Case Number: BC646268 Hearing Date: June 18, 2019 Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

NORAH DEBELLIS, et al.,

Plaintiff,

Case No.:

BC646268

vs.

[Tentative] RULING

CITY OF TORRANCE, et al.,

Defendants.

Hearing Date: June 18, 2019

Moving Parties: Defendant and cross-defendant La Terrazza HOA

Responding Party: Plaintiffs Norah Debellis and Eric Debellis

Motion for Summary Judgment or, in the alternative, for Summary Adjudication

The court considered the moving, opposition, supplemental opposition, and reply papers.

RULING

The motion is DENIED.

BACKGROUND

On January 9, 2017, plaintiff Norah Debellis and Eric Debellis filed a complaint against defendants City of Torrance and La Terrazza Homeowners Association (“La Terrazza”) for premises liability, dangerous condition of public property, and loss of consortium based on a trip and fall on a sidewalk on October 29, 2015.

On April 20, 2017, La Terrazza filed a cross-complaint against City of Torrance for contribution and indemnity.

On May 5, 2017, City of Torrance filed a cross-complaint against La Terrazza.

On May 14, 2018, La Terrazza filed an amended cross-complaint.

On July 30, 2018, City of Torrance filed an amended cross-complaint.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (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.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “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 the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendant La Terrazza HOA (“La Terrazza”) requests summary judgment against plaintiff on the ground there are no triable issues of material facts and, as a matter of law, it is entitled to judgment in its favor. Defendant La Terrazza also requests summary judgment in its favor on the City of Torrance’s cross-complaint. For ease of locating the motion in the court file, the court notes that the motion was filed on February 23, 2018.

In the complaint, plaintiffs allege that the sidewalk located on the north side of Sepulveda Blvd., between the Courtyard Marriott Hotel and Hickory Avenue in front of and adjacent to the La Terrazza condominium complex is a public sidewalk in Torrance. Complaint, ¶2. Defendant La Terrazza HOA owned, managed, and operated the condominium complex. Defendant had ongoing and continuous control over, and responsibility for, the sidewalk and the location described in para. 2. Id., ¶3.

Under the 1st cause of action for negligence, plaintiffs allege that defendants so negligently, carelessly, and without due regard or concern for the life and safety of plaintiff Norah, did so own, design, maintain, lease, operate, control, repair, supervise, or occupy those certain premises located as described in para. 2 in such a manner so as to create, design, cause, allow, contribute to or assist in the creation of a dangerous and defective condition of the premises, which existed in sufficient time for defendants to have actual and/or constructive notice, and for defendants to correct or warn plaintiff of the existence of such condition, which defendants negligently and carelessly failed and neglected to do. The condition included the sidewalk area, which caused plaintiff to fall, contained a severely heaved, high, lifted black asphalt “ramp” in the sidewalk. It also contained a raised, uneven section of the sidewalk that was not filled with asphalt making it just gray which blended in with the next section/block of the pathway and making it difficult to see that it is uneven. Id., ¶12. As a direct and proximate result of the defective and dangerous condition and the negligence of defendants, on October 29, 2015, at about 5:00 a.m., plaintiff was caused to trip and fall. Id., ¶13. Plaintiff Eric alleges a loss of consortium claim.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code § 1714(a)).

“A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” Donnell v. California Western School of Law (1988) 200 Cal. App. 3d 715, 720 (citation omitted). “Without the ‘crucial element’ of control over the subject premises, no duty to exercise reasonable care to prevent injury on such property can be found.” Gray v. America West Airlines, Inc. (1989) 209 Cal. App. 3d 76, 81 (citation omitted).

“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.” CACI 1002.

“[I]n the absence of a statute or ordinance, a person has no affirmative duty to keep premises not in his possession or ownership in a safe condition. Thus, where a particular abutter does not possess or own the street easement, and does not undertake maintenance of it, we see no legal basis for imposing liability for failure to properly maintain the sidewalk or planning strip in the absence of statute or ordinance.” Williams v. Foster (1989) 216 Cal. App. 3d 510, 521.

“But an adjoining landowner nonetheless may be liable ‘for defects created by special construction for the particular needs of the abutting property.’” Alcaraz v. Vece (1997) 14 Cal. 4th 1149, 1172 (citing Williams, supra).

