Case Number: SC111168    Hearing Date: July 24, 2014    Dept: P

TENTATIVE RULING – DEPT. P

JULY 24, 2014 CALENDAR No: 1

SC111168 — LOEB v. CITY OF L.A., et al.

HENSLEY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR ADJUDICATION AS TO FIRST AMENDED COMPLAINT

Evidentiary matters

City’s objections to the Hensley Defendants’ evidence are overruled as moot for the reasons stated below.

All of Plaintiff’s objections to the Hensley declaration, the Vicelja declaration, and exhibits offered in support of the motion are overruled.

All of the Hensley Defendants’ objections to the Gill and Ruzak declarations are overruled.

Plaintiff’s requests for judicial notice are granted as to filing and existence onlyas to all exhibits thereto. The Hensley Defendants’ objections to Plaintiffs’ requests for judicial notice are overruled as moot.

Merits

In his FAC, Plaintiff alleges that the defendants negligently maintained Crater Lane (a partially-paved, sometimes steeply-sloped pathway [or street, or paper street, or roadway, or similar term of choice, depending on which slant any given party wants to put on it] which begins at the end of Sandal Lane and is narrow at points abutting hillsides), and that same resulted in personal injuries to him via a motor vehicle accident thereon. The Hensley Defendants, whose parcel abuts a paved part of Crater Lane (“Crater Lane” or “the pathway”), now move for summary judgment on the FAC (they also purport to move for summary adjudication, even though the FAC alleges only one cause of action against them), asserting that they were in no way responsible for maintaining the unpaved part of the pathway on which the accident occurred. Thus, they contend, the elements of duty and causation are lacking. Plaintiff and defendant the City of Los Angeles (which has denied ownership of the pathway) have each opposed the motion. The Court will grant the motion.

A defendant meets his, her, or its burden on a motion for summary judgment if that party has proved 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.” Code Civ. Proc. 437c(p)(2). The defendant need not conclusively negate an element of the plaintiff’s cause of action, but must only show that one or more of its elements cannot be established. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. Once the defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists….” Code Civ. Proc. 437c(p)(2). “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.” Aguilar, 25 Cal.4th at 850.

Speculation is insufficient to raise a triable issue of material fact. See, e.g., Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 162-63 (responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial and is insufficient to establish a triable issue of material fact); Martin v. Lockheed Missiles and Space Co. (1994) 29 Cal.App.4th 1718, 1735 (speculation cannot be regarded as substantial responsive evidence).

Also, to be “material” for purposes of a summary adjudication proceeding, a fact must be related to some claim or defense in issue under the pleadings and it must also be essential to the judgment in some way. Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653. A litigant “may not avoid summary judgment by attempting to generate disputes of fact as to issues which are not material to the legal theories and claims in issue: The presence of a factual dispute will not defeat a motion for summary judgment unless the fact in issue is a material one.” Banks v. Dominican College (1995) 35 Cal.App.4th 1545, 1551; see, Armato v. Baden(1999) 71 Cal.App.4th 885, 893 (“If [the moving parties’] declarations in support of the motions for summary judgment demonstrate an absence of an essential element of [the opposing party’s] case, and [the opposing party’s] declarations submitted in reply do not show that a triable issue of fact exists with respect to that essential element, no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted”).

Civil Code 1714(a) provides: ” Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person….” (Italics added.) “[T]o prevail in a negligence action, plaintiffs must show that defendants owed them a legal duty, that defendants breached that duty, and that the breach proximately caused their injuries. [Citation.]” Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145. Therefore, “[w]ithout a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member, no negligence is established. [Citation.] Whether a defendant owes a duty of care in a given situation is a question of law for the court to determine. [Citation.]” Hamilton v. Gage Bowl, Inc.(1992) 6 Cal.App.4th 1706, 1711; see also, Wiener, at 1146.

By their moving papers, the Hensley Defendants have established that they did not own, possess, or control that portion of the pathway on which the subject vehicle accident occurred, i.e., they have carried their initial moving parties’ burden under CCP 437c(p) on the issue of duty. See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, overruled on another ground in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678 (“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper”). Thus, they have shifted the burden to Plaintiff (and, in this case, the City) to show the existence of a triable issue of material fact as this issue.

