Alkana v. Le Vine Family Trust

Filed 7/18/06 Alkana v. Le Vine Family Trust CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In this personal injury action, appellant contests the summary judgment entered in favor of respondents: the Le Vine Family Trust (the Trust), Hadassa LeVine, and Steve Chatterton. Appellant fell into a planter next to the parking area in front of a restaurant owned by the Trust and leased to Chatterton. Appellant claims that respondents were negligent because they had failed to construct a barrier around the planter and failed to install adequate lighting. We affirm.

Factual and Procedural Background

In 1986 the City of Thousand Oaks (City) redeveloped a portion of Camelot Plaza fronting Thousand Oaks Boulevard. The redeveloped area included property at 2440-2444 East Thousand Oaks Boulevard, which was then owned by George and Hadassa Le Vine. In 2002 the property was owned by the Trust. A restaurant - Harold's House of Omelets (the restaurant) - was located on the property. In 2000 the Trust leased the property to Chatterton for a term of 10 years.

Before beginning the redevelopment, the City signed "consent to enter" agreements with all of the owners and tenants within the redevelopment area. By these agreements, the owners and tenants gave the city permission to enter their property to construct improvements. The improvements included the redesigning of the parking area in front of the restaurant, the construction of a median separating the parking area from Thousand Oaks Boulevard, and the landscaping of that median.

In addition, the City constructed a raised concrete curb between the parking spaces and the landscaping. The curb was constructed pursuant to a municipal code section that "requires all landscaped areas to be enclosed within a brick or masonry planter box or concrete curb not less than six (6") inches high." The purpose of the raised curb "is to prevent pedestrians from inadvertently walking from the parking area into the landscape area. Specifically, the raised curb warns pedestrians that they are at the edge of the hardscape where it is appropriate to walk."

Appellant concedes that, in the consent to enter agreements, "the City assumed responsibility for maintaining the parking lot and landscaped areas. The City contracted with a landscape company for this purpose."

The landscaping company was paid out of the City's budget. It was "responsible for weeding, pruning, tree trimming, checking the irrigation systems, sweeping the parking lot area, litter control, debris pick up, and blowing the small patio areas within the parking lot and in front of the premises at 2440-2444 East Thousand Oaks Boulevard." The company performed its contractual duties once per week, and every week the landscaping supervisor for the City inspected the redeveloped area.

Appellant also concedes that "the City obtained a [public] right of way over the property to be redeveloped." During discovery, the City admitted that that it "owned the right of way for Thousand Oaks Boulevard in front of 2440-2444 E. Thousand Oaks Boulevard, including the parking spaces where [appellant] alleges she fell, [and] the planter area adjacent to the parking spaces where [appellant] alleges she fell . . . ."

The City did not install any lighting in the landscaped area. It never asked respondents to provide lighting for the parking spaces or the landscaped area. According to the Plan Check Supervisor of the Building Division in the City's Community Development Department: "The lighting at the parking area where [appellant] alleges she was injured exceeds the lighting standard for the City of Thousand Oaks." However, appellant's expert opined that the lighting was insufficient "to clearly see and delineate" the changes in elevation between the parking area, the curb, and the planter surface.

Chatterton never received any complaints about the parking or landscaped area. He was not put on notice of any dangerous condition. He did not maintain the parking or landscaped area. In her separate statement of disputed facts, appellant alleged that "Chatterton performed no maintenance or inspection of the parking lot/planter box area because he believed that the City of Thousand Oaks was responsible for that duty."

The Le Vines never maintained the landscaped area or "replaced plants, trees, irrigation devices, soil [or] other things within the landscaped area . . . ." From September 2000, when Chatterton's ten-year lease of the restaurant began, Hadassa Le Vine never received a complaint about the lighting or condition of the parking area.

