Case Number: BC646808 Hearing Date: June 28, 2018 Dept: 4

MOVING PARTY: Defendants Elat Capital, LLC, Farhad Kamani, Elat Market, Inc.

(erroneously sued as Elat Kosher Market, Inc.)

RESPONDING PARTIES:(1) Plaintiff Farideh Nassirzadeh

(2) Defendant City of Los Angeles

Motion for Summary Judgment

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

INTRODUCTION

On January 12, 2017, Plaintiff Farideh Nassirzadeh (“Plaintiff”) filed this premises liability action against Defendants City of Los Angeles (“City”), Elat Capital, LLC (“ECL”), Farhad Kamani (“Kamani”), Elat Market, Inc. (“EMI”) (erroneously sued as Elat Kosher Market, Inc.) (collectively, “Defendants”). On December 17, 2015, Plaintiff was allegedly walking on Wooster Street from the Elat Kosher Market (the “Elat Market”) to her car when she tripped and fell as a result of her left foot hitting the edge of a cracked hole on the sidewalk. (Compl. ¶ 18.) The Complaint asserts causes of action for (1) premises liability, (2) general negligence, and (3) Gov. Code § 835.

On March 16, 2018, ECL, Kamani, and EMI (collectively, “Moving Defendants”) filed a Motion for Summary Judgment (the “Motion”). On May 16, 2018, Plaintiff filed an opposition. On May 17, 2018, City, too, filed an opposition. On June 22, 2018, Moving Defendants filed a reply.

Trial is set for October 18, 2018.

FACTUAL BACKGROUND

Kamani is an officer of EMI and store manager of the Elat Market. (UMF No. 2.) ECL owns the real property on which the Elat Market operates, which leases the real property to EMI to operate the Elat Market. (Id. Nos. 3-5.) The Elat Market is located at the corner of Pico Boulevard and Wooster Street. (Id. No. 6.)

On the day of the incident, Plaintiff parked her park at the parking lot behind the Elat Market and walked to the store along the sidewalk abutting Wooster Street. (Id. No. 25.) When Plaintiff left the store later, she took the same path and tripped and fell because her left foot hit the edge of a hole in the sidewalk on Wooster Street (the “Subject Sidewalk”). (Id. Nos. 26-27; Compl. ¶ 18.)

Plaintiff alleges that Moving Defendants owned, controlled and maintained the Subject Sidewalk and that they caused the hole in the Subject Sidewalk, which Plaintiff claims constituted a “dangerous condition,” through heavy use of the sidewalk to hold and move heavy goods into the Elat Market. (Compl. ¶¶ 20-21, 28.) Plaintiff also alleges that pedestrian traffic also caused the hole and that Moving Defendants were responsible for maintaining the Subject Sidewalk to prevent dangerous conditions. (Id. ¶¶ 28-30.)

LEGAL STANDARD

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . .” (CCP § 437c(c).) Generally, “the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”¿ (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“[M]oving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] Alternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff’s cause of action.” (Brantley v. Pisaro¿(1996) 42 Cal.App.4th 1591, 1598.)

“‘In considering the evidence submitted by the parties, the trial court does not ‘weigh the plaintiff’s evidence or inferences against the defendants’ as though it were sitting as the trier of fact.’ [Citation.] However, ‘it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact . . . . In so doing, it does not decide on any finding of its own, but simply decides what finding such a trier of fact could make for itself.’” (Miller v. Fortune Commercial Corporaton¿(2017) 15 Cal.App.5th 214, 221.)

“To determine whether the parties have met their respective burdens, the court considers ‘all of the evidence set forth in the supporting and opposition papers, except that to which objections have been made and sustained by the court, and all uncontradicted inferences reasonably deducible from the evidence.’” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 71.) As a general rule, in reviewing the evidence presented on summary judgment, the moving party’s evidence is strictly construed and the opposing party’s evidence is liberally construed. (See, e.g., Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832; Brantley, supra, 42 Cal.App.4th 1591.) The court resolves doubts or ambiguities in plaintiff’s favor. (Lackner v. North¿(2006) 135 Cal.App.4th 1188, 1196.)

“If a party is otherwise entitled to¿summary judgment pursuant to this section, summary judgment¿shall¿not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or if a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.” (CCP § 437c(e).)

