Case Number: BC520968 Hearing Date: June 13, 2018 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Amanda G. Polio,

Plaintiff,

v.

City of Los Angeles, et al.,

Defendants.

Case No.: BC520968

Hearing Date: June 13 2018

[TENTATIVE] order RE:

DEFENDANT MEI Real estate Services’s motion for summary judgment

BACKGROUND

Plaintiff Amanda G. Polio (“Plaintiff”) alleges that on November 21, 2011, Plaintiff suffered personal injuries when she tripped and fell on an uneven sidewalk on property managed by defendant MEI Real Estate Services (“Defendant” or “MEI”).

Plaintiff filed this action on September 11, 2013, alleging causes of action for Premises Liability and General Negligence. Defendant MEI was added by Doe amendment to the complaint on December 29, 2016 and was served with the complaint on January 23, 2017.

Defendant MEI moves for summary judgment, or in the alternative summary adjudication, as to both the premises liability and general negligence claims. Plaintiff opposes, and Defendant has replied.

This motion was previously scheduled to be heard on April 9, 2018. However, upon reviewing the motion, the Court found that Plaintiff had failed to cite to supporting evidence in Plaintiff’s response to the Defendant’s Separate Statement of fact. The Court continued the motion to the present date and ordered Plaintiff to provide a revised response to the separate statement that cites to the supporting evidence, as is required under Code of Civil Procedure § 437c subdivision (b)(3). Plaintiff filed the corrected separate statement on April 17, 2018.

The City of Los Angeles (“the City”) filed a notice of “limited joinder” in MEI’s motion for summary judgment. The City states in the notice of joinder: “Said joinder is made with respect to the argument that Plaintiff’s action is barred as a matter of law because the alleged defect that she tripped and fell over was trivial as a matter of law.” The City provided no evidence or argument besides the notice of joinder.

This motion was first heard on May 1, 2018. At the May 1, 2018 hearing, Plaintiff asked the Court to continue the motion to allow Plaintiff to present additional evidence to show that a triable issue of fact exists. The Court granted Plaintiff’s motion to continue to the instant date. Both Plaintiff and Defendant have submitted supplemental briefing.

Evidence

Defendant’s Objections to Plaintiff’s Evidence

Defendant makes several objections to the depositions of Laurie Nagel, Richard Lopez, and Amanda G. Polio (Plaintiff).

· Nagel Deposition

o Objection 1: Overruled. The maintenance performed near the subject sidewalk is relevant.

o Objection 2: Overruled. The identity of the property manager of the subject property is relevant.

o Objection 3: Overruled. The property boundaries are relevant.

o Objection 4: Overruled. The property boundaries are relevant.

o Objection 5: Overruled. The property manager’s responsibilities over common areas of the subject property are relevant.

o Objection 6: Overruled. The steps taken by the property manager to inspect the property are relevant.

· Lopez Deposition

o Objections 7-14: Overruled. Defendant objects to the use of the Lopez deposition under CCP § 2025.620, which states in relevant part “At the trial or any other hearing in the action, any part or all of a deposition may be used against any party [1] who was present or represented at the taking of the deposition, or [2] who had due notice of the deposition and did not serve a valid objection under Section 2025.410, so far as admissible under the rules of evidence . . .” Defendant argues that the Lopez deposition was conducted before MEI was added to the case, and thus, MEI did not have notice of the deposition, or an opportunity to be represented at the deposition. However, Defendant cites no authority that applies § 2025.620 to motions for summary judgment. The purpose of § 2025.620 is to allow the party against whom the deposition is used a chance to cross examine the witness before such testimony can be used in court. On a motion for summary judgment, there is no such opportunity to cross examine affiants or declarants. Indeed, the parties may submit declarations, as Defendant did in this case, which are also not subject to cross examination. As such, the Court finds that § 2025.620 is inapplicable to this motion. Even if the objections were sustained, it would not change the Court’s analysis below.