On October 3, 2002, appellant went to the restaurant for dinner. She parked her car in one of the parking spaces in the public right of way in front of the restaurant. She saw that there was a planter next to the driver's side of the car, and that the planter contained one or two trees. After dinner, she walked to the driver's side of the car. She tried to put her key in the door to unlock it, but she was too close to the car. Appellant believed, but was not sure, that at this time she was standing on the curb separating the planter from the parking space. "[I]t was so dark" that she was not "paying any attention" to what was there. When she took a step backwards to straighten her arm, she fell into the planter. "The next thing" she remembered was that she "was on the ground on [her] back resting against a tree . . . ." She had a sensation of "[j]ust falling," not "tripping." Before appellant stepped backwards, she did not look behind her to see what was there. Appellant claims that there was a "15 [inch] change in elevation from the top of the curb to the bottom of the planter box."

Appellant filed a personal injury action against respondents and the City. In the complaint, she alleged that respondents and the City were negligent because they had failed to (1) install a barrier to prevent people from falling into the planter area, and (2) provide adequate lighting to illuminate the hazard at night. Appellant settled with the City.

In granting respondents' motion for summary judgment, the trial court ruled as follows: (1) Respondents "met [their] burden of showing that [appellant] cannot establish that [respondents] breached a duty of care or that any breach caused or contributed to [her] injury." (2) Respondents "met [their] burden of presenting evidence that would require a trier of fact to find that (a) [respondents] did not possess or control the premises where the injury occurred, and (b) that neither the parking lot lighting nor the planter constituted dangerous conditions."

Standard of Review

"The purpose of the law of summary judgment 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. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A 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." (Code Civ. Proc., § 437c, subd. (c).)^[1] A triable issue of material fact exists 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., supra, 25 Cal.4th at p. 850, fn. omitted.)

On appeal we conduct a de novo review, applying the same standard as the trial court. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our obligation is " ' "to determine whether issues of fact exist, not to decide the merits of the issues themselves." ' " (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We "must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

Respondents Did Not Owe a Legal Duty to Appellant

" 'To prevail on her action in negligence, [appellant] must show that [respondents] owed her a legal duty, that they breached the duty, and that the breach was a proximate or legal cause of her injuries. [Citation.]' " (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) Appellant argues that respondents owed her a legal duty to provide adequate lighting for the planter area and to construct a barrier to prevent people from falling into the planter. (AOB 9) "The existence of a duty is a question of law for the court. [Citations.]" (Anne M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.)

Based on Jones v. Deeter (1984) 152 Cal.App.3d 798, we conclude that the undisputed facts show that respondents did not owe a legal duty to appellant. In Jones the plaintiff fell while walking on a public sidewalk. She tripped on a break in the sidewalk caused by the roots of trees growing on a parkway located between the sidewalk and a public street. Defendant held legal title to the land underlying the sidewalk and parkway, but this land had been dedicated to the city for use as a public street. "A dedication is legally equivalent to the granting of an easement." (Id., at p. 802.) Defendant mowed, edged, and watered the parkway. (Id., at p. 805.) The city had planted the trees on the parkway and had performed all necessary maintenance on them. Plaintiff filed a complaint for damages against defendant. The complaint alleged that defendant had been negligent in maintaining the sidewalk and the trees.

The trial court granted the defendant's motion for summary judgment, and the appellate court affirmed the judgment. The appellate court held that, since the city had habitually maintained the trees, it "alone bore the duty to keep the trees in reasonably safe condition towards pedestrians." (Jones v. Deeter, supra, 152 Cal.App.3d at p. 805.) The appellate court reasoned as follows: "[I]n some localities, by virtue of past practice, abutting owners maintain the surface area of parkways. [Citation.] In such localities, these owners bear a duty to keep these surface areas in reasonably safe condition. Dangerous conditions caused by neglect of this duty are attributable to the abutting owners and may give rise to liability in tort. On the other hand, in localities where the city has habitually maintained the surface of the parkway, it is solely the city's duty to keep this surface area safe for pedestrians; hazards on such areas are not attributable to abutting owners. [¶] We hold that a similar but separate rule applies with regard to the trees planted on the parkway. In settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition toward pedestrians. The contrary situation exists when the city has planted the trees on the parkway and has performed all necessary maintenance on them. Under these latter circumstances, the duty to maintain the trees in safe condition rests with the city; dangerous conditions caused by the trees are attributable to the city, not to abutting owners." (Ibid, fn. omitted,) The appellate court concluded that "it would be fundamentally unfair to hold an abutting owner liable to pedestrians injured by defects in the sidewalk and parkway, when past practice has given that owner every reason to believe that the City has undertaken the responsibility to repair these defects." (Id., at p. 806.)

