On 10/27/2017 SCOTT MCLEAN filed a Personal Injury - Other Personal Injury lawsuit against CITY OF LOS ANGELES. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
WOODLAND HILLS CITY OF
LOS ANGELES CITY OF
DOES 1 TO 100
FEUER MICHAEL N. CITY ATTORNEY
12/7/2018: Motion for Summary Judgment
2/13/2019: Request for Judicial Notice
2/13/2019: Request for Judicial Notice
2/22/2019: Minute Order
3/12/2019: Stipulation and Order
3/14/2019: Notice of Ruling
11/29/2017: ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL
10/27/2017: COMPLAJNT FOR DAMAGES 1. NEGLIGENCE; ETC.
Summons (on Cross Complaint); Filed by LOS ANGELES, CITY OF (Cross-Complainant)Read MoreRead Less
Cross-Complaint; Filed by LOS ANGELES, CITY OF (Cross-Complainant)Read MoreRead Less
at 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
at 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Notice (Notice of Intra - Office Change of Attorney); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Notice of Ruling (on Motion of Defendant City of Los Angeles for Summary Judgment, Alternatively for Summary Adjudication of Issues); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Stipulation and Order ([Proposed Order] andStipulation to Continue Trial/FSC); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
at 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Summary Judgment (Alternatively for Summary Adjudication of Issues against Plaintiff) - Held - Motion DeniedRead MoreRead Less
Minute Order ( (Hearing on Motion for Summary Judgment Alternatively for Summ...)); Filed by ClerkRead MoreRead Less
Reply (Memorandum of Points and Authorities In Support of Motion of Defendant City of Los Angeles For Summary Judgment); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Declaration (of Gerald Sato); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Declaration (of Bill Florez); Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Memorandum of Points and Authorities in Support of Motion of Defendant City of Los Angeles for Summary Judgment; Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
ANSWER OF THE DEFENDANT CITY OF LOS ANGELES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIALRead MoreRead Less
Answer; Filed by LOS ANGELES, CITY OF (Defendant)Read MoreRead Less
Proof-Service/Summons; Filed by SCOTT MCLEAN (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
COMPLAJNT FOR DAMAGES 1. NEGLIGENCE; ETC.Read MoreRead Less
Complaint; Filed by SCOTT MCLEAN (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC681329 Hearing Date: August 20, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
CITY OF LOS ANGELES, et al.,
) ) )
Case No.: BC681329
[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
August 20, 2020
Plaintiff Scott McLean (“Plaintiff”) filed a complaint against Defendants City of Los Angeles, City of Woodland Hills, and Does 1 through 100 for injuries Plaintiff sustained after he tripped and fell on a displaced sidewalk and struck an adjacent electrical metal box. The complaint alleges causes of action for (1) negligence; (2) premises liability; (3) public entity liability: dangerous condition of public property; and (4) public entity liability: acts and omissions of government employees.
On 5/14/19, Defendant City of Los Angeles (the “City”) filed a cross-complaint against Time Warner Cable Pacific West LLC, (erroneously sued as Time Warner Communications), (“TWC”) for (1) indemnification, (2) apportionment of fault, and (3) declaratory relief. The cross-complaint alleged TWC directly or proximately caused Plaintiff’s injuries by its carelessness and negligence.
Motion for Summary Judgment
This matter was originally set to be heard on 3/19/20. On 3/18/20, TWC submitted an objection to the City’s opposition asserting that TWC was never properly served with the opposition and contending the opposition should not be considered as a result. Based on current conditions, including, but not limited to, the spread of COVID-19, the motion was continued to 8/20/20.
On 8/12/20, TWC submitted a reply to the opposition addressing the City’s arguments. The court finds that because of the continuance, and TWC’s ability to respond to the opposition and address the arguments raised, there has been no prejudice to TWC. Therefore, the court will consider the moving papers, opposition and reply.
TWC moves for summary judgment claiming the City cannot establish TWC owed a duty to Plaintiff, or that TWC breached a duty to Plaintiff. TWC asserts the City owned and controlled the sidewalk, and TWC is only a third-party abutting property owner with no tort liability for the City’s sidewalk. Furthermore, TWC contends that in opposing the City motion for summary judgment, which was filed on 12/6/18, Plaintiff submitted the expert declaration of Phillip L. Rosescu (“Rosescu”), who opined that the subject sidewalk constituted a dangerous condition but made no criticisms of the above-ground utility box. TWC contends the City has admitted in discovery that it did not affirmatively create the hazard that caused Plaintiff’s injuries, that TWC’s utility box was inspected by the City after its installation, the location of the utility box was approved by the City, and that the City has no evidence that TWC controlled the area of the incident except for the utility box. Because TWC did not affirmatively act in a manner that caused Plaintiff’s injuries, TWC argues it is entitled to judgment on the issues of duty and breach. Moreover, TWC asserts it is the City’s duty to maintain sidewalks.
