This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:50:54 (UTC).

LIWEN HSU TOGI VS CITY OF SOUTH PASADENA

Case Summary

On 10/18/2017 LIWEN HSU TOGI filed a Personal Injury - Other Personal Injury lawsuit against CITY OF SOUTH PASADENA. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0186

  • Filing Date:

    10/18/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

TOGI LIWEN HSU

Defendants, Respondents and Cross Defendants

DOES 1 TO 20

SOUTH PASADENA CITY OF

WEST COAST ARBORISTS INC. DOE 6

Defendant and Cross Plaintiff

WEST COAST ARBORISTS INC. DOE 6

Intervenor

CHURCH MUTUAL INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

SU AIHUI ESQ.

SU AIHUI

Defendant and Respondent Attorneys

D'ORO FRANK J. ESQ.

D'ORO FRANK JOSEPH JR

MCMAHAN MARTIN SCOT

Defendant and Cross Defendant Attorney

D'ORO FRANK JOSEPH JR

Other Attorneys

LAUGHLIN FALBO LEVY & MORESI

 

Court Documents

Reply

6/14/2019: Reply

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/21/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Brief

6/28/2019: Brief

Minute Order

7/3/2019: Minute Order

Certificate of Mailing for

7/3/2019: Certificate of Mailing for

Proof of Service by 1st Class Mail

8/30/2018: Proof of Service by 1st Class Mail

PROOF OF SERVICE SUMMONS

8/30/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

9/13/2018: PROOF OF SERVICE SUMMONS

Summons

10/16/2018: Summons

Complaint in Intervention

11/6/2018: Complaint in Intervention

Motion for Summary Judgment

3/28/2019: Motion for Summary Judgment

Separate Statement

3/28/2019: Separate Statement

Ex Parte Application

6/3/2019: Ex Parte Application

Response

6/3/2019: Response

Declaration in Support of Ex Parte Application

6/3/2019: Declaration in Support of Ex Parte Application

Declaration in Support of Ex Parte Application

6/3/2019: Declaration in Support of Ex Parte Application

Supplemental Declaration

6/3/2019: Supplemental Declaration

Proof of Service (not Summons and Complaint)

12/27/2017: Proof of Service (not Summons and Complaint)

62 More Documents Available

 

Docket Entries

  • 02/10/2020
  • Hearingat 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Jury Trial

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  • 01/30/2020
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 08/07/2019
  • Docketat 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 07/05/2019
  • DocketNotice of Ruling; Filed by SOUTH PASADENA, CITY OF (Defendant)

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  • 07/03/2019
  • Docketat 2:10 PM in Department B; Ruling on Submitted Matter

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  • 07/03/2019
  • DocketOrder (Court's Order re: Motion for Summary Judgment); Filed by Clerk

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  • 07/03/2019
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

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  • 07/03/2019
  • DocketCertificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 07/03/2019); Filed by Clerk

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  • 06/28/2019
  • DocketBrief (Plaintiff Liwen Hsu Togi's Brief in Response to Four Cases Cited by Defendant City of South Pasadena During Motion for Summary Judgment); Filed by LIWEN HSU TOGI (Plaintiff)

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  • 06/28/2019
  • DocketResponse (DEFENDANT CITY OF SOUTH PASADENA'S RESPONSE TO PLAINTIFF'S ADDITIONAL BRIEFING WITH REGARD TO MOTION FOR SUMMARY JUDGMENT); Filed by SOUTH PASADENA, CITY OF (Defendant)

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87 More Docket Entries
  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint)

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  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint)

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  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint); Filed by LIWEN HSU TOGI (Plaintiff)

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  • 11/27/2017
  • DocketAnswer; Filed by SOUTH PASADENA, CITY OF (Defendant)

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  • 11/27/2017
  • DocketANSWER OF CITY OF SOUTH PASADENA TO COMPLAINT; DEMAND FOR JURY TRIAL

