This case was last updated from Los Angeles County Superior Courts on 11/27/2019 at 00:24:37 (UTC).

ROSALIO PATLAN VS DANIEL E PRICE

Case Summary

On 06/13/2018 a Personal Injury - Other Personal Injury case was filed by ROSALIO PATLAN against DANIEL E PRICE in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0006

  • Filing Date:

    06/13/2018

  • 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 Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

PATLAN ROSALIO

Defendants and Respondents

PRICE DANIEL E.

DOES 1-50

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THE DOMINGUEZ FIRM

TAILLIEU OLIVIER ALAIN

TAILLIEU OLIVIER A.

Defendant Attorney

STEINBERG JODY

 

Court Documents

Memorandum of Points & Authorities

11/8/2019: Memorandum of Points & Authorities

Objection - OBJECTION BY PLAINTIFF TO DEFENDANT'S EVIDENCE

11/8/2019: Objection - OBJECTION BY PLAINTIFF TO DEFENDANT'S EVIDENCE

Response - RESPONSE BY PLAINTIFF'S TO DEFENDANT'S SEPARATE STATEMENT OF FACTS AND ADDITIONAL MATERIAL FACTS

11/8/2019: Response - RESPONSE BY PLAINTIFF'S TO DEFENDANT'S SEPARATE STATEMENT OF FACTS AND ADDITIONAL MATERIAL FACTS

Declaration - DECLARATION OF JENNIFER BAGOSY REGARDING PLAINTIFF'S EVIDENCE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

11/8/2019: Declaration - DECLARATION OF JENNIFER BAGOSY REGARDING PLAINTIFF'S EVIDENCE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION

Reply - REPLY REPLY BY DEFENDANT DANIEL E. PRICE TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

11/20/2019: Reply - REPLY REPLY BY DEFENDANT DANIEL E. PRICE TO PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT) OF 11/25/2019

11/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT) OF 11/25/2019

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

11/25/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Separate Statement

6/24/2019: Separate Statement

Motion for Summary Adjudication

6/24/2019: Motion for Summary Adjudication

Motion re: - MOTION RE: DEFENDANT DANIEL E. PRICE'S COMPENDIUM OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

6/24/2019: Motion re: - MOTION RE: DEFENDANT DANIEL E. PRICE'S COMPENDIUM OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION

Opposition - OPPOSITION PLAINTIFF'S PARTIAL OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO ADVANCE THE HEARING FOR MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE CONTINUE THE TRIAL

6/25/2019: Opposition - OPPOSITION PLAINTIFF'S PARTIAL OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION TO ADVANCE THE HEARING FOR MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE CONTINUE THE TRIAL

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING DATE FOR MOTION FOR SUMMARY JUDGMENT

6/25/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HEARING DATE FOR MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HE...)

6/25/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER ADVANCING THE HE...)

Notice of Ruling

6/27/2019: Notice of Ruling

PROOF OF SERVICE SUMMONS -

9/25/2018: PROOF OF SERVICE SUMMONS -

Answer -

10/11/2018: Answer -

SUMMONS -

6/13/2018: SUMMONS -

COMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; 2. PRCMISCS LIABILITY. ETC....

6/13/2018: COMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; 2. PRCMISCS LIABILITY. ETC....

11 More Documents Available

 

Docket Entries

  • 06/14/2021
  • Hearing06/14/2021 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

    Read MoreRead Less
  • 02/26/2020
  • Hearing02/26/2020 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

    Read MoreRead Less
  • 02/11/2020
  • Hearing02/11/2020 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

    Read MoreRead Less
  • 11/25/2019
  • Docketat 4:00 PM in Department 5, Stephen I. Goorvitch, Presiding; Court Order

    Read MoreRead Less
  • 11/25/2019
  • Docketat 1:30 PM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Motion for Summary Judgment - Held - Taken under Submission

    Read MoreRead Less
  • 11/25/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Daniel E. Price (Defendant)

    Read MoreRead Less
  • 11/25/2019
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment)); Filed by Clerk

