Evita Montgomery v. City of Los Angeles, et al.

(Torrance Courthouse: Dept. P) August 25, 2026 DEPARTMENT P LAW AND MOTION RULINGS

Moving Party: Defendants Laurel K. Sutton and Timothy J. Ashby Responding Parties: Plaintiff Evita Montgomery; Defendant City of Los Angeles

The court considered the moving papers, oppositions, and replies. Moving Defendants' Motion for Summary Judgment is DENIED.

PROCEDURAL ISSUES

Code of Civil Procedure Section 437c(b)(2) provides that an opposition to a motion for summary judgment "shall be served and filed not less than 20 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise." Here, the City filed its opposition on August 12, 2026, less than 20 days prior to August 25, 2026, the date of the hearing on the instant motion. However, the court will exercise its discretion to consider the City's opposition brief.

PROCEDURAL BACKGROUND

On March 9, 2023, Plaintiff Evita Montgomery ("Plaintiff") filed a complaint against Defendants City of Los Angeles, County of Los Angeles, and DOES 1 through 100, inclusive, alleging a single cause of action for Liability for Dangerous Condition of Public Property, Pursuant to Government Code Section 835 et seq.

On May 15, 2023, Defendant and Cross-Complainant City of Los Angeles ("the City") filed a cross-complaint against Cross-Defendants Diana Villalobos Nickels, Trustee of the D & F Nickels, D & F Nickels III Trust, and ROES 1 through 10, inclusive, alleging three causes of action for: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief.

On December 12, 2024, Plaintiff filed a first amended complaint against Defendants the City, County of Los Angeles, Cecilia Acero Liebman, Bruce Liebman, Laurel K. Sutton, Timothy J. Ashby, and DOES 1 through 100, inclusive, alleging three causes of action for: (1) Liability for Dangerous Condition of Public Property, Pursuant to Government Code Section 835 et seq.; (2) Negligence; and (3) Premises Liability.

On March 30, 2026, Defendants Cecilia Acero Liebman and Bruce Liebman (collectively, the "Liebman Defendants") filed a Motion for Summary Judgment. On June 22, 2026, the Liebman Defendants filed a notice of taking the Liebman Defendants' Motion for Summary Judgment off calendar.

On June 2, 2026, Defendants Laurel K. Sutton and Timothy J. Ashby (collectively, "Moving Defendants") filed the instant motion. On August 5, 2026, Plaintiff filed an opposition. On August 12, 2026, the City filed an opposition. On August 14, 2026, Moving Defendants filed replies.

FACTUAL BACKGROUND

On September 19, 2022, Plaintiff allegedly tripped and fell due to an uneven and/or uplifted sidewalk (the "Subject Sidewalk") which runs adjacent to 6541 W. 77th Street in Los Angeles, California (the "Liebman Defendants' Property"). (UMF Nos. 1-2.)

Moving Defendants own and reside at 6549 W. 77th Street in Los Angeles, California ("Moving Defendants' Property"). (UMF No. 6.) The area of the Subject Sidewalk where Plaintiff's incident occurred is owned by the City. (UMF No. 7.) Moving Defendants are not agents or employees of the City. (UMF No. 8.) Moving Defendants have never received written notice or verbal instruction to maintain or repair any portion of the Subject Sidewalk. (UMF No. 11.)

LEGAL STANDARD

Summary judgment is proper "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 judgment as a matter of law." (Code Civ. Proc. Section 437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at Section 437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case.

If a defendant chooses the latter option, he or she must present evidence "and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence...." (Aguilar, supra, 25 Cal.4th at 865-66.) [A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action "by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at 854.)

Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. "The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence--as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing" to support an essential element of his case. (Aguilar, supra, 25 Cal.4th at 855.)

Under the latter approach, a defendant's initial evidentiary showing may "consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 110.)

In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at Section 437c(p)(2).)

On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

DISCUSSION

Moving Party's Argument

Moving Defendants argue that they are entitled to summary judgment because Plaintiff cannot establish that Moving Defendants owned, possessed, controlled, maintained, or repaired the portion of the Subject Sidewalk where Plaintiff's incident occurred, or that Moving Defendants had actual or constructive notice of the alleged dangerous condition. Moving Defendants seek to negate the "duty" element of Plaintiff's Premises Liability and Negligence causes of action on the grounds that the City owns the Subject Sidewalk and there is no evidence that Moving Defendants owned, controlled, or maintained the Subject Sidewalk. In the alternative, Moving Defendants argue that the alleged sidewalk uplift constituted a trivial defect.

