2018: Minute Order

Ex Parte Application

12/21/2018: Ex Parte Application

Notice of Change of Address or Other Contact Information

2/15/2019: Notice of Change of Address or Other Contact Information

Proof of Personal Service

3/6/2019: Proof of Personal Service

Amendment to Complaint (Fictitious/Incorrect Name)

4/11/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Amendment to Complaint (Fictitious/Incorrect Name)

4/11/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Minute Order

4/25/2019: Minute Order

Ex Parte Application

4/25/2019: Ex Parte Application

Notice of Ruling

4/26/2019: Notice of Ruling

 

Docket Entries

  • 05/30/2019
  • at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

    Read MoreRead Less
  • 04/26/2019
  • Notice of Ruling; Filed by Beverly Hills Kosher Meat, LLC (Defendant)

    Read MoreRead Less
  • 04/25/2019
  • at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Hearing on Ex Parte Application (to Continue the Trial;) - Held - Motion Granted

    Read MoreRead Less
  • 04/25/2019
  • Minute Order ( (Hearing on Ex Parte Application to Continue the Trial;)); Filed by Clerk

    Read MoreRead Less
  • 04/25/2019
  • Ex Parte Application (to Continue the Trial;); Filed by Beverly Hills Kosher Meat, LLC (Defendant)

    Read MoreRead Less
  • 04/11/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Hesmig Sinanian Lopez (Plaintiff)

    Read MoreRead Less
  • 04/11/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Hesmig Sinanian Lopez (Plaintiff)

    Read MoreRead Less
  • 03/06/2019
  • Proof of Personal Service; Filed by Beverly Hills Kosher Meat, LLC (Cross-Complainant)

    Read MoreRead Less
  • 03/06/2019
  • Proof of Personal Service; Filed by Beverly Hills Kosher Meat, LLC (Cross-Complainant)

    Read MoreRead Less
  • 02/15/2019
  • Notice of Change of Address or Other Contact Information; Filed by John Ayre Hauser (Attorney)

    Read MoreRead Less
34 More Docket Entries
  • 02/27/2017
  • Receipt; Filed by Los Angeles, City of (Defendant)

    Read MoreRead Less
  • 02/27/2017
  • Notice; Filed by Los Angeles, City of (Defendant)

    Read MoreRead Less
  • 02/27/2017
  • DEFENDANT CITY OF LOS ANGELES' NOTICE OF POSTING JURY FEES

    Read MoreRead Less
  • 02/24/2017
  • Answer; Filed by Los Angeles, City of (Defendant)

    Read MoreRead Less
  • 02/24/2017
  • ANSWER OF THE DEFENDANT, CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT

    Read MoreRead Less
  • 01/31/2017
  • Proof-Service/Summons; Filed by Hesmig Sinanian Lopez (Plaintiff)

    Read MoreRead Less
  • 01/31/2017
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 01/18/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 01/18/2017
  • Complaint; Filed by Hesmig Sinanian Lopez (Plaintiff)

    Read MoreRead Less
  • 01/18/2017
  • SUMMONS

    Read MoreRead Less

Tentative Rulings

Case Number: BC647085    Hearing Date: September 14, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HESMIG SINANIAN-LOPEZ,

Plaintiff,

vs.

CITY OF LOS ANGELES, et al.

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

.: BC647085

[TENTATIVE] ORDER RE: DEFENDANTS MOTION FOR SUMMARY ADJUDICATION

Dept. 27

1:30 p.m.

September 14, 2020

I.INTRODUCTION

On January 18, 2017, plaintiff Hesmig Sinanian Lopez filed this action against the City of Los Angeles (“City”) arising from a April 25, 2016 trip and fall in front of 9213 Pico Boulevard in Los Angeles, California (the “Property”).  On April 11, 2019, Plaintiff amended the Complaint to add Berman Family Trust Dated December 20, 1988 and Wender Family Trust Dated December 20, 1988 (collectively, “Trusts”).  

