This case was last updated from Los Angeles County Superior Courts on 10/22/2020 at 04:18:05 (UTC).

RICARDO GOMEZ VS LOS ANGELES DEPARTMENT OF WATER & POWER ET

Case Summary

On 05/24/2018 RICARDO GOMEZ filed a Personal Injury - Other Personal Injury lawsuit against LOS ANGELES DEPARTMENT OF WATER POWER ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7324

  • Filing Date:

    05/24/2018

  • 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

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

GOMEZ RICARDO

Defendants and Respondents

LOS ANGELES CITY OF

LOS ANGELES DEPARTMENT OF WATER & POWER

DOES 1 TO 25

UNIVERSAL VILLAS LLC

COHAN YAFA

CITY OF LOS ANGELES

Defendant and Cross Plaintiff

UNIVERSAL VILLAS LLC

Cross Defendant

ROES 1 THROUGH 100 INCLUSIVE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF ANDREW ZEYTUNTSYAN PC

ZEYTUNTSYAN ANDRANIK ANDREW

Defendant and Respondent Attorneys

FEUER MICHAEL N. CITY ATTORNEY

BOUCHE JACQUELINE

Defendant and Cross Plaintiff Attorney

BOUCHE JACQUELINE

 

Court Documents

Opposition - OPPOSITION PLAINTIFF RICARDO GOMEZS EVIDENTIARY OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF DEFENDANT UNIVERSAL VILLAS, LLCS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

9/22/2020: Opposition - OPPOSITION PLAINTIFF RICARDO GOMEZS EVIDENTIARY OBJECTIONS TO EVIDENCE OFFERED IN SUPPORT OF DEFENDANT UNIVERSAL VILLAS, LLCS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY

Opposition - OPPOSITION PLAINTIFF RICARDO GOMEZS RESPONSE TO DEFENDANT UNIVERSAL VILLAS, LLCS SEPARATE STATEMENT IN SUPPORT OF ITS FOR SUMMARY JUDGMENT MOTION, OR IN THE ALTERNATIVE, SUMMARY ADJUDIC

9/22/2020: Opposition - OPPOSITION PLAINTIFF RICARDO GOMEZS RESPONSE TO DEFENDANT UNIVERSAL VILLAS, LLCS SEPARATE STATEMENT IN SUPPORT OF ITS FOR SUMMARY JUDGMENT MOTION, OR IN THE ALTERNATIVE, SUMMARY ADJUDIC

Notice of Change of Address or Other Contact Information

8/28/2020: Notice of Change of Address or Other Contact Information

Stipulation - No Order - STIPULATION - NO ORDER STIPULATION

3/23/2020: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION

Separate Statement

3/27/2020: Separate Statement

Request for Judicial Notice

3/27/2020: Request for Judicial Notice

Declaration - DECLARATION EVIDENCE IN SUPPORT OF MSJ

3/27/2020: Declaration - DECLARATION EVIDENCE IN SUPPORT OF MSJ

Motion for Summary Judgment

3/27/2020: Motion for Summary Judgment

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE FINAL STATUS CONF...)

3/27/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE FINAL STATUS CONF...)

Cross-Complaint

11/20/2019: Cross-Complaint

Notice of Posting of Jury Fees

11/20/2019: Notice of Posting of Jury Fees

Answer - ANSWER TO COMPLAINT

11/20/2019: Answer - ANSWER TO COMPLAINT

Amendment to Complaint (Fictitious/Incorrect Name)

7/22/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES

9/19/2019: Stipulation and Order - STIPULATION AND ORDER TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES

Proof of Service by Substituted Service

10/1/2019: Proof of Service by Substituted Service

PROOF OF SERVICE SUMMONS -

6/18/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

6/18/2018: PROOF OF SERVICE SUMMONS -

SUMMONS -

5/24/2018: SUMMONS -

24 More Documents Available

 

Docket Entries

  • 04/25/2022
  • Hearing04/25/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 04/11/2022
  • Hearing04/11/2022 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 05/24/2021
  • Hearing05/24/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 10/06/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Held

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  • 10/06/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under Submission

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  • 10/06/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment; Trial Setting Confe...)); Filed by Clerk