Opposing Party's Argument: Plaintiff

Plaintiff argues that her theory of Moving Defendants' liability is that they created the dangerous condition by allowing roots originating from a tree on Moving Defendants' Property to migrate beneath the Subject Sidewalk and cause it to uplift. Plaintiff argues that Moving Defendants have not met their burden because they have not submitted any evidence to show that their landscaping, vegetation, tree roots, maintenance practices, or use of the frontage did not cause or contribute to the dangerous condition, and ownership of the Subject Sidewalk is not dispositive of whether Moving Defendants owed a duty to Plaintiff. Next, Plaintiff argues that Moving Defendants have not provided evidence establishing the size of the Subject Sidewalk's uplift and thus have not met their burden regarding their trivial defect argument.

Opposing Party's Argument: The City

The City argues that triable issues of material fact exist as to whether Moving Defendants' trees and plants caused or contributed to the Subject Sidewalk's uplift where Plaintiff fell. The City states that its retained consulting arborist inspected the site of Plaintiff's incident and concluded that the unlevel portion of the Subject Sidewalk where Plaintiff's fall allegedly occurred was caused by or contributed from two different types of tree roots, with one tree located on the Liebman Defendants' Property and the other tree located on Moving Defendants' Property.

Reply Argument in Response to Plaintiff's Opposition

Moving Defendants argue that Plaintiff's argument that roots from a tree allegedly located on Moving Defendants' Property caused the Subject Sidewalk's uplift falls outside of the scope of the pleadings because Plaintiff's FAC does not identify a bottlebrush tree, allege that any tree roots migrated from Moving Defendants' Property, or allege that Moving Defendants negligently planted, maintained, pruned, or managed a tree whose roots allegedly damaged the Subject Sidewalk. Moving Defendants further argue that Plaintiff has not presented evidence establishing that Moving Defendants created the Subject Sidewalk's defect by planting the alleged tree, selecting its location, redirecting its roots, altering the Subject Sidewalk, or otherwise taking action to cause the Subject Sidewalk to become displaced.

Next, Moving Defendants argue that Plaintiff's expert's opinions fail to connect the particular tree allegedly controlled by Moving Defendants to the Subject Sidewalk's defect which allegedly caused Plaintiff's fall. Moving Defendants also argue that Plaintiff has not established that Moving Defendants had notice that a tree under their control was causing the Subject Sidewalk's defect.

Reply Argument in Response to the City's Opposition

Moving Defendants argue that the City's opposition is untimely. Next, Moving Defendants argue that the City's expert declaration relies upon conclusory opinions because the City's expert does not show that a particular tree on Moving Defendants' Property damaged the Subject Sidewalk.

Request for Judicial Notice

Moving Defendants request that the court take judicial notice of Plaintiff's first amended complaint. Pursuant to Evidence Code Section 452(d), the court may take judicial notice of its own records. Accordingly, Moving Defendants' request for judicial notice is GRANTED.

Evidentiary Objections

Moving Defendants' evidentiary objections Nos. 1, 5, 12, 14 to the Greeley Declaration are SUSTAINED as improper legal conclusions. Moving Defendants' evidentiary objections Nos. 8-9 to the Greeley Declaration are SUSTAINED due to lack of foundation. Moving Defendants' evidentiary objections Nos. 2-4, 6, 7, 10-11, 13, 15, 16, 17 to the Greeley Declaration are OVERRULED. Moving Defendants' evidentiary objection Nos. 18, 19 to Plaintiff's Exhibits A, B and C are OVERRULED. Moving Defendants' evidentiary objections Nos. 1-3 to the Green Declaration are OVERRULED.