On July 10, 2019, Trusts filed a cross-complaint against City, Beverly Hills Kosher Meat, LLC (“Beverly Hills Kosher Meat”), and Kagan Kosher Meat, Inc. (“Kagan Kosher Meat”) for implied indemnity, express indemnity, contribution, declaratory relief, and duty to defend.  Trusts filed this Motion for summary adjudication on the grounds that Beverly Hills Kosher Meat has no defense as to the Second Cause of Action for Express Indemnity or Fourth Cause of Action for Declaratory Relief and Beverly Hills Kosher has a duty to indemnify and defend Trusts in this action.  The Motion is unopposed. 

II.FACTUAL BACKGROUND

Plaintiff alleges that on April 26, 2016, she tripped and fell on raised concrete in front of the Property and sustained injuries.  (Undisputed Material Fact (“UMF”) No. 2.)  At her deposition, she testified that she fell on an uneven surface on the sidewalk and identified photographs of herself on the sidewalk in front of the Property.  (UMF No. 4.)  Trusts entered into a lease agreement with Kagan Kosher Meat, Inc. for June 1, 2013 to May 31, 2018 for premises which included the Property (the “Premises”).  (UMF No. 6.)  

Section 7 of the Lease Agreement provides that Kagan Kosher Meat shall keep the Premises in good order, condition and repair, including sidewalks and parkways located in, on, or adjacent to the Premises.  (UMF No. 7.Section 8 provides that Kagan Kosher Meat shall maintain a commercial general liability insurance policy protecting both Trusts and Kagan Kosher Meat against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises.  (UMF No. 8.)  Additionally, in section 8.7, the lease agreement provides that Kagan Kosher meats shall indemnify, protect, defend and hold harmless the Premises and Trusts and its agents, among others.  (UMF No. 8.)  This applies to claims, loss of rents and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Kagan Kosher Meats. (UMF No. 8.)  The Lease further states, “If any action or proceeding is brought against [Trusts] . . . [Kagan Kosher Meats] shall upon notice defend the same at [Kagan Kosher Meats]’s expense.”  (UMF No. 8.)  

III.LEGAL STANDARDS

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Code of Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code of Civ. Proc., § 437c, subd. (f)(2).)  

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.”  (Code of Civ. Proc., § 437c, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“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.”  (Code of Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.EVIDENTIARY OBJECTIONS

No opposition was filed and no evidentiary objections were made. 

V.DISCUSSION

“Parties to a contract . . . may define therein their duties toward one another in the event of a third party claim against one or both arising out of their relationship.  Terms of this kind may require one party to indemnify the other, under specified circumstances, for moneys paid or expenses incurred by the latter as a result of such claims.  (See Civ. Code § 2772 [“Indemnity is a contract by which one engages to save another from a legal consequence of the conduct of one parties, or of some other person”].)  They may also assign one party, pursuant to the contract’s language, responsibility for the other’s legal defense when a third party claim is made against the latter.  [Citation.]”  (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.)

Where the duty “to defend” is expressly set forth in the Agreement, the duty arises when such a claim is made and is not dependent on whether the very litigation to be defended later establishes an obligation to pay indemnity.  (Crawford, supra, 44 Cal.4th at p. 559.)  “Necessarily, a duty expressed in this matter [does] not require a final determination of the issues, including the issue of [indemnitor’s] negligence, before [indemnitor] was required to mount and finance a defense on [indemnitee’s] behalf.”  (Ibid.)  In contrast to the duty to indemnity, which arises when the insured’s underlying liability is established, the duty to defend arises when there is potential for indemnity and may exist even when coverage is in doubt and ultimately not established.  (Montrose Chemical Corp. v. Admiral Insurance Co. (1995) 10 Cal.4th 645, 659.) 

The duty to defend is expressly provided within the Lease.  (UMF Nos. 7-8.)  Beverly Hills Kosher admitted in discovery that the Lease Agreement between Trusts and Kagan Kosher Meats was in effect at the time of the Plaintiff’s incident on April 25, 2016. (UMF Nos. 9-10.)  Beverly Hills Kosher also admitted that it was bound by the terms of the Lease.  (UMF No. 11.)  

As no opposition was filed, the facts are undisputed.  Trusts’ Motion for summary adjudication is GRANTED in its entirety.  

VI.CONCLUSION

In light of the foregoing, the Motion for summary adjudication is GRANTED. 

Moving party to give notice.  

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  

Dated this 14th day of September 2020

Hon. Edward B. Moreton, Jr.

