Case Name: Lessa Tucker v. Ritchie Management Company, et al.
Case No.: 17CV320683

This is a premises liability case arising from an injury suffered by Plaintiff Lessa Tucker (“Plaintiff”) on the night of January 8, 2016 when she tripped on a handicap access ramp in a parking lot owned by the Town of Los Gatos, breaking her right foot. Plaintiff has sued Defendants Ritchie Management Company, LCBG, LLC dba Los Gatos Bar and Grill, La Canada Investments LLC and Jake Farkwell LLC dba Mountain Charlie’s Saloon (“Defendants”) for her injury.

Plaintiff’s original (form) complaint was filed Dec. 18, 2017. Plaintiff’s operative First Amended Complaint (“FAC”) filed January 8, 2018 is also a form complaint alleging a single cause of action for premises liability. The sole narrative portion of the FAC states in its entirety as follows: “Ms. Tucker was leaving Abeo Walking Co., 1 N. Santa Cruz Ave., Los Gatos, CA 95030, when she walked around the corner to her vehicle in the very dark, poorly lit, parking lot on Victory Lane and W Main St., Los Gatos. Ms. Tucker tripped and broke her right foot on or next to the negligently maintained handicap ramp.” Plaintiff checked the box for “Count One-Negligence” on the Premises Liability attachment and listed Defendants as the parties who allegedly “negligently owned, maintained, managed and operated the described premises.” The FAC does not allege that Defendants exercised apparent control over any property they did not own, such as the subject parking lot or the ramp.

On August 27, 2018, Defendants filed a Cross-Complaint for indemnity and contributions against the Town of Los Gatos, who owns the ramp according to a survey Defendants commissioned based on public records. On October 25, 2018 Plaintiff filed a motion to deem a government claim accepted as timely on the ground that her “claim” against Los Gatos “did not accrue until May 31, 2018 when Defense Counsel shared the results of a commissioned survey, which showed that the defective condition that caused Plaintiff to fall was located on property managed, owned, and maintained by the Town of Los Gatos.” (Plaintiff’s Notice of Motion at p. 2:2-5.) The Town of Los Gatos (“Town”) opposed the motion and the motion was denied by the Court (Hon. Zayner) on March 12, 2019.

Currently before the Court is Defendants’ motion for summary judgment, directed at the FAC’s sole cause of action for premises liability.

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) 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.)

“Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally 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.) Neither party can rely on its own pleadings (even if verified) as evidence to support or oppose a motion for summary judgment or summary adjudication. (See College Hospital, Inc. v. Sup Ct. (1994) 8 Cal.4th 704, 720.)

An opposing party will sometimes rely on circumstantial evidence and/or inferences arising from declarations or other evidence. To defeat summary judgment such inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”]) Moreover, the inference a plaintiff attempts to rely on must satisfy the “more likely than not” evidentiary standard plaintiff will bear at trial. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.)

Defendants’ motion for summary judgment is GRANTED as follows.

Whether the Defendants owed Plaintiff a duty of care under the circumstances of this case is a question of law for the Court. “An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “The issue of whether a legal duty exists is an issue of law, not an issue of fact for the jury.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619. See also CACI 1001 [stating in pertinent part that: “A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.”]) There is also a notice requirement: “An owner is liable for harm caused by a dangerous condition, of which the owner had actual or constructive knowledge. An injured plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431, citations omitted.)

It is possible to base a premises liability claim on an allegation that a defendant “controlled the property involved in [name of plaintiff]’s harm, even though [name of defendant] did not own or lease it. A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own. A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.” (See CACI 1002 [“Extent of Control Over Premises Area”].) Again the FAC does not contain any such allegation.

