Ettefagh v. Westmont Properties, Ltd.

Filed 11/14/08 Ettefagh v. Westmont Properties, Ltd. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Richard B. Wolfe, Judge. Affirmed.

Law Office of Ramin Soofer, Ramin Soofer; Law Office of Steven P. Scandura and Steven P. Scandura for Plaintiff and Appellant.

Law Offices of David A. Belofsky and David A. Belofsky for Defendants and Respondents.

_______________________________________

In this premises liability case, Katalin Ettefagh (plaintiff), seeks reversal of a summary judgment entered in favor of defendant Westmont Properties, Ltd. (Westmont). The trial court granted summary judgment based on the sidewalk accident doctrine which absolves a property owner whose property abuts a public sidewalk from liability arising from any defects in the sidewalk that were not caused by the property owner. The trial court noted that Westmont denied that it had in any way caused, brought about or contributed to the alleged defect in the sidewalk that had resulted in plaintiffs injuries. As plaintiff produced no evidence, beyond mere speculation, that raised a triable issue on the point, the trial court granted Westmonts motion.

We agree with the trial courts analysis of the record and we will therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 13, 2006, plaintiff and her mother and child exited the multi-story medical office building at 22110 Roscoe Boulevard (near Topanga Boulevard) in the City of Los Angeles. While walking on a public sidewalk leading to the parking lot, plaintiff tripped and fell. The fall resulted in a broken pelvis requiring surgery.

Plaintiff filed this action on October 18, 2006, against Westmont and the City, alleging that plaintiffs fall resulted from an alleged dangerous condition of the sidewalk in front of Westmonts building. That condition consisted of a sunken portion of the sidewalk that measured approximately 18 inches by 60 inches. The depth variation in this portion of the sidewalk varied from 3/4 inch to approximately 1 1/4 inches. Plaintiff subsequently produced evidence indicating that this sunken portion of the sidewalk was not part of the original sidewalk, but rather was the result of subsequent cut into a sidewalk panel which was later refilled. Plaintiff contends that it was Westmont who made such cut and repair and did so in a negligent manner so as to result in the sunken area that caused plaintiff to fall and sustain injuries.

After completion of some discovery, Westmont filed a motion for summary judgment on several grounds, including, inter alia, that it did not own, possess or control the sidewalk in front of its building and that it had not undertaken or performed any alteration, change, modification or repair to the sidewalk and did not create or cause the alleged dangerous condition that resulted in plaintiffs fall.

Plaintiff countered Westmonts motion with the declarations of two experts. The trial court summarized their statements as follows: Plaintiff notes the declaration of Charles Sarno, wherein he notes, [ ] I noticed that the south edge of the sunken section had separated from the adjacent retaining wall of the planter box. I saw what appeared to be a 1 inch galvanized pipe running underneath the retaining wall and exposed by the crack. I found what appeared to be old concrete patching compound that had been spread over the crack to try to fill and seal it off. This patching compound looked quite old, at least a year and possibly as much as five years old. . . .   . . . it should have been evident to the person who laid down the concrete that it was subsiding and that the soil needed to be recompacted.

The trial court also referred to the declaration of plaintiffs second expert, Jerry Zerg who had stated In my opinion, there are a number of reasons to conclude that this faulty re‑pour was the work of an unlicensed contractor . . . [] . . . U‑permits are required if the work is done by a utility. Utilities are very good at getting such permits, which is an easy thing for them to do. The lack of such a permit narrows down the possible actors to Westmont and the City. . . .  This sagging would have been obvious to an experienced city crew. . . .  This means the cut was done by someone with too little experience . . . [] In my opinion, the faulty re-pour was most likely done by a person or crew hired by the adjacent property owner. . . .  

