This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 06:29:31 (UTC).

MARK ELLENSOHN VS CITY OF BURBANK ET AL

Case Summary

On 01/30/2017 MARK ELLENSOHN filed a Personal Injury - Other Personal Injury lawsuit against CITY OF BURBANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER, LAURA A. MATZ, MARC D. GROSS and JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8515

  • Filing Date:

    01/30/2017

  • 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

RALPH C. HOFER

LAURA A. MATZ

MARC D. GROSS

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

ELLENSOHN MARK

Defendants and Respondents

DOES 1-100

BURBANK DEPARTMENT OF WATER AND POWER

BURBANK CITY OF

HHS CONSTRUCTION INC.

HHS CONSTRUCTION. INC.

FRONTIER CALIFORNIA INC. (DOE 4)

VERIZON CALIFORNIA INC.

MCI COMMUNICATIONS SERVICES INC.

MCI COMMUNICATIONS SERVICES. INC. DOE2

FRONTIER CALIFORNIA INC. DOE 4

Defendant and Cross Plaintiff

MCI COMMUNICATIONS SERVICES INC.

Defendant and Cross Defendant

HHS CONSTRUCTION INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

METTIAS LAW FRIM APLC

HARPER BARBARA S. ESQ.

METTIAS LAW FIRM APLC THE

BARBARA S HARPER A PROFESSIONAL LAW CORP

Defendant and Respondent Attorneys

DIAMOND SCOTT R. ESQ.

BARNES CAROLYN A.

DIAMOND SCOTT RORY

ALBANO AMELIA

FLOYD SKEREN & KELLY LLP

DIAMOND & DRAGOJEVIC LLP

LARIN MICHAEL J. ESQ.

DIAMOND SCOTT RORY ESQ.

BARNES CAROLYN ANN

POSNER BLAKELY SETH

LYNBERG & WATKINS

Cross Defendant Attorney

HAYES PHILLIP MICHAEL

6 More Attorneys Available

 

Court Documents

Unknown

1/30/2018: Unknown

Unknown

1/30/2018: Unknown

Unknown

2/21/2018: Unknown

Proof of Service (not Summons and Complaint)

4/4/2018: Proof of Service (not Summons and Complaint)

Proof of Service of Summons and Complaint

4/4/2018: Proof of Service of Summons and Complaint

Unknown

5/4/2018: Unknown

Declaration

6/6/2018: Declaration

NOTICE OF ERRATA RE INCORRECT DATE OF PROOF OF SERVICE ON SERVING PLAINTIFFS OPPOSITION TO DEMURRER AND MARK ELLENSOHNS DECLARATION IN SUPPORT THEREOF

6/12/2018: NOTICE OF ERRATA RE INCORRECT DATE OF PROOF OF SERVICE ON SERVING PLAINTIFFS OPPOSITION TO DEMURRER AND MARK ELLENSOHNS DECLARATION IN SUPPORT THEREOF

Amendment to Complaint (Fictitious/Incorrect Name)

6/18/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Challenge To Judicial Officer - Peremptory (C.C.P., ? 170.6)

7/20/2018: Challenge To Judicial Officer - Peremptory (C.C.P., ? 170.6)

Minute Order

7/25/2018: Minute Order

Opposition

8/31/2018: Opposition

Case Management Statement

9/11/2018: Case Management Statement

Case Management Statement

9/17/2018: Case Management Statement

Case Management Statement

9/21/2018: Case Management Statement

Summons

11/7/2018: Summons

Request for Judicial Notice

4/12/2019: Request for Judicial Notice

Motion for Summary Judgment

4/16/2019: Motion for Summary Judgment

106 More Documents Available

 

Docket Entries

  • 04/16/2019
  • Proof of Service (not Summons and Complaint); Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Separate Statement; Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Affidavit (STATEMENT OF EVIDENCE IN SUPPORT OF HHS CONSTRUCTION, INC.'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINT AND BURBANK'S CROSS-COMPLAINT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES); Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Motion for Summary Judgment; Filed by HHS CONSTRUCTION, INC. (Defendant)

    Read MoreRead Less
  • 04/16/2019
  • Memorandum of Points & Authorities; Filed by HHS CONSTRUCTION, INC. (Defendant)

    Read MoreRead Less
  • 04/12/2019
  • Separate Statement; Filed by BURBANK CITY OF (Defendant)

    Read MoreRead Less
  • 04/12/2019
  • Request for Judicial Notice; Filed by BURBANK CITY OF (Defendant)

    Read MoreRead Less
  • 04/12/2019
  • Separate Statement; Filed by BURBANK CITY OF (Defendant)

    Read MoreRead Less
  • 04/12/2019
  • Motion for Summary Judgment; Filed by BURBANK CITY OF (Defendant)

    Read MoreRead Less
  • 04/12/2019
  • Request for Judicial Notice; Filed by BURBANK CITY OF (Defendant)

    Read MoreRead Less
188 More Docket Entries
  • 01/30/2018
  • Notice; Filed by Plaintiff/Petitioner

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  • 01/30/2018
  • Receipt (civil deposit ); Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 01/30/2018
  • Notice (of posting jury fees ); Filed by Attorney for Plaintiff/Petitioner

    Read MoreRead Less
  • 01/30/2018
  • Notice; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 01/30/2017
  • Complaint

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  • 01/30/2017
  • COMPLAINT FOR DAMAGES: 1, (GOV. CODE SEC. 835 DANGEROUS CONDITLO OF) PUBLIC PROP RTYL

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  • 01/30/2017
  • Complaint; Filed by MARK ELLENSOHN (Plaintiff)

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  • 01/30/2017
  • Civil Case Cover Sheet

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  • 01/30/2017
  • SUMMONS

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  • 01/30/2017
  • Summons (on Complaint)

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Tentative Rulings

Case Number: BC648515    Hearing Date: January 22, 2021    Dept: D

TENTATIVE RULING

Calendar: 14

Case Number: BC648515

Date: 1/22/2021 Trial date: November 1, 2021

Case Name: Ellensohn v. City of Burbank, et al.

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant, Cross-Defendant and Cross-Complainant MCI Communications

Services, LLC

Responding Party: Cross-defendant HHS Construction, Inc.

Relief Requested:

Order granting summary adjudication against HHS Communications, Inc. (sic) that it has an immediate and continuing duty to defend MCI Communications Services LLC against plaintiff’s claims in this action

FACTUAL BACKGROUND

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, and explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. Plaintiff alleges that as a result of the electrical explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish. The complaint alleges causes of action for dangerous condition of public property, negligence and premises liability against various defendants, including defendant the City of Burbank, MCI Communications Services, and HHS Construction, Inc. Defendants have filed various cross-complaints for indemnity.

