Mindy Blackburn vs. Fashion Island

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.June 25, 2015

© 0 0 N N O N W n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE HAHN LEGAL GROUPATC ADRIENNE R. HAHN, SBN 136569 ahahn@hahnlegaleroup.com ARASH NEMATOLLAHI, SBN 225306 anematollahi @hahnlesaleroup.com 2361 Rosecrans Avenue, Suite 373 El Segundo, California 90245 T:(310)706-3400/F:(310)706-3440 Attorneys for Defendant, Cross-Defendant and Cross-Complainant, ALTA SERVICES, INC. SUPERIOR COURT OF THE STATE OF THE CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MINDY BLACKBURN; KEN CASE NO: 30-2015-00795519-CU-PA-CJC BLACKBURN, Complaint Filed: 06/25/2015 Hon. Deborah Servino, Dept. C22 Plaintiffs, ALTA SERVICES, INC.’S NOTICE OF VS. MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS FASHION ISLAND; THE IRVINE AND AUTHORITIES IN SUPPORT COMPANY; CITY OF NEWPORT THEREOF BEACH; STATE OF CALIFORNIA; and DOES 1 to 100, Inclusive [Filed concurrently with Separate Statement of Undisputed Facts; Declaration of Arash Defendants. Nematollahi with Exhibits Thereto; and Declaration of Eric Brown] AND RELATED CROSS-ACTIONS. Date: May 19, 2017 Time: 10:00 a.m. Dept.: C-22 Reservation No.: 72540695 Trial: 07/17/2017 TO THE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on May 19, 2017, at 10:00 a.m., or as soon thereafter as this matter may be heard in Department C-22 of the Orange County Superior Court, Central District, located at 700 W. Civic Center Drive, Santa Ana, California, Defendant, Cross- Complainant and Cross-Defendant ALTA SERVICES, INC., (hereinafter “Defendant” and/or “ALTA”) will, and hereby does, move this court for an Order granting Summary Judgmentin its ALTA SERVICES, INC.”S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT;MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 Ph on e: (3 10 ) 70 6- 34 00 | Fa x: (3 10 ) 70 6- 34 40 T H E H A H N L E G A L G R O U P ** * © 0 0 u N oO o u A W w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 favor and against Plaintiffs KEN BLACKBURN and MINDY BLACKBURN pursuant to California Code of Civil Procedure Section 437c. Defendant ALTA SERVICES, INC. (“ALTA”) did not own, control, design, approve, inspect, construction, approve, maintain, or repair the sidewalk which is alleged to have been defective. ALTA bears no liability for Plaintiffs’ injuries. This motion is made pursuant to California Code of Civil Procedure Section 437c, and will be based upon this Notice, the attached Memorandum of Points and Authorities, the accompanying Declarations of Arash Nematollahi and Eric Brown, the accompanying exhibits, the accompanying Separate Statement of Undisputed Facts, and all pleadings, papers, and records on file, as well as all oral and documentary evidence as may be presented upon the hearing of this motion. , ~y DATED: February42017 THE HAHN LEGAL By: ADRIENNE R. HAHN, ARASH NEMATOLLAHI Attorneys for Defendant, Cross-Defendant and Cross-Complainant ALTA SERVICES, INC. 2 ALTA SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF o o 0 9 a N n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS On August 29, 2014, Plaintiff MINDY BLACKBURN, while walking on a sidewalk located at the Fashion Island,tripped and fell on an uneven surface’. [UMF No. 1] Defendant ALTA SERVICES, INC. (“Alta”) is named as Doe 6. Plaintiffs allege in their Complaint that “defendants, and each of them controlled, designed, constructed, established, maintained and failed to maintain the cement panels or sections which created a trap to unwary pedestrians such as plaintiff, MINDY BLACKBURN.” [UMFNo. 