Here, as in Jones, the Trust held legal title to the land where appellant fell, but that land had been dedicated to the City as a public right of way. "A public right-of-way is a form of easement, in that it grants use rights in a particular parcel of land to nonowners of the land. [Citations.] . . . [T]he use rights of a public right-of-way are vested equally in each and every member of the public. [Citation.]" (Bello v. ABA Energy Corp. (2004) 121 Cal.App.4th 301, 308.)^[2]

In the right of way, the City redesigned the parking area and constructed the raised concrete curb dividing that area from the landscaped area. The City also planted the landscaping. It assumed responsibility for maintaining the landscaped and parking areas, and it regularly maintained and inspected those areas. Moreover, the City claimed ownership of the improvements it had made in the right of way. Respondents never received a complaint that a dangerous condition existed or that the lighting was inadequate.

In view of the above undisputed facts, as a matter of law respondents did not owe a legal duty to appellant to provide adequate lighting or construct a barrier to prevent persons from falling into the planter. As in Jones, the duty to maintain the improvements in a safe condition rested with the City.

Appellant contends that, pursuant to his lease of the restaurant, Chatterton had a contractual duty to provide adequate lighting or construct a barrier around the planter. Appellant relies on paragraph 7.2(a) of the lease, which provides that the lessee "shall keep in good order, condition and repair the Premises and every part thereof . . . including . . . all landscaping, driveways, parking lots, fences and signs located in the Premises and all sidewalks and parkways adjacent to the Premises."

Paragraph 7.2(a) did not require Chatterton to install lighting in the area where appellant fell or construct a barrier around the planter. The planter and parking areas were not "located in the Premises" leased to Chatterton. They were located in a public right of way that Chatterton neither possessed nor controlled. Even if the planter is deemed to be a "parkway" adjacent to the Premises within the meaning of paragraph 7.2(a), Chatterton's duty to keep the parkway "in good order, condition, and repair" could not be reasonably construed as requiring the installation of lighting and the construction of a barrier around the planter. These are "alterations, improvements, [or] additions" covered by paragraph 7.3 of the lease. The lease does not require Chatterton to make any alterations, improvements, or additions.

In any event, the lease is unenforceable to the extent that it purports to impose a duty upon Chatterton to maintain the parking and landscaped areas in the public right of way. The City assumed sole responsibility for maintaining these areas and exercised exclusive control over them. The lease could not usurp the City's authority over the public right of way.

Alcaraz v. Vece (1997) 14 Cal.4th 1149, is distinguishable. In Alcaraz the plaintiff was injured when he stepped into a water meter box located in the lawn in front of the rental property where he was a tenant. The cover of the meter box was broken or missing. The meter box was located on a narrow strip of land owned by the city running between the sidewalk and the landlords' property. The landlords maintained the lawn on the strip of land surrounding the meter box. "[F]ollowing plaintiff's injury, [landlords] constructed a fence that enclosed the entire lawn, including the portion located on the narrow strip of land owned by the city." (Id., at p. 1162.) Before plaintiff was injured, the landlords had received actual notice of the defective condition of the meter box.

Plaintiff sued the landlords. The trial court granted summary judgment in favor of the landlords because the meter box was not located on their property and they did not exercise control over it. The California Supreme Court reversed because there was a triable issue of fact whether the landlords had taken possession of or had exercised control over the strip of land owned by the city. The Supreme Court concluded that the landlords' "maintenance of the lawn and construction of the fence could support a finding that [they] took possession of the strip of land owned by the city and exercised control over it." (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1167.) The Supreme Court reasoned that, "if the condition of the meter box created a dangerous condition on land that was in [landlords'] possession or control, [landlords] owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not [landlords] owned, or exercised control over, the meter box itself. In other words, if the presence of the broken meter box made it dangerous to walk across land in [landlords'] possession or control, [landlords] had a duty to place a warning or barrier near the box to protect persons on the land from the danger." (Id., at p. 1156.)

