Jordan v. City of Sacramento

• Decision Date: 28 March 2007
• Docket Number: No. C052159.,C052159.
• Citation: 148 Cal.App.4th 1487,56 Cal.Rptr.3d 641
• Court: California Court of Appeals Court of Appeals
• Parties: Greta JORDAN, Plaintiff and Appellant, v. CITY OF SACRAMENTO, Defendant and Respondent.

56 Cal.Rptr.3d 641

148 Cal.App.4th 1487

Greta JORDAN, Plaintiff and Appellant, v. CITY OF SACRAMENTO, Defendant and Respondent.

No. C052159.

Court of Appeal, Third District.

March 28, 2007.

As Modified April 11, 2007.

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos, Sacramento; Zappettini, Sherbakoff & Bradley, Paul R. Zappettini and Shanie N. Bradley, Sacramento, for Plaintiff and Appellant.

Eileen M. Teichert, City Attorney, James F. Wilson, Deputy City Attorney, for Defendant and Respondent.

DAVIS, Acting P.J.

After tripping and falling on a public sidewalk, plaintiff Greta Jordan filed a claim for tort damages with defendant City of Sacramento (City) in October 2003. In January 2004, the City notified her that it had rejected her claim by operation of law. In August 2004, she filed the present action against the abutting property owner, the Capitol Area Redevelopment Authority (CADA).¹ In April 2005, she filed an amended pleading with leave of court adding the City as defendant.

Defendant City successfully moved for summary judgment on the ground that the plaintiff did not file her action until more than six months from the date of the notice of the rejection of her claim. (Gov.Code, §§ 905, 910, 911.2, 912.4, 913, 945.6.) The plaintiff has appealed in timely fashion from the judgment, contending defendant City should be estopped from asserting the limitations period as a defense. We shall affirm.

LIABILITY FOR SIDEWALK INJURIES

The liability of an abutting property owner for injuries resulting from a defective sidewalk was apparently a source of confusion for the parties and their lawyers. We shall therefore provide a summary of the relevant principles.

Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks. (Schaefer v. Lenahan (1944) 63 Cal.App.2d 324, 326, 146 P.2d 929 (Schaefer).)

Under a statute whose origins are nearly a century old, "The owners of lots ... fronting on any portion of a public street ... when that street ... is improved .. ., shall maintain any sidewalk..." (Sts. & Hy.Code, §5610; Williams v. Foster (1989) 216 Cal.App.3d 510, 516-517, 265 Cal.Rptr. 15 & fn. 8 (Williams).) 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. (Schaefer, supra, 63 Cal.App.2d at pp. 327-328, 331-332, 146 P.2d 929; Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1331-1335, 96 Cal.Rptr.2d 364; Williams, supra, 216 Cal.App.3d at pp. 515-517, 521-522, 2:65 Cal.Rptr. 15; Jones v. Deeter (1984) 152 Cal.App.3d 798, 803-805, 199 Cal.Rptr. 825 (Jones); Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 834, 87 Cal.Rptr. 173 [county (the abutting property owner) liable because it exercised control over city easement for sidewalk and parking strip, thus exclusion in Gov.Code, § 830, subd. (c) does not apply; cited with apparent approval on point that control is mom important than title in Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1159, 60 Cal.Rptr.2d 448, 929 P.2d 1239]; see Gonzales v. City of San Jose (2004) 125 Cal.App.4th 1127, 1137, 23 Cal.Rptr.3d 178 (Gonzales); 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1092, pp. 421-423.) This Imitation on tort liability to third parties is often referred to as the "Sidewalk Accident Decisions Doctrine." (Contreras v. Anderson (1997) 59 Cal. App.4th 188, 195, fn. 6, 69 Cal.Rptr.2d 69 (Contreras).)

A municipality may alter these principles by ordinance with clear and unambiguous language imposing liability on a property owner for sidewalk injuries. (Gonzales, supra, 125 Cal.App.4th at pp. 1134, 1139, 23 Cal.Rptr.3d 178 [San Jose ordinance, amended in light of Williams, now imposed tort liability]; see Contreras, supra, 59 Cal.App.4th at pp. 195-196, 69 Cal.Rptr.2d 69 [Berkeley ordinance does not impose tort liability in clear and unambiguous language]; Williams, supra, 216 Cal.App.3d at pp. 521-522, 265 Cal.Rptr. 15 [San Jose ordinance merely echoes a duty to maintain provided by statute].)

