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This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 10:42:35 (UTC).

LORETTA BALL VS CITY OF LOS ANGELES ET AL

Case Summary

On 10/24/2017 LORETTA BALL 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 Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1178

  • Filing Date:

    10/24/2017

  • 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 Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

BALL LORETTA

MOES 1-20 INCLUSIVE

ROES 1 THROUGH 10 INCLUSIVE

Defendants and Respondents

LOS ANGELES CITY OF

LOS ANGELES COUNTY OF

STATE OF CALIFORNIA

DOES 1 TO 50 INCLUSIVE

KNITTING FACTORY ENTERTAINMENT INC.DOE 2 DBA THE FEDERAL

5303 LANKERSHIM LLC DOE 1

CITY OF LOS ANGELES

COUNTY OF LOS ANGELES

Defendants and Cross Plaintiffs

CITY OF LOS ANGELES

KNITTING FACTORY ENTERTAINMENT INC.DOE 2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

RUSSELL CHRISTOPHER E. ESQ.

RUSSELL CHRISTOPHER E.

Defendant Attorneys

KUBEC KRISTIN MARIE

MAVIAN SUSAN

FARINPOUR ORCHID

 

Court Documents

Proof of Personal Service

12/4/2018: Proof of Personal Service

Proof of Personal Service

12/4/2018: Proof of Personal Service

Proof of Personal Service

12/4/2018: Proof of Personal Service

Proof of Personal Service

12/13/2018: Proof of Personal Service

Cross-Complaint

1/8/2019: Cross-Complaint

Unknown

1/18/2019: Unknown

Answer

1/18/2019: Answer

Proof of Personal Service

2/15/2019: Proof of Personal Service

Request for Dismissal

2/15/2019: Request for Dismissal

Proof of Personal Service

3/7/2019: Proof of Personal Service

Stipulation and Order

3/11/2019: Stipulation and Order

Unknown

4/9/2019: Unknown

Answer

4/9/2019: Answer

Demand for Jury Trial

4/9/2019: Demand for Jury Trial

Minute Order

4/9/2019: Minute Order

Request for Dismissal

4/17/2019: Request for Dismissal

Cross-Complaint

5/3/2019: Cross-Complaint

Answer

5/3/2019: Answer

10 More Documents Available

 

Docket Entries

  • 05/03/2019
  • Summons (Cross-Complaint); Filed by Circa 1926, Inc. Erroneously Sued As Knitting Factory Entertainment, Inc.(DOE 2) (Defendant)

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  • 05/03/2019
  • Cross-Complaint; Filed by Circa 1926, Inc. Erroneously Sued As Knitting Factory Entertainment, Inc.(DOE 2) (Cross-Complainant)

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  • 05/03/2019
  • Answer; Filed by Circa 1926, Inc. Erroneously Sued As Knitting Factory Entertainment, Inc.(DOE 2) (Defendant)

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  • 04/24/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/17/2019
  • Request for Dismissal; Filed by Loretta Ball (Plaintiff)

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  • 04/09/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/09/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for a court order continuing the trial, final status conference and all related deadlines) - Held - Motion Granted

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  • 04/09/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for a Court Order Continuing the Trial, Final Status Conference, and All Related Deadlines) - Not Held - Clerical Error

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  • 04/09/2019
  • Notice of Deposit - Jury; Filed by 5303 Lankershim, LLC (DOE 1) (Defendant)

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  • 04/09/2019
  • Answer; Filed by 5303 Lankershim, LLC (DOE 1) (Defendant)

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14 More Docket Entries
  • 12/13/2018
  • Proof of Personal Service; Filed by Loretta Ball (Plaintiff)

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  • 12/04/2018
  • Proof of Personal Service; Filed by Loretta Ball (Plaintiff)

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  • 12/04/2018
  • Proof of Personal Service

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  • 12/04/2018
  • Proof of Personal Service; Filed by Loretta Ball (Plaintiff)

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  • 11/14/2018
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Loretta Ball (Plaintiff)

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  • 10/26/2018
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Loretta Ball (Plaintiff)

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  • 10/24/2017
  • Complaint

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  • 10/24/2017
  • Summons; Filed by Loretta Ball (Plaintiff)

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  • 10/24/2017
  • Complaint; Filed by Loretta Ball (Plaintiff)

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  • 10/24/2017
  • Civil Case Cover Sheet

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Tentative Rulings

Case Number: BC681178    Hearing Date: January 07, 2021    Dept: 32

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 32

loretta ball ,

Plaintiff,

v.

city of los angeles, et al.,

Defendants.