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  • 11/14/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/14/2017
  • DocketProof-Service/Summons; Filed by LIWEN HSU TOGI (Plaintiff)

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  • 10/18/2017
  • DocketPLAINTIFF'S COMPLAINT FOR DAMAGES

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  • 10/18/2017
  • DocketComplaint; Filed by LIWEN HSU TOGI (Plaintiff)

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  • 10/18/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC680186    Hearing Date: August 21, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.: BC680186

Hearing Date: August 21, 2020 (cont. from July 10, 2020)

[TENTATIVE] order RE:

motion for summary judgment

BACKGROUND

A. Allegations

Plaintiff Liwen Hsu Togi (“Plaintiff”) alleges that on March 3, 2017, she fell as a result of a dangerous condition while on her way to work. She alleges that Defendants were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and owners of the portion of public sidewalk, parkway, and trees abutting the real property at 1013 Mound Avenue, South Pasadena, California 91030. The complaint, filed October 18, 2017, alleges a single cause of action for negligence/premises liability.

On August 22, 2018, Defendant City of South Pasadena (“City”) filed a cross-complaint against Cross-Defendant West Coast Arborists, Inc. (“WCA”), alleging causes of action for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) breach of contract.

On October 16, 2018, WCA filed a cross-complaint against City for: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

B. Motion for Summary Judgment

On March 6, 2020, WCA filed a motion for summary judgment, arguing that there are no triable issues of material facts as to the alleged negligence of WCA.

On June 25, 2020, City filed an opposition to the motion.

On June 26, 2020, Plaintiff filed an opposition brief.

On July 2, 2020, WCA filed the reply.

The matter was initially on calendar on July 10, 2020. In the opposition papers, City and Plaintiff had requested a continuance of the motion to permit the completion of discovery. The Court granted the request to allow the deposition of Ernesto Macias to go forward. The Court set a briefing schedule to allow City and Plaintiff to file a supplemental opposition papers by August 7, 2020, and for WCA to file supplemental reply papers by August 14, 2020.

On August 7, 2020, City filed supplemental opposition papers. On August 14, 2020, WCA filed supplemental reply papers. The supplemental papers focus on whether WCA has a contractual duty to report sidewalk damage.

EVIDENTIARY OBJECTIONS

With the opposition brief, City submitted a single evidentiary objection to the Declaration of Ernesto Macias at paragraph 4 in support of WCA’s motion. The objection is overruled. With the supplemental opposition, City submitted additional evidentiary objections to the same declaration of Mr. Macias. The additional objections are overruled.

With the reply brief, WCA submitted evidentiary objections to the declaration of Kristine Courdy and declaration of Greg Monfette. It is unclear whether WCA is objecting to the declaration in their entirety or only certain portions of the declarations, as the format of the objections are not compliant with CRC Rule 3.1354. Thus, the objections are overruled.

With the supplemental reply, WCA submitted evidentiary objections to declarations of Ms. Courdy and Mr. Monfette again.

PLAINTIFF’S OPPOSITION

CCP §437c(b)(3) states that the “opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those fact are undisputed. … Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

Plaintiff filed an opposition brief with a supporting memorandum of points and authorities and a joinder to City’s Compendium of Exhibits (COE). Plaintiff did not file a separate statement in support of the opposition brief. Instead, Plaintiff’s memorandum of points and authorities cites to City’s additional material facts (AMF).

On July 10, 2020, the Court ordered Plaintiff to file a separate statement if she intended to oppose the motion by August 7, 2020. The Court has reviewed its records and does not find that Plaintiff has filed a separate statement or her own opposing evidence. Thus, the Court has discretion to grant WCA’s motion for summary judgment against Plaintiff. In addition, a joinder to City’s separate statement and compendium of exhibits is not proper. There is no code provision allowing for the joinder of another party’s separate statement. Nevertheless, the Court will consider the arguments in Plaintiff’s opposition as they are similar to those raised by City. Moreover, WCA has not objected to Plaintiff’s opposition papers and even states in the reply brief that Plaintiff’s opposition arguments are essentially identical to the City’s opposition.

