Banks v. Mastorakos CA2/2 ( 2022 )

Filed 8/16/22 Banks v. Mastorakos CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BRIDGET BANKS, B309937
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC720428)
v.
TOM MASTORAKOS et al.,
Defendants and
Respondents.
APPEAL from a judgment and an order of the Superior
Court of Los Angeles County, Stephen I. Goorvitch, Judge.
Affirmed.
Law Offices of Jude A. Akubuilo, Jude A. Akubuilo; Law
Offices of George E. Omoko and George E. Omoko for Plaintiff
and Appellant.
DorenfeldLaw, Inc., David K. Dorenfeld and Mazyar H.
Mazarei for Defendants and Respondents.
_________________________
Appellant Bridget Banks tripped and fell on the sidewalk
next to a store owned by respondents Tom Mastorakos and
Victoria Mastorakos through their family trust (collectively the
Mastorakoses). A negligence lawsuit ensued, ending when the
trial court granted the Mastorakoses’ motion for summary
judgment. Banks then filed a motion for reconsideration, arguing
that the trial court failed to consider a local law that she had
cited during the summary judgment proceedings. The trial court
ruled that Banks’s motion was meritless and ordered her to pay
$960.00 in sanctions.
Banks appeals both the grant of summary judgment and
the sanctions order. We affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Incident and Resulting Lawsuit
In 1976, the Mastorakoses bought a commercial property at
4263 West El Segundo Boulevard in Hawthorne, California. By
2017, they had leased the building to a tenant who had not yet
occupied the premises. The Mastorakoses’s son, Thomas
Mastorakos (Thomas), helped his elderly parents manage the
property.1
On the afternoon of November 9, 2017, Banks was walking
down a stretch of El Segundo Boulevard in Hawthorne,
California. As she passed the Mastorakoses’ store, her foot
caught on an uneven piece of pavement in the sidewalk, causing
her to fall forward. She later sought medical treatment for
injuries on her hands and knees.
1 Because some of the parties share surnames, we refer to
Thomas by his first name. No disrespect is intended.
2
On September 4, 2018, Banks sued the Mastorakoses for
premises liability and general negligence.2 She claimed that she
“tripped and fell on uneven concrete pavement covered by papers
from [the Mastorakoses’] premises,” and alleged that the
Mastorakoses failed to both maintain the sidewalk in front of
their store and to warn pedestrians of tripping hazards or other
dangerous conditions.3
At her deposition, Banks reiterated that she could not see
the uneven pavement because the sidewalk in front of the
Mastorakoses’ store was obscured by “papers spilled on the
ground.” When asked how many papers there were, Banks could
not give an estimate. Banks’s daughter-in-law, Chanise Moore,
provided a declaration in which she stated that there was always
litter piled in front of the Mastorakoses’ store.
Banks also submitted photographs of the sidewalk.4 The
photographs show the uneven pavement that Banks tripped on,
as well as a few dead leaves, crumpled papers, and similar litter
on the sidewalk outside the Mastorakoses’ store. One photograph
purports to show a pile of mail on the floor inside the store, just
underneath the mail slot.
2 Banks later amended her complaint to add the tenant as a
defendant; he is not a party to this appeal.
3 The Mastorakoses filed a cross-complaint seeking
indemnification from the city of Hawthorne. That cross-
complaint is not part of this appeal.
4 These photographs are not dated, and, after initially
testifying that her husband had taken the photographs the day
after her fall, Banks admitted that she could not remember who
had taken the photographs or when they had been taken.
3
Lastly, Banks submitted two opinions from two experts,
who each concluded that the Mastorakoses failed to repair the
uneven pavement and to clear the sidewalk of debris.
II. Motion for Summary Judgment
On March 24, 2020, the Mastorakoses moved for summary
judgment, arguing Banks could not prove that they had caused
the allegedly dangerous condition leading to her fall. They
attached Thomas’s declaration, in which he stated that during
occasional visits to the premises, he had never seen “any mail or
paperwork for [the business] on the sidewalk, as the premises has
its own mail slot to deliver mail directly into the premises.” 5
On July 13, 2020, Banks filed an opposition to the motion.