· Polio Deposition

o Objections 15-17: Overruled. Defendant objects to the use of the Polio deposition dated February 4, 2015 under CCP § 2025.620. Defendant argues that the first Polio deposition occurred before MEI was added as a defendant, and thus cannot be used in opposition to this motion for summary judgment. Like the Lopez deposition above, the Court disagrees. Section 2025.620 does not prevent the use of the Polio deposition from February of 2015 in opposition to this motion for summary judgment.

Defendant’s Objections to Plaintiff’s Supplemental Evidence

Defendant objects to the evidence submitted by Plaintiff in the supplemental briefing.

· Burns Declaration

o Objection 1: Overruled. The information provided in the attached ADA Standards for Accessible Design does not create a substantial danger of misleading the Court on this motion.

o Objection 2: Overruled. The information provided in the attached ASTM Standard Practice for Safe Walking does not create a substantial danger of misleading the Court on this motion.

o Objection 3: Sustained on grounds of lack of foundation. As a forensic engineer, Mark Burns presents himself as an expert on the subject of mechanical engineering. He does not provide any foundation to support his assertion that “generally, property lines for properties within the City of Los Angeles are defined in the middle of the street along the property.” (Pl. Supp. Exh. A, Burns Decl., at ¶ 13.) Without sufficient foundation, this opinion is improper and inadmissible for this motion.

o Objection 4: Sustained in part. Burns’s opinion relating to California Streets and Highway Code § 5610 is not admissible as Defendant has not laid a sufficient foundation to show that Burns would be familiar with such codes or that he has any special training related to such regulations. However, this does not make the attachment of Exhibit G to the Burns declaration inadmissible. The Court cannot ignore the applicability of California Streets and Highway Code § 5610 merely because an expert attempted to opine as to the Code section’s legal effect. Therefore, the Court will allow Exhibit G, but will not consider the opinions offered by Burns in relation to Exhibit G. Even if Exhibit G were inadmissible, the Court would still be able to consider the content of California Streets and Highway Code § 5610.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that 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 a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Facts

Defendant is a property management company. (Fact 9.) On November 21, 2011, the day of the alleged injury, Defendant was the property manager for the Northridge Plaza Shopping Center. (Fact 10.) The parties do not dispute that the sidewalk where Plaintiff tripped was public property.[1] (Fact 14; Fact 39.) Plaintiff tripped and fell over an uneven section of the sidewalk where one section was raised by a difference of 0.4 inches and 0.6 inches. (Fact 25.) However, the parties dispute who is responsible for maintenance in common areas.

DISCUSSION

The City’s Joinder with MEI’s Motion for Summary Judgment

The City’s joinder in this motion does not allow the Court to enter judgment in favor of the City on the issue of whether the defect in this case was trivial. “Subdivision (b) of [CCP] section 437c states that a party moving for summary judgment or summary adjudication must support the motion with affidavits and other discovery materials. ‘The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed.’” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.) A notice of joinder does not constitute a motion for summary judgment in the joining party’s favor. (Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 47.) Thus, it is error for a trial court to grant summary judgment in favor of a party who merely joined another’s motion for summary judgment. (Ibid.)

Here, the City filed a notice of limited joinder with MEI’s motion for summary judgment. The City provided no evidence or argument to meet its burden. The Court may not enter judgment in favor of the City based upon the notice of joinder. As such, the analysis below pertains only to Defendant MEI, and the Court makes no determination on whether there is a triable issue of material fact as to the City of Los Angeles.

MEI’s Motion for Summary Judgment

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Defendant moves for summary judgment on the following grounds: (1) MEI did not maintain, control, or own the sidewalk where Plaintiff fell; (2) there is no evidence that MEI did anything to render the sidewalk where Plaintiff fell defective; and (3) the defect in the sidewalk was trivial as a matter of law. As such, Defendant argues that it did not owe or breach any duty to Plaintiff.