Defendant argues that Streets and Highway Code § 5610 limits an abutting landowner’s tort liability for injuries to third parties, unless the landowner created the unsafe condition. Defendant also argues that this section does not create a duty to indemnify municipalities for third parties’ injuries occurring on a sidewalk abutting a landowner’s property unless the landowner created the unsafe condition.

Streets and Highway Code § 5610 states:

“The owners of lots or portions of lots fronting on any portion of a public street or place when that street or place is improved or if and when the area between the property line of the adjacent property and the street line is maintained as a park or parking strip, shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property and maintain it in a condition which will not interfere with the public convenience in the use of those works or areas save and except as to those conditions created or maintained in, upon, along, or in connection with such sidewalk by any person other than the owner, under and by virtue of any permit or right granted to him by law or by the city authorities in charge thereof, and such persons shall be under a like duty in relation thereto.”

Section 5610 “does not create tort liability to injured pedestrians, . . . except where a property owner created the defect or exercised dominion or control over the abutting sidewalk.” Jordan v. City of Sacramento (2007) 148 Cal. App. 4th 1487, 1490.

Defendant La Terrazza argues that neither plaintiffs nor City of Torrance has any evidence that the HOA’s tree caused the defect in the sidewalk where plaintiff tripped and fell.

Defendant cites to City of Torrance’s response to Special Interrogatory No. 1, which asked, “If you contend that a tree located on the property owned [defendant La Terrazza] caused or contributed to the incident involving plaintiff, on October 29, 2015, please state all facts that support your contention.” On January 25, 2018, the City responded with objections and stated that the roots of the offending tree caused adjacent sections of the sidewalk located at 2801 Sepulveda Blvd., Torrance, to move. In or around March 2011, Marco Gonzalez, Public Works Supervisor/Concrete, inspected the sidewalk at 2801 Sepulveda Blvd. and noticed displacement caused by tree roots from a tree located at 2801 Sepulveda Blvd. Thereafter, Gonzalez’ crews replaced the displaced section of sidewalk. Sometime between October 29, 2015 and December 4, 2014, Gonzalez inspected the sidewalk at 2801 Sepulveda Blvd. and notified the adjacent landowner, La Terraza HOA, that its tree had damaged the City’s sidewalk. La Terrazza HOA removed its offending tree and replaced the subject sidewalk in April and May 2016. Discovery and investigation is ongoing. Kamau Edwards decl., Exh. C. In plaintiff’s response to special interrogatory no. 2, that asked her to state all facts on which she based her contentions of fault or responsibility on the part of each defendant, she reiterated her allegations. Edwards decl., Exh. D. As to the unsafe condition that caused her injury, she identified “the raised, heaved, poor, incompetent, negligent and deficient maintenance of the sidewalk pathway. At the location where I tripped, there were two sequential raised, lifted, heaved sections of sidewalk. The first section caught my foot and caused me to trip. The second section is what my head and face hit when I fell.” Edwards decl., Exh. D, No. 12.

La Terazza also presents plaintiff’s declaration where she testified that as she ran toward the subject sidewalk, she observed raised sections of concrete filled in with black asphalt that looked “extremely dangerous” and it “got my attention.” Edwards decl., Plaintiff’s depo., 121. She was so focused on the black asphalt that she did not see another area immediately before her which her left toe caught and caused her to fall. Id., 123, 125, 128. On a diagram, plaintiff identified Area 2 as the portion of the sidewalk with black asphalt; she identified Area 1 as the portion of the sidewalk which her foot got caught on.

Defendant further presents evidence that on October 24, 2012, the City received a report from La Terrazza HOA’s property manager regarding a trip hazard at the subject sidewalk. Kamau decl., Steve Finton depo. On January 22, 2013, the property manager reported to the City that the sidewalk was a trip hazard. On October 23, 2013, City crews constructed two asphalt ramps at location. From October 1, 2013 through October 30, 2013, a City contractor performed concrete sidewalk grinding at location. Finton depo., June 14, 2016 memo.