She conceded that she “d[id] not know where the thrash [sic]
came from,” but argued that the Mastorakoses had a statutory
duty under state and local law to maintain the sidewalk
regardless, per section 5610 of the Streets and Highways Code
and section 12.04.031 of the Hawthorne Municipal Code.
Alternatively, Banks advanced Moore’s declaration as evidence
that the trash “came from the front door of the . . . defendant’s
property.”
The trial court set a hearing on the summary judgment
motion for August 3, 2020. On July 30, 2020, the trial court
posted a tentative ruling granting the summary judgment
motion. The tentative ruling explained that since Banks’s
accident occurred on the sidewalk, the sidewalk accident
decisions doctrine controlled her case. Accordingly, Banks
5 Thomas initially claimed that he visited the premises once
a month in 2017. In a subsequent deposition, he revised this
estimate to “about five times.”
4
needed to show that the Mastorakoses caused or contributed to
the allegedly dangerous condition of the sidewalk in order for
them to be held liable for her fall. Since Banks’s complaint
identified the paper debris concealing the uneven pavement as
the dangerous condition, she had the burden of demonstrating
that the Mastorakoses created that accumulation of debris. The
court ultimately determined that Banks had not proffered
sufficient evidence to meet her burden.
At the hearing, Banks’s counsel confirmed that he had read
the trial court’s tentative order. The trial court then asked
Banks to explain “[h]ow . . . we know the defendants caused the
debris,” as opposed to it “blow[ing] down on the sidewalk from
somewhere else.” Banks pointed to Moore’s testimony stating
that there was always litter in front of the Mastorakoses’ store,
and contended that “the defendant cause[d] the debris . . . by not
putting in place any form of protocol to clean the premises.”
On August 5, 2020, the trial court adopted its tentative
order and granted the motion for summary judgment.
III. Motion for Reconsideration and Sanctions
On August 12, 2020, Banks filed a motion for
reconsideration of the Mastorakoses’ summary judgment motion.
Banks requested that “the court excuse any neglect on the part of
counsel . . . to the extent that there was a failure to direct the
court’s mind to the provisions of . . . [s]ection 12.04.031” of the
Hawthorne Municipal Code. Banks insisted that this provision
imposed liability on the Mastorakoses for their failure to
maintain the sidewalk, and argued that the Mastorakoses had
caused the trash to accumulate by “plac[ing] the entrance door to
the business premises right on the sidewalk” and “fail[ing] to
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inspect . . . the premises and remove papers dumped at the
entrance.”
On September 25, 2020, the Mastorakoses filed a motion
for sanctions, claiming that the motion for reconsideration was
“improper and frivolous.” On October 6, 2020, they filed an
opposition to Banks’s motion.
On December 30, 2020, the trial court denied Banks’s
motion for reconsideration. The court confirmed that it had
considered the municipal code provision, but found that Banks’s
uncertainty as to whether it had done so was “not a lawful basis
for a motion for reconsideration.” It denounced the motion in
strong language, calling it “an abuse of [the] litigation process,”
and “admonish[ing] [Banks’s] counsel not to file motions of this
nature again.” Accordingly, the court granted the Mastorakoses’
request for sanctions, ordering Banks and her attorney to pay
$960.00.
Banks timely appealed.
DISCUSSION
I. Summary Judgment
A. Applicable law and standard of review
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).) “To
secure summary judgment, a moving defendant may . . . disprove
at least one essential element of the plaintiff’s cause of action
[citations] or show that an element of the cause of action cannot
be established.” (Sanchez v. Swinerton & Walberg Co. (1996) 47
Cal.App.4th 1461, 1465; Leslie G. v. Perry & Associates (1996 ) 43
Cal.App.4th 472, 482 [“a moving defendant need not support
6
[her] motion with affirmative evidence negating an essential
element of the responding party’s case”].)
Summary judgment is subject to de novo review. In
conducting our review, “we follow the traditional three-step
analysis. ‘We first identify the issues framed by the pleadings,
since it is these allegations to which the motion must respond.