EVIDENTIARY OBJECTIONS

Plaintiff and City have submitted separate objections to Moving Defendants’ evidence; Moving Defendants have also submitted objections to Plaintiff and City’s evidence. The Court’s ruling on them is as follows:

Plaintiff’s Objections to Declaration of Defendant Farhad Kamani in Opposition

OBJECTION NOS. 1-4 – OVERRULED

Defendant City of Los Angeles’s Objections to Moving Defendants’ Evidence in Opposition

OBJECTION NOS. 1-2, 5-7 – OVERRULED

OBJECTION NOS. 3-4, 8-9 – SUSTAINED

Moving Defendants’ Objections to Plaintiff’s Evidence in Reply

OBJECTION NOS. 1-86 – OVERRULED. The Court notes that Moving Defendants make numerous unnecessary objections.

Moving Defendants’ Objections to Plaintiff’s Evidence in Reply

OBJECTION NOS. 1-13 – OVERRULED

DISCUSSION

Moving Defendants contend that summary judgment should be granted because they are not liable to Plaintiff for the following reasons, establishing anyone of which is sufficient to defeat Plaintiff’s claims:

Moving Defendants did not own, possess, control, or maintain the Subject Sidewalk where Plaintiff tripped and fell;

Moving Defendants had no duty to warn Plaintiff of the alleged dangerous condition on the Subject Sidewalk because the condition was open and obvious;

Moving Defendants did not create the alleged defect in the Subject Sidewalk that allegedly caused Plaintiff to trip and fall.

(Notice of Motion p. 2.)

The Court addresses each of the above issues in turn.

A.Ownership, Control, and Duty to Maintain

“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.)

“In most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. [Citation.] Generally, ‘a landowner has no right to control and manage premises owned by another.’ [Citations.]” (Annocki v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)

i.Ownership

Moving Defendants contend that they did not own, control, or possess the Subject Sidewalk where the incident occurred, so they had no duty to Plaintiff. (Motion pp. 14-16.) To support this fact, Moving Defendants submit declarations of Shahram R. Golbari (“Golbari”), the Chief Executive Officer and President of ECL, and Kamani, an officer EMI. (Motion, Golbari Decl. ¶ 2; Kamani Decl. ¶ 2.) Golbari and Kamani declare, based on their personal knowledge and the grant deed of the property on which the Elat Market sit, that they, ECL, and EMI did not own, control, or possess the Subject Sidewalk. (See id., Golbari Decl. ¶¶ 6-7, Exhs. B-C; Kamani Decl. ¶¶ 5-6.) Moving Defendants also submit documents, such as service requests and repair work sheets, produced by City during discovery to show that City was maintaining the Subject Sidewalk. (UMF Nos. 31-32.)

In opposition, City cites to Civ. Code § 831, which states: “An owner of land bounded by a road or street is presumed to own to the center of the way, but the contrary may be shown.” (City’s Oppo. p. 3.) City argues that Moving Defendants’ above evidence fails to overcome the presumption of ownership of the Subject Sidewalk under Civ. Code § 831. (Id. pp. 3-4.) Golbari and Kamani’s personal knowledge is not proof of ownership, and the grant deed does not show that Moving Defendants did not own Wooster Street “to the center of the way,” which encompasses the Subject Sidewalk. The Court, therefore, finds that there are triable issues of material as to whether Moving Defendants owned the Subject Sidewalk.

ii.Control

Importantly, even though Moving Defendants have demonstrated that City was responsible for maintaining the Subject Sidewalk, that does not necessarily negate their duty to maintain the Subject Sidewalk or the fact that they controlled the Subject Sidewalk. “‘[A] landowner’s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite. [Citations.]’ [Citation.]” (Annocki v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 38, emphasis added.) “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, 1162, original emphasis.) “[A] landowner may be held liable for an injury on adjacent property only if the landowner both exercises control over that property and derives a commercial benefit from the portion of the property that caused the injury. [Citation.]” (Id.) “[W]here their business was itself the attraction for both customers and loiterers, it is overly simplistic for the issue of control to be resolved solely by reference to a property boundary line . . . .” (Id. at 1164.)