Defendant also presents the deposition of city employee Marco Gonzalez, who on October 29, 2015, inspected the sidewalk and observed that the damage to the sidewalk was from the roots of the private trees because he could see the roots. Gonzalez depo., 69-70. He also testified that when he inspected the sidewalk he did not know where plaintiff had fallen. Id., 88. He also testified that on December 4, 2015, he sent a letter to La Terrazza that its privately-owned tree located on the south side of the property at 2801 Sepulveda had caused damage to the sidewalk and that La Terrazza needed to remove the tree(s). Id., December 4, 2015 letter.

In opposition, defendant City of Torrance argues that La Terrazza fails to meet its initial burden because La Terrazza has not shown that it cannot be established that La Terrazza created the defect. In any event, Torrance presents the declaration of certified arborist Judy Emerson, who opines that the sidewalk displacement was caused by La Terrazza’s trees. She also opined that it was extremely unlikely that the City-owned podocarpus trees near the subject location caused any damage to the City sidewalk. Judy Emerson decl.

Torrance also presents evidence that in March 2011, Gonzales had inspected the sidewalk and took several photos, which purport to depict damage to the sidewalk from a private tree. In La Terrazza’s Board of Director Meeting Minutes dated March 24, 2011, it states that “[a] rep from the City of Torrance had called a meeting regarding a City sidewalk in front of the property that has buckled, which they feel was caused by roots from one of our trees and from our tree trimming crew driving their truck up on the sidewalk. . . . Ray [Garcia, La Terrazza’s arborist] took responsibility for the sidewalk repair due to his crew’s truck being up on the sidewalk. The City agreed to let us handle the repair and let them know when it was completed.”

Torrance further presents evidence that in the Board of Directors Meeting Minutes dated September 17, 2015, it states, “Bernie Melchionne stated that the City sidewalk on Sepulveda in front of the complex was really getting bad, the cracking and buckling continues to increase. She plans to speak with the City.” After the incident, La Terrazza undertook to remove the “one large tree that is uplifting the City sidewalk.” La Terrazza HOA Meeting Minutes dated February 18, 2016; RG Landscape & Design, Inc.’ Tree Trimming Proposal dated February 10, 2016. Defendant City presents the declaration of Mathew Garland, president of Garland Development, Inc. (“GDI”), who states that on February 1, 2016, GDI was asked by Bali Management Group on behalf of La Terrazza to submit a bid for the replacement of one section of the City sidewalk along the north side of Sepulveda Blvd., adjacent to La Terrazza along with replacement of sidewalk sections within the complex. On February 19, 2016, Bali approved the proposal, and on May 11, 2016, GDI obtained a permit from the City. GDI completed work on May 19, 2016. GDI removed concrete and roots and formed and graded the job. He testified that a significant amount of root growth beneath the concrete walkway was seen during this removal of concrete and roots phase. Mathew Garland decl. La Terrazza’s arborist Ray Garcia confirmed that the subject liquidambar was removed because it was a “problem.”

In opposition, plaintiff argues that a triable issue of material facts exists as to whether La Terrazza caused the unsafe condition on the sidewalk upon which plaintiff was injured. Plaintiff argues that La Terrazza failed to meet its burden because the evidence cited by defendant is insufficient. The special interrogatory responses were made only four months after the case was filed and before La Terrazza produced any documents. Further, La Terrazza’s documents from the Board of Directors meetings indicate that its tree was causing damage to the sidewalk where plaintiff tripped and fell. Plaintiff also cites to the photos taken by Gonzalez in 2011.

Evidentiary objections

The court rules as follows on La Terrazza’s objections: OVERRULED as to Nos. 1-10.

The court finds that there is a triable issue as to whether La Terrazza’s tree created the defective condition. Although La Terrazza tries to distinguish the sidewalk as Area 1 and Area 2, La Terrazza does not meet its burden of showing that the areas are unrelated or that plaintiff or Torrance cannot present evidence that La Terrazza’s tree caused damage in the area where plaintiff fell. In any event, Torrance and plaintiff present sufficient evidence to raise a triable issue of material fact that La Terrazza’s tree caused damage to the sidewalk. In the reply, La Terrazza even acknowledges that it caused some damage to the sidewalk in general and presents no evidence that it did not cause damage to the specific area where plaintiff tripped.

The motion is therefore DENIED.