Unlike the landlords in Alcaraz, respondents did not maintain the parking or the landscaped area. Nor did they fence off these areas. Indeed, they could not have fenced them off since the areas were located in a public right of way. At all times, these areas were open to and used by the public. Respondents did not take possession of the areas or exercise control over them. Control was exercised by the City, which had made the improvements in the right of way and had assumed sole responsibility for their maintenance. Moreover, in contrast to the landlords in Alcaraz, respondents had not received actual notice of any defective condition in the area where appellant fell.

Southland Corp. v. Superior Court (1988) 203 Cal.App.3d 656, also is distinguishable. In Southland Corp. the plaintiff parked his car in a vacant lot adjacent to a 7-Eleven Store. Plaintiff made purchases inside the store and returned to the lot, where he was attacked by three youths. Plaintiff filed a complaint for negligence against defendants, who owned and operated the store. Defendants did not own or possess the vacant lot. However, pursuant to their lease of the store, they had a non-exclusive right to use the vacant lot for parking. Customers regularly parked there while shopping at the store.

Defendants moved for summary judgment. They contended that they did not owe a duty of care to plaintiff because the attack had occurred on property that they did not own, operate, or control. The trial court denied the motion for summary judgment, and the appellate court upheld the denial. Based on seven factors, the appellate court concluded: "The record reflects evidence, and legitimate inferences therefrom, which would support a jury's conclusion that petitioners did exercise a sufficient control over the lot so as to legally permit the imposition of a duty to those customers using the lot." (Southland Corp. v. Superior Court, supra, 203 Cal.App.3d at p. 666.) One of the seven factors was that defendants "realized a significant commercial benefit from their customers' use of the lot . . . ." (Id., at p. 667.)

The appellate court distinguished the case before it from other cases "where no duty was found to exist . . . where the plaintiff was injured by the criminal or negligent conduct of a third person . . . on a public street or sidewalk near or adjacent to the defendant's premises. [Citations.]" (Southland Corp. v. Superior Court, supra, 203 Cal.App.3d at p. 665.) In these circumstances, the court noted, "it was clear that the defendant did not and could not exercise control over the property where plaintiff sustained injury. . . . [W]here the absence of control has been unequivocally established, no basis for finding a duty or imposing liabilty exists." (Id., at pp. 665-666.)

Unlike Southland Corp., here the undisputed facts establish that respondents did not exercise control over the public right of way where appellant fell. The parking and landscaped areas in the right of way were designed, constructed, planted, inspected, and maintained by the City. In these circumstances, evidence that respondents derived a commercial benefit from the parking area does not in itself raise a triable issue of fact as to control. "[I]t is clear that [in Southland Corp.] the Court of Appeal considered such commercial benefit to be but one factor bearing upon the dispositive issue of whether the store exercised control over the adjacent property." (Alcaraz v. Vece, supra, 14 Cal.4th at p. 1163.)

Since respondents met their burden of persuasion that the legal duty element of appellant's cause of action cannot be established, the trial court properly granted the motion for summary judgment. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)^[3]

Disposition

The judgment is affirmed. Respondents shall recover from appellant their costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Kent Kellegrew, Judge

Superior Court County of Ventura

______________________________

Goldberg & Gage, Terry M. Goldberg and Marla A. Brown; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon, for Plaintiff and Appellant.

Cho and Brown, Garm M. Schumacher, for Le Vine Family Trust and Hadassa Le Vine, Defendants and Respondents.

Law Office of Priscilla Slocum, Priscilla Slocum. Law Offices of Ralph. Van Dueck, Gerald H. Velasco, for Steve Chatterton, Defendant and Respondent.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Real Estate Attorney.

^[1] All statutory references are to the Code of Civil Procedure

^[2] It is disputed whether the City owned the public right of way in fee simple or merely owned an easement. Since we must consider all of the evidence "in the light most favorable to the opposing party" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843), we assume that the Trust held legal title to the land subject to a public right-of-way easement owned by the City.

^[3] We need not consider whether respondents met their burden of persuasion as to the other elements of appellant's cause of action.