MEI’s Act of Negligence: Control of the Subject Sidewalk

“‘[P]roperty owners are liable for injuries on land they own, possess, or control.’ But . . . the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, italics original, internal citations omitted.) “The crucial element is control.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 414.) The courts “have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.” (Ibid.)

In Alcaraz, the California Supreme Court examined the question of liability based on the question of control of the premises. Although the defendants did not own the strip of land on which the plaintiff was injured, the evidence showed that the defendants maintained the lawn that covered this land. In addition, the defendants constructed a fence on the land at issue after plaintiff’s injury. (Alcaraz, supra, 14 Cal.4th at 1161-62.) The Court held that this evidence was sufficient to create a triable issue of fact concerning whether the defendants exercised control over the property notwithstanding the fact that the defendants held no legal interest in the land. In its reasoning, the Alcaraz Court determined that control is the crucial element in determining premises liability of a tenant. (Ibid.)

Here, Defendant argues that it did not have control over the area where Plaintiff fell because the ability to maintain the sidewalk was not under the control of Defendant. To support these contentions, Defendant first cites to the admissions made by the City during discovery. The City admitted that (1) MEI did not own the subject sidewalk (Fact 15), (2) there is no evidence that MEI controlled the subject sidewalk (Fact 16), and (3) there is no evidence that MEI was responsible for maintaining the subject sidewalk (Fact 17). Defendant argues that the City’s admissions show that Plaintiff cannot meet her burden to show a triable issue of material fact as to MEI’s ownership or control over the subject sidewalk.

The Court finds this evidence is insufficient to meet Defendant’s burden against Plaintiff. A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c, subd. (p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary judgment motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, 25 Cal.4th at 851, emphasis original.) To meet this burden, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, 25 Cal.4th at 854, emphasis original.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, 25 Cal.4th at 855.)

Here, Defendant is attempting to use the admissions of the City as evidence that Plaintiff cannot meet her burden. Defendant cites no authority that allows the admissions of one party to serve as a sufficient basis for summary judgment against a different party. Simply showing that the City is not in possession of the required evidence does not speak to what evidence Plaintiff may or may not possess or reasonably obtain. As such, the admissions of the City are insufficient to meet Defendant’s burden against Plaintiff for this motion.

However, Defendant provides evidence apart from the admissions of the City to show that Plaintiff cannot show a triable issue of material fact. Laurie Nagel was the agent assigned to manage the subject property on behalf of MEI. (Nagel Decl., at ¶¶ 3-4.) Nagel states that at the time of incident, the subject sidewalk was not on the property managed by MEI and that MEI did not own, control, or maintain the sidewalk. (Id. at ¶ 6.) In addition, maintenance of the sidewalk “was not within the scope of responsibilities of MEI and, as such, MEI never exercised control over the sidewalk.” (Id. at ¶ 7.) Finally, Nagel states that MEI “never did anything to render the sidewalk . . . dangerous to the public.” (Id. at ¶ 9.)

The Court finds that the testimony of Nagel is sufficient to meet the Defendant’s burden and shift the burden to Plaintiff. Nagel was the agent responsible for managing the subject property and would have knowledge of the property boundaries as well as the property rights and responsibilities of MEI in maintaining the property. Thus, Nagel’s testimony has a tendency to show that Defendant did not own, control, or maintain the subject sidewalk. Her testimony also provides evidence that MEI took no affirmative actions that rendered the sidewalk dangerous.

In opposition, Plaintiff offers evidence that MEI was responsible for the maintenance of all common areas. (Pl. Exh. A, Nagel Depo., at pg. 55:16-18.) When Nagel would visit the property, she would speak to the tenants and examine common areas. (Id. at 64:5-8.) Finally, MEI was responsible for maintaining the grassy area between the subject sidewalk and the rental property. (Id. at 29:18-22.)[2] At the May 1, 2018 hearing, the Court did not find Plaintiff’s evidence to show a triable issue of material fact and allowed Plaintiff sufficient time to present supplemental evidence to show a triable issue of material fact.