    Read MoreRead Less
  • 11/25/2019
  • DocketCertificate of Mailing for ([Minute Order (Hearing on Motion for Summary Judgment)]); Filed by Clerk

    Read MoreRead Less
  • 11/25/2019
  • DocketMinute Order ( (Court Order re Defendant's Motion for Summary Judgment)); Filed by Clerk

    Read MoreRead Less
  • 11/25/2019
  • DocketCertificate of Mailing for ((Court Order re Defendant's Motion for Summary Judgment) of 11/25/2019); Filed by Clerk

    Read MoreRead Less
12 More Docket Entries
  • 06/25/2019
  • DocketMinute Order ( (Hearing on Ex Parte Application for an Order Advancing the He...)); Filed by Clerk

    Read MoreRead Less
  • 06/24/2019
  • DocketMotion for Summary Adjudication; Filed by Daniel E. Price (Defendant)

    Read MoreRead Less
  • 06/24/2019
  • DocketMotion re: (Defendant Daniel E. Price's Compendium of Evidence in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication); Filed by Daniel E. Price (Defendant)

    Read MoreRead Less
  • 06/24/2019
  • DocketSeparate Statement

    Read MoreRead Less
  • 10/11/2018
  • DocketAnswer; Filed by Daniel E. Price (Defendant)

    Read MoreRead Less
  • 09/25/2018
  • DocketPROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 09/25/2018
  • DocketProof of Personal Service; Filed by Rosalio Patlan (Plaintiff)

    Read MoreRead Less
  • 06/13/2018
  • DocketComplaint; Filed by Rosalio Patlan (Plaintiff)

    Read MoreRead Less
  • 06/13/2018
  • DocketSUMMONS

    Read MoreRead Less
  • 06/13/2018
  • DocketCOMPLAINT FOR DAMAGES FOR: 1. NEGLIGENCE; 2. PRCMISCS LIABILITY. ETC....

    Read MoreRead Less

Tentative Rulings

Case Number: BC710006    Hearing Date: November 25, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

rosalio patlan,

Plaintiff,

v.

daniel e. price,

Defendant.

Case No.: BC710006

Hearing Date: November 25, 2019

[TENTATIVE] order RE:

Defendant’s MOTION FOR SUMMARY judgment

BACKGROUND

Plaintiff Rosalio Patlan (“Plaintiff”) filed this action against Defendant Daniel E. Price (“Defendant”) after he fell out of a tree in Defendant’s yard while attempting to trim that tree. Plaintiff asserts causes of action for negligence and premises liability. Now, Defendant moves for summary judgment or, in the alternative, summary adjudication of each cause of action. Plaintiff opposes the motion, which is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

EVIDENCE

The Court rules as follows on Plaintiff’s objections:

1. The Court does not rule on this objection, as it did not rely on this evidence. (Code Civ. Proc. § 437c(q).)

2. The Court does not rule on this objection, as it did not rely on this evidence. (Code Civ. Proc. § 437c(q).)

3. The Court overrules Plaintiff’s objections. Evidence Code section 765 does not provide a basis for an objection; there is sufficient foundation for this evidence; and there is no authentication issue. At best, any issues go to weight, not admissibility. Finally, there is no dispute that Defendant asked Plaintiff to trim the tree.

4. The Court overrules Plaintiff’s objections. Evidence Code section 765 does not provide a basis for an objection; there is sufficient foundation for this evidence; and there is no authentication issue. At best, any issues go to weight, not admissibility.

5. The Court does not rule on this objection, as it did not rely on this evidence. (Code Civ. Proc. § 437c(q).)

6. The Court overrules Plaintiff’s objections. Evidence Code section 765 does not provide a basis for an objection; there is sufficient foundation for this evidence; and there is no authentication issue. At best, any issues go to weight, not admissibility.

7. The Court overrules Plaintiff’s objections. Evidence Code section 765 does not provide a basis for an objection; there is sufficient foundation for this evidence; and there is no authentication issue. At best, any issues go to weight, not admissibility.