The Court notes that even if considering City’s arguments, separate statement, and evidence as Plaintiff’s own, the Court would still grant WCA’s motion against Plaintiff for the reasons stated below.

DISCUSSION

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Duty is a question of law for the court. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)

WCA argues that it is entitled to summary judgment because it owed no duty of care to Plaintiffs. WCA argues that: (1) it did not own, legally possess, or otherwise control the subject property such that it owed a duty of care to the general public or Plaintiff; (2) it did not owe a duty to Plaintiff pursuant to any agreement; and (3) it did not owe a duty under a special relationship with Plaintiff.

A. Did WCA Owe a Duty to Plaintiff Based on Ownership, Possession, or Control of the Subject Premises?

In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.)

In support of its initial burden, WCA provides the following facts: Plaintiff asserts a single cause of action for negligence/premises liability against WCA, alleging that on March 3, 2017, she was walking across a parkway abutting real property at 1013 Mound Avenue in South Pasadena when she tripped and fell on a portion of a sidewalk that was raised approximately 6 inches above the level of the parkway. (WCA Fact 1-2; McMahan Decl., Ex. A [Compl.].) According to Kristine Courdy (PMK for City), City owns the property where the subject incident occurred, such that WCA did not own, legally possess, or control the subject property. (WCA Fact 3-4; McMahan Decl., Ex. B [Courdy Depo. at 151:2-8, 280:3-281:3, 101:23-102:9, 124:13-23]; see Ernesto Macias Decl., ¶3.)

In opposition, City[1] does not dispute that WCA did not own the property, but disputes that WCA had control over the trees on the subject property where the incident occurred. (City Fact 3-4.) In support of City’s argument that WCA had control of the trees and hence the ground around the trees in the parkway, City cites to paragraph 9 of the parties’ Agreement for Services at paragraph 9 (entitled “INDEPENDENT CONTRACTOR STATUS”). Paragraph 9 states that the City and WCA agree that WCA shall perform its services as an independent contractor and “shall have control of all work and the manner in which it is performed.” Even if the Court were to accept City’s argument that WCA had “control” over the trees for the period that they performed work on the trees, the issue in this case is the sidewalk over which Plaintiff tripped and fell—not over the tree or roots.

Further, the use of the word “control” is only in relation to the independent contractor status to perform the work. City has not provided evidence or case law showing that the word “control” as used in the agreement meant that WCA would have control of the trees during the entire duration of the contract. Rather, WCA’s interaction with the trees appears to have only occurred every 4 to 6 years in rotation. (See City Additional Material Fact [AMF] 16.) “[I]n identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 832.) There is not dispute that the sidewalks were owned and controlled by City and that City performed its own inspection of the sidewalks. (See WCA Fact 16-17.)

As such, WCA has established that it did not owe a duty to Plaintiff on the theory that it owned, possessed, or controlled a defective or dangerous condition on the premises. The Court notes that WCA brought a motion for summary judgment and did not move alternatively for summary adjudication on the various issues. Regardless, by finding that WCA did not owe a duty for lack of ownership, possession, or control of the subject property, this in itself would be insufficient to dispose of the case against WCA.

B. Did WCA Owe a Duty to Plaintiff Based on the Agreement?

Next, WCA argues that its contract with City did not create a duty to Plaintiff to ensure the subject sidewalk was safe. WCA also argues that the contract did not create a duty for WCA to report to City the condition of the sidewalk. It argues that its duty extended only to City and not to Plaintiff.