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  • 10/01/2020
  • DocketReply (Reply to Plaintiff's Additional Material Facts in Support of Plaintiff's Opposition to Defendant's MSJ); Filed by Universal Villas, LLC (Defendant)

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  • 10/01/2020
  • DocketReply (Reply to Plaintiff's Opposition to Defendant's Motion for Summary Judgment); Filed by Universal Villas, LLC (Defendant)

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  • 09/22/2020
  • DocketOpposition (PLAINTIFF RICARDO GOMEZ?S RESPONSE TO DEFENDANT UNIVERSAL VILLAS, LLC?S SEPARATE STATEMENT IN SUPPORT OF ITS FOR SUMMARY JUDGMENT MOTION, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION AND PLAINTIFF?S ADDITIONAL MATERIAL FACTS); Filed by Ricardo Gomez (Plaintiff)

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  • 09/22/2020
  • DocketOpposition (PLAINTIFF RICARDO GOMEZ?S OBJECTION TO DEFENDANT?S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF ITS FOR SUMMARY JUDGMENT MOTION, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Ricardo Gomez (Plaintiff)

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35 More Docket Entries
  • 07/18/2018
  • DocketFIRST AMENDED ANSWER OF THE DEFENDANTS CITY OF LOS ANGELES ACTING BY AND THROUGH LOS ANGELES DEPARTMENT OF WATER & POWER AND CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT; DEMAND FOR JURY TRIAL

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  • 07/18/2018
  • DocketAnswer to First Amended Complaint; Filed by Los Angeles Department Of Water & Power (Defendant); Los Angeles, City Of (Defendant)

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  • 07/16/2018
  • DocketANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT; DEMAND FOR JURY TRIAL

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  • 06/18/2018
  • DocketProof-Service/Summons; Filed by Ricardo Gomez (Plaintiff)

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  • 06/18/2018
  • DocketProof-Service/Summons; Filed by Ricardo Gomez (Plaintiff)

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  • 06/18/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/18/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/24/2018
  • DocketSUMMONS

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  • 05/24/2018
  • DocketCOMPLAINT FOR DAMAGES FOR STATUTORY LIABILITY/DANGEROUS CONDITION OF PUBLIC PROPERTY

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  • 05/24/2018
  • DocketComplaint; Filed by Ricardo Gomez (Plaintiff)

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Tentative Rulings

Case Number: BC707324    Hearing Date: October 06, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

RICARDO GOMEZ,

Plaintiff(s),

vs.

LOS ANGELES DEPARTMENT OF

WATER & POWER, ET AL.,

Defendant(s).

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CASE NO: BC707324

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

October 6, 2020

 

  1. Background

    Plaintiff, Ricardo Gomez against Defendants, Los Angeles Department of Water & Power (“LADWP”) and City of Los Angeles (the “City”) for damages arising from a trip and fall on a sidewalk. On 7/22/19, Plaintiff filed an Amendment to Complaint naming Defendant Universal Villas, LLC (“Universal Villas”) as Doe 1. Plaintiff’s First Amended Complaint, filed 9/18/19, alleges causes of action for (1) dangerous condition of public property against the City and LADWP, and (2) premises liability against Universal Villas.

    Defendant Universal Villas now moves for summary judgment.

  2. Motion for Summary Judgment

  1. Moving Argument

Universal Villas asserts it own the property that abuts the location of the sidewalk where Plaintiff allegedly fell, and the City has sole possessory interest in the sidewalk per an easement. Universal Villas contends the premises liability claim asserted against it fails as a matter of law because there is no evidence that Universal Villas controlled the property where the incident occurred, and there is no evidence it was negligent in its management of the subject property. In particular, Universal Villas contends that a permit obtained by LADWP an issued by the City shows the City exhibited control over the sidewalk, and that Universal Villas was not responsible for the repairing the sidewalk. Universal Villas avers it did not conduct inspections or surveys of the public sidewalk owned by the City, involving a water meter owned by LADWP, and it has never undertaken any obligations concerning the sidewalk. Lastly, Universal Villas argues it had no duty to warn of the condition because it was open and obvious.