In the supplemental briefing, Plaintiff attempts to show that MEI’s property extends to the center of the street. Plaintiff offers the Declaration of Mark Burns, an expert in mechanical engineering with experience in forensic engineering. (Pl. Supp. Exh. A, Burns Decl., at ¶¶ 3, 4.) Plaintiff’s showing is insufficient for two reasons. First, Burns states in the declaration: “Generally, property lines for properties within the City of Los Angeles are defined as the middle of the street along the property.” (Id. at ¶ 13.) This assertion is inadmissible, as discussed above. Insufficient foundation has been laid to show that Burns is qualified to draw this conclusion, and Burns does not provide the information on which he bases the assertion.

Second, the Court believes that Burns may be attempting to reference California Civil Code § 831, which states that an owner of land bounded by a road or street is presumed to own to the center of the road or street. However, this presumption can be rebutted with a sufficient showing that the land deeded to the current owner did not include the section containing the subject sidewalk. (Jones v. Deeter (1984) 152 Cal.App.3d 798, 802-803) Here, there is evidence that rebuts the presumption. In the original opposition, Plaintiff provided a survey map of the subject property as Exhibit F. This survey map shows that the property line excludes the subject sidewalk from the property. In addition, the City has admitted that MEI did not own the subject sidewalk. (Fact 15.) Thus, all the evidence in the record shows that the subject sidewalk is not owned by MEI. Therefore, Plaintiff has failed to show a triable material fact as to MEI’s ownership or exercise of control over the area where Plaintiff fell.

However, this does not conclude the analysis, as MEI may still be liable for Plaintiff’s injuries under the “Sidewalk Accident Decisions” Doctrine. In the supplemental opposition, Plaintiff argues that California Streets and Highway Code § 5610 imposes a duty on MEI to maintain any sidewalk abutting the property it manages. Plaintiff is only partially correct. Pursuant to Jones v. Deeter (1984) 152 Cal.App.3d 798, 803, the duty imposed by section 5610 is owed to the city and not to persons using the sidewalk. “Under section 5610 the abutting owner bears the duty to repair defects in the sidewalk, regardless of whether he has created these defects. It was felt, however, that it would be unfair for such an owner to be held liable to travelers injured as a result of sidewalk defects which were not of the owner’s making. Thus, the ‘Sidewalk Accident Decisions’ doctrine arose; this 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.” (Deeter, 152 Cal.App.3d at 803.)

Here, Plaintiff presents evidence that the actions of MEI in controlling and maintaining its property abutting the sidewalk caused the defective condition of the sidewalk where Plaintiff fell. Burns states in his declaration that the most likely cause of the height differential in the sidewalk slabs was soil movement below the sidewalk caused by adjacent utilities and their piping. (Pl. Supp. Exh. A, Burns Decl., at ¶ 12.) Burns opines that it is likely that the connection points from the utilities to the fire sprinkler access would have caused the soil to move. (Ibid.) Once the soil moved, the sidewalk began to sink, which ultimately caused the height differential. (Ibid.) In addition, Exhibit F from Plaintiff’s original opposition, shows that there are pipes related to the fire sprinkler system located on MEI’s property abutting the subject sidewalk. This evidence tends to show that conditions on property controlled and maintained by MEI may have caused the defect in the subject sidewalk. Thus, under the Sidewalk Accident Decisions Doctrine, Plaintiff has shown a triable issue of material fact.

Accordingly, Defendant’s motion for summary judgment, or adjudication, is denied. Plaintiff has shown a triable issue of material fact as to whether MEI’s actions on its own property created the defect in the subject sidewalk.