WCA provides facts showing that City and WCA entered into the Agreement for Services on January 21, 2009 (operative in September 2014), whereby WCA was to perform tree service work for City. (WCA Fact 5-6; McMahan Decl., Ex. C [Agreement for Services].) The Agreement sets forth WCA’s duties for tree service work and includes an integration provision that no representation by any party nor any agreement, statement, or promise not contained in the Agreement shall be valid/binding, unless there was a writing signed by the parties. (WCA Fact 7-8; Agreement for Services, ¶35.) WCA argues that the Agreement contains no provision that WCA report on the condition of sidewalks in the city and thus it was not required to report the condition of the subject sidewalk.[2] (WCA Fact 9-10; see Courdy Depo. at 244:1-4, 245:12-16, 246:7-15, 252:3-6, 218:18-219:13; Macias Decl., ¶4.) Ernesto Macias (Safety and Claims Manager of WCA) states that WCA never reported the condition of any sidewalk in the city as a part of its work under the Agreement and Eddie Munoz (WCA’s PMK re sidewalks) states that his department never received any reports or requests regarding the subject sidewalk. (WCA Fact 11; Macias Decl., ¶4; Courdy Depo. at 306:10-307:20; McMahan Decl., Ex. J [Munoz (City PMK re sidewalks) Depo. at 74:12-23].)

Prior to performing its duties under the Agreement, WCA conducted an “inventory” of City’s trees, such as the tree’s location, species, diameter of trunk, height, and, if requested, noticeable damage to a sidewalk near a tree. (WCA Fact 13; Macias Decl., ¶5; McMahan Decl., Ex. D [Arbor Access Site Detail Report for subject tree].) The Arbor Access Site Detail Report shows that WCA did not note any sidewalk damage near the tree when it conducted inventory prior to starting its work for City. (WCA Fact 14.) WCA last trimmed the tree prior to the subject incident on September 16, 2014. (WCA Fact 15; Arbor Access Site Detail Report; Courdy Depo. at 194:23-195:1, 234:9-20.) WCA states that the City Park’s Supervisor checks WCA’s work to verify it has been completed properly and that WCA does not get paid until City makes such verification. (WCA Fact 21-22; Courdy Depo. at pp.184-189, 230:10-14, 234:9-20.) WCA states that it was paid for trimming the subject tree on September 16, 2014. (WCA Fact 23; Macias Decl., ¶5; Courdy Depo. at p.232.)

WCA also provides evidence that on June 25, 2014, Emily Yu (City intern) inspected the subject sidewalk, recorded there was a ½ inch displacement, and gave it the lowest possible rating of 1 (out of 4). (WCA Fact 16-17; McMahan Decl., Ex. E [Yu Depo. at 37:13-24, pp.46-48, pp.62-63]; Ex. F [Yu’s 6/25/14 Inspection Report at p.3]; Ex. G [Photograph of Subject Sidewalk and Tree].) Ms. Courdy (Deputy Public Works Director for City) also testified that she went out to subject location after the subject incident and did not see any problem with the subject sidewalk and would not expect anyone to report a problem. (WCA Fact 19-20.) Thus, prior to WCA’s tree-trimming services at the subject location and following Plaintiff’s trip-and-fall, City did not note any issues with the sidewalk.

WCA also argues that it is shielded from liability based on the “completed and accepted” doctrine, relying on Jones v. P.S. Development Co. (2008) 166 Cal.App.4th 707, Sanchez v. Swinerton & Wallberg Co. (1996) 47 Cal.App.4th 1461, and Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962. (Mot. at pp.7-8.) However, this doctrine only applies in certain cases to shield contractors from liability for negligence. (Jones, supra, 166 Cal.App.4th at 711-712 [trip and fall case where plaintiff tripped over the mounting bolts that secured an explosive detection system machine].) Ordinarily, the rule is applied in connection with a contractor’s negligent creation of a dangerous condition of a structure. (See 6 Witken, Summary 11th Torts (2020) §1304; see e.g., Sanchez, supra, 47 Cal.App.4th at 1464, 1466-71 [involving a subcontractor who was hired to construct the entrance stairway and landing of a new building]; Neiman, supra, 210 Cal.App.4th at 964 [the doctrine precluded an architect’s negligence liability for lack of contrast marking stripes on stairs pursuant to the architect’s plans during construction of a theater].) Thus, the Court does not find that the completed and accepted doctrine apply to the facts of this case.