ANALYSIS:

CCP § 437c (p): Burdens of Proof

As an initial matter, the motion is difficult to evaluate, as it does not specify under what pleading or claim it is brought. Presumably, the moving party MCI Communications Services, is proceeding in its capacity as a cross-complainant and seeking to have this court summarily adjudicate its claim that cross-defendant HHS Construction, Inc. owed MCI Communications a duty to defend it against plaintiff’s operative complaint in this matter pursuant to a contractual agreement.

Under CCP § 437c(p)(1) a cross-complainant “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the…cross-complainant has met that burden, the burden shifts to the …cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”

CCP § 437c(f) provides that “a motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Relief is not sought here in connection with a specified cause of action in a specified pleading to which the moving party would be entitled to judgment, which is a bit puzzling.

The motion seeks summary adjudication of the following issue:

“ISSUE 1: HHS Communications, Inc. had and has an immediate and continuing duty to defend MCI Communications Services LLC (erroneously sued and served as MCI Communications Services, Inc.) against Plaintiff’s claims in this action, pursuant to contractual agreement.”

The motion evidently seeks that the court adjudicate an issue of duty, in effect, the duty to defend.

However, it is likely that this motion is not articulated in terms of a specific cause of action in the moving party’s cross-complaint, because, as pointed out in the opposition, the cross-complaint does not expressly seek a determination of any such duty to defend.

The cross-complaint is submitted with the Statement of Evidence in Support of HHS’ Opposition to the motion, attached as Exhibit 2, states causes of action for (1) indemnity and apportionment of fault, (2) express contractual indemnity, and (3) declaratory relief.

The cross-complaint in the cause of action for express contractual indemnity alleges that the contract between the parties, “requires cross-defendant to indemnify cross-complainant under the facts of the complaint.” [Ex. 2, Cross-Complaint, para. 7]. There is no mention of a duty to defend. The third cause of action for declaratory relief likewise makes no mention of a duty to defend, but refers to a cross-complainant’s entitlement to “indemnity, implied indemnity and/or comparative equitable indemnity” from cross-defendants. [Ex. 2, Cross-Complaint, para. 8]. The prayer seeks a “declaration of rights, duties and percentages of liability as to all parties to this action,” “indemnity from cross-defendants,” and “reasonable attorney’s fees and costs, including expenses for preparation, investigation and defending the above-entitled action, and in prosecuting this cross-complaint,” and “such other and further relief as the court may deem just and proper.” [Ex. 2, Cross-Complaint, p. 5, paras. 1-4]. There is no mention of a duty to defend, or request that such a duty be adjudicated.

As argued in the opposition, the issues on a motion for summary adjudication are framed by the pleadings. In Lee v. Bank of America (1994) 27 Cal.App.4th 197, the court of appeal affirmed a trial court’s order granting summary judgment in favor of an employer in a wrongful termination action, based on the bar of the statute of limitations. The court of appeal determined that the trial court had appropriately limited its consideration to an amended complaint, which alleged only wrongful termination, despite the employee’s argument that the facts in that matter also supported a claim for wrongful demotion, arguably not time barred, and as alleged in the employee’s original complaint.

The court of appeal held:

“on summary judgment the question is whether the undisputed facts establish that the moving party is entitled to prevail on the causes of action articulated by the complaint.  If the facts will support causes of action not articulated by the complaint, it is incumbent on the pleader to make some request to amend so that the pleading is adequate. In the absence of such a request, the court is under no duty to inquire whether there are causes of action or defenses inherent in the facts but not articulated by the pleading. (See Dorado v. Knudsen Corp. (1980) 103 Cal.App.3d 605, 611 [163 Cal.Rptr. 477], quoting Krupp v. Mullen, supra, 120 Cal.App.2d 53, 56-57.)”

Lee, at 216.

HHS in opposition relies on Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735, in which the court of appeal observed that in performing its de novo review of a motion for summary judgment, the court of appeal proceeds as follows:

“We first identify the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine if the moving party has established a prima-facie entitlement to judgment in its behalf. Only if the moving party has satisfied this burden do we consider whether the opposing party has produced evidence demonstrating there is a triable issue of fact with respect to any aspect of the moving party's prima-facie case. (AARTS Productions, Inc. v. Crocker National Bank

Rio Linda, at 734-735.

In addition, it is clear that in the authority relied upon primarily by MCI Communications with respect to this motion, Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, the issue was before the trial court based on cross-complaints which clearly sought declaration relief with respect to alleged defense rights:

“The cross-complaints asserted, among other things, that under the pertinent subcontract provisions--all of which had been drafted by JMP and were identical on the point--the subcontractors owed JMP duties of indemnity and defense against the homeowners' complaints. The cross-complaints sought declaratory relief with respect to JMP's alleged indemnity and defense rights.

Crawford, at 548.

The Supreme Court observed at footnote 2:

JMP's cross-complaints alleged that the cross-defendant subcontractors had a “present” duty to provide, and JMP had a “present” right to receive, a contractual defense. Each cross-complaint also recited that “ [b]y way of this Cross-Complaint, [JMP] hereby tenders the defense of this action to the Cross- Defendants, and each of them, pursuant to the applicable subcontracts. [JMP] is informed and believed and based thereon alleges that the Cross-Defendants, and each of them have and/or will reject, ignore, or fail to properly accept the tender of defense.” The record is silent as to whether JMP had previously tendered defense of the homeowners' actions to the cross-defendant subcontractors, or any of them. Weather Shield does not urge on appeal that it was absolved of any duty to defend by reason of JMP's failure to timely tender the defense of the homeowners' actions. Crawford, at 548, n. 2.

Here, the pleading does not mention a duty to defend, and cross-defendant and the court are not obligated to inquire whether this unpleaded claim is inherent in the facts presented.

The reply argues that the prayer for attorney’s fees, including for the defense of the action, is sufficient to bring the issue within the scope of the motion for summary adjudication. However, this prayer does not allege a specific basis for seeking those attorney’s fees which would place the parties on notice that an adjudication concerning an immediate duty to defend is being pursued, as is the case here. The reply also argues that a contractual indemnity claim automatically implicates a corresponding duty to defend, in reliance on Crawford, which, as discussed above, involved a matter where the duty to defend issue was clearly presented by the pleadings. In addition, the Court in Crawford noted that the duty to defend arises only “unless the parties’ agreement provides otherwise,” and that a breach of such an obligation would occur upon proper tender by the indemnitee, none of which is alleged in the pleading. Crawford, at 555.