Triviality of the Defect

Defendant also argues that the defect in the sidewalk is trivial as a matter of law, and thus, Defendant has no duty to warn or correct the defect. “It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) In determining whether a defect is trivial, “[w]here reasonable minds can reach only one conclusion—that there was no substantial risk of injury—the issue is a question of law, properly resolved by way of summary judgment.” (Id. at p. 929.) In determining whether a defect is trivial as a matter of law, the court first “reviews evidence regarding the type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff’s knowledge of the area.” (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567–568 (Stathoulis).)

Here, the Court finds that the same logic applied to a depression in Stathoulis applies to this case to the protruding portion of the sidewalk because both can cause tripping hazards. The portion which caused Plaintiff to fall, according to the Defendant’s evidence, was a 0.4 to 0.6-inches differential. (Suway Decl., at ¶ 7.) It is Defendants’ position that Ursino v. Big Boy Rests (1987) 192 Cal.App.3d 394, 398, controls because, in that case, a raised edge of a sidewalk of three-fourths of an inch high was found to be trivial as a matter of law. However, as discussed by Plaintiff in the opposition, multiple factors weighed in favor of the decision in Ursino beyond the height of the protrusion. Specifically, the time of day of the accident, the weather, surrounding debris, that the plaintiff had frequented the area for years, and that neither party knew of other accidents there, all weighed in favor of its decision. (Id. at 397.)

Here, Defendant has failed to meet its burden to show that the defect was trivial as a matter of law. The only evidence Defendant provides in relation to the defect is the height differential. Jeffrey Suway, a Mechanical Engineer, measured the differential of height in the sidewalk slabs on May 19, 2017. (Suway Decl., at ¶ 6.) Suway determined that the elevation change in the sidewalk is between 0.4 and 0.6 inches. (Id. at ¶ 7.) However, Defendant provides no evidence as to the conditions of the sidewalk on the day of the incident. Defendant does not offer any evidence to show what the conditions—such as the weather, time of day, sunlight, etc.—were like on the day of the incident. Defendant’s citations to Polio’s deposition are also unavailing as none of the cited passages demonstrate that the defect was trivial as a matter of law.

As such, Defendant has failed to provide sufficient evidence to show that the defect in the sidewalk was trivial as a matter of law.

Both parties have attempted to offer supplemental evidence on the issue of triviality in the supplemental briefing. However, this supplemental briefing was unnecessary. Defendant failed to meet its burden of production in the moving papers. Thus, the burden never shifted to the Plaintiff. MEI attempted to present new evidence on the triviality of the defect in the supplemental reply, which is improper. The moving party generally may not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court. (Ibid.) In addition, evidence and exhibits presented in support of a reply are not generally allowed. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) As such, the Court will not consider Defendant’s evidence offered in reply or supplemental briefing.

CONCLUSION AND ORDER

Based on the foregoing, the Court finds that Defendant MEI’s motion for summary judgment is denied as to both claims.

For all future hearings and trial dates, the parties are ordered to appear at the Court’s new location effective April 16, 2018: 312 North Spring Street, Department 5, Los Angeles, CA 90012.

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MEI is ordered to provide notice of this order, including the Court’s new location and new department number, and file proof of service of such.

DATED: June 13, 2018 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Exhibit G of Defendant MEI’s 5/25/17 Appendix of Documentary Evidence is a copy of the photograph on which Plaintiff marked the public sidewalk where she fell. The scanned version of this exhibit on Courtnet is darkened and not of high enough quality to enable visualization of the sidewalk. However, the original, hard copy of this exhibit depicts the sidewalk.

[2] Plaintiff also offers evidence from Richard Lopez, the City’s Person Most Knowledgeable, in which Lopez essentially states that he does not know why one of the sidewalk slabs was higher than the other. (Pl. Exh. B, Lopez Depo., at 86:10-22.) This evidence does not show a triable issue of material fact. This evidence merely shows that Lopez did not know the cause of the differential. The failure of one witness to know the cause of the condition does not create a triable issue of fact as to which party created the condition.