2] In 2012, ALTA demolished the existing sidewalk and not design, approve, consult, construct, control, establish, maintain, inspect, or repair the new sidewalk which is the subject of this lawsuit. [UMF No. 3] Furthermore, ALTA did not supervise, inspect or maintain the new sidewalk. Finally, ALTA had no control over the completed sidewalk and did not have notice ofits alleged hazardous condition until it was served with this lawsuit. [UMF No. 4] A. PLAINTIFFS’ HAVE NO INFORMATION IN SUPPORT OF THEIR ALLEGATIONS AGAINST ALTA In response to Special Interrogatories propounded by ALTA seeking information related to Plaintiffs’ allegations againstit, Plaintiffs allege: Plaintiff on information and belief through information obtained from Defendant, The Irvine Company, alleges/or contends that the propounding defendant was the general contractor and/or sub-contractor for the construction work at the subject location to Plaintiff’s fall. The construction was defective in that the dangerous condition of the pedestrian sidewalk had a linear mismatch and/or variance. Defendant, The Irvine Company, has informally taken the position that the construction itself is the cause of the dangerous condition, including, but not limited to, the mismatch and/or variance of the pedestrian sidewalk/walkway. [UMF No. 5] ! Plaintiff KEN BLACKBURN alleges loss of consortium. 1 ALTA SERVICES, INC.”S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 P h o n e : (3 10 ) 7 0 6 - 3 4 0 0 | Fa x: (3 10 ) 7 0 6 - 3 4 4 0 T H E H A H N L E G A L G R O U P A " S N O r A W N ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff KEN BLACKBURN’S discovery responses do not provide any additional information beyond what Plaintiff MINDY BLACKBURNhas alleged. [UMF No. 6] It is undisputed that ALTA played no role in the construction of the new sidewalk; that ALTA had no control over the new sidewalk; and that Plaintiffs have no information to support their allegations against ALTA. Therefore, ALTA does not bear any liability. IL. SUMMARY JUDGMENT IS PROPER WHERE THE ACTION HAS NO MERIT A motion for summary judgment must be granted if the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. §437c(c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 853-55. The moving party is not required to conclusively negate an element of the plaintiff's cause of action, it need only show that one or more of the elements of the cause of action cannot be established such as by showing the plaintiff does not possess, and cannot reasonably obtain, required evidence. If the moving party meets its burden,then itshifts to the opposing party who must submit sufficient admissible evidence — not allegations in pleadings, hearsay or speculation/innuendo — showing a triable issue of material fact exists. McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1103; Code Civ. Proc. §437c; Sangster v. Paetkau (1998) 68 Cal.App.4th 151. The Code of Civil Procedure specifies that to defeat summary judgment, plaintiff cannot rely on mere allegations, but "shall set forth the specific facts showing that a triable issue of material fact exists[.]" Code Civ. Proc. § 437c¢(p)(2). Proof of causation must be by substantial evidence and is "never presumed." Harpke v. Lankershim Estates (1951) 103 Cal.App.2d 143, 145. If 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 determine the issue in favor of the defendant as a matter of law." Leslie G. v. Perry & Assoc. (1996) 43 Cal.App.4th 472, 484; see also Dumin v. Owens-Corning Fiberglass Corp. (1944) 28 Cal.App.4th 650, 705. Here, plaintiff cannot meet her burden. 2 ALTA SERVICES, INC.”S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 P h o n e : (3 10 ) 7 0 6 - 3 4 0 0 | Fa x: (3 10 ) 7 0 6 - 3 4 4 0 T H E H A H N L E G A L G R O U P ** * S N O r A W nN ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. ALTA HAD NO CONTROL OVER THE SIDEWALK AND AS A MATTER OF LAW CANNOT BE LIABLE It is undisputed that ALTA played no role in the construction of the new sidewalk; that ALTA had no control over the new sidewalk; and that Plaintiffs have no information to support their allegations against ALTA. [UMF Nos. 1-6.] “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.” Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, modified on other ground. See also Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 269 [where there is no control over the defective property,it is proper to grant summary judgment.] “Implicit in the absence of controlis that the Hotel cannot be reasonably expected to take action where it is, in fact, powerless to do so.” Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4™ 481, 493 (“Seaber”). In Seaber, the hotel had requested a crosswalk be placed from a parking lot across a busy highway for patrons to reach the hotel premises without having to walk a block up to the traffic signal. Id at p.485-486. The city acquiesced to the hotel and placed the crosswalk where requested. Ibid. Ms. Saber was killed while using the crosswalk to reach the hotel premises from the parking lot. Id at p. 484. In granting summary judgment in favor of the hotel, the Court explained: “[I]t cannot be ignored that premises liability is predicated upon the concept that possession includes the attendant right to manage and control, justifying liability when one has failed to exercise due care in property management. (Citations) ‘The court, therefore have consistently refused to recognize a defendant does not have the right of possession, management and control.” Id. 1t 492, emphasis added. As noted by the Court in Lorenzen-Hughes v. MacElhenny, Levy & Company, (1994) 24 Cal.App.4™ 1688: “Our high court emphasized that ‘we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land,’ instead of whether one’s negligence was active or passive.” 3 ALTA SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 P h o n e : (3 10 ) 7 0 6 - 3 4 0 0 | Fa x: (3 10 ) 7 0 6 - 3 4 4 0 T H E H A H N L E G A L G R O U P ** * S N a n b h W w ND ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is undisputed that ALTA played no role in the construction of the new sidewalk; that ALTA had no control over the new sidewalk; and that Plaintiffs have no information to support their allegations against ALTA. [UMF Nos. 1-6.] IV. CONCLUSION Plaintiff's inability to bring forth any evidence to support their allegations against Alta supports the granting of this Summary Judgment. Alta respectfully requests the Court to grant its Summary Judgment. DATED: February!)3 2017 THE HAHN LEGAL GROUPAPC ADRIENWE R. HAHN, ARASH NEMATOLLAHI Attorneys for Defendant, Cross-Defendant and Cross-Complainant ALTA SERVICES, INC. 4 ALTA SERVICES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 P h o n e : (3 10 ) 7 0 6 - 3 4 0 0 | Fa x: (3 10 ) 7 0 6 - 3 4 4 0 T H E H A H N L E G A L G R O U P " S N a B h Ww W ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I'am over the age of 18 and am nota party to this action or cause. Iam a resident of or employed in the County of Los Angeles. My business address is 2361 Rosecrans Avenue, Suite 373, El Segundo, California 90245. On February27,2017, I served a copy ofthe following documents: ALTA SERVICES, INC.”S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF by enclosing them in an envelope and ( ) [U.S. MAIL] depositing the sealed envelope with the United States Postal Service, with the postage fully prepaid on the date and at the city and state shown below, or ( X ) placing the sealed envelope for collection and mailing on the date and at the place shown below, following our ordinary business practices. I am readily familiar with this business’ practice for collecting and processing correspondence for mailing. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid, or ( ) [EXPRESS MAIL] depositing the sealed envelope in a post office, mailbox, subpost, office, substation, mail chute or other like facility regularly maintained by the United States Postal Service for receipt of Express Mail, together with an unsigned copy of this declaration, with Express Mail postage fully prepaid, or ( ) [EXPRESS SERVICE CARRIER] depositing the sealed envelope in a box, substation, or other facility regularly maintained by ( ) FEDERAL EXPRESS, ( ) UPS, ( ) DHL, an express service carrier, or delivering to a courier or driver authorized by said express service carrier to receive documents; or ( ) [FACSIMILE] by transmitting the aforementioned documents via facsimile from a facsimile transmission device at phone number (310) 