The City asserts neither it nor Plaintiff contend that TWC owned, controlled, maintained, repaired, or inspected the sidewalk, but rather that Plaintiff alleges that both the displaced sidewalk and utility box constituted a dangerous condition that caused Plaintiff’s injuries. The City contends the location of TWC’s utility box to the sidewalk increased the likelihood of greater injury for pedestrians who tripped on the sidewalk. In particular, the City contends Rosescu opined that after tripping forward, Plaintiff would have had a difficult time recovering safely because of the excessive slope and utility box ahead of him. Additionally, the City asserts that TWC has misrepresented the City’s discovery responses, as it has not admitted that TWC did not affirmatively create a hazard in this case. The City contends that as a result, there is a triable issue of fact as to whether TWC’s utility box, by virtue of its design and location, constituted a dangerous condition and contributed to Plaintiff’s injuries.
Lastly, the court notes the City’s opposition refers to UMF 9 and 11-13. However, the City’s response to TWC’s separate statement of undisputed facts contains only 8 facts and responses.
TWC asserts that private property owners have no legal duty to third parties, as private property that is merely proximate to a dangerous condition on public property is not sufficient to raise a duty to third parties. Further, TWC contends that neither the City nor Plaintiff asserted that a dangerous condition was caused by the design, size or configuration of the utility box, so the sole issue is whether the location of the utility box increased the likelihood for greater injury to persons who tripped on the sidewalk. However, TWC contends that it cannot be held liable as a matter of law because it did not create the subject dangerous condition over which Plaintiff tripped. Moreover, TWC contends the City’s cited authority is only applicable to public entities, not private property owners.
Request for Judicial Notice
TWC requests the court take judicial notice of the following: a copy of the summons and complaint filed by Plaintiff in this action on 10/27/17 (Mot. Request for Judicial Notice (“RJN”) Exh. 1); a copy of the City’s motion for summary judgment filed 12/7/18 (RJN Exh. 2); and a copy of the declaration of Philip L. Rosescu, MSCE, CXLT submitted in support of Plaintiff’s opposition to the City’s motion for summary judgment (RJN Exh. 3.)
The request is granted pursuant to Evidence Code § 452(d). (See Garcia v. Sterling (1985) 276 Cal.App.3d 17, 21-22 [“ ‘... A court may take judicial notice of the existence of each document in a court file but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.’ ”].)
The City submits 8 objections to the declaration of Shawn Riggs submitted in support of TWC’s instant motion. Objections 1-2 are sustained as Riggs is merely relating case-specific facts. Objections 4 and 6 are sustained as Riggs is merely relating Rosescu’s findings. Objections 3, 5, 7-8 are overruled as Riggs has sufficiently established himself as an expert within the industry and provides a foundation for his testimony.
TWC, in reply, submits two objections to the declaration of Philip L. Rosescu, MSCE, CXLT, as cited to by the City. Objections 1-2 are overruled as the court has taken judicial notice of the declaration to the extent it is in the court’s file. (But see Garcia v. Sterling, 276 Cal.App.3d 17 at 21-22.)
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.)
“Equitable indemnity, which “requires no contractual relationship,” “ ‘is premised on a joint legal obligation to another for damages’ ”; it is “subject to allocation of fault principles and comparative equitable apportionment of loss.” [Citation.] “ ‘The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible.’ ” [Citation.]” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700.)
The complaint in this case alleges in relevant part that Defendants “and each of them, negligently owned, maintained, managed, supervised, controlled and operated the subject sidewalk and adjacent metal box;” that Defendants “failed to maintain the subject sidewalk and metal box in a safe condition;” that “as a direct and proximate result of negligence by Defendants, Plaintiff was caused to, and did trip and fall on and upon said subject sidewalk and metal box;” and that “[a]t the time of the subject incident, the subject sidewalk and adjacent metal box was in a substantially dangerous condition as a result of the Defendants failure to, among others:”
a. Ensure a safe sidewalk area free from risk of harm; and
b. Repair displaced sidewalk slabs on the SUBJECT SIDEWALK; and
c. Repair and properly maintain the adjacent metal box and surrounding area
(Compl. ¿¿ 6-8, 24.)
The City’s cross-complaint alleges Plaintiff’s injuries were directly and proximately caused and contributed to by the carelessness and negligence of [TWC].
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.
Here, TWC asserts the evidence shows that after tripping on the sidewalk and inspecting the scene of the incident, Rosescu found a 3/4-inch uplift and 33.7% slope of the sidewalk slabs which initiated Plaintiff’s harm. (UMF 1-2.) Further, for the purposes of this motion, it is undisputed the City is relying solely on Rosescu’s declaration and investigation to establish TWC’s negligence. (UMF 3.) In addition, TWC provides that its above-ground utility box was inspected by the City after its installation, and that the location of the ground pedestal the box is on was approved by the City. (UMF 6-7.) TWC further avers that it did not install, construct or control the subject sidewalk. (UMF 9.) This evidence is sufficient to show the sidewalk caused Plaintiff’s injuries, and that there was no negligence by TWC that caused or contributed to Plaintiff’s injuries. The burden shits to the City to raise a triable issue of fact.