Secondly, we determine whether the moving party has
established facts which negate the opponents’ claim and justify a
judgment in the movant’s favor. Finally, if the summary
judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable,
material factual issue. [Citation.]’ [Citation.]” (Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.) A triable
issue of fact exists only if a trier of fact could reasonably conclude
under the applicable standard of proof that a contested fact in
favor of the opposing party is established. (Alexander v.
Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)
In “reviewing the trial court’s decision to grant summary
judgment, we liberally construe the evidence in support of the
party opposing summary judgment and resolve all doubts about
the evidence in that party’s favor. [Citation.]” (Caliber Paving
Co., Inc. v. Rexford Industrial Realty & Management, Inc. (2020)
54 Cal.App.5th 175, 190.)
B. Analysis
Banks’s complaint alleges two causes of action against the
Mastorakoses: premises liability and general negligence. “The
elements of a cause of action for premises liability are the same
as those for negligence: duty, breach, causation, and damages.”
(Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)
Therefore, the Mastorakoses were entitled to summary judgment
7
if they negated, or showed that Banks could not adequately
establish, any one of these four elements.
Our review begins and ends with the first element, namely,
whether the Mastorakoses owed pedestrians such as Banks a
duty to warn them of a dangerous condition on the sidewalk or to
repair it. For the reasons below, we conclude that they did not.
1. The Mastorakoses did not owe a duty to
pedestrians
In general, property owners owe a duty of care to persons
on their property. (Civ. Code, § 1714, subd. (a) [“Everyone is
responsible . . . for an injury occasioned to another by his or her
want of ordinary care or skill in the management of his or her
property . . . except so far as the latter has, willfully or by want of
ordinary care, brought the injury on himself or herself”]; see also
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672 [“The proper
test to be applied to the liability of the possessor of land in
accordance with section 1714 of the Civil Code is whether in the
management of his property he has acted as a reasonable man in
view of the probability of injury to others, . . .”].)
This duty does not vanish at the property line, but extends
to abutting sidewalks. Section 5610 of the Streets and Highways
Code expressly provides:
“The owners of lots or portions of lots fronting on any
portion of a public street . . . shall maintain any sidewalk in such
condition that the sidewalk will not endanger persons or property
and maintain it in a condition which will not interfere with the
public convenience in the use of those works or areas save and
except as to those conditions created or maintained in, upon,
along, or in connection with such sidewalk by any person other
than the owner, under and by virtue of any permit or right
8
granted to him by law or by the city authorities in charge thereof,
and such persons shall be under a like duty in relation thereto.”
However, placing an absolute duty on the property owner
for all injuries sustained on adjacent sidewalks would contravene
the longstanding principle that liability for such injuries depends
on whether the owner exerts actual control over a public
walkway’s condition. (Lopez v. City of Los Angeles (2020) 55
Cal.App.5th 244, 264.) Thus, although Streets and Highways
Code section 5610 “places on the abutting property owner the
duty to maintain the sidewalk . . . [it] has been held not to
impose, by itself, a duty of care upon the abutting landowner for
the safety of persons using the sidewalk.” (Alpert v. Villa
Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1331,
fn. omitted.) Instead, “the abutting property owner is not liable
in tort to travelers injured on the sidewalk[] unless the owner
somehow creates the injurious sidewalk condition.” (Jones v.
Deeter (1984) 152 Cal.App.3d 798, 803.) This doctrine is
sometimes referred to as the “sidewalk accident decisions
doctrine.” (See, e.g., ibid.)
Here, Banks failed to establish that the Mastorakoses in
any way created either the uneven pavement in the sidewalk or
the litter that allegedly concealed it. Banks presented no
evidence as to how the pavement on the sidewalk became
partially raised. And, while she did present evidence that the
sidewalk in front of the Mastorakoses’ store was often cluttered
with papers and other debris, she did not offer any evidence that
the Mastorakoses created or contributed to the accumulation of
that litter. For example, she did not produce any evidence as to
what kind of papers were on the sidewalk on the day of the fall,
or to whom the papers had belonged. As the trial court implied
9
at the summary judgment hearing, in the absence of such
evidence, the trash could have just as easily “blown down on the
sidewalk” from parts unknown.