Sacramento City Code (hereafter, the City Code) section 12.32.020 defines a property owner's duty to repair a defective sidewalk: "An owner shall have the duty to repair any defective sidewalk fronting on such owner's lot.... Where the defective sidewalk is caused in whole or in part by a tree root or roots, the owner shall nevertheless have the duty to repair the sidewalk...." Section 12.32.040 of the City Code addresses "Civil liability for injuries." It provides, "An owner who has a defective sidewalk fronting on such owner's lot, ... shall bear the civil liability, if any, to a person suffering personal injury or property damage caused by the defective sidewalk. In the event that the city is held liable in any civil action for damages for personal injury or property damage caused by a defective sidewalk, the city shall be entitled to full indemnity from the owner."² (Italics added.) The City Code also asserts, "It is the purpose of this article to provide sidewalk repair procedures which are alternative and supplementary to the procedures set forth in the Streets and Highways Code commencing at Section 5600, as those sections now exist or may hereafter be amended or renumbered. The city, in each instance may follow the procedure set forth in the Streets and Highways Code or those set forth in this article, or some combination thereof." (City Code, § 12.32.050.)

In light of the above settled law, a reasonable attorney should be aware at the outset of a claim for injuries from a defective sidewalk that both a property owner and a municipality can each be at least partially liable to a plaintiff (including a public agency with notice of the defect). We now turn to the circumstances of the present case.

SCOPE Of REVIEW

Summary judgment provides a court with a procedure to pierce pleadings in order to determine whether a trial is truly necessary to resolve the dispute between the parties. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844, 107 Cal. Rptr.2d 841, 24 P.3d 493.)

Under the "historic paradigm" for our de novo review of a motion for summary judgment (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal.App.4th 732, 734-735, 60 Cal.Rptr.2d 710), we first identify the material issues as framed in the pleadings. If the movant has established a prima facie entitlement to judgment in its behalf on these issues, we consider whether the opponent has produced evidence creating a factual conflict with respect to one of these issues that can be resolved only at trial. (Ibid.)

PLEADINGS

Given the basis for defendant City's motion, our focus is narrow. The plaintiff, as noted, filed her claim with defendant City in October 2003, a little over a month after the incident on September 9. According to the claim (incorporated by reference in the amended pleading), the 61-year-old plaintiff was walking north on the east side of 15th Street in downtown Sacramento at 9:45 a.m. when she caught her left toes on an upraised portion of the sidewalk in front of 1317 15th Street, an "apartment and general office complex," injuring her left wrist, shoulder, and knee. She sought damages of $75,000. She claimed that the condition of the sidewalk was the result of growing roots "or some other natural occurrence," and it "had existed for a long enough period of time" to give defendant City constructive notice of the defect.

On November 24, 2003, a representative of defendant City "informed plaintiff's counsel that, pursuant to City Code section 12.32.040, the ... defendant was not responsible for the maintenance of the sidewalk" and would submit the claim to the property owner (CADA). The plaintiff's lawyer relied on this representation that defendant City was not responsible, and after receiving notice of the rejection of the claim against the City by operation of law, the lawyer filed a claim with CADA in February 2004 (now seeking $150,000). After CADA rejected the claim by operation of law in April 2004, the plaintiff filed her original complaint in August 2004 solely against CADA.

DEFENDANT'S SHOWING

In its evidence in support of its motion for summary judgment, in addition to the various pleadings and the claim form, the defendant City included a copy of the November 24 communication from its independent claims administrator (Bragg & Associates) to the plaintiff's lawyer. The claims representative "advis[ed him] that the City does not own the property where [the] incident occurred." In addition to denying that the City had any notice of the defect in the sidewalk (and therefore was not liable under the Tort Claims Act; see Gov.Code, § 800 et seq.), the letter referred to City Code section 12.32.040 and its purported imposition of civil liability for sidewalk defects solely on the property owner. The letter stated that the claims representative would submit a copy of the claim "to the property owner for [its] review and handling," along with "the photographs."

Defendant City also included a copy of the affidavit of the plaintiff's lawyer filed in connection with his motion to amend the complaint to add the City as a defendant. In this affidavit, the lawyer stated that he had also received a phone call a week before the November 24 letter, during which the City's representative stated that the City Code imposed liability on the abutting property owner (whom she identified as CADA). The lawyer also noted that the November 24 letter had included copies of the pertinent portions of the City Code and a form letter sent to property owners to notify them of the need to repair a sidewalk...