Based on these declarations, plaintiff argued in opposition that there are only three possible entities which could have caused this cut: (1) the adjacent property owner [i.e., Westmont], (2) the City or (3) a utility. There are no other possibilities. It is irrational to even suggest that someone other than one of these three entities made the cut . . .  [] Two facts narrow the search down to Westmont: (1) No U-permits were applied for or obtained, and (2) the City denies doing this work. Therefore, by process of elimination, Westmont must have done the work . . . [] someone has to have made the cut, and there are only three possibilities: Westmont, the City, or a utility. Someone is not coming clean.[1]

This was the effective substance of the opposition presented by plaintiff to the declarations of Westmont representatives who testified that (1) Westmont has never repaired, modified, or altered any sidewalk adjacent to [Westmonts building] and (2) There was no Class A or Excavation permits requested by [ ] Westmont or issued by the City to [] Westmont prior to the January 13, 2006 accident date, for any alteration, reconstruction, modification or other construction changes to the front of the sidewalk.

The trial court concluded that, given Westmonts specific denials in the record, plaintiffs presentation was essentially speculation and not sufficient to raise a triable issue of fact that Westmont had done anything to cause or create a dangerous condition in the sidewalk adjacent to its building. It therefore granted Westmonts motion for summary judgment. At the same time, it granted the Citys summary judgment motion on the ground that no issue of fact had been raised with respect to the Citys notice of the existing condition. Plaintiff has filed a timely appeal from the judgment entered in favor of both Westmont and the City. However, plaintiff has made no argument in its brief with respect to the ruling made in favor of the City and only seeks relief in this court from the judgment entered in favor of Westmont.[2]

DISCUSSION

1. Standard of Review

 A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiffs asserted causes of action can prevail. (Molkov.Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) (Ferrariv. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc.v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bankv. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise an independent assessment of the correctness of the trial courts ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Iversonv. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)

2. The Sidewalk Accident Doctrine

It has been long settled in California that the abutting property owner is not liable in tort to travelers injured on the adjacent sidewalk unless the owner has somehow created the injurious sidewalk condition. (Jones v. Deeter (1984) 152 Cal.App.3d 798, 803; Selger v. Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589‑1590, 1592‑1593.)

The record reflects detailed declarations submitted by Westmont denying that it had done any work, repair, change or modification of the sidewalk. In opposition to this, plaintiff submitted nothing but speculation. Plaintiff relies entirely on a series of observations by her two experts, Charles Samo and Jerry Zerg. Samo stated in his declaration that a separation between the sidewalk and an adjacent retaining wall had been patched, and he estimated that it had been done about a year or more earlier (i.e., prior to the plaintiffs fall). He expressed the view that whoever patched the wall would certainly have noticed the sunken sidewalk square. He speculated that Westmont must have been doing some work on a one‑inch pipe that could be seen turning under the wall and that it cut into the sidewalk to facilitate such work.

Zerg, plaintiffs other expert, stated that he had made one visit to the site about eighteen months after plaintiffs fall. He expressed the view that since no utility permits had been pulled, the work on the sidewalk must have been done by Westmont. The City could not have done the work, in his opinion, because its public works employees knew how to properly replace a section of sidewalk and would not have done such a poor job. Also, he stated that the lack of a permit indicated that the work must have been done by an unlicensed contractor and Westmont has a history of breaking the rules. This latter comment was apparently based on the fact that Westmont was incorporated as a Barbados corporation and the building manager, who claimed to be an independent contractor, did all of his work for Westmont. Plaintiff argues in her opening brief that these are suspicious circumstances and imply that Westmont tries hard to hide from its responsibilities. They further show, she argues, that Westmont does things on the cheap and tries to insulate itself by use of shady practices and corroborate that [Westmont] would hire an unlicensed contractor to work on its sidewalk.

Other than such speculation of the two experts, plaintiff offered no evidence, whether photographic, documentary or testimonial, to show that Westmont had actually done anything to the sidewalk. Rather, she argued it was a conclusion that could be arguably inferred. Absent the presentation of evidence, however, no issue of fact is raised with respect to the application of the sidewalk accident doctrine.