  1. Opposing Argument

First, Plaintiff asserts there are multiple procedural defects with the moving papers such that the motion should be denied. Plaintiff argues Universal Villas’ separate statement does not comply with the California Rules of Court requiring citation to the evidence relied on for each fact, that the motion cites to evidence not contained in the separate statement, the attached declaration is not admissible, and the motion was not timely or properly served. Second, Plaintiff asserts the City’s PMK asserted Universal Villas was the property owner of the subject sidewalk and/or meter contained in the utility box that created the dangerous condition. Further, even if Universal Villas does not own the sidewalk, Plaintiff argues Universal Villas is liable as the adjacent property owner because a Los Angeles City Ordinance places the duty to repair and maintain sidewalks on adjacent landowners. Additionally, Plaintiff argues the defects existed long enough for Universal Villas to discovery the defect, and that the condition of the sidewalk was not open and obvious. Finally, Plaintiff requests the motion be continued to allow Plaintiff to obtain additional discovery.

Any reply to the opposition was due on 9/29/20. As of 9/30/20, the court has not received a reply.

  1. Request for Judicial Notice

Universal Villas requests the court take judicial notice of the website, “Los Angeles City Permit entitled General Deposit Excavation and Class "A" Permanent Resurfacing Application / Permit.” (Mot. Request for Judicial Notice (“RJN”) Exh. A.) Plaintiff opposes the request arguing Universal Villas fails to authenticate or lay a foundation for the document.

Universal Villas makes the request pursuant to CCP § 452(d), which provides that judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Universal Villas, however, fails to explain where in the court’s records, or of which court, RJN Exh. A. is located. The Exhibit does not otherwise appear to be in the court’s records. Furthermore, as Plaintiff contends, Universal Villas does not authenticate or provide a foundation for the purported documents from an unknown website. (See Jolly v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [in response to argument agreement was subject to judicial notice because it was on official governmental agency’s website, the Court noted there is “’no official Web site provision’ for judicial notice in California… ‘Simply because information is on the Internet does not mean that it is not reasonably subject to dispute.’”].)

  1. Evidentiary Objections

Plaintiff, in opposition, submits 67 objections to the declaration of Yafa Cohan attached to Universal Villas’ motion. There are multiple objections submitted to the same evidence made on different grounds.

Objections 1 and 5 made to ¿ 5 of Cohan’s declaration are sustained, as Cohan asserts an improper legal conclusion and does not provide a foundation for the statement asserted. The remaining objections concerning this paragraph are overruled. Objections 7-12 made to ¿ 6 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objection 17 made to ¿ 7 of Cohan’s declaration is sustained, as it is an improper legal conclusion. The remaining objections concerning this paragraph are overruled.

Objections 20-23 made to ¿ 8 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 24-27 made to ¿ 11 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 28-31 made to ¿ 12 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 32-35 made to ¿ 13 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 36-39 made to ¿ 14 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 40-44 made to ¿ 15 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such.

Objections 45-49 made to ¿ 16 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 50-53 made to ¿ 17 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 54-58 made to ¿ 18 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 59-61 made to ¿ 19 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 62-64 made to ¿ 20 of Cohan’s declaration are overruled, as it is relevant, and Cohan provides a proper foundation for such. Objections 65-67 made to ¿¿ 21-22 of Cohan’s declaration are overruled, as the statements are relevant, and Cohan provides a proper foundation for such.

  1. Procedural Defects

Plaintiff contends Universal Villas’ motion should be denied because Universal Villas did not timely file its motion 75 days before its original hearing date of 6/11/20, and because Universal Villas’ separate statement does not properly refer to the evidence relied on for the stated facts by exhibit and page number.

However, while Plaintiff asserts that he is prejudiced by the purported defects, Plaintiff does not identify the manner in which he has actually been prejudiced. The separate statement references the evidence relied upon, including which Exhibits and paragraphs of the attached declarations. Plaintiff, in his own separate statement, is able to reply to each fact asserted, and cites to opposing evidence in similar fashion as Universal Villas. Furthermore, while Plaintiff argues the motion was untimely filed by two days, the matter was since continued from 6/11/20 to 10/6/20. Plaintiff’s opposition addresses Universal Villas’ arguments on the merits; Plaintiff does not otherwise identify any prejudice suffered by the purported defects.

The court will therefore consider the motion and opposition on the merits.

  1. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  1. Law Governing Duty of Adjacent Property Owner

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“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. [Citation.]” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081).

