Case Number: BC703423 Hearing Date: May 31, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CINDY MATTA,

Plaintiff(s),

vs.

CITY OF WEST HOLLYWOOD, ET AL.,

Defendant(s).

CASE NO: BC703423

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

May 31, 2019

THE COURT WILL NOT HEAR ORAL ARGUMENT ON THIS MOTION MAY 31, 2019. ANY ARGUMENT WILL BE HEARD MONDAY, JUNE 3, 2019, AT 1:30 P.M.

Background Facts

Plaintiff, Cindy Matta filed this action against Defendants, City of West Hollywood and 1250 North Fairway Avenue, LLC for damages arising out of a trip and fall on a tree well in the public sidewalk. Plaintiff alleges 1250 owns the private property adjacent to the sidewalk.

Motion for Summary Judgment

At this time, 1250 moves for summary judgment, contending it did not own the sidewalk where the fall occurred, and it did not own or maintain the tree well that caused the fall.

The City opposes the motion, arguing various state and municipal code sections impose a duty on 1250 in connection with the sidewalk.

b. Initial Notes

1250, in reply, argues the Court should not consider the opposition because it fails to include a separate statement. The City filed a sur-reply wherein it argues the opposition is premised purely on legal arguments and a separate statement is not necessary. 1250 filed an objection to the sur-reply, contending the Court should strike it as not properly filed. Regardless of whether the Court considers the sur-reply, the Court has considered the opposition. The Court finds all of the facts in the separate statement are deemed undisputed by the City’s failure to file a responsive separate statement, and will consider the legal arguments advanced by the City.

c. 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.)

d. General Law Governing Liability of Abutting Landowners for Sidewalk Defects

The “Sidewalk Accident Decisions” doctrine holds that the abutting property owner is not liable in tort to travelers injured on the sidewalk, unless the owner somehow creates the injurious sidewalk condition. When the defect in the sidewalk is somehow attributable to the abutting property owner, the sidewalk accident decisions doctrine does not apply. This rule has been held to impose liability on abutting property owners where the owner left some dangerous or slippery material on the sidewalk and a traveler tripped on this material (Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852, 858-860), where the owner altered or constructed the sidewalk for his own benefit and the traveler slipped on the part of sidewalk so altered or constructed by the owner (Sexton v. Brooks (1952) 39 Cal.2d 153, 157), or where the plaintiff fell on a break in the sidewalk allegedly caused by the roots of a tree located in defendant’s front yard (Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245). However, where the disruptive roots extend from a tree located in the parkway in front of the defendant’s property, the unsafe condition was deemed attributable to the City, not to the defendant property owner. Jones v. Deeter (1984) 152 Cal.App.3d 798, 803-804.

Thus, the issue is whether the sidewalk defect is somehow attributable to the abutting property owner. “In settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians. The contrary situation exists when the city has planted the trees on the parkway and has performed all necessary maintenance on them. Under these latter circumstances, the duty to maintain the trees in safe condition rests with the city; dangerous conditions caused by the trees are attributable to the city, not to abutting owners.” Jones v. Deeter, supra, 152 Cal.App.3d at p. 805.

Supporting the rule that the duty of an abutter to maintain the sidewalk in a safe condition, if existing, runs with the land, and hence a property owner cannot avoid such duty on the ground that the condition was created by or at the request of his predecessor in title, the courts in a number of cases have held the owner of abutting property liable for injuries resulting from a defective or dangerous condition of the sidewalk although such condition was created by his predecessor in title, particularly where the abutting owner had adopted the nuisance created by the faulty condition or had knowledge thereof prior to the time of the accident, or where, subsequent to his acquiring title, he exercised some general control over the sidewalk. Sexton v Brooks, supra, 39 Cal.2d 153; Peters v San Francisco (1953) 41 Cal.2d 419.

e. Moving Burden

1250 showed it does not own or maintain the tree well where the fall occurred. Per the authority above, this is sufficient to show 1250 is entitled to judgment as a matter of law.

f. Shifted Burden

Because 1250 met its initial burden to show it is entitled to judgment as a matter of law on the complaint, the burden shifts to the City to raise a triable issue of material fact and/or provide legal authority contrary to that presented in the moving papers.

The City relies on portions of the Streets and Highways Code and the Municipal Code to support its position that 1250, as the abutting landowner, was obligated to maintain the sidewalk. In Gonzalez v. City of San Jose (2004) 125 Cal.App.4th 1127, the Court construed a municipal ordinance to impose liability on adjacent landowners. However, Gonzalez made clear that this is true if and only if the ordinance spells out this obligation. Of note, in Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, the court of appeals rejected a plaintiff’s argument that a municipal code without such specific liability shifting language gave rise to liability on the part of the abutting landowner. There is nothing in the Streets and Highways Code or Municipal Code cited by the City that specifically imposes liability on adjacent landowners based on a dangerous condition on the abutting sidewalk. In light of Selger, the City failed to show the municipal code gives rise to liability.

g. Conclusion

1250 met its moving burden to show it did not own the sidewalk or the tree well that caused the fall. The City failed to raise a triable issue of material fact. The motion for summary judgment is therefore granted.

1250 is ordered to give notice.