The motion accordingly is denied on this ground, i.e., that the issue pursued is not framed by the cross-complaint. The motion is denied without prejudice to moving party seeking leave to amend its pleading to clearly state such a claim, if appropriate.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant, Cross-Defendant, and Cross-Complainant MCI Communications Services LLC’s Motion for Summary Adjudication Regarding HHS Communications, Inc.’s (sic) Duty to Defend is DENIED. The moving party has failed to establish to the satisfaction of the Court that cross-complainant’s cross-complaint includes a clear request for a determination of a duty to defend. The pleading does not at any point refer to a duty to defend, or request that this court make a determination of an immediate duty to defend in this action. A general prayer for attorney’s fees not tied to any expressly alleged duty to defend, does not properly place the issue before the Court.

(Motion is DENIED WITHOUT PREJUDICE TO moving party promptly seeking leave to amend its cross-complaint to clearly allege that it is owed a duty to defend, and to seek this court’s determination that it is owed a duty to defend, if appropriate, and thereafter filing a motion for summary adjudication, if appropriate).

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC648515    Hearing Date: December 18, 2020    Dept: D

TENTATIVE RULING

Calendar: 10

Date: 12/18/2020

Case No: BC648515 Trial Date: February 22, 2021

Case Name: Ellensohn v. City of Burbank, et al.

JOINDER TO MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Moving Party: Defendant City of Burbank

Responding Party: Plaintiff Mark Ellensohn

ANALYSIS:

This matter is on hearing on a “Joinder” to a Motion for Summary Judgment/Adjudication filed on January 23, 2020 on behalf of defendant City of Burbank.

The actual Joinder document does not appear in the file on eCourt, so it is not clear which party submitted this joinder, and what relief was sought in that joinder.

In any case, on November 10, 2020, the moving parties on the Motion for Summary Judgment originally set for hearing this date, defendants City of Burbank and Burbank Water and Power, filed a Notice of Withdrawal of Motion for Summary Judgment and Requesting Hearing Date to be Taken Off Calendar. The hearing on the motion for summary judgment has accordingly been taken off calendar, and will not be heard this date, and there is nothing in which to join. In the absence of any documents on file in support of the joinder or some separate showing of entitlement to relief, including a separate statement, the hearing on the “Joinder,” will accordingly also be taken off calendar.

RULING:

Joinder to Motion for Summary Judgment/Adjudication filed 1/23/2020 on behalf of Defendant City of Burbank is TAKEN OFF CALENDAR in light and is moot of the withdrawal of the Motion for Summary Judgment by the moving parties on November 10, 2020.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC648515    Hearing Date: December 11, 2020    Dept: D

TENTATIVE RULING

Calendar: 12

Date: 12/11/2020

Case No: BC648515 Trial Date: February 22, 2021

Case Name: Ellensohn v. City of Burbank, et al.

MOTION FOR LEAVE TO TAKE SECOND DEPOSITION

Moving Party: Defendant HHS Construction, Inc.

“Joinder” filed by defendants City of Burbank and Burbank Water and Power

Responding Party: Plaintiff Mark Ellensohn

RELIEF REQUESTED BY MOVING PARTY:

Order granting leave to take a second deposition of plaintiff Mark Ellensohn

FACTUAL BACKGROUND:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, and explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. Plaintiff alleges that as a result of the electrical explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish. The complaint alleges causes of action for dangerous condition of public property, negligence and premises liability against various defendants, including defendant the City of Burbank, MCI Communications Services, and HHS Construction, Inc. Defendants have filed various cross-complaints for indemnity.

ANALYSIS:

Defendant HHS Construction seek an order permitting it to take a further deposition of plaintiff Ellensohn, arguing that such a deposition is necessary to address new injury claims being made by plaintiff subsequent to his original deposition.

With respect to the request for a second deposition, defendant relies on CCP § 2025.290:

“(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness' counsel of record, shall be

limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

Under CCP § 2025.610:

“(a) Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent. (b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.

The determination of the court concerning good cause is reviewed for abuse of discretion. McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 98.

Defendant argues here that it originally took plaintiff’s deposition in two sessions in September and December of 2018, with the second session being necessitated by plaintiff expressing tiredness after two hours. The motion indicates that subsequent to the second session of plaintiff’s deposition in December 2018, plaintiff has changed his injury claims in various revised responses to Form Interrogatory No. 6.2, and has added over two dozen new mental claims to those previously claimed in plaintiff’s other discovery responses.

It is not clear from the moving papers if the full seven hours of testimony was completed.

In any case, the motion indicates that plaintiff was originally deposed after he had served discovery responses listing various physical, mental and emotional injuries, and that he responded to inquiries regarding mental claims with indication that he was tired, lost focus, and “lost a step.” [Ex. C, Deposition transcript excerpts].

The original response to Form Interrogatory No. 6.2, served prior to the original deposition notice, about which there was evidently a fair opportunity to question plaintiff at the original sessions of his deposition, identified the injuries as follows:

“I sustained loss of vision and eyesight as a result of the incident, for which I underwent surgery on both eyes. My doctor told me after the surgeries that my eyes had been liquefied, wherein he had to suck out and remove an orange goo substance from behind the rear part of my eyes, and replace the lens in both eyes. I also sustained the following injuries: emotional injuries; loss of consortium; and mental injuries, such as difficulty remembering names, word-finding, and problems with balance, excessive tiredness, high blood pressure at times, anxiety, walking, being present, easily distracted, nervousness whenever I see a power cable, no enjoyment driving on a freeway, afraid of construction sites, fear of anything happening, extreme tiredness, PTSD.”

[Ex. B.]

Evidently, subsequent to the second session of the deposition, defendant MCI set the deposition of plaintiff’s therapist, psychologist Dr. Annet Assilian, to take place in January 2019. Plaintiff objected to the taking of that deposition, indicating that plaintiff was going to drop the “mental component” of plaintiff’s

claims. Specifically, plaintiff represented, “…in light of my recent conversations with various experts regarding EMP’s/EMF’s, our claim for any mental component was incorrect, and as a result we will be withdrawing that claim.” [Hayes Decl., para. 8, Ex. E]. Defendants accordingly agreed not to proceed with the Dr. Assilian’s Deposition, and plaintiff agreed to revise responses to Form Interrogatory No. 6.2 to reflect this change. [Hayes Decl., paras. 9, 10, Ex. E]. The supplemental responses served in April of 2019 left off the injuries after loss of consortium. [Ex. H].

The argument here seems to be that in response to follow up Requests for Admissions, and Form Interrogatory No. 17.1, plaintiff appears to be asserting additional mental injuries, such that there is concern that the deposition of Dr. Assilian does need to proceed on the mental component of plaintiff’s claimed injuries, and a further deposition of plaintiff must be conducted on those newly alleged injuries.