Judge of the Superior Court

Case Number: BC647085    Hearing Date: July 02, 2020    Dept: 27

The parties are strongly encouraged to appear telephonically based on the spread of COVID-19, the states of emergency having been declared by Governor Gavin Newsom and President Donald Trump, the General Orders issued by the Presiding Judge, and the Statewide Orders issued by the Chief Justice.

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HESMIG SINANIAN-LOPEZ,

Plaintiff,

vs.

CITY OF LOS ANGELES, et al.

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

.: BC647085

[TENTATIVE] ORDER RE: DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Dept. 27

1:30 p.m.

July 2, 2020

I.INTRODUCTION

On January 18, 2017, plaintiff Hesmig Sinanian Lopez filed this action against the City of Los Angeles arising from a April 25, 2016 trip and fall on raised concrete in front of 9213 Pico Boulevard, Los Angeles California.  On April 11, 2019, Plaintiff named Wender Family Trust Dated December 20, 1988 as Doe 3 and Berman Family Trust Dated December 20, 1988 as Doe 4 (“collectively, “Defendants”).  Defendants move for summary judgment on the grounds that the change in elevation of the raised concrete was at most three-quarters of an inch, the change in elevation is considered a trivial defect, and no other facts contributed to Plaintiff’s fall

II.FACTUAL BACKGROUND

Plaintiff alleges that on April 25, 2016, she was walking in front of 9213 Pico Boulevard, Los Angeles, California when she tripped over raised concrete.  (Defendant’s Undisputed Material Fact (“UMF”) No. 1.)  At her October 2, 2019 deposition, Plaintiff identified a photograph taken immediately after her fall which was marked as Exhibit A.  (UMF No. 3.). She also identified the location that caused her fall by drawing a circle on a photograph marked as Exhibit B.  (UMF No. 4.). 

III.LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center, 135 Cal. App. 4th 289, 294 (2005).)

“[T]he 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., 128 Cal. App. 4th 1510, 1519 (2005).)  A defendant moving for summary judgment or summary adjudication “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, or that there is a complete defense to the cause of action.”  (Cal Civ. Proc. Code § 437c (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 854 (2001).)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, 25 Cal. 4th at 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura, 108 Cal. App. 4th 884, 891 (2003).)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Id.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, 25 Cal. 4th at 855.)

“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.”  (Cal. Civ. Proc. Code, § 437c (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center, 159 Cal. App. 4th 463, 467 (2008).)

IV.EVIDENTIARY OBJECTIONS

Plaintiff submitted evidentiary objections in opposition to Defendant’s Motion.  The objections do not conform to California Rule of Court 3.1354. Nevertheless, the Court considers the objections and OVERRULES them.  

V.DISCUSSION

“An initial and essential element of recovery for premises liability under the governing statutes is proof a dangerous condition existed.”  (Stathoulis v. City of Montebello, 164 Cal. App. 4th 559, 566 (2008).)  The law imposes no duty on a landowner to repair trivial defects or to maintain his or her property in an absolutely perfectly condition.  (Id.)  “A property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.”  (Caloroso v. Hathaway,122 Cal. App. 4th 922, 927 (2004).)  The “trivial defect defense” is an aspect of duty that a plaintiff must plead and prove and allows a court to determine whether a defect is trivial as a matter of law.  (Ursino v. Big Boy Restaurants, 192 Cal. App. 3d 394, 398 (1987).)  “The rule which permits a court to determine ‘triviality’ as a matter of law rather than always submitting the issue to a jury provides a check valve for the elimination from the court system of unwarranted litigation which attempts to impose upon a property owner what amounts to absolute liability for injury to persons who come upon the property.”  (Id. at 399.)

Whether a crack or other defect in a walkway is dangerous does not rest entirely on its size, although the size of a crack is a pivotal factor in the determination.  (Stathoulis, 164 Cal. App. 4th at 566-567.)  In addition to size, the court must determine “whether there existed any circumstances surrounding the accident which might have rendered the defect more dangerous than its mere abstract depth would indicate” (Fielder v. City of Glendale, 71 Cal. App. 3d 719, 734 (1977)), such as the “weather at the time of the incident, plaintiff’s knowledge of the conditions in the area, whether the defect has caused other accidents, and whether circumstances might either have aggravated or mitigated the risk of injury.  [Citations.]”  (Stathoulis, 164 Cal. App. 4th at 567).