Courts have held that in the absence of a statute a landowner is under no duty to maintain in a safe condition a public street abutting upon the landowner’s property unless the landowner created the danger. (See, e.g., Sexton v. Brooks (1952) 39 Cal.2d 153, 157.) “The reason for this rule is that a landowner generally has no right to control another’s property, including streets owned and maintained by the government.” (Vasilenko, supra, 3 Cal.5th at p. 1084.) However, after applying the Rowland factors, courts have imposed a duty on adjacent landowners where the landowners magnified the danger of abutting property, obstructed the danger of abutting property, or had control over a condition on their property which would justify imposing a duty.

  1. Analysis re: Ownership of Sidewalk

Universal Villas asserts it owns the property adjacent to the sidewalk where the incident occurred, but the sidewalk is owned by the City. (UMF 7-10.) Universal Villas asserts it never installed, maintained, or repaired the sidewalk where Plaintiff allegedly fell. (UMF 13.) Further, Universal Villas contends a permit issued by the City for the repair of a broken water meter at the subject property shows the City has control over the sidewalk.

In opposition, Plaintiff disputes that Universal Villas is not the owner of the subject sidewalk where the incident occurred. As evidence, Plaintiff provides discovery responses by the City where the City denies it owns or controls the meter where the incident occurred, and that the meter is a private property water shut off valve for the abutting property owner. (Opp. Darbinyan Decl. Exh. E, Form Interrogatory 31.) While Universal Villas asserts in a conclusory fashion that the City has sole possessory interest of the sidewalk per easement, Universal Villas does not submit any evidence to establish the City has any easement, or the extent thereof, of the subject sidewalk. Universal Villas does not otherwise provide evidence establishing it is not the owner of the sidewalk as a matter of law.

Furthermore, the court has reviewed the permit submitted by Universal Villas concerning the repair of a broken water meter, and nothing in the permit pertains to ownership of the subject sidewalk. If Universal Villas owned the sidewalk, it owed Plaintiff a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki, 232 Cal.App.4th at 37.)

Consequently, there is a triable issue of fact as to whether Universal Villas owned the subject sidewalk where the incident occurred.

  1. Open and Obvious

“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition. (Martinez, supra, 121 Cal.App.4th at p. 1184.) In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer). (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.)

The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition. (Martinez, supra, 121 Cal.App.4th at p. 1184.) In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer). (Kasparian, supra, 156 Cal.App.4th at pp. 24-25.)

Nonetheless, the obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)

Foreseeability is an elastic factor, and the degree of foreseeability necessary to warrant a finding of a duty will vary from case to case. (Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 509.) In determining whether a given harm was foreseeable, “it is necessary to review the ‘totality of the circumstances’ including the nature, condition and location of the defendant's premises [Citation], in light of the firmly established rule that ‘what is required to be foreseeable is the general character of the event or harm ... not its precise nature or manner of occurrence. [Citations.]’ ” (Id.)

Here, Universal Villas argues it had no duty to warn of the condition because as Plaintiff’s photos show, the condition of the sidewalk was clearly visible. The court has reviewed the photos and does not find they establish the condition was open and obvious as a matter of law. (Mot. Evidence in Support, Exh. D.) The photos show it is not completely obvious there is an open cover over the water meter as a person is approaching the condition, and that there is trash inside the opening, which may obscure the visibility of the opening or how deep it goes. Moreover, there is no evidence providing what the conditions of the defect where on the day of the incident, or whether there were any aggravating circumstances present.

What is more, even if the court found the condition was open and obvious, the obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.) Universal Villas itself asserts it inspects its property but does not inspect or survey the sidewalk that it believes the City owns. Accordingly, if Universal Villas is the owner of the sidewalk, there is a triable issue as to whether Universal Villas acted reasonably failing to inspect its property and failing to cure the defect, which Plaintiff avers exited long enough to give Universal Villas constructive notice of the defect.

Therefore, there is a triable issue of fact as to whether the condition was open and obvious.

  1. Conclusion

Universal Villas failed to show it are entitled to judgment as a matter of law. The motion for summary judgment is therefore denied.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 6th day of October, 2020

Hon. Thomas D. Long

Judge of the Superior Court