The requests for admissions request that plaintiff admit that he is not claiming any of the various injuries previously identified, such as difficulty remembering names, with word finding, or confusion. [Ex. I]. There are also requests to admit that plaintiff is not experiencing matters such as difficulty sleeping, unusual fear, difficulty staying awake, and various other problems. [Id.]. The responses are that these requests are denied. [Ex. K].

In response to Form Interrogatory No. 17.1, plaintiff has stated:

“To this day, I often feel “off” and have developed a significant fear of being in the vicinity of power lines and high voltage electricity, especially while traveling highways and interstates. My entire body and thoughts are affected. My blood pressure rises, my body tenses up, and my mind goes directly and aggressively to the afternoon of June 9, 2015 on the I-5 Freeway in Burbank at the Alameda exit where I became an innocent victim of low hanging wires exploding, in an electrical fireball, come crashing down on the windshield of the vehicle I was a passenger in. There was a blast of intense light only inches from my eyes where I experienced an unexplainable out of body experience, one that I can only come to grips with as a brush with death…similar to when people have described near death experiences and then coming back to life. As a result of these physiological symptoms, effects and occurrences, I have experienced and sustained all of the injuries as described in Request for Admissions, Nos. 33-53; 57-69.”

[Ex. L].

The argument seems to be that these injuries, which evidently were included in the RFAs by defendant because they were either included in the original response to Form Interrogatory No. 6.2 or were mentioned by plaintiff at his previous deposition, are now evidently back on the table, and defendant needs a further opportunity to explore those injuries. This is not a situation where plaintiff has set forth new allegations in discovery responses; those purported injuries were set forth by defendant, but then not admitted to not being at issue by plaintiff. This somewhat undermines defendant’s argument that it did not know of these possible injuries when they were evidently brought up by plaintiff at the previous deposition.

In any case, it appears that plaintiff has gone back and forth with respect to what injuries he is claiming, and the opposition suggests that plaintiff is planning to pursue recovery for all mental injuries, which he is re-asserting since defendants have begun deposing Dr. Assilian anyway.

It would appear that if plaintiff is now taking the position that the mental injuries he previously removed from consideration are now again being pursued, there would be good cause to permit a further deposition to explore the specific injuries referenced for the first time at the previous deposition, which have evidently not been otherwise pursued because plaintiff has been taking the position he was withdrawing such claims.

The motion identifies those new claims as:

- Memory loss (RFA no. 35)

- Confusion (RFA no. 38)

- Diminished ability to think (RFA no. 39)

- Diminished mental capacity (RFA no. 40)

- Depression (RFA no. 44)

- Mood swings (RFA no. 47)

- Difficulty sleeping (RFA no. 49)

- Emotional numbness (RFA no. 58)

- Nightmares (RFA no. 63)

- Ear aches (RFA no. 64)

- Ringing in the ears (RFA no. 65)

- Other adverse physiological changes to his body other than his eyes (RFA no. 66)

[Ex. I]

It would appear that these injuries were not identified in original response to Form Interrogatory No. 6.2, and that it would not be unreasonable to permit a further deposition, limited to the above subjects. The opposition confirms that plaintiff intends to pursue recovery for these injuries, and does not explain why discovery concerning such claims would not then be appropriate. The opposition seems to argue that the original identification of PTSD was broad enough to have alerted defendant to the various injuries now claimed, and that this attempt at a second deposition appears to be simply to annoy or harass plaintiff. It is not specified what prejudice plaintiff would suffer if he is required to sit for a further limited deposition with respect to his own personal injury claims. The motion accordingly is granted, as so limited.

RULING:

HHS Construction’s Motion for Leave to Take Second Deposition of Plaintiff Mark Ellensohn is GRANTED.

The Court finds good cause exists for defendant to be granted leave to conduct a second deposition of plaintiff, limited to questions and follow-up questions pertaining to the following claimed injuries:

- Memory loss

- Confusion

- Diminished ability to think

- Diminished mental capacity

- Depression

- Mood swings

- Difficulty sleeping

- Emotional numbness

- Nightmares

- Ear aches

- Ringing in the ears

- Other adverse physiological changes to his body other than his eyes

Plaintiff Mark Ellensohn is ordered to appear for deposition and give testimony on January 15, 2021 by video remote procedure.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC648515    Hearing Date: August 21, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 6

Date: 8/21/20

Case Number: BC 648515 Trial date: August 24, 2020

Case Name: Ellensohn v. City of Burbank, et al.

MOTION FOR SUMMARY JUDGMENT/

ADJUDICATION

Relief Requested:

Summary judgment in favor of defendant City of Burbank

In the alternative, summary adjudication of issues

Moving Party: Defendant City of Burbank

Responding Party: Plaintiff Mark Ellensohn

Causes of Action from Second Amended Complaint

1) Dangerous Condition of Public Property v. City of Burbank, Burbank DWP

2) General Negligence v. All Defendants

3) Premises Liability v. All Defendants

4) Motor Vehicle v. Does

SUMMARY OF COMPLAINT:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, and explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. Plaintiff alleges that as a result of the electrical explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish.

This motion for summary judgment/adjudication by the City of Burbank was originally heard with a motion for summary judgment/adjudication by defendant and cross-defendant HHS Construction, Inc. on August 23, 2019. The court set forth its tentative ruling, which was to grant the motion filed by the City of Burbank, based on plaintiff’s failure to submit admissible evidence establishing that a claim was submitted to the City on behalf of plaintiff. The tentative was also to deny the motion brought by HHS Construction, Inc., on the ground plaintiff had submitted evidence raising triable issues of material fact with respect to whether the

parties could establish that the work performed by HHS included latent defects, supporting an exception to the completed and accepted work defense.

The matters were heard and the court continued the motion by the City of Burbank for additional briefing, with supplemental briefs by defendant to be served and filed by August 27, 2019, and responsive briefs to be served and filed by noon on August 29, 2019. Plaintiff has filed two further declarations, and defendant the City has filed a sur-reply and an amended sur-reply.

The court continued the motion brought by HHS Construction, Inc. only on the limited issue of Express Indemnity set forth on page 16 of the moving papers. The minute order states that the motion “is continued to specifically address the issue of ‘Express Indemnity’ raised in the moving papers on page 16. Counsel for plaintiff represents the Court that it was address [sic] in the opposition papers.” The matter was continued to August 30, 2019.

On August 30, 2019, the matter was called for hearing. The court informed counsel there was no tentative ruling due to information set forth in the opposition papers that may materially change the original tentative ruling, and that the court had insufficient time to prepare a new tentative ruling. The minute order states:

“Court informs counsel that a ‘Triable Issue of Fact’ was raised regarding the ‘notice of claim issue.’ Court gives counsel its reasons as more fully reflected in the official notes of the Court reporter.”

The court heard from counsel and continued the motions to November 1, 2019. On November 1, 2019, the matters were continued to February 7, 2020.