Nevertheless, WCA has upheld its initial burden on this theory of duty because it has shown that it was retained to trim the tree at the subject location of the incident in September 2014 and that it did not have any contractual duty to report on the condition of the sidewalk near the tree. Further, even if WCA did make sidewalk damage reports on the trees as it was performing trimming services, WCA did not find any sidewalk damage in 2014 (which was consistent with Ms. Yu’s report) and WCA did not have any ongoing duty to continue inspecting and making additional sidewalk reports. Thus, the burden shifts to the opposing party to raise a triable issue of material fact.

In City’s opposition, City provides a copy of the parties’ “Tree Inventory Scope of Work” document for Job number 14255, dated July 17, 2009, which was produced by WCA’s PMK during deposition. (City’s Additional Material Fact [AMF] 6; City’s Compendium of Exhibits [COE], Ex. M.) The document states that WCA is to inventory sidewalks with a 1-inch deflection or ramping.

City also provides copies of WCA’s Site Detail documents for September 16, 2014 and March 29, 2019, which included a section for “Sidewalk Damage”, to which WCA stated “No.” (City AMF 9; City COE, Exs. B-C.) City argues that at the deposition of Kristine Courdy (City’s PMK), WCA attempted to introduce a work order for the subject tree dated September 16, 2014, but which lacked/redacted the field for recording sidewalk damage. (City AMF 11; City COE, Ex. D, Ex. H [Courdy Depo. at pp.191-192].) Andrew Pineda (WCA’s PMK) stated that he did not know if/when the “Sidewalk Damage” field was added or removed and if WCA would edit/remove such fields. (City AMF 13; City COE, Ex. J [Pineda Depo. at pp. 36, 71, 87].)

While City argues that there is a contractual duty for WCA to report sidewalk damage, City’s own additional material facts (AMF) refute that the sidewalk at the subject tree was in fact reportable for damage. For example, in City’s AMF 20, it states that “City did look at this sidewalk, in the direction a pedestrian would have traveled on the sidewalk itself and that aspect of the sidewalk showed no damage. The alleged ‘defect’ was in the height differential between the edge of the sidewalk and the parkway, something the City would not have been looking for but would have been within the purview of a crew trained in tree trimming and tree maintenance checking for root intrusion.” Also, City’s AMF 21 states: “Although the uplift between the parkway and the sidewalk would not be considered sidewalk damage with respect to the customary use of the sidewalk by pedestrians traveling on the sidewalk itself, it would be observable by a crew trained in tree trimming and tree maintenance pruning an adjacent tree.” The Site Detail document included a field for “Sidewalk Damage” only and not sidewalk differential between the sidewalk and the parkway.

Neither the Agreement for Services nor the Scope of Services at the Tree Maintenance Services provide for reporting sidewalk damage. Further, while City has provided the Tree Inventory Scope of Work document, it is unclear whether this document was in effect in 2017 when the accident occurred (or at the time of the 2014 and 2019 grid prunes of the subject tree), plus it is not a signed writing that would add to or modify the terms of the Agreement for Services. Even if the Tree Inventory Scope of Work document did apply at the time of the incident, it does not state whether damage between the sidewalk and parkway is reportable as “sidewalk damage”, which is different than deflection/ramping. As stated in the integrated Agreement for Services, modifications to WCA’s services must be in writing signed by the parties. Based on City’s opposition papers, City has not presented opposing evidence showing that there was an executed document expanding WCA’s tree maintenance services to include reporting sidewalk damages and/or uplifts between parkways and sidewalks.

