This case was last updated from Los Angeles County Superior Courts on 07/14/2021 at 15:29:59 (UTC).

IRENE BURTON VS CITY OF LA VERNE, ET AL.

Case Summary

On 08/08/2019 IRENE BURTON filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LA VERNE. This case was filed in Los Angeles County Superior Courts, Spring Street 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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******7788

  • Filing Date:

    08/08/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

MICHAEL E. WHITAKER

 

Party Details

Plaintiffs, Appellants and Respondents

BURTON IRENE

GARRETT FRY

CITY OF LA VERNE

THE ALLEN L. DUDLEY AND JOAN DUDLEY LIVING TRUST

SHOEMAKER DOE 22 CONSTANCE LOUISE

Defendants, Cross Plaintiffs and Respondents

PAN ZHEJUN

WANG YAZIN

CITY OF LA VERNE

THE ALLEN L. DUDLEY AND JOAN DUDLEY LIVING TRUST

SHOEMAKER DOE 22 CONSTANCE LOUISE

Defendants and Cross Plaintiffs

PAN ZHEJUN

WANG YAZIN

JOAN DUDLEY TRUSTEE OF THE ALLEN L. DUDLEY AND JOAN DUDLEY LIVING TRUST

Defendants, Cross Defendants and Respondents

CITY OF LA VERNE

SHOEMAKER CONSTANCE LOUISE

Attorney/Law Firm Details

Plaintiff Attorney

CARRICO ALAN A.

Defendant and Cross Defendant Attorneys

WRONIAK MICHAEL L

KOTHARY PRITESH S.

KATZ DANIEL

WEINER MARK R

KOTHARY PRITESH S

BARER DANIEL P.

RAMIREZ JACOB

WEINER MARK R.

Defendant and Cross Plaintiff Attorneys

KOTHARY PRITESH S.

KATZ DANIEL

KOTHARY PRITESH S

 

Court Documents

Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MARK J. BURNS IN OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF LA VERNE AND CONSTANCE LOUISE SHOEMAKER

1/15/2021: Supplemental Declaration - SUPPLEMENTAL DECLARATION OF MARK J. BURNS IN OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT BY DEFENDANTS CITY OF LA VERNE AND CONSTANCE LOUISE SHOEMAKER

Memorandum of Points & Authorities

1/19/2021: Memorandum of Points & Authorities

Reply - REPLY DEFENDANT/CROSS-DEFENDANT CONSTANCE LOUISE SHOEMAKER'S REPLY TO SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON COMPLAINT OF IRENE BURTON FILED BY DEFENDANT CITY OF LA VERNE AN

1/22/2021: Reply - REPLY DEFENDANT/CROSS-DEFENDANT CONSTANCE LOUISE SHOEMAKER'S REPLY TO SUPPLEMENTAL OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON COMPLAINT OF IRENE BURTON FILED BY DEFENDANT CITY OF LA VERNE AN

Notice of Ruling - NOTICE OF RULING ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT

2/18/2021: Notice of Ruling - NOTICE OF RULING ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT

Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT

3/11/2021: Notice - NOTICE NOTICE OF ENTRY OF JUDGMENT

Memorandum of Costs (Summary)

3/17/2021: Memorandum of Costs (Summary)

Request for Dismissal - REQUEST FOR DISMISSAL (NOT ENTERED)

5/18/2021: Request for Dismissal - REQUEST FOR DISMISSAL (NOT ENTERED)

Minute Order - MINUTE ORDER (COURT ORDER: MOTION FOR SUMMARY JUDGMENT)

12/28/2020: Minute Order - MINUTE ORDER (COURT ORDER: MOTION FOR SUMMARY JUDGMENT)

Opposition - OPPOSITION PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT OF UNDISPUTED FACTS BY DEFENDANT CITY OF LA VERNE AND STATEMENT OF MATERIAL FACTS PLAINTIFF CONTENDS ARE UNDISPUTED

12/15/2020: Opposition - OPPOSITION PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT OF UNDISPUTED FACTS BY DEFENDANT CITY OF LA VERNE AND STATEMENT OF MATERIAL FACTS PLAINTIFF CONTENDS ARE UNDISPUTED

[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

12/16/2020: [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

Objection - OBJECTION DEFENDANT/CROSS-DEFENDANT CONSTANCE LOUISE SHOEMAKER'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARK J. BURNS SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON COMPLA

12/18/2020: Objection - OBJECTION DEFENDANT/CROSS-DEFENDANT CONSTANCE LOUISE SHOEMAKER'S EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MARK J. BURNS SUBMITTED IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT ON COMPLA

Notice of Posting of Jury Fees

8/21/2020: Notice of Posting of Jury Fees

Amendment to Cross-Complaint (Fictitious/Incorrect Name)

1/14/2020: Amendment to Cross-Complaint (Fictitious/Incorrect Name)

Summons - SUMMONS CROSS-COMPLAINT

10/30/2019: Summons - SUMMONS CROSS-COMPLAINT

General Denial

10/8/2019: General Denial

Proof of Service by Substituted Service

10/2/2019: Proof of Service by Substituted Service

Proof of Personal Service

8/23/2019: Proof of Personal Service

Civil Case Cover Sheet

8/8/2019: Civil Case Cover Sheet

74 More Documents Available

 

Docket Entries

  • 08/04/2022
  • Hearing08/04/2022 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 08/26/2021
  • Hearing08/26/2021 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 08/12/2021
  • Hearing08/12/2021 at 10:00 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/01/2021
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (- B312336 - NOA 4/19/21); Filed by Clerk