Case No.: BC681178

Hearing Date: January 7, 2021

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Loretta Ball (“Plaintiff”) filed this action against Defendant 5303 Lankershim, LLC (“Defendant”) after she tripped and fell on the sidewalk outside Defendant’s building. Plaintiff asserts causes of action for negligence and premises liability. Now, Defendant moves for summary judgment, arguing: (1) The City owned the sidewalk at issue; (2) Defendant did not control or maintain the property because it was leased to a tenant; and (3) Any defect was trivial. Plaintiff opposes the motion, which is denied.

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.)  

EVIDENTIARY OBJECTIONS

Defendant raises a series of objections. In particular, Defendant argues that the photographs upon which Plaintiff’s expert, Brad Avrit, relies lack foundation because the accident occurred on November 2, 2016 and the photographs were taken on October 4, 2018. Defendants ignore the declaration of Alex Krywenko, which states:

- He and Plaintiff went to the property at issue on January 5, 2017.

- Plaintiff identified the area where she fell.

- Krywenko took photographs.

- Krywenko measured the uplift, which was 1 and 1/8 inch high.

(Declaration of Alex Krywenko, ¶¶ 1-3.) Standing alone, this is sufficient evidence that the uplift was 1 and 1/8 inch high. It also provides sufficient foundation for the opinion of Brad Avrit, based upon the measurements of Sam Attal-Watts, that the uplift was 1 and 1/8 inch high. In other words, the declaration of Alex Krywenko makes clear that the uplift did not substantially change between January 5, 2017, and October 4, 2018. Therefore, any disputes over these measurements goes to weight, not admissibility, and falls within the province of the trier of fact.

The Court rules as follows on Defendant’s objections:

1. Objection #1 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

2. Objection #2 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

3. Objection #3 – Overruled.

4. Objection #4 – Overruled.

5. Objection #5 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

6. Objection #6 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

7. Objection #7 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

8. Objection #8 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

9. Objection #9 – Overruled.

10. Objection #10 – Overruled.

11. Objection #11 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

12. Objection #12 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

13. Objection #13 – Overruled.

14. Objection #14 – Overruled.

15. Objection #15 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

16. Objection #16 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

17. Objection #17 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

18. Objection #18 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

19. Objection #19 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

20. Objection #20 – Overruled. The Court need not rule on Defendant’s objection #1, per Code of Civil Procedure section 437c(q).

21. Objection #21 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

22. Objection #22 – Overruled.

23. Objection #23 – Overruled.

24. Objection #24 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

25. Objection #25 – Overruled.

26. Objection #26 – Overruled.

27. Objection #27 – Overruled.

28. Objection #28 – Overruled.

29. Objection #29 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

30. Objection #30 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

31. Objection #31 – Overruled.

32. Objection #32 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

33. Objection #33 – Overruled.

34. Objection #34 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

35. Objection #35 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

36. Objection #36 – Overruled.

37. Objection #37 – Overruled. This issue goes to weight, not admissibility.

38. Objection #38 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

39. Objection #39 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

40. Objection #40 – Overruled.

41. Objection #41 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q).

42. Objection #42 – The Court need not rule on Defendant’s objection, per Code of Civil Procedure section 437c(q). The Court is not entitled to weight the credibility of experts on summary judgment.

DISCUSSION

A. The Sidewalk Accidents Decision Doctrine

Defendant first argues that it is not liable because the City of Los Angeles owns the sidewalk at issue. Streets and Highways Code section 5610 requires property owners to maintain any adjacent sidewalk in a condition that will not endanger pedestrians or interfere with their use of the sidewalk. (See Sts. & Hy. Code, § 5610.) However, this duty runs to the city rather than to the individual walking on the sidewalk:

Under section 5610 the abutting owner bears the duty to repair defects in the sidewalk, regardless of whether he has created these defects. It was felt, however, that it would be unfair for such an owner to be held liable to travelers injured as a result of sidewalk defects which were not of the owner’s making. Thus the “Sidewalk Accident Decisions” doctrine arose; this doctrine holds that the abutting property owner is not liable in tort to travelers injured on the sidewalk unless the owner somehow creates the injurious sidewalk condition.

(Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.) Although property owners owe a duty to remedy sidewalk defects, absent evidence that they caused or contributed to the defects, there is no direct liability to the pedestrian. Instead, the pedestrian must seek recovery from the City, which may file a cross-claim against the property owner under section 5610. In other words, section 5610 confers a right upon the municipality to seek indemnification and apportionment of fault from the property owner, absent evidence that the property owner caused or contributed to the defect. “Indeed, Streets and Highways code [sic] section 5610 deals only with the maintenance of abutting sidewalks, and the landowner’s duty to the city, not to pedestrians that use the sidewalk. . . . [T]he section was only intended to address sidewalk maintenance and construction, not landowner liability to third parties.” (Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1137, citations omitted.)