In opposition, the City does not dispute TWC did not control the sidewalk; rather, it primarily argues there is a triable issue of fact as to whether the location or design of TWC’s utility box rendered the sidewalk a dangerous condition that contributed to Plaintiff’s injuries. The City cites to Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, in arguing a property owner can be liable for injury caused by the proximity of its property to public property, and that despite the needing City’s permission to place the utility box at the subject location, TWC may still be liable for risks arising from the utility box’s location.
In Bonanno, the plaintiff was struck by a car when she was crossing at an uncontrolled intersection to reach a nearby bus stop maintained by defendant transit authority. (30 Cal.4th at 144.) “The question presented is whether the location of a bus stop may constitute a “dangerous condition” of public property, within the meaning of Government Code sections 830 and 835,1 where, to reach the stop, bus patrons must cross a busy thoroughfare at an uncontrolled intersection. (Id.) The California Supreme Court affirmed a jury verdict in favor of the plaintiff against the transit agency based on evidence that those attempting to reach a bus stop had to cross against heavy traffic in the subject boulevard. (Id. at 151-54.) The transit agency could be liable under Govt. Code § 835 even though the accident did not occur on its property and despite the admitted negligence of the driver of the vehicle that caused the accident. (Id.) “[T]he fact plaintiff's injury was immediately caused by a third party's negligent or illegal act (here, McLain's negligent driving) [does not] render the present case novel. No shortage exists of cases recognizing a dangerous condition of public property in some characteristic of the property that exposed its users to increased danger from third party negligence or criminality.” (Id. at 152.)
Bonnano is not on point to this action. The Court in Bonnano addressed whether the location of a bus stop could constitute a dangerous condition under the circumstances. Bonnano did not address, however, whether the owner of private property that abuts public property could be held liable for the proximity of its property to public property. (State Farm Fire & Casualty Co. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].) Moreover, unlike in Bonnano, where the plaintiff’s injuries were immediately caused by a negligent third-party driver, Rosescu, whose declaration the City is relying on in filing its cross-complaint against TWC, opined that the sidewalk’s condition initiated Plaintiff’s trip and fall. (See Mot. Exh. 3, ¿ 10.) There is nothing in the declaration that states the location of the utility box caused Plaintiff to trip and fall. Plaintiff’s injury was not immediately caused by a third-party’s negligence.
The court finds the reasoning the reasoning of Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, to be more applicable in this case.
In Selger v. Steven Brothers, Inc., a pedestrian brought an action against a store owner to recover for injuries suffered after slipping and falling on dog feces on the sidewalk in front of the store. (222 Cal.App.3d at 1588-89.) The defendant customarily displayed flowers and shrubs on a portion of the sidewalk immediately in front of its fence, and a display was out when plaintiff walked by on the sidewalk that plaintiff was looking toward. (Id.) “Defendant did no affirmative act to create the hazard of dog feces on the city sidewalk. This was not defendant's rubbish, nor was it soil or plant material from the conduct of defendant's business.” (Id. at 1589.) Subject city ordinances that required store owners to keep sidewalks adjacent to their businesses did not create a standard of care owed to the traveling public. (Id.) “Under common law the owner or occupant of land abutting a public sidewalk had no duty to keep the sidewalk in a safe condition and was not liable to travelers injured as a result of defects in the sidewalk which were not created by the owner or occupant… the municipality has the primary responsibility for maintaining the public sidewalks.” (Id. at 1589-90.) “An abutting owner has always had a duty to refrain from doing an affirmative act which would render the sidewalk dangerous to the public. Unlike the cases relied upon by plaintiff, the waste matter here was not deposited by defendant or by the conduct of defendant's business.” (Id. at 1592.)
In this case, as in Selger, there is no evidence that TWC did an affirmative act to cause Plaintiff’s trip and fall. Further, there is no evidence that TWC in any way contributed to the sidewalk’s dangerous condition. TWC had no duty to keep the sidewalk in a safe condition, and there is no evidence showing that the location of the utility box- the location of which the City approved- caused or contributed to the defect on the sidewalk or caused Plaintiff’s fall. The fact that Plaintiff tripped and fell into the utility box may have exacerbated some of his injuries; however, there is no evidence that the location or design of the utility box caused Plaintiff to trip and fall. The court notes Plaintiff’s complaint does not contain any such allegations. The mere fact the utility box was located where it was, with no evidence TWC was aware of or caused the sidewalk’s condition or otherwise negligent in deciding where to place the box, does not support finding TWC negligently caused or contributed to Plaintiff’s injuries. Accordingly, there is no evidence of any negligent affirmative act done by TWC that caused Plaintiff’s injuries. The City fails to raise a triable issue of material fact.
TWC’s motion for summary judgment is granted.
Moving Party is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.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: August 20, 2020
Hon. Thomas D. Long
Judge of the Superior Court
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