On February 7, 2020, the hearing was conducted. The court had published its tentative ruling on the evening of February 6, 2020, which was to deny both motions. At the hearing, the tentative ruling on the motion by Defendant/Cross-Defendant HHS Construction Company became the order of the court, and the motion was denied.

With respect to the motion by the City of Burbank, the court’s minute order states, “Counsel for Defendant City of Burbank represents to the Court that two issues, ‘Causation and Ownership,’ were raised at the prior hearing (August 30, 2019) and the issues were continued for the Court’s consideration on this date.”

The City’s motion was continued to April 10, 2020 “only on the limited issues of ‘Causation and Ownership’ that were raised at the prior hearing and continued for this date.”

This tentative ruling will address only the issues of causation and ownership as those issues are presented in the papers.

The file shows that on March 20, 2020, plaintiff filed opposition papers to the motion, which address only the issue of the submission of a timely government claim, which is not the subject of the hearing. On July 7, 2020, the City filed a reply to the opposition, again arguing only the issue of the timeliness of the claim, which is not the subject of this hearing.

ANALYSIS:

Procedural

Notice and Separate Statement

The motion is confusing with respect to summary adjudication, as the notice sets forth four issues which

are differently phrased than the issues set forth in the separate statement, and apparently in a different order than the notice or memorandum.

Under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

(Emphasis added).

The notice here generally seeks summary adjudication “on the following issues as to the second and third causes of actions for Dangerous Condition of Public Property and Premises Liability.”

The separate statement does not repeat those issues verbatim, or even in the same order, but seeks summary adjudication of issues “As to the First Cause of Action for Dangerous Condition of Public Property and the Second Cause of Action for Premises Liability…” on specified issues.

This is not ideal, and the motion does not seem to have the numbers straight on the causes of action, and inexplicably seems to address the First Amended Complaint, when the Second Amended Complaint, which superseded the First Amended Complaint, was filed on September 24, 2018, and the City answered the SAC on October 19, 2018, well before the motion for summary judgment/adjudication was filed on April 12, 2019.

The tentative ruling will address the issues as set forth in the separate statement.

Substantive

Under CCP § 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”

CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”

Defendant City of Burbank argues that plaintiff will be unable to establish the dangerous condition of public property or premises liability causes of action on the ground the City did not have any jurisdiction over the highway where the incident occurred, did not have any ownership, control or maintenance responsibilities over the overhead communications cable that hit plaintiff’s vehicle, and that the proximate cause of the accident was the truck striking the overhead wires.

ISSUE 1: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE THIRD CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE CITY OF BURBANK HAD ANY JURISDICTION OVER THE INTERSTATE 5 FREEWAY WHERE THE ACCIDENT OCCURRED THAT IS THE SUBJECT OF PLAINTIFF’S COMPLAINT.

ISSUE 3: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE THIRD CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE CITY OF BURBANK HAD ANY OWNERSHIP, CONTROL, OR MAINTENANCE RESPONSIBILITIES OVER

THE OVERHEAD COMMUNICATIONS CABLE THAT HIT THE VEHICLE THAT PLAINTIFF WAS RIDING IN ON THE INTERSTATE 5 FREEWAY AND, IF NOT COULD THERE BE A CAUSE OF ACTION FOR DANGEROUS CONDITION OF CITY PROPERTY IF NO CITY PROPERTY WAS INVOLVED IN THE INCIDENT.

Defendant the City argues that plaintiff will be unable to establish an essential element of the dangerous condition and premises liability causes of action because defendant the City did not own, operate, or control the highway where the incident occurred, or the overhead communications cable which struck the subject vehicle.

Under Government Code § 835:

“Except as provided by statute, 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 under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

A premises liability cause of action will lie where the following elements are established: Defendant owned, leased, occupied or controlled the property; defendant was negligent in the use or maintenance of the property, plaintiff was harmed, and defendant’s negligence was a substantial factor in causing plaintiff’s harm. CACI 1000.

Civil Code § 1714(a) provides, in pertinent part:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Accordingly, it is recognized that every landowner has a duty to maintain property in his possession or control in a reasonably safe condition. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, n.5).

It is held that a defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess or control. “Where the absence of ownership, possession or control has been unequivocally established, summary judgment is proper.” Preston v. Goldman (1986) 42 Cal.3d 108, 119.

The City argues that the Interstate 5 Freeway where the incident occurred is not owned by the City and has never been maintained by the City, but that portion that runs through the City of Burbank is owed, operated and maintained by the State of California Department of Transportation pursuant to Streets and Highway Code sections 230, 250-253. [UMF No. 8, Ex. G]. Under Streets and Highways Code section 230, “The highways described in this chapter are State highways.” Streets and Highways Code section 253.1 provides, in pertinent part, “The California freeway and expressway system shall include: Routes 5…, in their entirety.”

The City also argues that the overhead wires that were involved in the incident are owned by defendant Verizon California Inc./MCI, which ownership is admitted by defendant Verizon. [UMF No. 4, and evidence cited].

The City argues that there was a City power line over the freeway, but it was located higher than the Verizon wires by at least 20 feet, and the City power lines are aluminum and silver in color, while the Verizon wires are black. [Gibson Decl., para. 7]. The City also indicates that in written responses to Form Interrogatories, plaintiff has stated that “plaintiff does not know how the incident occurred,” and that in deposition, the driver of the vehicle at the time of the incident, Karen Rasmussen, testified that she is aware of nothing the City did to cause the Verizon communication wire to come down onto the freeway and onto her vehicle. [UMF Nos. 33, 34, and evidence cited]. The City argues that there can be no cause of action for dangerous condition or premises liability with respect to City property because there was no City property involved.

The City relies on Government Code section 830.5, which provides, in pertinent part:

“(a) Except where the doctrine of res ipsa loquitur is applicable, the happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition.”

Plaintiff, in opposition, argues that the ownership of the Interstate 5 Freeway here is irrelevant, as the incident in this case involves an overhead electrified wire falling onto the roadway striking vehicles, and the City was responsible for the electrified wire and the poles supporting the lines, which had been placed by Burbank Department of Water and power workers following a previous incident of falling wires months before the subject incident.

