This case was last updated from Los Angeles County Superior Courts on 03/18/2020 at 01:36:12 (UTC).

JODY KERN VS THE CALIFORNIA STATE UNIVERSITY VALLEY PERFOR

Case Summary

On 07/07/2017 JODY KERN filed a Personal Injury - Other Personal Injury lawsuit against THE CALIFORNIA STATE UNIVERSITY VALLEY PERFOR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELAINE LU and STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7489

  • Filing Date:

    07/07/2017

  • 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

ELAINE LU

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

KERN JODY

Defendants and Respondents

THE CALIFORNIA STATE UNIVERSITY VALLEY

DOES 1 TO 100

BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

FITZGERALD PAUL D. ESQ.

FITZGERALD PAUL DANA ESQ.

Defendant and Respondent Attorneys

WALKER & KIRKPATRICK

KIRKPATRICK JASON ALEXANDER

 

Court Documents

Request for Dismissal

3/12/2020: Request for Dismissal

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT) OF 02/26/2020

2/26/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT) OF 02/26/2020

Declaration - DECLARATION DECLARATION OF PAUL D. FITZGERALD IN OPPOSITION OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

2/13/2020: Declaration - DECLARATION DECLARATION OF PAUL D. FITZGERALD IN OPPOSITION OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Separate Statement

2/13/2020: Separate Statement

Objection - OBJECTION OBJECTIONS BY DEFENDANT BOARD OF TRUSTEES TO EVIDENCE OFFERED BY PLAINTIFF IN OPPOSITION TO MSJ

2/19/2020: Objection - OBJECTION OBJECTIONS BY DEFENDANT BOARD OF TRUSTEES TO EVIDENCE OFFERED BY PLAINTIFF IN OPPOSITION TO MSJ

Notice of Ruling

2/3/2020: Notice of Ruling

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION

1/30/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION

Notice of Ruling

1/31/2020: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

1/31/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

Declaration - DECLARATION DECLARATION OF JASON A. KRIKPATRICK IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

12/13/2019: Declaration - DECLARATION DECLARATION OF JASON A. KRIKPATRICK IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLARATION OF THOR STEINGRABER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

12/13/2019: Declaration - DECLARATION DECLARATION OF THOR STEINGRABER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

Motion for Summary Judgment

12/13/2019: Motion for Summary Judgment

Notice - NOTICE OF REQUEST FOR JURY BY DEFENDANT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

10/1/2019: Notice - NOTICE OF REQUEST FOR JURY BY DEFENDANT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES

4/8/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

4/8/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)

SUMMONS -

7/7/2017: SUMMONS -

COMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY 2. NEGLIGENCE

7/7/2017: COMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY 2. NEGLIGENCE

21 More Documents Available

 

Docket Entries

  • 03/16/2020
  • Docketat 08:30 AM in Department 32, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Party's Motion

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  • 03/12/2020
  • DocketRequest for Dismissal; Filed by Jody Kern (Plaintiff)

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  • 03/04/2020
  • Docketat 10:00 AM in Department 32, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Party's Motion

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  • 02/26/2020
  • Docketat 1:30 PM in Department 32, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under Submission

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  • 02/26/2020
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Judgment) of 02/26/2020); Filed by Clerk

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  • 02/26/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

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  • 02/21/2020
  • DocketReply (Plaintiff's rebuttal to defendant's reply); Filed by Jody Kern (Plaintiff)

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  • 02/19/2020
  • Docketat 1:30 PM in Department 5; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party

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  • 02/19/2020
  • DocketObjection (Objections by Defendant Board of Trustees to Evidence Offered by Plaintiff in Opposition to MSJ); Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 02/19/2020
  • DocketReply (Reply in Support of Motion for Summary Judgment by Defendant Board of Trustees of the California State University); Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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37 More Docket Entries
  • 04/08/2019
  • DocketNotice of Ruling; Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 03/04/2019
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District) (-FSC: 6-25-19 Trial: 7-5-19); Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 01/07/2019
  • Docketat 08:30 AM in Department 5; Jury Trial - Not Held - Continued - Stipulation

