Case Number: BC520837    Hearing Date: August 19, 2014    Dept: 92

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

EFRAIN JIMENEZ,
Plaintiff(s),
vs.

CITY OF LOS ANGELES, ET AL.,
Defendant(s).

Case No.: BC520837

[TENTATIVE] ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND

Dept. 92
1:30 p.m. — #38
March 25, 2014

Defendant, Onewest Bank, N.A.’s Demurrer is Sustained Without Leave to Amend.

1. Background Facts
Plaintiff, Efrain Jimenez filed this action against Defendants, City of Los Angeles, Indymac Mortgage Service, and One West Bank for damages arising out of a trip and fall incident. Plaintiff’s operative complaint is his Second Amended Complaint, filed on 4/22/14. It contains causes of action for general negligence and premises liability against Moving Defendant, OneWest Bank.

2. Prior Demurrer
On 3/25/14, the Court heard Defendant’s demurrer to the FAC. The Court ruled as follows:
Defendant, OneWest Bank demurs to the complaint, contending there are insufficient facts pled in the complaint to support imposition of liability against it. The FAC pleads the following facts relating to OneWest Bank:
Plaintiff is informed and believes, and thereon alleges, that Defendants INDYMAC MORTGAGE SERVICES AND ONE WEST BANK are and were the owner of record of that certain piece of real property located at 4512 W. 16th Place, in Los Angeles, CA. Plaintiff is informed and believes, and thereon alleges that all times mentioned herein and relevant hereto, Defendant CITY OF LOS ANGELES is and was at all times pertinent, a public entity duly organized and existing under and by virtue of the laws of the State of California.

At the time and place listed above, Plaintiff tripped and fell on an even (sic) pavement while he was walking on a sidewalk trying to walk around a piece of furniture that was left outside of the above-mentioned property. Defendants failed to monitor and maintain the sidewalk in a safe and non-dangerous manner. The resultant fall caused Plaintiff to incur personal injury, medical expenses, pain and suffering.

a. Initial Note
Plaintiff’s opposition to the demurrer does not include a proof of service. Defendant, in reply, indicates that it only learned an opposition was filed through the Court’s on-line document imaging system. Plaintiff’s Counsel is ordered to ensure proof of service of all documents in this and all other cases in the LA Superior Court.

b. Law Regarding Abutting Landowner Liability for Trip and Fall on a Public Sidewalk
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.)

c. Analysis
Plaintiff’s complaint is insufficient to state a claim against OneWest Bank. There is nothing in the complaint to suggest that OneWest did something to cause or create a dangerous condition. In opposition, Plaintiff argues that, if given leave to amend, he would add facts that he altered his path because of the piece of furniture on the sidewalk, which obstructed his view of the uneven pavement. He argues he would add facts to show that the piece of furniture was left there due to Defendant’s choice to evict the prior occupant of the property.

As Defendant correctly notes in reply, even these facts are insufficiently specific. Where was the furniture? Where was the uneven pavement? How did the furniture obstruct his vision? What facts tend to support the conclusion that Defendant caused the furniture to be on the sidewalk, as opposed to the former occupant of the property?

Because this is the first time the Court has heard a challenge to the complaint, the Court is inclined to grant leave to amend. Plaintiff must plead specific facts to support his conclusion that Defendant is responsible for the furniture that was in the sidewalk and that the furniture caused or contributed to his accident.

3. Second Amended Complaint
Plaintiff’s Second Amended Complaint adds the following allegations concerning Moving Defendant:
On or about October 4, 2011, plaintiff was lawfully walking on the sidewalk, directly in front of the home located on 4512 W. 16th Place, Los Angeles, California, when he tripped and fell over a protruding portion of the sidewalk, that extended approximately 2 inches. Plaintiff fell and injured his wrist, lower back, and other parts of his body. Plaintiff alleges that the protruding portion of the sidewalk constitutes a dangerous condition. Additionally, plaintiff alleges that a bed frame, laid out on across the sidewalk on 4512 W. 16th Place, Los Angeles, California, obscured his vision of the condition.

4. Demurrer to Second Amended Complaint
Defendant’s demurrer was originally scheduled for hearing on 8/05/14. The Court continued the hearing on the demurrer, incorrectly believing that an opposition to the demurrer had been timely filed, but had not been scanned. The opposition, however, was not timely filed; it was filed on 7/29/14, only five court days prior to the hearing. This is particularly troubling because Plaintiff’s opposition to the original demurrer in this case was not properly served, and Plaintiff’s attorney was admonished to ensure full compliance with all Rules of Court and service requirements in the future in connection with the case. The Court believes disregarding the opposition would be unduly harsh, but advises Counsel that it will likely do so in the future if there is a similar problem.

With respect to the merits of the demurrer, the Court finds the SAC fails to state a cause of action against Defendant and therefore the demurrer must be sustained. Plaintiff herein does not allege Moving Defendant caused the dangerous condition – the dangerous condition was a defect in the sidewalk. Plaintiff contends only that Moving Defendant did something to obscure Plaintiff’s view of the defect. There are two problems with Plaintiff’s complaint. First, Plaintiff fails to establish that Defendant actually placed the subject bed in the subject location; he alleges only that Defendant foreclosed on the property, and owned the property at the time of the incident. Second, even if Defendant was responsible for the bed frame, he fails to cite any authority holding that obscuring the view of a condition that is dangerous gives rise to liability, and the Court has not located any similar authority.

Because this is Plaintiff’s Second Amended Complaint, and because it does not appear further leave to amend would cure the defects in the complaint, leave to amend is denied at this time.

Dated this 19th day of August, 2014

Hon. Elia Weinbach
Judge of the Superior Court