Specifically, plaintiff submits evidence supporting a reasonable inference that the wire involved in the incident was electrified, so not merely a communications line owned by Verizon, including that when the wire struck the CHP vehicle stricken by the same wire, the CHP vehicle was totaled, the contact having taken out the entire computer system, that the fallen wire was on fire, causing a fire on the roadside, and that the CHP officers saw a bright flash and characterized the fallen line as a “power line,” which caused a “blast.” [Additional Facts Nos. 6, 7, 9, 10 and 11, and evidence cited.] Plaintiff also submits the declaration of an expert in electrical engineering and fire and explosion investigations, Daryl L. Ebersole, who explains that the video from the CHP vehicle shows at the time of the incident an explosion, fire and smoke along the communication line, and that there would be no source of the energy required to produce such a significant explosion and fire unless there was some conduction between the power conductors, and the metallic support for the interdict, and that the video shows that at the time of the incident, appropriate clearance between supply conductors and communication lines as required by the National Electrical Safety Code was not maintained. [Additional Fact No. 13, and evidence cited; Ebersole Del., para. 14].

This evidence, if credited, would support a reasonable inference that the incident involved the City’s power lines or its failure to appropriate maintain the appropriate distance from the communications lines, which instrumentalities the City owned, controlled, and maintained.

With respect to the poles on which the communication and power lines were maintained, plaintiff submits evidence showing that the City is a member of the Southern California Joint Pole Committee, the subject poles are located in Burbank, and that the City owns the subject poles. [Additional Fact No. 14, and evidence cited]. Plaintiff submits evidence that in March of 2015, approximately three months prior to the incident, a vehicle accident occurred in the vicinity of the incident which is the subject of this lawsuit, which caused electrical poles to come down, and that the City re-installed the poles, and presumably its electrical lines, and accepted the work by defendant HHS on the re-hanging of the telecommunication wires on its poles.

[Additional Facts Nos. 1-4, 15, 16, and evidence cited]. This is also sufficient to raise a reasonable inference that the incident occurred due to some dangerous condition with respect to the poles and public property for which the City had responsibility. Triable issues of material fact have been raised, and the motion is accordingly denied on these issues.

ISSUE 2: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE SECOND CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE OVER-HEIGHT/OVERLOADED TRUCK THAT STRUCK THE OVERHEAD COMMUNICATIONS WIRES WAS THE PROXIMATE CAUSE OF THE ACCIDENT THAT IS THE SUBJECT OF PLAINTIFF’S COMPLAINT.

Defendant the City argues that the proximate cause of the incident was the truck that struck the communication wires, in reliance on the CPH investigation conclusion that the video footage available supported a conclusion that the semi-truck that hit the communications wire was excessively high. [UMF No, 23]. The investigating office concluded that the primary collision factor and cause of the collision was the semi-truck with an excessively high load colliding with the overhead lines hanging over the freeway, and that the operator of the truck was in violation of Vehicle Code section 2400(a), a vehicle carrying an unsafe load. [UMF Nos. 28, 29, and evidence cited].

The issue of causation is ordinarily a question of fact. Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029. Moreover, in this matter, it is not clear that the issue framed, in effect, that the truck operator was a proximate cause of the incident, would establish that plaintiff cannot establish that moving defendant was also a cause of the incident.

In any case, plaintiff in opposition to the motion argues that there is a factual dispute concerning whether the truck actually hit the wire, causing it to fall, and whether the truck could have been overloaded to the height of 21 feet which MCI claims is the height at which the wire was hung, particularly as the underpass just before the scene of the incident is approximately 18 feet and the one just after the scene is 15 feet high, so the load had to have been under 15 feet. [Additional Facts Nos. 3, 18, 24, and evidence cited]. The opposition also submits the deposition testimony of the CHP officer witness who on reviewing the video evidence relied upon in the investigating officer’s report stated it did not appear to him that the semi-truck load was excessively high, but that there appeared to be a low hanging wire present. [See Ex. 2, Ramer Depo., pp. 39, 44, 50, 54]. Plaintiff also argues that the conclusions of the investigating officer with respect to the incident included conclusions that a power line or significant source of electrical current was involved in the incident, as discussed above.

Although the reply seems to argue that there can be no liability here for the conduct of third parties, as discussed above, triable issues of fact have been raised with respect to whether the conduct of the City contributed to the subject incident, including its conduct in repairing the poles, or in the maintenance of its electrically charged lines, which it can be reasonably inferred resulted in the incident which involved bursts of light and fire ordinarily associated with electricity.

It is recognized:

“A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff's injury is a third party's negligent or illegal act… if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality.”

Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340, 1348, citing Bonnano v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 152.

Triable issues of fact have been raised with respect to whether the City contributed in causing the incident, and the motion on this issue is accordingly denied.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant City of Burbank’s Motion for Summary Judgment or in the Alternative for Summary Adjudication on the Issue of Failure of a Government Claim, Dangerous Condition of Public Property Under the Torts Claim Act and Proximate Cause:

The court has considered the Declaration of Courtney Perdue, the Declaration in Further Support of Opposition to Burbank’s Motion for Summary Judgment, and Defendant City of Burbank’s Amended Sur-Reply to Plaintiff’s Further Support of Opposition to Burbank’s Motion for Summary Judgment, as well as opposition papers filed on March 20, 2020 and reply papers filed on July 7, 2020.

The matter is on calendar this date for the Court’s consideration of the issues of ownership and causation. The Court’s tentative ruling on the issue of the Government Claim has been previously published to the parties, argued, and will become the order of the Court, as set forth in connection with Issue 4 below.

Motion for Summary Judgment is DENIED.

Motion for Summary Adjudication:

ISSUE 1: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE THIRD CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE CITY OF BURBANK HAD ANY JURISDICTION OVER THE INTERSTATE 5 FREEWAY WHERE THE ACCIDENT OCCURRED THAT IS THE SUBJECT OF PLAINTIFF’S COMPLAINT.

ISSUE 3: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE THIRD CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE CITY OF BURBANK HAD ANY OWNERSHIP, CONTROL, OR MAINTENANCE RESPONSIBILITIES OVER THE OVERHEAD COMMUNICATIONS CABLE THAT HIT THE VEHICLE THAT PLAINTIFF WAS RIDING IN ON THE INTERSTATE 5 FREEWAY AND, IF NOT, COULD THERE BE A CAUSE OF ACTION FOR DANGEROUS CONDITION OF CITY PROPERTY IF NO CITY PROPERTY WAS INVOLVED IN THE INCIDENT.

Motion is DENIED.

Plaintiff has raised triable issues of material fact with respect to whether in the subject incident involving an overhead wire falling onto the roadway striking vehicles, the City was responsible for the wire at the time being an electrified wire, and for the poles supporting the lines, which had been placed by Burbank Department of Water and power workers following a previous incident of falling wires months before the subject incident.