706-3440, with an unsigned copy ofthis declaration,to the recipient(s) set forth below at the phone numbers noted therein. The foregoing facsimile transmission was reported as complete without error by a transmission report issued by the device upon which the said transmission was made immediately following the transmission. A true and correct copy of the said transmission reportis attached hereto; or ( ) [PERSONAL SERVICE] causing such envelope to be delivered by hand to the recipient(s) identified below,at the address(es) set forth therein. ( ) [ELECTRONIC MAIL] by transmitting the aforementioned documents via electronic mail as an attachment from my business email address to a known email address for the recipient set forth below. The foregoing envelope was addressed and mailed to the address(es) below, or delivered by hand at the address(es) below if personally served, or the documents were transmitted via facsimile machine to: ( X ) and to additional parties and/or counsellisted in the attached service list. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February27.2017, in El Segundo, California. MARIA GONZALEZ MARIA GONZALEZ 1 PROOF OF SERVICE SERVICE LIST Mr. Gary L. Chambers CHAMBERS NORONHA & KUBOTA 2070 North Tustin Avenue Santa Ana, CA 92705 T: (714) 558-1400/F: (714) 558-0885 Email: chambers102@msn.com Attorneys for Plaintiffs MINDY BLACKBURN and KEN BLACKBURN Ms. Alison K. Hurley Ms. Erin M. Mallon BREMER WHYTE BROWN & O’MEARA, LLP 20320 S.W. Birch St., 2™ Floor Newport Beach, CA 92660 T: (949) 221-1000/F: (949) 221-1001 Email: ahurley@bremerwhyte.com emallon @bremerwhyte.com Attorneys for Cross-Defendant MISSION LANDSCAPE COMPANIES, INC. dba MISSION LANDSCAPE Mr. Seymour B. Everett LEWIS BRISBOIS BISGAARD & SMITH, LLP 650 Town Center Drive, #1400 Costa Mesa, CA 92626 T: (714) 545-9200/f: (714) 850-1030 Email: Seymour.everett@lewisbrisbois.com Attorneys for Defendant THE IRVINE COMPANY, LLC Mr. Paul H. Burleigh LECLAIR RYAN, LLP 725 S. Figueroa St., #350 Los Angeles, CA 90017 T: (213) 337-3226/F: (213) 624-3755 C: (818) 486-5263 Email: Paul.Burleigh@]leclairrvan.com Roselle.Bloodsaw @leclairryan.com - Attorneys for Cross-Defendant TTS ENGINEERING, INC., dba TTS ENGINEERING Mr. Marc S. Hines Ms. Christine M. Emanuelson Ms. Brittney N. Hamilton Ms. Anna Cooley HINES HAMPTON, LLP 34 Executive Park, Suite 260 Irvine, CA 92614 T: (714) 513-1122/F: (714) 242-9529 Email: acooley@hineshamptonllp.com bhamilton @hineshamptonllp.com; ahernandez @hineshamptonllp.com; Attorneys for Cross-Defendant/Cross- Complainant PETERSON BROTHERS CONSTRUCTION, INC. dba PBC COMPANIES ARCHER NORRIS 4695 MacArthur Court, Suite 350 Newport Beach, CA 92660-8816 T: (949) 975-8200/F: (949) 975-8210 Attorneys for Defendant/Cross-Complainant CUESTA PROPERTIES, INC. dba CUESTA CONSTRUCTION COMPANY Namvar A. Mokri Daniel J. McKenzie MOKRI VANIS & JONES, LLP 4100 Newport Place Drive, Suite 840 Newport Beach, CA 92660 T: (949) 226-7040/F: (949) 226-7150 Email: nmokii@mvijllp.com Email: dmckenzie @archernorris.com Associated Attorneys for Defendant/Cross- Complainant CUESTA PROPERTIES, INC. dba CUESTA CONSTRUCTION COMPANY 2 PROOF OF SERVICE 2 3 6 1 R o s e c r a n s A v e n u e , Su it e 3 7 3 El S e g u n d o , Ca li fo rn ia 9 0 2 4 5 P h o n e : (3 10 ) 7 0 6 - 3 4 0 0 | Fa x: (3 10 ) 7 0 6 - 3 4 4 0 T H E H A H N L E G A L G R O U P * " S N O a A W N ~ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kevin D. Smith Jade N. Tran Joel C. Gerson WOOD SMITH HENNING & BERMAN, LLP 5000 Birch St., #8500 Newport Beach, CA 92660 Email: jtran@wshblaw.com 1gerson @wsbhlaw.com T: (949) 757-4500/F: (949) 757-4550 Lisa L. Peterson Michael L. Wroniak Michael J. Lowell COLLINS COLLINS MUIR & STEWART, LLP 750 The City Drive, Suite 400 Orange, CA 92868-4940 T: (714) 823-4100/F: (714) 823-4101 Attorneys for Cross-Defendants BRIGHTVIEW LANDSCAPE SERVICES, Attorneys for Cross-Defendant/Cross- INC., and Complainant BRIGHTVIEW LANDSCAPE APPROVED TREE DEVELOPMENT, INC. CARE, INC., dba APPROVED TREE CARE 3 PROOF OF SERVICE