Case Number: LC098781 Hearing Date: May 22, 2014 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

LAURA HUBBARD, et al.,

Plaintiff,
vs.
MIDTOWN INN, et al., Defendant

Case No.: LC098781

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Dept. 92
May 22, 2013
1:30 p.m. – #21

Defendants’ Motion for Summary Judgment is Denied. Defendants’ Alternative Motion for Summary Adjudication is Denied.

Plaintiffs, Laura and Kenneth Hubbard filed this action against Defendants, Midtown Inn, Balubhai Gopal Patel, and the Balubhai Patel Revocable Trust for damages arising out of the wrongful death of their mother, Marilyn Hubbard. Decedent tripped and fell on Defendants’ property; immediately after the fall she appeared to be fine, but several hours later she died due to complications from the fall.

Defendants move for summary judgment, contending Plaintiffs cannot pinpoint the exact location of the fall. Plaintiffs allege that the ramp that leads down to the handicapped parking space is a dangerous condition, and that the dangerous condition of the ramp caused Decedent’s fall. Defendants contend Laura, the sole witness to the accident, cannot pinpoint whether the fall occurred on the ramp or in the adjacent parking area, and therefore Plaintiffs cannot prevail on their claims.

Plaintiffs argue Defendant is mis-construing Laura’s deposition testimony, and contend Laura knows, for certain, that her mother tripped on the ramp and not in the parking area.

The issue on the motion is not whether the ramp was in a dangerous condition at the time of the fall; for purposes of this motion, the parties assume that it was. The issue on this motion is whether Plaintiffs can prove that their mother tripped on the ramp, such that Defendants are potentially liable for the fall.

The Court has carefully read and considered the relevant portions of Laura’s deposition testimony – pages 84-89 and 105-121. At pages 84-89 Laura explains the general circumstances of her mom’s fall – she was wearing flats, she walked down the stairs, she turned back to face her daughter and have a conversation, she then turned to walk away, took 1-3 steps, tripped on something, and fell on her back/head. At pages 105-121, Defense Counsel presents a series of photos to Laura to identify exactly where her mother fell. Exhibit E is the photo in which Laura identified an area for the fall. She first drew a wide circle, but after being prompted additionally, she narrowed the circle. She testified that her mother fell somewhere in the circle. The circle includes both portions of the handicap ramp and also portions of the surrounding parking lot. When asked if she could specify whether the fall was on the ramp or in the parking lot, Laura testified that she could not.

Laura argues that the entire deposition testimony is misleading because she was consistently asked where her mom fell, but never asked where her mom tripped. She contends she answered the questions about where her mother was lying once she fell, as opposed to detailing where the trip itself happened.

On page 109, line 24 through page 110, line 1, Defense Counsel asked, “When you saw her fall, can you indicate on picture E where she was standing the very second before she fell?” Shortly thereafter, Laura drew a small circle, and in response to the question, “And it was somewhere within that area, within that little circle, where your mom fell?,” she answered, “Correct.” Counsel then asked, “And that’s as exact as you can be as far as where it happened?” Laura responded, “Exactly.” Later, on page 114, the two are discussing the area of the fall again. Counsel asks, “And within that circle is encompassed part of the ramp and part of the parking lot?” Laura responds, “Correct.” Counsel asks, “So it could have been either the ramp or the parking lot?” Laura responds, “It could have – like I said, in that vicinity. That’s all.”

Laura, in opposition to the motion, submits her own declaration. The main issue on this motion is whether the declaration contradicts her prior deposition testimony or not. Generally, a party opposing summary judgment cannot create a triable issue by submitting a potentially self-serving declaration from a witness that is at odds with the witness’s deposition testimony or discovery responses. Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451.

In her declaration, Laura declares that her mother tripped at a very specific place on the handicapped ramp, a place near the stairwell where there is a straight line gap in the concrete filled with putty. Notably, the “x” is within the circle Laura previously circled in her deposition. She declares she was consistently asked, in deposition, where her mother fell, but never where her mother tripped.

This is a difficult issue. Plaintiff was clearly asked where her mother was standing “immediately before she fell” – this is the same thing as asking where she tripped, as opposed to where she landed. However, when the parties were actually discussing the subject area, they were discussing where Decedent “fell,” and not where the “tripped.” Additionally, the photo in Exhibit E is a very bad photograph – the light is hitting the area right where the uneven surface is, and the uneven surface is entirely not visible in the photograph. Laura chose a relatively small area in the photograph to depict her mother’s fall, and the area she chose does, indeed, include the trip hazard at issue.

In light of the foregoing, the Court finds Laura’s declaration does not contradict, but rather explains, her deposition testimony. The objections to her declaration are therefore overruled. The motion for summary judgment is denied. The Court finds Defendants failed to establish that Plaintiff did not fall in the subject area; to the extent Defendants met their moving burden in this regard, Laura’s declaration in opposition to the motion raises triable issues of material fact.

The Court notes that Defendants also submitted objections to the Declaration of Olsen and the deposition testimony of Cruz; the purpose of that testimony is to establish that the subject area was in a dangerous condition. Because Defendants did not, in moving papers, establish that the subject area was NOT in a dangerous condition, Plaintiff had no obligation to raise triable issues of material fact in this regard. The objections are therefore moot, and the Court declines to rule on them.

The Court notes that Defendants also made an alternative motion for summary adjudication of the causes of action for negligence and premises liability. Defendants’ motion is devoid of any discussion differentiating the two causes of action or showing why summary adjudication is appropriate. The same 19 facts are cited in support of each request for summary adjudication. The same issues are raised in connection with each cause of action, and therefore the alternative motion for summary adjudication is denied.

Dated this 22nd day of May, 2014

Hon. Elia Weinbach
Judge of the Superior Court