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  • 12/21/2018
  • Docketat 10:00 AM in Department 5; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 11/09/2018
  • DocketNotice of Ruling (Re Continued FSC, Trial and Related Discovery and Motion Cut-Off Dates); Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 11/05/2018
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 07/03/2018
  • DocketAnswer; Filed by BOARD OF TRUSTEES OF THE CA.ST.UNIVERSITY (Defendant)

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  • 07/07/2017
  • DocketCOMPLAINT FOR DAMAGES 1. DANGEROUS CONDITION OF PUBLIC PROPERTY 2. NEGLIGENCE

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  • 07/07/2017
  • DocketComplaint; Filed by Jody Kern (Plaintiff)

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  • 07/07/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC667489    Hearing Date: February 26, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

jody kern ,

Plaintiff,

v.

the california state university,

Defendant.

Case No.: BC667489

Hearing Date: February 26, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Jody Kern (“Plaintiff”) filed this action against Defendant Board of Trustees of the California State University (“Defendant”), asserting causes of action for dangerous condition of public property and negligence. Plaintiff alleges that she tripped and fell on a stairway at the Valley Performing Arts Center. Now, Defendant moves for summary judgment or, in the alternative, summary adjudication, 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

A. Timing of Motion

Plaintiff first argues that the motion should be denied because Defendant noticed the motion for hearing less than 30 days from the trial date. The motion was filed on December 13, 2019. The motion was noticed for hearing on February 26, 2020. The trial date was March 16, 2020. When the Court continued the trial to June 22, 2020, that defect was cured. Regardless, Plaintiff waived the right to have the motion heard 30 days or more before trial by opposing the motion on the merits. For these reasons, the Court rejects Plaintiff’s argument on this point.

B. Dangerous Condition of Public Property

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

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.) A public entity has actual notice of a dangerous condition “if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (Gov. Code, § 835.2, subd. (a).) A public entity has constructive notice of a dangerous condition only if “the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (Gov. Code, § 835.2, subd. (b).)

“‘Constructive notice,’ under section 835.2, subdivision (b), requires a plaintiff to establish that the dangerous condition existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. Admissible evidence for establishing constructive notice is defined by statute as including whether a reasonably adequate inspection system would have informed the public entity, and whether it maintained and operated such an inspection system with due care.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) A public entity may create “a reasonable inference that the condition was not obvious” by, for example, “show[ing] that [its] workers had been in the area and did not see the condition within at least the one-year period leading up to [an] accident . . . .” (Id. at 318.)

Defendant argues that it lacked actual or constructive notice of any dangerous condition. Defendant relies upon the depositions of Plaintiff and her husband. Plaintiff testified that she does not know what she slipped on, and did not see or feel anything wet on the stairs. (Separately Bound Exhibits in Support of Motion for Summary Judgment, Exh. #2, pp. 34-35, 43.) Defendant also advances the deposition testimony of Plaintiff’s husband, Larry Kern (“Larry”). Larry testified that he did not see anything on the stairs leading up to Plaintiff’s accident. (Separately Bound Exhibits in Support of Motion for Summary Judgment, Exh. #3, pp. 26, 30.)

Defendant proffers a declaration from Irene Castrellon (“Castrellon”), the head custodian at the Valley Performing Arts Center. Castrellon states that she completed a walkthrough of the stairs where Plaintiff fell a few minutes before Plaintiff’s fall occurred and did not see any hazards on the stairs. (Declaration of Irene Castrellon, ¶¶ 5-6.) Castrellon further states that, after Plaintiff’s fall, she inspected the area and did not see anything that could have caused Plaintiff’s fall. (Ibid.)

Defendant proffers a declaration from Thor Steingraber (“Steingraber”), the executive director of the Valley Performing Arts Center. Steingraber states that none of the custodians, employees, or ushers at the Valley Performing Arts Center reported any issues with the stairs during the show. (Declaration of Thor Steingaber, ¶ 11.)