Next, City argues that there is a legally binding implied agreement between City and WCA to look for and report sidewalk damage. In Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204, the Court of Appeal discussed whether a special relationship arose out of a contract where there was no written or oral agreement. In Seo, the evidence was undisputed that the property owner called the defendant gate repair company on certain occasions for specific repairs. The plaintiff argued that an implied contract to regularly inspect and maintain the gate arose during the defendant’s monthly visits to the property, but the appellate court found this argument to be unpersuasive because defendant had been called to work only on an as-needed basis for specific repairs, many of which did not involve the entry gate (which was the source of injury in Seo), and defendant’s inspection of the potentiometer before repairing a gate. The court found that neither the frequency of repair calls nor the inspection of the potentiometer gave rise to an inference of an implied contract between the property owner and defendant to regularly inspect and maintain the gate.

Similarly, here, WCA was contracted to perform work on the trees in the City of South Pasadena when requested. (WCA Fact 5.) In this case, WCA performed the grid prune involving the subject tree in 2014 and 2019. As such, WCA’s obligation to maintain the tree only occurred twice in a span of 5 years, including any purported duty to report sidewalk damage. WCA’s contractual duty to perform tree maintenance services on the particular tree were even more infrequent than Seo, plus the fact that the tree had been pruned and the sidewalk had been commented upon in 2014 (once prior to the 2017 incident) is not sufficient to show that an implied contractual duty existed for WCA to report sidewalk damage.

With the supplemental opposition, City argues that WCA checked the diameter at breadth height (DBH) for tree trunks and tree height as an ongoing service despite an absence of written terms. (City Suppl. Fact 4, 6.) City argues that CCR Title 8, §3427(a)(1) and the American National Standards Institute at Z133 3.4.8 states that prior to climbing trees or performing work on a tree, the employer qualified arborist shall visually inspect the tree, including root collar and the area immediately surrounding the tree. (City Supp. Fact 15, 17.) City then argues that WCA was required to look at the base of all trees it worked on.

However, Mr. Macias testified in his deposition that WCA inspected the DBH and height each time the tree was trimmed. (Macias Depo. at p.86.) Thus, there is no real dispute that WCA inspected the trees before it performed work on them. Further, inspecting the DBH, height, trees, and surrounding area does not mean that WCA had an ongoing contractual duty to check DBH, height, or the trees after fulfilling a service order. The Court notes that even if WCA did, the DBH and height of a tree are not relevant to the issue of duty to inspect the sidewalk. Also, the CCR and American National Standards Institute do not impose duties to report sidewalk damage. Rather, the code sections appear to impose a duty to inspect the trees and premises to ensure the servicer’s safety while performing work.

Next, City (again) argues there is a field in the ongoing work history order to note sidewalk damages, which appears in multiple versions of WCA’s Arbor Access records. (City Suppl. Fact at 8.) City argues that though the January 2009 contract has no written requirement to observe sidewalk damage, Mr. Macias admits that in 2009, data collectors were instructed to look for sidewalk deflection or ramping of 1 inch or greater at City’s request. (Id. at 14.) [3]

As discussed above, even if WCA agreed to report sidewalk damage and 1-inch deflection nor ramping, the facts of this case are not regarding adjacent sidewalk-to-sidewalk slabs that are contemplated by that direction. Rather, Plaintiff allegedly tripped as a result of stepping from the grassy parkway area onto the sidewalk in 2017. (WCA Fact 2 [undisputed]; see e.g., City Opp. at Ex. F.) As reported by WCA and Ms. Yu, the sidewalk itself had no reportable damage in 2014. In the absence of any contractual terms regarding sidewalk damage reporting, the scope of WCA’s purported duties to report damage are not defined. Even if the Court were to consider the July 17, 2009 “Tree Inventory Scope of Work” document as binding on all subsequent work (as opposed to subsequent tree pruning service orders, or just the initial inventory itself), that document only mentions reporting of sidewalk deflection or ramping—not sidewalk-to-parkway issues.

As such, the Court does not find that City and Plaintiff have raised triable issues of material fact on whether WCA owed a contractual duty to report sidewalk damage and ensure the safety of sidewalks.

C. Did WCA Owe a Duty to Plaintiff Based on a Special Relationship?

Finally, WCA argues that it was not in a special relationship with Plaintiff such that a duty arose by a matter of law.