Even viewing all the evidence in the light most favorable to
Banks, we cannot conclude that she established that the
Mastorakoses owed a duty of care to pedestrians injured by the
uneven pavement or litter on the sidewalk abutting their store.
2. Banks’s opposing arguments
On appeal, Banks raises a confusing miasma of arguments.
As another court observed of a similarly perplexing opening brief,
“this document is strongly reminiscent of those magazine puzzles
of yesteryear where the reader was challenged to ‘guess what is
wrong with this picture.’” (People v. Dougherty (1982) 138
Cal.App.3d 278, 280.)
With some effort, we have discerned four basic arguments
against our conclusions. First, Banks contends that she
successfully raised triable issues of fact as to whether the
Mastorakoses created a dangerous condition on the sidewalk,
pointing to Moore’s declaration. However, Moore’s statements
merely raise a triable fact about the presence of litter on the
sidewalk, not about whether the Mastorakoses caused or
contributed to the litter. Banks also insists that Moore’s
statements indicate that “paper and debris trail[ed] from the door
of the [Mastorakoses’] property to the sidewalk where Banks fell.”
This embellishes Moore’s declaration, which merely states that
“there was always a lot of trash and liter [sic] on the sidewalk,
especially in front of the door leading into [the Mastorakoses’]
business.” This observation does not establish any causation
between the Mastorakoses’ conduct and the accumulation of litter
on the sidewalk abutting their store.
10
Second, Banks attempts to distinguish her case from most
sidewalk accident decision doctrine cases. She draws a
distinction between cases involving “structural defects in the
sidewalk” and cases in which “the dangerous [condition] could be
removed by merely washing down or sweeping the sidewalk,”
suggesting that courts are more likely to find that a commercial
property owner created the latter hazard in the course of
conducting his business. (Bolding omitted.)
However, the case she cites for this proposition, Kopfinger
v. Grand Cent. Public Market (1964) 60 Cal.2d 852 (Kopfinger),
does not support it. In that case, our Supreme Court
straightforwardly applied the sidewalk accident decisions
doctrine to a complaint brought by a pedestrian against a butcher
in an outdoor public market. (Kopfinger, supra, at p. 854.) The
pedestrian sued the butcher after slipping on a piece of gristle on
the public walkway outside his market stall. (Ibid.) The Court
determined that the butcher had caused the hazard by receiving
meat deliveries on the walkway, which led to occasional spills of
meat byproducts. (Id. at pp. 857–858.) The Court found that the
butcher’s duty to the pedestrian stemmed from his solicitation of
and participation in these deliveries, not from the type of hazard
the deliveries created. (Ibid.) The legal distinction Banks tries to
create simply does not exist.
Third, Banks argues that the trial court’s ruling ignores
triable issues raised on other theories of liability that are
“reasonably embraced” by her complaint. (Bolding omitted.)
Banks only articulates one alternate theory of liability, arguing
that the Mastorakoses’ failure to clean the trash from the
sidewalk could constitute a public nuisance. The case she cites to
support this theory neatly explains why it does not hold water:
11
“[A]n abutter has always been liable for injuries occurring on a
public sidewalk which were caused by the abutter's negligence or
nuisance involving some act or omission other than the mere
failure to maintain or repair the sidewalk.” (Williams v. Foster
(1989) 216 Cal.App.3d 510, 515.) The Mastorakoses’ alleged
failure to maintain the sidewalk cannot establish liability for a
cause of action based on negligence or nuisance.
Fourth, Banks contends that the trial court violated her
due process rights by raising and applying the sidewalk accident
decisions doctrine without giving her an opportunity to argue
against it. This argument is meritless. The trial court’s tentative
ruling, issued four days prior to the summary judgment hearing,
provided notice that the court intended to apply the sidewalk
accident decisions doctrine. At the hearing, Banks confirmed
that she had read the tentative ruling and the trial court actively
solicited argument on whether the Mastorakoses contributed to
the litter that accumulated outside their store. Banks’s failure to
put forward specific arguments against the sidewalk accident
decisions doctrine has no bearing on her due process rights. (See
Luebke v. Automobile Club of Southern California (2020) 59
Cal.App.5th 694, 706 [“‘[D]ue process of law requires that the
party opposing [a summary judgment] motion must be provided
an opportunity to respond to [a] ground of law identified by the
court and must be given a chance to show there is a triable issue
of fact material to said ground of law’”].)