Merits of the Motion

A. Grounds to Consider the City's Opposition

Here, both the City and Plaintiff filed opposition briefs. In Bean v. City of Thousand Oaks, the court held that a "codefendant with an adverse interest has standing to oppose a motion for summary judgment whether it has filed a cross-complaint or not." (Bean v. City of Thousand Oaks (2025), 114 Cal.App.5th 775, 779.) Accordingly, the court will consider the City's opposition, given that Moving Defendants' central argument in support of their motion is that the Subject Sidewalk was owned, maintained, and controlled by the City.

B. Premises Liability & Negligence

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) "The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence." (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) Given that the elements of Plaintiff's premises liability cause of action as the same as the elements of her negligence cause of action, the court consolidates its analysis of each here.

1. Duty: Ownership, Control, or Maintenance

"The applicable general principle is that the owner of the property, insofar as an invitee is concerned, is not an insurer of safety but must use reasonable care to keep his premises in a reasonably safe condition and give warning of latent or concealed peril. He is not liable for injury to an invitee resulting from a danger which was obvious or should have been observed in the exercise of reasonable care."' (Edwards v. Cal. Sports (1988) 206 Cal. App. 3d 1284, 1288.) A landowner has no right to control or manage property owned by another. (Hamilton v.

Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711.) Generally, a landowner does not owe a duty to maintain a public sidewalk abutting their property or to warn of a dangerous condition not created by the landowner. (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487-88.) "Under common law the owner or occupant of land abutting a public sidewalk had no duty to keep the sidewalk in a safe condition and was not liable to travelers injured as a result of defects in the sidewalk which were not created by the owner or occupant." (Selger v.

Steven Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1589-90.)

Moving Defendants argue that they had no duty to repair any defect of the Subject Sidewalk because the evidence shows that Moving Defendants did not own, maintain, or control the Subject Sidewalk. In support of the instant motion, Moving Defendants each submitted a declaration. Defendant Laurel K. Sutton ("Sutton") and Defendant Timothy J. Ashby ("Ashby") each declares that Moving Defendants have "never been notified to or maintained, altered, controlled, or owned any portion of the public sidewalk owned and maintained by the City of Los Angeles where Plaintiff alleges her injuries from the alleged trip and fall incident as this area is not on [Moving Defendants'] Property boundary lines." (Sutton Decl., P. 7; Ashby Decl., P. 7.)

Sutton and Ashby each further declare that Moving Defendants have "never installed, built, or constructed the sidewalk where the alleged Incident occurred." (Sutton Decl., P. 8; Ashby Decl., P. 8.)

Additionally, Moving Defendants offer the declaration of Gerardo Garciamontes ("Garciamontes"), a professional land surveyor who conducted a land survey regarding Moving Defendants' Property. (Garciamontes Decl., P.P. 2-3.) On March 18, 2025, a survey team visited Moving Defendants' Property to conduct a field survey of the site. (Garciamontes Decl., P. 5.) Garciamontes opines that based on his professional experience, skills, knowledge as a land surveyor, and the information collected through the field survey, "the sidewalk, curb, parkway, and/or roadway where Plaintiff allegedly tripped and fell as reflected in this action is on property dedicated to the City of Los Angeles, and is subject to the City of Los Angeles's right-of-way." (Garciamontes Decl., P.P. 7-8.)

Garciamontes declares that the "uplift in the sidewalk where Plaintiff allegedly tripped and fell as alleged in this action is definitively not on [Moving Defendants' Property] boundary line, and is owned and controlled solely by the City of Los Angeles." (Garciamontes Decl., P. 9.)

Moving Defendants also offer an excerpt from Sutton's deposition transcript, in which Sutton testified that Moving Defendants own and reside at the property located at 6549 West 77th Street. (Def. Appendix Exh. C, 7:17-20.) Sutton testified that Moving Defendants have never been notified by the City that Moving Defendants must repair the Subject Sidewalk and further testified that when Moving Defendants purchased their house, they received paperwork from the previous owners "showing that the City had made some repairs to the sidewalk in front of [Moving Defendants'] house." (Def. Appendix Exh. C, 8:24-9:7.)

The court finds that Moving Defendants' evidence is sufficient to enable them to satisfy their initial burden of showing that no triable issues of material fact exist as to whether Moving Defendants owed Plaintiff a duty. Next, the burden shifts to Plaintiff and the City to establish the existence of a triable issue of material fact.