WCA relies on Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193 where the Court of Appeal provided examples of special relationships between parties. Such relationships included: landowner or possessor and person coming on the land; manufacturer or supplier of goods and buyer or user; vendor, lessor, or contractor and purchaser, lessee or owner of real property; common carrier and passenger; innkeeper and guest; a person who is required by law to take, or who voluntarily takes, custody of another; voluntary assumption of a duty upon which a person reasonably relies; psychotherapists and patients; law enforcement and particular members of the public; parties with a relationship of dependence; proprietors of bowling alleys, restaurants, apartment houses, and hospitals and their customers; and school districts and students. (Seo, supra, 97 Cal.App.4th at 1203.) The Seo Court also stated that “[a] special relationship may also arise out of a statutory duty or a contractual duty. (Id. [emphasis added].) “If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract.” (Id.)

Here, WCA has shown that it was not in a special relationship, such as landowner/invitee or innkeeper/guest, with City or Plaintiff.

In opposition, City and Plaintiff argue that there was a special relationship based on contract. However, for the reasons discussed above, WCA has upheld its initial burden in showing that it did not owe a contractual duty to City or Plaintiff to maintain and ensure the safety of the sidewalks and report sidewalk damage, and City and Plaintiff failed to raise a triable issue of material fact on the matter. A “special relationship” should not be inferable based on implied obligations of an integrated written contract. How, in such a case, would the duty even be defined if it is only by implication? Was WCA just supposed to know that it was to inspect for side displacement when the City’s own inspector did not do so? Parties to a contract who want to impose duties upon their contractual partners should at least be willing to state them in a manner that puts the other party on notice regarding the scope of the duty. If the City of South Pasadena wanted WCA to inspect the sidewalks for the kind of condition at issue here, it should have said so.

As such, the Court finds that WCA has upheld its initial burden on this issue and does not find that City and Plaintiff have raised triable issues of material fact thereto. As such, the motion for summary judgment is granted.

CONCLUSION AND ORDER

WCA’s motion for summary judgment is granted.

WCA shall provide notice of this order.


[1] For ease of discussion, the Court refers to City and City’s opposition papers. As discussed above, Plaintiff’s arguments are essentially identical to City’s arguments. As noted above, Plaintiff has not filed a separate statement or opposing evidence.

[2] The Agreement’s Exhibit A Scope of Services at the Tree Maintenance Services document includes work for grid/annual tree trimming, full trim based on service or special request, palm tree trimming, tree removal, tree planting, tree watering, crew rental, arborist services, tree inventory using GPS, specialty equipment rates, and material at cost plus. There is no mention of the reporting of sidewalk conditions.

[3] City argues that WCA engaged in suspicious behavior because some of the Arbor Access documents produced in discovery omitted the sidewalk damage field. However, the Court finds that that this is a non-issue as it does not affect the analysis whether WCA was contractually obligated to report sidewalk damage. (See City Supp. Fact 8-12.) It appears that the City at all times had access to all versions of this database, so it was not misled by production of a document without the sidewalk damage field.

Case Number: BC680186    Hearing Date: July 10, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.: BC680186

Hearing Date: July 10, 2020

[TENTATIVE] order RE:

motion for summary judgment

BACKGROUND

A. Allegations

Plaintiff Liwen Hsu Togi (“Plaintiff”) alleges that on March 3, 2017, she fell as a result of a dangerous condition while on her way to work. She alleges that Defendants were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and owners of the portion of public sidewalk, parkway, and trees abutting the real property at 1013 Mound Avenue, South Pasadena, California 91030. The complaint, filed October 18, 2017, alleges a single cause of action for negligence/premises liability.

On August 22, 2018, Defendant City of South Pasadena (“City”) filed a cross-complaint against Cross-Defendant West Coast Arborists, Inc. (“WCA”), alleging causes of action for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) breach of contract.