In opposition, City argues that Moving Defendants exercised control over the Subject Sidewalk by “accepting deliveries of food on the sidewalk, storing pallets of food on the sidewalk, storing shopping carts on the sidewalk, and making repairs to the sidewalk.” (City’s Oppo. p. 5.) City submits the deposition of Erlinda Cosculla, who works for Plaintiff as a housekeeper and had gone to Elat Market many times since 1982, testifying that she often saw shopping carts left on the Subject Sidewalk and delivery trucks parked around the Subject Sidewalk. (City’s Response to UMF, AMF Nos. 49-52.) City also cites to Kamani’s deposition, where he admits that the Elat Market did accept deliveries through the Subject Sidewalk, did stack merchandise pallets on the Subject Sidewalk at least from 1992 to 2015, and stored shopping carts on the Subject Sidewalk. (Id. Nos. 54-56, 58.)

In reply, Moving Defendants contend that City “mischaracterized” the evidence and attempted “to dispute several clearly ‘undisputed’ material facts.” (Reply pp. 6-7.) Having reviewed City’s evidence, the Court disagrees. The Court finds that City’s above evidence is sufficient to raise triable issues of material fact as to whether Moving Defendants sufficiently controlled the Subject Sidewalk. Golbari and Kamani’s declarations, stating in a conclusory manner that Moving Defendants did not control the Subject Sidewalk, at best, only raise triable issues of material and do not show undisputedly that Moving Defendants had no control over the Subject Sidewalk.

iii.Maintenance

“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.” (Sts. & Hy. Code, § 5610.)

“[T]he ‘Sidewalk Accident Decision’ doctrine had been developed to distinguish those cases in which the owner of the adjacent property is not to be held liable in tort to users of the sidewalk unless the owner creates the condition that is a cause of the injury.¿ [Citation.]” (Alpert v. Villa Romano Homeowners Assn.¿(2000) 81 Cal.App.4th 1320, 1332.) “‘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 planting strip in the absence of statute or ordinance.’¿ [Citation.]” (Id. at 1333–1334.) “This imposes a¿duty of repair¿on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create¿tort liability¿to injured pedestrians or a¿duty to indemnify¿municipalities, 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.)

Based on the same evidence and reasoning above, the Court also finds that Moving Defendants’ frequent and heavy use of the Subject Sidewalk for decades creates a triable issue of material as to whether they created the hole that caused Plaintiff to trip and fall.

B.Duty to Warn of Alleged Dangerous Condition

“Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the¿Rowland¿factors. [Citation.] ¿These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden¿to the defendant and the consequences to the community of imposing the duty.¿ [Citation.] ‘The court’s task in determining whether a duty exists ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]’ [Citation.] ‘Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.’ [Citations.]” (Jacobs v. Coldwell Banker Residential Brokerage Company¿(2017) 14 Cal.App.5th 438, 447.)

“‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]” (Id., emphasis added.)

“But the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify¿it.¿ The modern and controlling law on this subject is that ‘although the obviousness of a danger may obviate the duty to¿warn¿of its existence, if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .’” (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184.)

Moving Defendants contend that even if they owned or controlled the Subject Sidewalk, they had no duty to warn Plaintiff of the alleged dangerous condition because it was open and obvious. (Motion p. 19.) Moving Defendants argue that the triangle-shape hole where Plaintiff tripped and fell was in the middle of the Subject Sidewalk, measuring approximately 2.5 inches deep, over 12 inches wide, and two feet long. (Id., citing to UMF No. 38.) Moving Defendants also point out that until the date of the incident, Plaintiff visited the Elat Market at least once a week for ten to fifteen years and used the same path along Wooster Street to the store. (Id., citing to UMF Nos. 39-42.) Based on this, Moving Defendants suggest that Plaintiff was familiar with the Subject Sidewalk and the dangerous condition on the Subject Sidewalk was obvious to her. (Id.)

In opposition, Plaintiff declares that the hole was not obvious because at the time of the incident, she was using a shopping cart, which partially obstructed her view. (Plaintiff’s Oppo. p. 13, citing to Nassirzadeh Decl. ¶ 8.)