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  • 05/18/2021
  • DocketRequest for Dismissal ((not entered)); Filed by Joan Dudley, Trustee of The Allen L. Dudley and Joan Dudley Living Trust Dated October 7, 1993 (Cross-Complainant); Yaxin Wang Erroneously Sued As Yazin Wang (Cross-Complainant); Zhejun Pan (Cross-Complainant)

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  • 05/07/2021
  • DocketAssociation of Attorney; Filed by City of La Verne (Defendant)

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  • 05/03/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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  • 04/30/2021
  • DocketRequest for Dismissal; Filed by Irene Burton (Plaintiff)

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  • 04/29/2021
  • DocketNotice of Change of Firm Name; Filed by City of La Verne (Defendant)

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  • 04/19/2021
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by Irene Burton (Appellant)

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77 More Docket Entries
  • 09/13/2019
  • DocketDemand for Jury Trial; Filed by City of La Verne (Defendant)

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  • 09/12/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Irene Burton (Plaintiff)

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  • 09/09/2019
  • DocketAnswer; Filed by City of La Verne (Defendant)

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  • 08/23/2019
  • DocketProof of Personal Service; Filed by Irene Burton (Plaintiff)

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  • 08/16/2019
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 08/16/2019
  • DocketPI General Order; Filed by Clerk

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  • 08/08/2019
  • DocketSummons (on Complaint); Filed by Irene Burton (Plaintiff)

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  • 08/08/2019
  • DocketComplaint; Filed by Irene Burton (Plaintiff)

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  • 08/08/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 08/08/2019
  • DocketCivil Case Cover Sheet; Filed by Irene Burton (Plaintiff)

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Tentative Rulings

Case Number: 19STCV27788    Hearing Date: December 29, 2020    Dept: 32

 

 

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

irene burton,

Plaintiff,

v.

city of La verne, et al.,

Defendants.

Case No.: 19STCV27788

Hearing Date: December 29, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Irene Burton (“Plaintiff”) filed this action against the City of La Verne (“Defendant”), among others, after she tripped and fell on a public sidewalk. Plaintiff alleges a cause of action for premises liability against Defendant. Defendant moves for summary judgment based upon two theories: (1) Plaintiff cannot proceed against a municipality on common law causes of action; and (2) Plaintiff cannot establish the element of duty because the defect was trivial. The Court need not address the first argument, as it construes the cause of action as one for dangerous condition of public property under Government Code section 835. However, the Court continues the hearing on this motion.

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

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.)

However, a municipality is not liable for every defect. A “dangerous condition” is a condition of public property that “create[s] a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code, § 830.2.) A court must determine if a defect is trivial as a matter of law based on all surrounding circumstances. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.) In determining whether a defect is trivial as a matter of law, the court first “reviews evidence regarding the type and size of the defect.  If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.)

Defendant relies on a declaration from Dustin Whitebear (“Whitebear”), a maintenance worker who inspected the area of Plaintiff’s fall. Whitebear located five sidewalk panels in the immediate vicinity of Plaintiff’s fall that were not level. Whitebear measured the deviations as approximately one inch, 3/8 inch, 3/8 inch, 1/2 inch, and 3/8 inch, respectively.

Plaintiff’s expert, Mark J. Burns, opines that the sidewalk uplift was 1 and 5/16 inches. Mr. Burns’s declaration states: “Based on science photographs (herein attached collectively as Exhibit ‘2’), it is my opinion that the sidewalk uplift presented an abrupt height differential of approximately 1 5/16 inches.” (Declaration of Mark J. Burns, ¶ 8.) However, this opinion appears to lack foundation in several ways. First, there is no definition of “science photographs,” so it is unclear how these “science photographs” support his opinion. Second, there is no explanation in plain language of how Mr. Burns identified the relevant location of Plaintiff’s fall. Based upon the photos, it appears as though Mr. Burns is measuring the differential between the sidewalk and the adjacent property, and not any uplift in the sidewalk panels themselves. If that is actually where Plaintiff fell, there is insufficient evidence in the record to make that clear. Third, there is no explanation for how Mr. Burns determined that the sidewalk uplift was actually 1 and 5/16 inches. Fourth, there is no foundation for Mr. Burns’s opinion that the sidewalk uplift was 1 and 5/16 inches at the time of the accident. Mr. Burns states that he inspected the area on June 23, 2020, and there is nothing in the record establishing that the area was in the same conditions Plaintiff’s fall, which occurred on October 25, 2018. The Court is especially concerned because Plaintiff concedes that “[r]epair of the sidewalk was performed on October 29, 2018 because the City received a telephone call reporting that plaintiff tripped and fell.” (Plaintiff’s Opposition, p.4.) Defendant concurs that the sidewalk uplift was repaired before Mr. Burns’s inspection. (Defendant’s Objections, ¶ 2.) Therefore, the Court does not have sufficient information to rule on this motion.

CONCLUSION AND ORDER

Per Code of Civil Procedure section 437c(h), the Court is required to afford Plaintiff an opportunity to correct this issue, since it appears that Mr. Burns may be able to do so. Therefore, the Court orders as follows:

1. Plaintiff may file a supplemental declaration from Mark J. Burns providing proper foundation for his opinion (if possible) and/or a supplemental opposition of no more than five pages. The declaration shall be due on or before January 15, 2021.

2. Defendant may file a supplemental reply brief of no more than five pages in response on or before January 29, 2021.

3. The Court continues the hearing on this motion, and on the joinder by Defendant Constance Louise Shoemaker, to February 17, 2021, at 1:30 p.m.

4. The Court’s clerk shall provide notice to all parties of record.

DATED: December 28, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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