II. Sanctions
Finally, Banks appeals the order imposing sanctions for her
motion for reconsideration.
Section 1008, subdivision (a) of the Code of Civil Procedure
provides that “any party affected by [a trial court’s] order may
12
. . . make application to the same judge or court that made the
order[] to reconsider the matter and modify, amend, or revoke the
prior order.” The motion must be “based upon new or different
facts, circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a);
New York Times Co. v. Superior Court (2005) 135 Cal.App.4th
206, 212.)
If a motion for reconsideration is meritless, frivolous, or
filed in bad faith, the trial court may order sanctions against the
movant pursuant to section 128.7 of the Code of Civil Procedure.
(Code Civ. Proc., § 1008, subd. (d); Young v. Rosenthal (1989) 212
Cal.App.3d 96, 123; In re Marriage of Green (1989) 213
Cal.App.3d 14, 26.) We review a trial court’s decision to sanction
a party for a meritless motion for reconsideration under a
deferential abuse of discretion standard. (Optimal Markets, Inc.
v. Salant (2013) 221 Cal.App.4th 912, 921 [articulating standard
of review for sanctions imposed under Code Civ. Proc., § 128.7].)
Here, the trial court sanctioned Banks for submitting a
motion for reconsideration that raised no new facts,
circumstances, or issues of law. The only ground for
reconsideration Banks alleged was her uncertainty as to whether
the court properly considered a municipal code provision Banks
cited during the summary judgment proceedings—a provision
that was not even relevant to the viability of Banks’s lawsuit.6
6 The trial court did make one error in this case, albeit a
harmless one. At the hearing on Banks’s motion for
reconsideration, the court agreed with Banks’s argument that
section 12.04.031 of the Hawthorne Municipal Code trumped an
analogous state law provision (namely, Sts. & Hy. Code, § 5610)
due to the home rule provision of the California Constitution.
The home rule provision allows charter cities to govern their own
municipal affairs unconstrained by state law. (Cal. Const. Art.
13
The trial court did not abuse its discretion in determining
that this motion utterly failed to comply with the requirements
set forth in Code of Civil Procedure section 1008, subdivision (a),
and thus merited sanctions against the movant.
Banks argues that she would not have filed the motion for
reconsideration were it not for the trial court’s “prejudicial” and
“improper[]” decision to grant summary judgment, and urges us
to reverse the sanctions order to avoid compounding the prejudice
besetting her.7
Banks provides no legal authority for the proposition that
an otherwise meritless motion for reconsideration should not be
subject to sanctions if the motion was filed to avoid prejudice
from an improper adverse ruling. (Vines v. O’Reilly Auto
Enterprises, LLC (2022) 74 Cal.App.5th 174, 190 [“‘[a]n appellant
must provide an argument and legal authority to support his
contentions’”].) Nor does she explain how her only recourse in
XI, § 5, subd. (a).) However, the home rule provision only applies
to cities that are governed by charter. Hawthorne does not have
a city charter, so its municipal code remains subordinate to state
law. Therefore, the Streets and Highways Code prevails.
7 At oral argument, Banks argued that the trial court did not
have the power to order sanctions, because it could not have
granted Banks’s motion for reconsideration after entering
judgment on the Mastorakoses’ summary judgment motion. By
raising this argument for the first time on appeal and at oral
argument, Banks has forfeited the issue. (People v. Venice Suites,
Inc. (2021) 71 Cal.App.5th 715, 724 [“‘An argument or theory will
. . . not be considered if it is raised for the first time on appeal’”];
Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th
1150, 1185 [“‘[w]e will not consider an issue not mentioned in the
briefs and raised for the first time at oral argument”].)
14
this situation was to file an invalid motion for reconsideration, as
opposed to filing an appeal. And in any event, we have already
concluded that the trial court’s grant of summary judgment was
entirely proper.
DISPOSITION
The judgment and sanctions order are affirmed.
Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
15