According to Plaintiff’s discovery responses, Plaintiff tripped and fell on the sidewalk outside Defendant’s building. (Notice of Lodgment of Exhibits in Support of Motion for Summary Judgment, Exh. #4, p. 4.) Defendant relies on a declaration from Robert Akhavan (“Akhavan”), the sole member of Defendant’s limited liability company. Akhavan states that Defendant has not made any structural changes at the property since September 1, 2010. (See Declaration of Robert Akhavan, ¶ 4.) Akhavan states that he has never been made aware of anyone tripping and falling on the sidewalk outside Defendant’s building prior to this incident. (Id., ¶ 5.) Akhavan also states that the City of Los Angeles has never identified any problems with the sidewalk. (Id., ¶ 7.) This evidence satisfies Defendant’s burden, shifting the burden to Plaintiff to proffer sufficient evidence that Defendant was responsible for the dangerous condition of the sidewalk.

Plaintiff relies on the declaration of Brad Avrit, who opines that the sidewalk uplift at issue was caused by work on Defendant’s property. Specifically, Avrit opines:

Based on my review of the permits produced by the City of Los Angeles, (attached to the Declaration of Ali Nahass as Exhibits C-D), the subject curb drain below the row of sidewalk panels in question was installed in 2007 for the benefit of the property located at 5303 Lankershim Boulevard. . . . Given the nature of the subsidence along the entirety of the concrete slabs below which the drain exists, it is more likely that the defect created along the subject walkway were causally related to either the improper installation, or a lack of proper maintenance of the subject drain.

(Declaration of Brad Avrit, ¶ 11.)

Defendant argues that the installation of the curb drain in 2007 is not related to Plaintiff’s fall because there is no curb drain where Plaintiff fell. Tellingly, Defendant does not dispute that it installed a curb drain in 2007, which is reflected in the permit. (See Declaration of Ali Nahass, Exh. C.) The Court cannot determine from Defendant’s photographs whether there is a curb drain because the curb is not entirely visible. Plaintiff’s photographs, however, show a curb drain near the sidewalk uplift at issue. (See Plaintiff’s Compendium of Exhibits, Exh. N.) Therefore, the Court cannot conclude that Mr. Avrit’s declaration lacks foundation for his opinion that the curb drain could not have caused the sidewalk uplift. Mr. Avrit’s declaration gives rise to a triable issue on whether Defendant caused the sidewalk uplift.

B. Defendant’s Lease Agreement

In its notice of motion, Defendant argues that it leased the building to a tenant, who was responsible for the maintenance of the property and adjacent sidewalk. However, Defendant does not address the issue in detail in its memorandum of points and authorities. Nor does Defendant dispute that it is the property owner. Defendant’s lease is not dispositive for several reasons. First, “Circa has been in possession of the subject property from September 15, 2020 to the present.” (Defendant’s Separate Statement of Undisputed Facts, ¶ 10.) Plaintiff proffers evidence that Defendant caused the sidewalk uplift based upon work in 2007. Second, it is not clear that the tenant would be responsible for repairing sidewalk uplifts. (See Declaration of Cynthia Coulter Mulvihill, Exh. #11, ¶ 17.1.) Finally, at best, Defendant has a cross-claim against its tenant rather than a right of summary judgment.

C. Trivial Defect

Finally, Defendant argues that the sidewalk uplift constitutes a trivial defect. Plaintiff proffers evidence that the sidewalk uplift was at least 1 and 1/8 inches. (Declaration of Brad Avrit, ¶ 7.) This alone precludes summary judgment. In general, uplifts and elevations less than one-half inch are trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929.) Courts have also found that uplifts greater than one-half inch in height may be trivial as a matter of law absent any aggravating conditions. (Whiting v. City of National City (1937) 9 Cal.2d 163; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50). Although courts have found elevations of one to one-and-one-half to be trivial, as “the size of the depression begins to stretch beyond one inch the courts have been reluctant to find that the defect is not dangerous as a matter of law.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.559, 568, quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 726.) The Court cannot conclude in this case that the sidewalk uplift necessarily is trivial. Defendant argues that it is apparent from the photographs. The Court disagrees. Therefore, Defendant’s motion is denied on this basis.

CONCLUSION AND ORDER

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

DATED: January 7, 2021 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

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