“If the defect is of such trivial character that it presents no element of conspicuousness or notoriety, its continued existence does not impart constructive notice” to the landowner.  (Barrett v. City of Claremont, 41 Cal.2d 70, 73 (1953).)  To assign liability for a defect, the landowner must have notice not only of the condition of the sidewalk, but also of the dangerous character of such condition.  (Whiting v. National City, 9 Cal. 2d 163, 165 (1937).)  

Where reasonable minds would reach only one conclusion, courts may determine “triviality” as a matter of law and the issue may be properly resolved by way of summary judgment.  (Stathoulis, 164 Cal. App. 4th at 567.)  However, a court may not “make that determination if competing and conflicting evidence of the size, nature and quality of the defect, or the circumstances surrounding the plaintiff’s injury, raise triable factual questions as to whether the defect or conditions of the surface presented a danger to pedestrians exercising ordinary care.”  (Id. at 569.)  

In cases “concerned with the difference in elevation between adjoining sections of sidewalk where the rise varied from one-fourth inch to one inch . . . the court held the defect to be minor and trivial as a matter of law [and did not] impose liability upon the owner for injuries thereby sustained by the plaintiff.”  (Graves v. Roman, 113 Cal. App. 2d 584, 586 (1952).)  “Several decisions have found height differentials of up to one and one-half inches trivial as a matter of law.”  (Stathoulis, 164 Cal. App. 4th at 568.)  For example, in Whiting, a sidewalk slab was raised three-fourths of an inch above the adjoining portion and the court deemed the defect to be minor and held that no injury would ordinarily be suffered therefrom when ordinary care was exercised in using the sidewalk.  (Whiting, 9 Cal. 2d at 166.)  The Court noted that many thousands of people, including numerous city officials, had passed over this defect during the five years of its existence and no one had suffered from it to the extent of seeking redress against the city.  (Id.)

Defendant contends that the raised concrete that allegedly caused Plaintiff’s fall is a trivial defect as a matter of law.  Defendant relies on the expert declaration of Mark Blanchette, a biomechanics expert, who authenticates photos he took of the incident on December 3, 2019 and relies on Plaintiff’s deposition testimony and discovery responses to recreate the setting and lighting conditions at the time of Plaintiff’s incident.  Blanchette concludes that the change in elevation in any section within the general area of Plaintiff’s incident is no more than three-quarters of an inch.  (UMF No. 6; Blanchette Decl., 4- 5, Exhs. B-C.)  In support, Blanchette authenticates photos of the sidewalk next to a ruler that measures the change in elevation as three quarters of an inch.  (Id.)

Defendant also cites to Blanchette’s declaration to show that the lighting where Plaintiff fell was well lit and visible.  (UMF No. 7.) 7.)  Blanchette declares that he performed this inspection when he was able to recreate the setting and lighting conditions as were present at the time of Plaintiff’s alleged incident, and that the illuminance of the area, as determined by a calibrated Extech EA31 light meter, was 1.2 footcandles, which exceeds the California Building Code’s requirement of 1.0 footcandle illumination at floor level.  (Blanchette Decl., ¶ 4-5.)  Accordingly, the Court finds Defendants have made a prima facie case to show that the raised concrete alleged to be the dangerous condition is a trivial defect.

In opposition, Plaintiff argues that there are triable issues of material fact because counsel qualified his question about the lighting conditions in Exhibit A of her deposition with the word “about.”  Plaintiff also argues that Blanchette’s opinion is a triable issue because he opines that the change in elevation is no more than three quarters of an inch.  However, Plaintiff does not put forth any competing evidence regarding the height of the raised concrete and the Court is not persuaded that the distinctions pointed out by Plaintiff create genuine disputes of material facts.  Furthermore, Plaintiff does not introduce any evidence of circumstances which might make the raised concrete which may have rendered the defect more dangerous than its mere size and depth would indicate.  

VI.CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED. 

Moving party to give notice.  

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  

Dated this 2nd day of July 2020

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases represented by Lawyer FEUER MICHAEL NELSON