A private landowner may be liable for injuries caused by tree roots that, with the tree owner's knowledge, cause a dangerous condition on an adjacent public sidewalk. (Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245.) The court in Moeller relied on Sprecher v. Adamson Companies, which established that in negligence cases involving the management of land, the relevant factors include whether the possessor of land acted as a reasonable person under all circumstances, the likelihood of injury to the plaintiff, the burden of reducing or avoiding the risk, the location of the land, and the possessor's degree of control over the risk-creating condition. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 360.)

A land possessor's lack of knowledge of a dangerous condition is no defense to liability because the land possessor has an affirmative duty to exercise ordinary care in maintaining the premises in a reasonably safe condition and must therefore inspect them. (Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 n.6.) Where abutting property owners have planted trees or maintained them, the abutting owners have a duty to maintain the trees in a safe condition. (Jones v. Deeter (1984) 152 Cal.App.3d 798, 805.)

Plaintiff's Evidence

Plaintiff argues that triable issues of material fact exist as to whether the uplift of the Subject Sidewalk where Plaintiff fell was caused by roots from a tree located on Moving Defendants' Property. In support, Plaintiff offers two images depicting the Subject Sidewalk from the adjacent street. (Pltf. Appendix Exhs. A, B.) Plaintiff also offers an excerpt from the deposition transcript of Defendant Bruce Liebman, who testified that he had previously noticed the Subject Sidewalk's uplift and noticed that the street view photographs depicted "some dead vegetation from the tree root or the grass covering that uplift." (Pltf. Appendix Exh. C, 8:8-10; 12:24-13:3.) The court notes that Plaintiff has not offered any testimony from either of Moving Defendants.

Next, Plaintiff offers the expert declaration of Kay Greeley ("Greeley"), a licensed civil engineer, landscape architect, and a Board Certified Master Arborist. (Greeley Decl., P. 2.) On July 1, 2026, Greeley inspected "the area located at or near 6541-6549 West 77th Street, Los Angeles...including the sidewalk, parkway, and landscaped areas between the homes of the Sutton and Ashby Defendants and the Liebman Defendants." (Greeley Decl., P. 7.) Greeley opines that based on her inspection, review of photographs, and her education and experience, "the mature lemon bottlebrush (Callistemon citrinus) tree adjacent to the [S]ubject [S]idewalk originates from [Moving Defendants' Property]." (Greeley Decl., P. 10.)

Greeley declares that mature lemon bottlebrush trees "predictably develop extensive lateral root systems extending well beyond the trunk and frequently beyond property boundaries in search of water, oxygen, and structural stability. Mature bottlebrush trees develop extensive structural and absorbing root systems. As the root diameter increases over time, roots exert upward pressure on overlying concrete slabs. This process produces the type of sidewalk displacement observed at the subject location." (Greeley Decl., P. 10.)

Greeley next opines that based on the location of the lemon bottlebrush tree, the "configuration of the sidewalk displacement, the relationship between the tree and the uplift, and the absence of another comparable source of root pressure immediately adjacent to the uplift," the roots of the lemon bottlebrush tree located on Moving Defendants' Property "caused the sidewalk uplift where Plaintiff fell. The observed displacement is consistent with classic root-induced sidewalk heave. The pattern of uplift is not consistent with normal concrete settlement or ordinary wear." (Greeley Decl., P. 12.)

Greeley declares that root-induced sidewalk uplifts are unique because they "produce abrupt vertical displacement, angular slab movement, irregular walking surfaces, and localized changes in elevation," and the uplift in the Subject Sidewalk presented these characteristics. (Greeley Decl., P. 12.) Greeley opines that the root growth from Moving Defendants' tree "presented a substantial tripping hazard for pedestrians using the sidewalk with reasonable care." (Greeley Decl., P. 12.) Greeley further opines that the "root-related uplift existed long before Plaintiff's incident," because root-induced sidewalk displacement "is a progressive condition that develops over an extended period." (Greeley Decl., P. 14.)

In reply, Moving Defendants argue that Plaintiff's theory of liability concerning the lemon bottlebrush tree on Moving Defendants' Property exceeds the scope of the pleadings, because Plaintiff alleges in her FAC that Moving Defendants "owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned the subject sidewalk." (FAC, P. 26.) "[T]he pleadings set the boundaries of the issues to be resolved at summary judgment." (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) "A 'plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]'" (Ibid., quoting Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.)