3. Speculation Cannot Substitute For Evidence

It appears clear from this record that plaintiff relies entirely on the speculative views of her two experts and the argumentative speculation of her counsel. Reasonable inferences cannot be based on speculation. Speculations and insinuations are not evidence. [S]peculation is not evidence, less still substantial evidence. [Citation.] (People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) As the California Supreme Court noted in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775, an opinion resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a  reasonably probable causal connection.   Indeed, a court is not bound by expert opinion that is speculative or conjectural. [Citations.] Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self‑serving conclusions devoid of any basis, explanation, or reasoning. [Citation.] (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106, italics added.) The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. [Citation.] (Id. at p. 1105.) The rule is that a plaintiff may not submit evidence that establishes only a dwindling stream of probabilities that narrow into conjecture. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1421.)

As further noted in Ortega v. Kmart Corporation (2001) 26 Cal.4th 1200:  On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.  (Id., at pp. 1205‑1206, italics added.)

4. Westmont Did Not Control the Sidewalk

In addition, liability of Westmont cannot be based on the proposition that the sidewalk was under its control. It is not sufficient to show that Westmont controlled the sidewalk by completely relying on the testimony of Westmonts building manager to the effect that people used the sidewalk to enter Westmonts building. That circumstance provides no evidence of control. No other evidence of control was presented.

The court in Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715 articulated the principles that apply here. Donnell seeks to hold Cal Western liable for a dangerous condition of a city-owned sidewalk adjoining Cal Westerns property, asserting Cal Western had the power to control the sidewalk by placing lights on its own building to shine on the sidewalk. Donnell also asserts Cal Western should perhaps have mounted exterior monitors on its building walls to permit its students to view the dangerous area before traversing it. However, Donnell attempts to expand the principle of control of property to include situations where an adjoining landowner merely has the ability to influence or affect such property. Donnell in effect attempts to hold Cal Western responsible for the dangerous condition of something with which [its] only connection is the fact of [its] ownership or use of the abutting land. (Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 858 [37 Cal.Rptr. 65, 389 P.2d 529]; Ross v. Kirby (1967) 251 Cal.App.2d 267, 270 [59 Cal.Rptr. 601].) The law of premises liability does not extend so far as to hold Cal Western liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property. (Id. at p. 720.) As another opinion put it, [i]t would be unfair to impose upon the [defendant] a duty to maintain the public crosswalk in a reasonably safe condition simply because some of the [defendants] patrons may have used the crosswalk with its knowledge. [Citation.] (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 492, italics added.)

5. The Doctrine of Res Ipsa Loquitur Has No Application To This Case

In California, the doctrine of res ipsa loquitur is applicable   where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.  (Pappas v. Carson (1975) 50 Cal.App.3d 261, 267.)

As already noted, plaintiff argues that the dangerous condition was necessarily created by one of three entities: Westmont, the City or a utility. Since the trial court granted summary judgment as to the City and the utility (Pacific Bell), plaintiff argues that leaves Westmont and it therefore must be liable. Again, however, plaintiff relies on speculation to reach this conclusion. There was no admissible evidence presented that Westmont did anything to create the condition. In addition, there was no evidence presented that the depression in the sidewalk could only have resulted from Westmonts negligence or that would reasonably permit such an inference. This record provides no basis for applying the principles of res ipsa loquitur, leaving aside the control question on which issue plaintiffs evidence also falls short.

DISPOSITION

The judgment is affirmed. Westmont shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CROSKEY, Acting P. J.

We Concur:

KITCHING, J. ALDRICH, J.

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[1] The City had filed a cross-complaint against Pacific Bell Telephone Company (Pacific Bell). Before ruling on Westmonts summary judgment motion, the court granted summary judgment in favor of Pacific Bell on the cross-complaint.

[2] We therefore will treat the appeal from the judgment in favor of the City as abandoned.