Specifically, plaintiff submits evidence supporting a reasonable inference that the wire involved in the incident was electrified, so not merely a communications line owned by Verizon, including that when the wire struck the CHP vehicle stricken by the same wire, the CHP vehicle was totaled, the contact having taken out the entire computer system, that the fallen wire was on fire, causing a fire on the roadside, and that the CHP officers saw a bright flash and characterized the fallen line as a “power line,” which caused a “blast.” [Additional Facts Nos. 6, 7, 9, 10 and 11, and evidence cited.] Plaintiff also submits the declaration of an expert in electrical

engineering and fire and explosion investigations, Daryl L. Ebersole, who explains that the video from the CHP patrol vehicle shows at the time of the incident an explosion, fire and smoke along the communication line, and that there would be no source of the energy required to produce such a significant explosion and fire unless

there was some conduction between the power conductors, and the metallic support for the interdict, and that the video shows that at the time of the incident, appropriate clearance between supply conductors and communication lines as required by the National Electrical Safety Code was not maintained. [Additional Fact No. 13, and evidence cited; Ebersole Del., para. 14]. This evidence, if credited, would support a reasonable inference that the incident involved the City’s power lines or its failure to appropriate maintain the appropriate distance from the communications lines, which instrumentalities the City owned, controlled, and maintained.

With respect to the poles on which the communication and power lines were maintained, plaintiff submits evidence showing that the City is a member of the Southern California Joint Pole Committee, the subject poles are located in Burbank, and that the City owns the subject poles. [Additional Fact No. 14, and evidence cited]. Plaintiff submits evidence that in March of 2015, approximately three months prior to the incident, a vehicle accident occurred in the vicinity of the incident which is the subject of this lawsuit, which caused electrical poles to come down, and that the City re-installed the poles, and presumably its electrical lines, and accepted the work by defendant HHS on the rehanging of the telecommunication wires on its poles. [Additional Facts Nos. 1-4, 15, 16, and evidence cited]. This is also sufficient to raise a reasonable inference that the incident occurred due to some dangerous condition with respect to the poles and public property for which the City had responsibility.

ISSUE 2: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE THIRD CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER THE OVER-HEIGHT/OVERLOADED TRUCK THAT STRUCK THE OVERHEAD COMMUNICATIONS WIRES WAS THE PROXIMATE CAUSE OF THE ACCIDENT THAT IS THE SUBJECT OF PLAINTIFF’S COMPLAINT.

Motion is DENIED.

The Court has some concern that the issue presented does not dispose of an entire cause of action, as a determination of a proximate cause of an incident would not constitute a determination that defendant the City was not in fact a contributing cause to the incident, and so the determination would not establish the absence of the causation element of any cause of action.

In any case, plaintiff has raised triable issues of material fact with respect to whether the semi-truck was a cause of the action as argued by the City, as well as whether the City’s conduct could be reasonably concluded to constitute a contributing factor in the incident.

Specifically, triable issues remain with respect to how the incident occurred, particularly whether the truck could have been overloaded to the height of 21 feet which MCI claims is the height at which the wire was hung, particularly as the underpass just before the scene of the incident is approximately 18 feet and the one just after the scene is 15 feet high, so the load had to have been under 15 feet. [Additional Facts Nos. 3, 18, 24, and evidence cited]. The opposition also submits the deposition testimony of the officer witness who on reviewing the video evidence relied upon by the investigating officer stated it did not appear to him the load was excessively high, but that there appeared to be a low hanging wire present. [See Ex. 2, Ramer Depo., pp. 39, 44, 50, 54]. In addition, as discussed above, triable issues of fact have been raised with respect to whether the conduct of the City in repairing the poles, or in the maintenance of its electrically charged lines, which it can be

reasonably inferred resulted in the incident which involved bursts of light and fire ordinarily associated with electricity, contributed to the subject incident.

ISSUE 4: AS TO THE FIRST CAUSE OF ACTION FOR DANGEROUS CONDITION OF PUBLIC PROPERTY AND THE SECOND CAUSE OF ACTION FOR PREMISES LIABILITY, WHETHER

PLAINTIFF FAILED TO COMPLY WITH GOVERNMENT CODE SECTIONS 945.4 AND 911.2 BY FILING A TIMELY CLAIM WITH THE CITY OF BURBANK BEFORE FILING HIS LAWSUIT.

Motion is DENIED.

Defendant has established that plaintiff’s claim here, a suit for money damages against the City, a public entity, is required to be presented pursuant to a written claim under Government Code § 945.4, and that a search of the City’s claims report site and records showed no results for any claim filed by Mark Ellensohn. [See UMF No. 37, and evidence cited, Alvarez Decl. ¶¶ 3-5]. This testimony is supported by screenshots of the searches in the described program and claim log, which show “We did not find any results for ellensohn,” and only reference plaintiff in connection with having searched for a claim. [Exs. L, M]. The City has also requested that the court take judicial notice of the fact that the City’s records do not contain a claim filed by plaintiff, which notice has been taken by the court. This is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

In response to this showing, plaintiff has submitted the declaration of an attorney working for the law firm representing plaintiff in 2016, who personally recalls this matter, recalls the staff being told to calendar a return date for the claim, and personally drafted and sent an email to plaintiff informing plaintiff, “As to your claim against the City, it has been served and I have instructed my staff to follow up regarding any response.” [Perdue Decl. ¶¶ 2-5, Ex. A]. This is sufficient evidence, if credited by the trier of fact, to support a reasonable inference that a claim was submitted on behalf of plaintiff. Plaintiff has also raised triable issues of material fact with respect to whether the claim was timely served within 60 days of plaintiff learning his alleged injuries were a direct result of the subject incident. [Ellensohn Decl. ¶¶ 3-11].

Defendant City of Burbank’s UNOPPOSED Request for Judicial Notice is GRANTED.

Plaintiff’s UNOPPOSED Request for Judicial Notice is GRANTED.

Defendant City of Burbank and Burbank Water and Power’s Evidentiary Objections: Objection No. 3 is SUSTAINED. Remaining objections are OVERRULED.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC648515    Hearing Date: February 07, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 12

Case Number: BC 648515

Date: 2/7/20 Trial date: None Set

Case Name: Ellensohn v. City of Burbank, et al.

MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION (2) MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Moving Party: Defendant City of Burbank

Defendant/Cross-defendant HHS Construction, Inc.

Responding Party: Plaintiff Mark Ellensohn

Relief Requested:

Summary judgment in favor of defendant City of Burbank

In the alternative, summary adjudication of issues

Summary Judgment in favor of defendant/cross-defendant HHS Construction, Inc.

In the alternative, summary adjudication of issues

Causes of Action from Second Amended Complaint

1) Dangerous Condition of Public Property v. City of Burbank, Burbank DWP

2) General Negligence v. All Defendants

3) Premises Liability v. All Defendants

4) Motor Vehicle v. Does

SUMMARY OF COMPLAINT:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, and explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. Plaintiff alleges that as a result of the electrical explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish.