While the court agrees with Moving Defendants that the FAC makes no reference to vegetation or tree roots on Moving Defendants' Property contributing to or causing the Subject Sidewalk's uplift, the Plaintiff's theory of Moving Defendants' liability falls within the scope of the pleadings allegation that Plaintiff's failed to maintain their property. Therefore, the court finds that Plaintiff's evidence is sufficient to defeat Moving Defendants' instant motion.

The City's Evidence

The City similarly argues that triable issues of material fact exist as to whether Moving Defendants' trees or plants caused or contributed to the uplift in the Subject Sidewalk where Plaintiff's incident occurred. The court notes that within the City's answer to Plaintiff's original complaint, the City's second affirmative defense states that Plaintiff's damages were caused and contributed to by the negligence of other persons.

In support, the City offers the expert declaration of Ruben Green ("Green"), a certified arborist, registered consulting arborist, and a licensed California landscape contractor. (Green Decl., P. 1.) On May 6, 2025, Green inspected the site of Plaintiff's incident, in front of or near Moving Defendants' Property and the Liebman Defendants' Property. (Green Decl., P. 2.) Green opines that based on his inspection of the "uplifted sidewalk and nearby properties, as well as digging several inches into the ground on both properties," the Subject Sidewalk's uplift where Plaintiff's fall occurred "was caused or contributed from two different types of tree roots located on the two different properties [Moving Defendants' Property and the Liebman Defendants' Property]." (Green Decl., P. 3.)

Green further declares that "[o]ne set of tree roots are emanating from a callistemon tree growing in the yard of [Moving Defendants' Property]" and the "other set of roots are growing from [the Liebman Defendants'] magnolia tree." (Green Decl., P. 4.) Finally, Green declares that he "observed that the [S]ubject [S]idewalk did not have a parkway, and therefore [Green] did not see any trees owned or maintained by Defendant City that caused or contributed to the subject unlevel sidewalk." (Green Decl., P. 5.)

The court finds that the City's evidence falls within the scope of its answer and concludes that the City's additional evidence is sufficient to create a triable issue of material fact regarding whether tree roots originating from a tree located on Moving Defendants' Property caused a dangerous condition on the Subject Sidewalk.

2. Trivial Defect

"It is well established that a property owner is not liable for damages caused by a minor, trivial or insignificant defect in property. [Citation.] Courts have referred to this simple principle as the 'trivial defect defense,' although it is not an affirmative defense but rather an aspect of duty that plaintiff must plead and prove. The 'trivial defect defense' is available to private, nongovernmental landowners." (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.)

In determining whether a defect is trivial as a matter of law, the court first "reviews evidence regarding the type and size of the defect. (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 567-568.) If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors such as the weather, lighting, and visibility conditions at the time of the accident, the existence of debris or obstructions, and plaintiff's knowledge of the area."(Ibid.) "Where reasonable minds can reach only one conclusion--that there was no substantial risk of injury--the issue is a question of law, properly resolved by way of summary judgment." (Caloroso, supra, 122 Cal.App.4th at 929.)

Here, Moving Defendants argue that the Subject Sidewalk's uplift constituted a trivial defect, negating the "duty" element of Plaintiff's Premises Liability and Negligence causes of action. In support, Moving Defendants offer an excerpt from Plaintiff's deposition transcript, in which Plaintiff testified that her fall occurred at approximately 8:00 AM on a clear day. (Def. Appendix Exh. B, 27:18-20; 40:24-41:1.) Plaintiff also testified that she had no issues with her vision on the date of the incident. (Def. Appendix Exh. B, 40:11-13.)

Moving Defendants have presented no evidence regarding the size of the Subject Sidewalk's uplift, and thus the court finds that Moving Defendants cannot meet their burden of establishing that no triable issue of material fact exists as to whether the Subject Sidewalk's uplift constituted a trivial defect. Therefore, the court finds that Moving Defendants are not entitled to summary judgment on this basis. Accordingly, Moving Defendants' Motion for Summary Judgment is DENIED.

CONCLUSION

Based on the foregoing, Moving Defendants' Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice of ruling. | Home -->)" -->