8. The Court does not rule on this objection, as it did not rely on this evidence. (Code Civ. Proc. § 437c(q).)

9. The Court overrules Plaintiff’s objections. Evidence Code section 765 does not provide a basis for an objection; there is sufficient foundation for this evidence; and there is no authentication issue. At best, any issues go to weight, not admissibility.

10. The Court does not rule on this objection, as it did not rely on this evidence. (Code Civ. Proc. § 437c(q).)

DISCUSSION

A. Elements

To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff, that Defendant breached that duty, and that the breach caused damages to Plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) To state a claim for premises liability, Plaintiff must demonstrate that Defendant failed to exercise ordinary care in its management of the premises. (Ibid.)

B. Labor Code section 3708

In the complaint, Plaintiff relies on the presumption of negligence set forth in Labor Code section 3708. Workers’ compensation is the exclusive remedy against employers for employees who sustain injuries in the course and scope of their employment. (See Labor Code, §§ 3600, subd. (a), 3602, subd. (a); Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812-813.) If an employer does not obtain workers’ compensation insurance, however, an injured employee may bring a tort action against the uninsured employer. (See Lab. Code, § 3706.) In such an action, the employer’s negligence is presumed to be the cause of the employee’s injury. (Lab. Code, § 3708.) However, the presumption under section 3708 does not apply to any employee defined in section 3551, subdivision (d), which includes “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling. (Lab. Code, § 3351(d).) Specifically, the presumption does not apply to “‘causal employees’ not in the course of the employer’s trade, business or occupation such as household domestic servants, babysitters, and part-time gardeners.” (Scott v. Workers’ Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 985.) Therefore, Plaintiff cannot avail himself of this presumption.

C. Labor Code section 2750.5

Defendant testified that the trees at issue were approximately 24 to 25 feet high. (Declaration of Jennifer Bagosy, Exhibit B, p. 21.) A person who prunes trees at least 15 feet high must have a business license. (Bus. & Prof. Code, § 7026.1, subd. (a)(4).) Therefore, Plaintiff argues that Defendant owed him a duty because as an unlicensed worker performing work for which a license was required, Plaintiff is deemed to be Defendant’s employee for tort purposes. (Lab. Code, § 2750.5.) Thus, Defendant is potentially liable in tort to Plaintiff, if Defendant’s negligence caused or contributed to Plaintiff’s injuries. (See Rosas v. Dishong (1998) 67 Cal.App.4th 815, 823.)

D. Breach of Duty and Causation

Defendant argues that he did not breach any duty to Plaintiff. Defendant proffers his declaration, in which he states that he asked Plaintiff to cut back the branches of two carrotwood trees, which were overhanging Defendant’s pool. (Declaration of Daniel Brice, ¶¶ 6-7.) Defendant states that he provided Plaintiff with a long pole clipper with which to cut the branches and demonstrated that the task should be performed while standing on the ground. (Ibid.) Defendant testified during his deposition that he gave Plaintiff a long pole clipper, which is “only functional when you’re standing on the ground . . . .” (Declaration of Jennifer Bagosy, Exh. B, p. 134.) Defendant states that he did not instruct Plaintiff to climb into the trees. (Declaration of Daniel Brice, ¶ 10.)

Defendant also relies on Plaintiff’s deposition testimony. Plaintiff testified that, on the day of his accident, he climbed into the tree he was trimming, after using Defendant’s ladder to get onto the tree. (Declaration of Whitney L. Bost, Exhibit B, pp. 36-37.) Plaintiff testified that he stepped out onto a branch, which broke off the tree, and he fell. (Declaration of Whitney L. Bost, Exhibit B, p. 38.)

Defendant’s evidence shows that Defendant did not instruct Plaintiff to climb into the tree to trim it, but rather instructed Plaintiff to trim the tree from the ground. This evidence is sufficient to satisfy Defendant’s burden to establish that he did not cause or contribute to Plaintiff’s accident, shifting the burden to Plaintiff.