On October 16, 2018, WCA filed a cross-complaint against City for: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

B. Motion for Summary Judgment

On March 6, 2020, WCA filed a motion for summary judgment, arguing that there are no triable issues of material facts as to the alleged negligence of WCA.

On June 25, 2020, City filed an opposition to the motion.

On June 26, 2020, Plaintiff filed an opposition brief.

On July 2, 2020, WCA filed the reply.

DISCUSSION

A. City and Plaintiff’s Request for a Continuance

In the opposition briefs, City and Plaintiff request that the Court grant a continuance to permit the completion of discovery or to deny WCA’s motion in its entirety. (See City Opp. at p.15; Pl. Opp. at p.10.)

In reply, WCA argues that City and Plaintiff have not identified the legal basis for the request for continuance. However, it is apparent that the request for continuance is being brought under CCP §437c(h). For example, City and Plaintiff cite to Frazee v. Seely (2002) 95 Cal.App.4th 627 and Bahl v. Bank of America (2001) 89 Cal.App.4th 389, which are cases that discuss a party’s request for continuance under subsection (h).

CCP §437c(h) states: “If it appears from the affidavits submitted in  or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made n response to the motion is due.”

City and Plaintiff argue that the depositions of WCA’s employees Ernesto Macias and Herminio Padillas will take place on July 15, 2020, which is 5 days after the hearing on this motion for summary judgment. City’s counsel, David M. Ferrante-Alan, states in his declaration that City noticed the deposition of WCA’s PMK on November 16, 2019, December 4, 2019, January 29, 2020, April 27, 2020, May 28, 2020, and June 12, 2020 for various topics such as the Arbor Access program, WCA’s employees who pruned the subject tree in 2014 and 2019, including requests for production of documents. (Ferrante-Alan Decl., ¶¶3-6.) Mr. Ferrante-Alan states during the 7-month time frame of sending the first deposition notice, WCA has served objections and requested that the depositions be continued, and as a courtesy City honored the requests for continuance. (Id., ¶7.) He states that WCA produced Pineda and Garcia regarding Arbor Access and the subject tree, but they both had limited knowledge on the subjects and WCA did not produce documents. (Id., ¶¶8-10.) Mr. Ferrante-Alan states that he scheduled the deposition of Mr. Macias (whose declaration WCA primarily relies on in its moving papers), but the Macias deposition was rescheduled. (Id., ¶12.) Counsel states that due to the logistics dealing with COVID-19, the deposition was scheduled after the hearing on this motion for summary judgment. (Id., ¶13.)

The Court finds that there is sufficient basis to grant the request for continuance. For the most part, the Court is simply sympathetic with regard to the general difficulty that all parties may be having in dealing with the widespread fear of the COVID-19 virus. The Court will continue the hearing on the motion for summary judgment for a modest period to allow the deposition of Mr. Macias to go forward on July 15, 2020 and provide time for the parties to file supplemental briefs following the deposition. The purpose of the continuance is limited to the conduct of the deposition of Mr. Macias on the subjects of his declaration in support of the summary judgment motion.

CONCLUSION AND ORDER

WCA’s motion for summary judgment is continued to August 21, 2020 at 8:30 a.m.

Provided the deposition of Ernesto Macias goes forward on July 15, 2020, this should provide sufficient time for the parties to consider the content of Mr. Macias’ deposition testimony. If the parties intend to file any supplemental papers, the following briefing schedule shall apply: (a) any supplemental opposition brief, supplemental separate statement, and exhibits shall be filed by City and Plaintiff at least 10 court days prior the continued hearing date (August 7, 2020); (b) if Plaintiff intends to oppose the motion, she should file a separate statement as required under CCP §437c(b)(3) at least 10 court days prior to the continued hearing date (August 7, 2020); and (c) any supplemental reply brief, responsive separate statement, and exhibits shall be filed by WCA at least 5 court days prior to the continued hearing date (August 14, 2020). The supplemental briefs containing arguments shall not exceed 10 pages; this page limitation does not apply to the separate statement or evidence.

WCA shall provide notice of this order.