The Court finds the analysis of the obvious danger of wetness on the sidewalk in Martinez, supra, to be instructive here:

“The palpable appearance of the wetness may itself have provided a warning of the slippery condition, excusing defendant from having to do so. But it may yet have¿been predictable that despite that constructive warning, the wet pavement would still attract pedestrian use. For example, the pavement appears to have provided a principal if not sole access way from the street to defendant’s building, which housed a government office serving the public. In these circumstances—which the evidence did not negative, but supported—defendant may have been charged with a duty of relieving the dangerous condition. Whether such a duty existed depends upon a number of as yet unresolved factors, such as the foreseeability of harm, defendant’s advance knowledge¿vel non¿of the dangerous condition, and the burden of discharging the duty.”

(Martinez, supra, 121 Cal.App.4th at 1185.)

Similarly, here, the fact that the hole was large and in the middle of the Subject Sidewalk does not obviate Moving Defendants’ duty to remedy or warn of the hole when it “still attract[ed] pedestrian use.” (Id.) Moving Defendants owned the Elat Market which served and attracted customers, which in turn, required the customers to use the Subject Sidewalk to get to the store. Plaintiff was using the same path she always had, which required her to walk through the Subject Sidewalk to get to the parking lot behind the Elat Market. (See also, City’s UMF, AMF No. 59 [200-300 of Elat Market’s customers who park in the back use the subject sidewalk to walk to the front of the store every day].) Other evidence suggests that Moving Defendants knew of the hole in the Subject Sidewalk at least two or three years prior to the incident and customers complained about the hole in the Subject Sidewalk in 2013 and 2014. (Id., AMF Nos. 60-61.) Based on the foregoing, the Court finds that Moving Defendants fail to show that they may still have a duty to warn of the danger of the hole in the Subject Sidewalk because it was necessary for Plaintiff and its other customers to use it to get to the cars parked behind the Elat market. Accordingly, Moving Defendants also fail to meet their burden of demonstrating that they had no duty to warn Plaintiff or remedy the defect in the Subject Sidewalk.

C. Causing the Alleged Defect in the Subject Sidewalk

Moving Defendants contend that they did not use a forklift to transport goods on the Subject Sidewalk or unload goods in the store front and, therefore, did not cause the hole in the Subject Sidewalk. (Motion p. 22.) The only evidence that Moving Defendants submit in support of this statement is Kamani’s declaration. (See id., citing to UMF Nos. 46-48.)

The Court notes, however, that Moving Defendants need not use the forklift or store goods in store front to create the hole in the Subject Sidewalk. As Kamani testified at deposition, the Elat Market accepted deliveries through the Subject Sidewalk, stacked pallets on the Subject Sidewalk at least from 1992 to 2015, and stored shopping carts on the Subject Sidewalk. (City’s Response to UMF, AMF Nos. Nos. 54-56, 58.)

In opposition, Plaintiff submits an expert declaration of Mark J. Burns, and City submits an expert declaration of John Tyson. Burns studied Google Street View Images of the Subject Sidewalk from 2014 and 2017 and noticed various pallets of merchandise and forklifts parked on the Subject Sidewalk. (Plaintiff’s Oppo., Burns Decl. ¶ 12.) Burns opines, based on the Google Street View Images, his personal inspection of the Subject Sidewalk, and other photographs, that the heavy use of the Subject Sidewalk by Moving Defendants created the hole on the Subject Sidewalk. (Id.) Likewise, Tyson opines, based on his examination of photographs, review of the deposition testimonies, and personal inspection of the Subject Sidewalk, that “the repeated use of heavy load handling equipment and loads weighing several tons would be a major contributing factor in the breakage of the concrete as simple pedestrian loading would not be sufficient to produce the type of failure observed.” (City’s Oppo., Tyson Decl. ¶¶ 5-9.)

In reply, Moving Defendants argue that Plaintiff and City fail to “prove” that they created the dangerous condition on the Subject Sidewalk. The Court notes, however, that on a summary judgment, the opposing parties need not “prove” any issues; they only need to present evidence to raise triable issues of material fact. Having reviewed the evidence presented by both sides, the Court finds that Plaintiff and City have met their burden of raising triable issues of material fact that Moving Defendants caused the dangerous condition on the Subject Sidewalk.

For the foregoing reasons, Moving Defendants’ Motion is DENIED.

Moving party is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 28, 2017

_____________________________

Dennis J. Landin

Judge of the Superior Court