Based upon Plaintiff’s Separate Statement of Undisputed Facts, it appears that Plaintiff’s theory of the case is that he used a ladder to climb into the tree, and “[o]nce in the tree, [he] walked out on a branch that was about a foot in diameter so he could cut the branches that overhung the pool.” (Plaintiff’s Separate Statement of Undisputed Material Facts, ¶¶ 56-57.) “The thick branch that Plaintiff walked out on extended about 10-15 [feet] from the trees trunk and was angled up.” (Id., ¶ 58.) “Just prior to the fall, Plaintiff put his right foot on [a] branch that was about 6 inches in diameter that grew out of a thicker branch that his left foot was on.” (Id., ¶ 59.) The six-inch branch broke, and Plaintiff fell. (Id., ¶ 60.)

Plaintiff proffers insufficient evidence that Defendant told him to climb into the tree. Plaintiff testified in his deposition that Defendant told him to “grab” the ladder “on the side of the garage” for the branches he could not reach. (Declaration of Jennifer Bagosy, Exh. A, at p.25:12-25.) Nevertheless, this testimony is not sufficient to create a triable issue because Plaintiff did not testify that Defendant told him to climb into the tree. Plaintiff argues that he had done so a prior occasion when he trimmed the trees, so he believed that was Defendant’s instruction. Plaintiff’s belief does not give rise to a triable issue whether Defendant instructed him to climb into the tree, as opposed to standing on the ladder and trimming the tree from the ladder.

Plaintiff proffers insufficient evidence that it was foreseeable to Defendant that Plaintiff would climb into the tree. Defendant testified that on one previous occasion, he had asked Plaintiff to trim trees. (Declaration of Jennifer Bagosy, Exh. B, at p. 73.) Defendant testified that, on that occasion, Plaintiff brought two other men with him, and that one of those men climbed a fig tree in Defendant’s backyard using specialized safety equipment. (Id., Exh. B, at p. 78.) Defendant testified that the two men trimmed the carrotwood trees by using the pole clipper from the roof of Defendant’s garage. (Id., Exh. B, at pp. 87-88.) Nothing in Defendant’s testimony suggests that Defendant knew or should have known that Plaintiff would attempt to climb Defendant’s carrotwood tree without safety equipment. To the contrary, this testimony supports Defendant’s contention that he did not anticipate that Plaintiff would attempt to climb the tree without safety equipment.

Nor does Plaintiff proffer sufficient evidence that it was foreseeable to Defendant that Plaintiff would step onto a branch six inches in diameter. To the extent Plaintiff argues that the branch was weak, unstable, and/or rotted, he proffers insufficient evidence that the branch was in such condition. Moreover, Plaintiff proffers insufficient evidence that Defendant was aware of any unsafe condition of the branch at issue.

The mere fact that Plaintiff fell from a branch only six inches in diameter does not give rise to liability. A homeowner “is not required to give an invitee warning or notice of obvious danger but is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses.” (Delk v. Mobilhomes, Inc. (1953) 118 Cal.App.2d 529, 532-533.) Indeed, “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.) It should have been obvious to Plaintiff that a full-grown man stepping onto a branch only six inches in diameter was not safe. For that reason, the Court finds that Plaintiff assumed the risk by standing on a branch not suitable to support his weight.

Plaintiff argues that Defendant should have given more clear instructions in light of the language-barrier between them. Plaintiff proffers insufficient evidence that Defendant was negligent in his instructions, especially in the absence of evidence that Defendant instructed him to climb into the tree. At best, interpreting all inferences in favor of Plaintiff, the evidence suggests only that Defendant told him to stand on the ladder to trim the higher branches. Moreover, Defendant testified that Plaintiff had always done “exactly what [Defendant] asked him to do” in the past despite the language barrier between them, which Plaintiff does not dispute. (Declaration of Jennifer Bagosy, Exh. B, p. 66.)

In sum, Plaintiff proffers insufficient evidence that: (1) Defendant instructed him to climb into the tree; (2) The tree was in a dangerous condition; (3) Defendant was aware of any dangerous condition of the tree; (4) Defendant instructed Plaintiff to step onto a branch only six inches in diameter; (5) Plaintiff did not assume the risk of doing so; and (6) Defendant was negligent in instructing Plaintiff. Therefore, the Court grants summary judgment.

CONCLUSION AND ORDER

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

DATED: November 25, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court