In what it titled its “Limited Opposition” to the Hensley Defendants’ motion, the City has not sought to raise a triable issue of material fact as to the issue of whether the Hensley Defendants owed a duty to Plaintiff. Rather, the City takes umbrage at the fact that the Hensley Defendants have placed the blame on the City’s doorstep. However, whether the City owns the pathway or is otherwise responsible for maintaining the pathway is not the issue presented by the motion at bar.

Plaintiff asserts two theories under which he contends the Hensley Defendants owed a duty to warn of the danger posed by the pathway: (1) because the Hensley Defendants owned the property at the start of the pathway, they had a general duty to warn under Rowland v. Christian (1968) 69 Cal.2d 108 and its progeny; and (2) because the Hensley Defendants owned the property at the start of the pathway, and Crater Lane is not a public street, the Hensley Defendants had a duty to place a warning sign or barricade under CC 831 and/or as owner of the servient tenement.

The first proposition is based on the principle that 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 off-site.” Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478-1479, citing, among others, McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7–8.

The Court rejects those two asserted grounds for the existence of a duty for the reasons stated in the reply brief. To put it simply, Plaintiff has offered no evidence precluding the application of the general rule of non-liability stated in cases such as Isaacs v. Huntington Memorial Hospital, supra; the Hensley Defendants did not own, possess, or control the part of the pathway on which the accident occurred, nor did they maintain their property, as did the defendants in Barnes and McDaniel, “in such a manner as to expose persons to an unreasonable risk of injury off-site.”

Instead, the Court agrees with the Hensley Defendants’ assertion that Corcoran v. City of San Mateo (1953) 122 Cal.App.2d 355, 358 (landowners have no duty to fence vacant lot to prevent child trespasser from crossing lot and falling into drainage ditch located on adjoining property) is more analogous to the facts at bar than the cases relied on by Plaintiff. See also, Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1624 (“our appellate courts have been reluctant to find a duty on the part of landlords or occupiers of land or premises to warn of or otherwise protect tenants or customers from dangers arising or existing on land, such as streets, parking lots, etc., over which the landlords or occupiers of the adjacent property have no right of possession, management or control. In the instant case, the danger existed not on defendant’s premises but, rather, on the adjacent Pacheco Road”).

Further, Plaintiff’s assertion that the Hensley Defendants had a legal duty to place a warning or other traffic sign to warn users of the pathway’s dangerous condition is contrary to Vehicle Code section 21465 which provides, in pertinent part: “No person shall place, maintain, or display … in view of, any highway any unofficial sign, signal, device, or marking, … which attempts to direct the movement of traffic….” Instead, the placement of such a sign or marking attempting to direct movement of traffic is the responsibility of local authorities, whether at the entrance to private roads or elsewhere. See, Vehicle Code sections 21354, 21355, 21356, 21360, and 21361. These statutes (and others) manifest a legislative purpose and state policy that streets, highways, and roads not be cluttered, or marked, with unofficial traffic signs of varying message content, clarity and degrees of maintenance.

Motion for summary judgment is granted. On or before July 31, 2014, the Hensley Defendants are to serve and lodge a proposed order pursuant to CCP 437c(g). They are to concurrently serve and lodge a proposed judgment of dismissal as to Plaintiff’s complaint.

MANDATORY SETTLEMENT CONFERENCE AND TRIAL MATTERS

Final Status Conference and trial dates were previously set in this department.

By the 60th day prior to the date of the FSC date, the parties shall have had a mandatory settlement conference with one of the MSC judges in this courthouse. ALL parties and all persons appropriate to resolve the matter shall be present in person (e.g., not “available” by telephone). Counsel or self-represented parties are to arrange for the MSC according to the instructions available from the court staff. Counsel should schedule the MSC well in advance so that they can be assured of compliance with these orders. The parties will not be allowed to try the case without compliance with each of these orders.

The parties are reminded of their obligation, and the court orders, that they comply with LASC Rules 3.25 (f), (g) and (h) [formerly (h), (i) and (j)] in preparing for trial. Guides for preparation are available from the court staff.

Failure to fully comply with the foregoing Rule and Order and any other orders the Court makes with respect to this case will result in rescheduling the FSC and trial dates, as well as the potential of monetary sanctions for violation of the order to so comply. CCP 177.5.

These orders are made both because they will assist the parties in preparing for trial, or in resolving the case without trial, and because lack of pre-trial preparation results in a waste of increasingly limited public resources.

NOTICE

_______ shall give notice of today’s rulings and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.