This evidence is sufficient to satisfy Defendant’s burden of demonstrating that it had no actual or constructive notice of any hazard on the stairs prior to Plaintiff’s accident. In opposition, Plaintiff relies on a declaration from Mark J. Burns (“Burns”), a civil engineer and general contractor. Burns states that he inspected the stairs where Plaintiff’s accident occurred. Burns states, “According to Mrs. Kern’s deposition transcript she slipped on liquid and therefore the subject tread was wet.” (Declaration of Mark J. Burns, ¶ 9.) As discussed above, however, Plaintiff testified that she was unaware of what caused her to slip. While Plaintiff testified that the stair was so slippery it must have had a “liquid substance . . . ,” on it, Plaintiff’s other deposition testimony reveals this to be speculation. (Declaration of Paul D. Fitzgerald in Opposition to Motion for Summary Judgment, Exh. #6, p. 32.) Likewise, while Larry Kerns testified that “there had to have been moisture on the step . . . ,” Larry testified he did not observe any such moisture. (Declaration of Paul D. Fitzgerald in Opposition to Motion for Summary Judgment, Exh. #7, p. 62.) The record before the Court is therefore devoid of any admissible evidence that liquid was present on the stairs when Plaintiff slipped. Accordingly, Burns’s testimony regarding the slip resistance of the step on which Plaintiff slipped is based on assumption lacking evidentiary foundation, and it is therefore inadmissible. (People v. Sanchez (2016) 63 Cal.4th 665, 676-677.)

Burns further states that the treads of the stairs were 10.44 inches, rather than 11 inches, in violation of the California Building Standards Code. Burns does not, however, provide the historical version of the Building Standards Code that he contends applies to the Valley Performing Arts Center. Regardless, even assuming Burns is correct that the applicable version of the Building Standards Code required the treads of the stairs to be 11 inches, Burns’s declaration is insufficient to establish that any violation of this requirement caused or contributed to Plaintiff’s fall. Burns states that the tread of the stairs where Plaintiff fell is too narrow. (Declaration of Mark J. Burns, ¶ 14.) However, Plaintiff did not testify that her accident involved missing a step or some other mechanism to which the tread of the stairs is relevant. Instead, Plaintiff testified that her foot slid. (Declaration of Paul D. Fitzgerald in Opposition to Motion for Summary Judgment, Exhibit 6, p. 31.) Burns’s conclusion that the tread of the stair caused or contributed to Plaintiff’s accident lacks evidentiary foundation, and it is therefore inadmissible.

Finally, Plaintiff argues in her opposition that the steps were inherently slippery. Plaintiff relies on Burns’s declaration:

The subject stairway lacked the necessary slip resistance for safe usage. Multiple industry standards, including the American National Standards Institute (ANSI) state that the threshold for safe walking surfaces is 0.5 or above. I measured the slip resistance of the subject tread under conditions with liquid present in the exact area where Mrs. Kern testified the incident occurred. The slip resistance was measured to be as low as 0.15.

(Declaration of Mark J. Burns, ¶¶ 10-11.) Again, his opinion is based upon the theory that there was liquid on the steps. He predicates this opinion on Plaintiff’s testimony that “she slipped on liquid.” (Id., ¶ 9.) Specifically, he opines: “Liquid present on the subject travertine tread measured at between 0.15 and 0.18. That presents a clear unreasonable risk of a slip, especially on a set of stairs in which a fall could lead to severe injuries, as happened here.” (Id., ¶ 13.) Burns also opines: “[I]t is my opinion that Defendant Board of Trustees of the California State University have (and had at the time) a dangerous condition of public property present when liquid is present on the travertine steps.” (Id., ¶ 14.) As discussed, there is insufficient evidence that liquid was present, and therefore Burns’s opinion lacks foundation. Because Burns’s opinion was predicated on the existence of liquid, there is insufficient evidence to proceed to trial on the theory that the steps were inherently slippery regardless of whether liquid was present, as suggested by Plaintiff’s opposition.

Two cases support the Court’s decision to grant summary judgment. In Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, the Second District affirmed the trial court’s decision to grant summary judgment. In that case, the plaintiff slipped and fell on “an unknown substance” on the floor, but there was no evidence of anything on the floor, and the plaintiff did not know why she fell. In Vaughn v. Montgomery Ward (1950) 95 Cal.App.2d 553, the First District reversed a jury verdict in favor of the plaintiff. In that case, there was no evidence that the floor at issue was slippery, and Plaintiff’s only evidence was that her clothes were soiled with grease afterwards. Both cases are squarely on point.

C. Negligence

Defendant is a public entity. Therefore, Plaintiff cannot assert common law claims against Defendant. (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) Accordingly, Defendant’s motion for summary adjudication of the claim for negligence is granted.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.

DATED: February 26, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court