The motions for summary judgment/adjudication were originally heard on August 23, 2019. The court set forth its tentative ruling, which was to grant the motion filed by the City of Burbank, based on plaintiff’s failure to submit admissible evidence establishing that a claim was submitted to the City on behalf of plaintiff.

The tentative was also to deny the motion brought by HHS Construction, Inc., on the ground plaintiff had submitted evidence raising triable issues of material fact with respect to whether the parties could establish that the work performed by HHS included latent defects, supporting an exception to the completed and accepted work defense.

The matters were heard, and the court continued the motion by the City of Burbank for additional briefing, with supplemental briefs by defendant to be served and filed by August 27, 2019, and responsive briefs to be served and filed by noon on August 29, 2019. Plaintiff has filed two further declarations, and defendant the City has filed a sur-reply and an amended sur-reply.

The court continued the motion brought by HHS Construction, Inc. only on the limited issue of Express Indemnity set forth on page 16 of the moving papers. The minute order states that the motion “is continued to specifically address the issue of ‘Express Indemnity’ raised in the moving papers on page 16. Counsel for plaintiff represents the Court that it was address [sic] in the opposition papers.” The matter was continued to August 30, 2019.

On August 30, 2019, the matter was called for hearing. The court informed counsel there was no tentative ruling due to information set forth in the opposition papers that may materially change the original tentative ruling, and that the court had insufficient time to prepare a new tentative ruling. The minute order states:

“Court informs counsel that a ‘Triable Issue of Fact’ was raised regarding the ‘notice of claim issue.’ Court gives counsel its reasons as more fully reflected in the official notes of the Court reporter.”

The court heard from counsel and continued the motions to November 1, 2019. On November 1, 2019, the matters were continued to this date, with the Motion to Leave to File a Cross-Complaint for Equitable Relief to scheduled as a “place holder” to be reset if necessary after the summary judgment hearings.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant City of Burbank’s Motion for Summary Judgment or in the Alternative for Summary Adjudication on the Issue of Failure of a Government Claim, Dangerous Condition of Public Property Under the Torts Claim Act and Proximate Cause:

The court has considered the Declaration of Courtney Perdue, the Declaration in Further Support of Opposition to Burbank’s Motion for Summary Judgment, and Defendant City of Burbank’s Amended Sur-Reply to Plaintiff’s Further Support of Opposition to Burbank’s Motion for Summary Judgment.

Motion is DENIED.

Defendant has established that plaintiff’s claim here, a suit for money damages against the City, a public entity, is required to be presented pursuant to a written claim under Government Code § 945.4, and that a search of the City’s claims report site and records showed no results for any claim filed by Mark Ellensohn. [See UMF No. 37, and evidence cited, Alvarez Decl. ¶¶ 3-5]. This testimony is supported by screenshots of the searches in the described program and claim log, which show “We did not find any results for ellensohn,” and only reference plaintiff in connection with having searched for a claim. [Exs. L, M]. The City has also requested that the court take judicial notice of the fact that the City’s records do not contain a claim filed by plaintiff, which notice has been taken by the court. This is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

In response to this showing, plaintiff has submitted the declaration of an attorney working for the law firm representing plaintiff in 2016, who personally recalls this matter, recalls the staff being told to calendar a return date for the claim, and personally drafted and sent an email to plaintiff informing plaintiff, “As to your claim against the City, it has been served and I have instructed my staff to follow up regarding any response.” [Perdue Decl. ¶¶ 2-5, Ex. A]. This is sufficient evidence, if credited by the trier of fact, to support a reasonable inference that a claim was submitted on behalf of plaintiff. Plaintiff has also raised triable issues of material fact with respect to whether the claim was timely served within 60 days of plaintiff learning his alleged injuries were a direct result of the subject incident. [Ellensohn Decl. ¶¶ 3-12].

Defendant City of Burbank’s UNOPPOSED Request for Judicial Notice is GRANTED.

Motion to HHS Construction, Inc. for Summary Judgment/Adjudication of Issues is DENIED.

Plaintiff has submitted evidence raising triable issues of material fact with respect to whether the parties can establish that the work performed by moving party HHS included latent defects, supporting an exception to the completed and accepted work defense. [See Plaintiff’s Additional Facts Nos. 1-12, and evidence cited; Ebersole Decl. ¶¶ 3-10, 12]. The motion is denied for the reasons set forth in the court’s previous tentative ruling and minute order of August 23, 2019, and for the reasons discussed below.

To the extent HHS Construction, Inc. seeks summary adjudication of the issue that MCI’s claim against HHS for Express Indemnity is barred because plaintiff’s claims arise or are alleged to arise out of MCI’s active or sole negligence, the court has considered the argument set forth in the moving papers beginning at page 16, and finds that the moving papers fail to appropriately present the issue for determination, as the issue is not set forth in the notice of motion, as required under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Although the issue is set forth as part of Issue No. 3 in the Separate Statement, it is not clearly distinguished from the other issues. Moreover, the evidence necessary to establish entitlement to summary adjudication of the issue, as opposed to the issue of the completed and accepted work doctrine, is not set forth or specifically referenced in the separate statement. Such evidence would include the language of the subject express indemnity provision and the language of the operative complaint brought by plaintiff against MCI. This failure to include this evidence in the separate statement may have resulted in some confusion with respect to the necessity of plaintiff or of MCI to respond to it in opposition to the motion. The court finds that under the circumstances, cross-defendant has failed to meet its initial burden of establishing that express indemnity cannot be established by MCI here. In addition, plaintiff in opposition to both motions has submitted evidence suggesting that plaintiff’s theory in this matter is not limited to a failure to maintain and inspect, a duty undertaken by MCI alone, but a direct failure on the part of HHS to properly install the guys, hardware, and line in order to prevent the line from falling or sagging. [Ebersole Decl. ¶¶ 7, 8, 10]. The issue of whether MCI’s conduct may only be construed as active negligence has not been established in the moving papers.

HHS Construction’s Objections to Plaintiff’s Evidence are OVERRULED as not in proper format.

HHS Construction’s Motion for Leave to File Cross-Complaint for Equitable Relief:

Matter is on calendar as a place-holder. Parties to discuss re-setting of motion.

Case Number: BC648515    Hearing Date: January 01, 2020    Dept: NCD

Calendar Item No.19

Case: BC648515 MARK ELLENSOHN VS. CITY OF BURBANK

RELIEF REQUESTED:  HERING ON MOTION FOR SUMMARY JUDGMENT/ SUMMARY ADJUDICATION OF ISSUES ON PLAINTIFF'S COMPLAINT AND ALL CROSS-DEFENDANT HHS CONSTRUCTION INC.

CONTINUED TO 1/03/2020, AT 9:00 A.M., IN DEPARTMENT D TO BE RE-SET

CALENDAR CONGESTION

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