The evidence submitted by Defendants, including the declarations of licensed land surveyor Bryan Happee and Defendants’ property manager Chris Hygelund and Plaintiff’s’ own deposition testimony (submitted as exhibit 4 to the declaration of Defense Counsel Lance Barrow), is more than sufficient to meet their initial burden to establish that they did not own, maintain or control the location where Plaintiff fell and they therefore owed no duty to Plaintiff (or anyone else) walking on or stepping off the handicap ramp. Defendants have established (and Plaintiff conceded both by filing her motion to deem a government claim as timely that acknowledged the Town’s ownership and by failing to dispute Defendants’ UMF #22 ) that the Town of Los Gatos owns the land where Plaintiff was injured. Defendants’ evidence is also sufficient to meet their burden on the separate notice requirement, as Defendants have established (through the Hygelund declaration) that they never received any complaints or other information about any problem with the Town-owned parking lot adjacent to their property or the handicap ramp within the Town’s property.

When the burden shifts, Plaintiff is unable to raise any triable issues of material fact as to the existence of a duty of care owed by these moving Defendants or as to notice of the claimed defect. As an initial matter the FAC cannot be reasonably interpreted as alleging that Defendants exercised apparent control over the Town’s parking lot, and summary judgment cannot be denied based on issues not raised by the operative pleading

Even if this could be overlooked, Plaintiff not only has not presented any evidence that Defendants exercised apparent direct control over the Town’s parking lot or the ramp, she has also not presented any evidence that would support a reasonable inference that Defendants exercised any apparent control over the lot or the ramp. Contrary to Plaintiff’s main argument the facts here do not resemble those in Alavrez v. Vece, et al. (1997) 14 Cal.4th 1149, where evidence that the Defendant actively maintained the strip of adjacent property it did not own and constructed a fence around it was crucial to the finding of premises liability. Decisions after Alvarez have made clear that even when a landowner takes some limited action directed at an adjoining property owned by another that is not enough by itself to impose premises liability. “It is clear from [Alvarez] that simple maintenance of an adjoining strip of land owned by another does not constitute an exercise of control over that property. Although evidence of maintenance is considered ‘relevant on the issue of control,’ the court limited its holding by stating that ‘the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will [not], standing alone, constitute an exercise of control over [the] property . . .’“ (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 198-199 [citing and quoting Alvarez.])

Plaintiff here does not present any evidence that Defendants engaged in “neighborly maintenance,” or took any similar action deliberately directed at the Town’s adjacent property and no reasonable inference of apparent control can be based on Plaintiff’s surmise that Defendants must be aware that some of their business invitees park in the Town’s lot and her assertion that they are therefore somehow passively exercising control over the lot. Apparent control requires something more than a mere observation that Defendants, their customers and/or their vendors can or do make use of the public parking owned by the Town in the same manner that other members of the public (including Plaintiff) are free to do. The fact that Defendants may receive some economic benefit from their proximity to the publicly available parking in the same manner as other business in the vicinity is also not enough to support a reasonable inference of apparent control. No argument or evidence has been presented that Defendants actively treat the Town’s parking area or the ramp where Plaintiff was injured as if it were their own property, i.e., by controlling access to it or attempting to prevent persons who are not their business invitees or vendors from using it. “‘The crucial element is control.’ [W]e have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.’” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 414 [emphasis in original, citations omitted.)

As Plaintiff has failed to raise any triable issue of material fact as to the existence of a duty of care owed by Defendants to persons who use the parking area and or the handicap ramp owned by the Town of Los Gatos that is adjacent to Defendants’ property the Court rules that no such duty of care existed as a matter of law and summary judgment is granted to Defendants on that basis. This makes the issue of whether Defendants had any actual or constructive notice of the purported defective condition of the ramp irrelevant, although the Court notes that Plaintiff’s evidence, as to the length of time the alleged defect may have existed, even if assumed to all be admissible, does not establish that Defendants were ever aware of it or had any duty to inspect property they neither own, possess or control.

The Court notes that Defendants have submitted evidentiary objections with their Reply, which itself does not comply with Rule of Court 3.1113(d). The objections are in one of the formats approved by Rule of Court 3.1354(b) and are accompanied by the required separate proposed order, also in one of the approved formats. The Court’s rulings on those objections will be issued using the separate proposed order after the hearing on the motion.