SEAN MCTEARNEN, et al. v. CITY OF LOS ANGELES, et al.

(Van Nuys Courthouse East: Dept. I) September 10, 2026 DEPARTMENT I LAW AND MOTION RULINGS

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES SEAN MCTEARNEN, an individual, CINDY LIN, an individual, Plaintiffs, vs. CITY OF LOS ANGELES; COUNTY OF LOS ANGELES; STATE OF CALIFORNIA acting by and through the DEPARTMENT OF TRANSPORTATION (Cal Trans); JUSTIN KLENTNER, Trustee of the KLENTNER FAMILY TRUST; WESTERN BUILT CONSTRUCTION, INC.; ARSHIA ARCHITECTS, LTD; and DOES 1 through 200, inclusive, Defendants. |)))))))))))))))))))))) | CASE NO: 23STCV22853

[TENTATIVE] ORDER DENYING DEFENDANT CITY OF LOS ANGELES'S MOTION FOR SUMMARY JUDGMENT OR,) ALTERNATIELY, SUMMARY) ADJUDICATION, AGAINST PLAINTIFFS' COMPLAINT Dept. I DATE: SEPTEMBER 10, 2026 TIME: 8:30 A.M. COMPLAINT FILED: SEPTEMBER 21, 2023 TRIAL DATE: OCTOBER 19, 2026 | I. BACKGROUND On September 10, 2022, Plaintiff Sean McTearnen was lawfully riding his bicycle downhill at or near 6825 Mulholland Drive (the "Property") when he encountered "water, dirt, etc." on the surface of the roadway causing him to crash and suffer injury, "including catastrophic spinal injuries." (Comp., P. 24.)

Plaintiff Cindy Lin alleges that, because of the underlying incident, she "has been deprived of the love, companionship, comfort, affection, society, solace, [and] moral support of her husband" McTearnen. (Id. at P. 37.) On September 21, 2023, Plaintiffs Sean McTearnen ("McTearnen") and Cindy Lin ("Lin") (collectively "Plaintiffs") filed a complaint against the City of Los Angeles ("City"), County of Los Angeles ("County"), State of California, acting by and through the Department of Transportation ("Cal Trans"), Justin Klentner as trustee of the Klentner Family Trust ("Klentner'"), Western Built Construction, Inc. ("Western Built"), Arshia Architects, Ltd.] f Court ("Arshia Architects"), and Does 1 to 200 alleging three causes of action: (1) liability -- public entity; (2) negligence; and (3) loss of consortium.

On June 12, 2026, City of Los Angeles (City) filed the instant motion for summary judgment or, alternatively, summary adjudication on Plaintiffs' complaint. On August 21, 2026, Plaintiffs filed their opposition. On August 31, 2026, City filed its reply. II. LEGAL STANDARDS In reviewing a motion for summary judgment, the Court must apply a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has met his or her initial burden; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue. (Hinesley v.

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) "[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact." (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication

has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action." (Cal. Code of Civ. Proc. Sec. 437c(p)(2).) A moving defendant may satisfy the initial burden to show that one or more elements cannot be established by "presenting evidence that conclusively negates an element of the plaintiff's cause of action or by relying on the plaintiff's factually devoid discovery responses to show that the plaintiff does not possess, and cannot reasonably obtain, evidence to establish that element." (Schmidt v.

Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1119; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856 [It is insufficient for the defendant to merely point out the absence of evidence.]; Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant must present evidence... showing that plaintiff does not have and cannot reasonably obtain evidence to support his or her claim." (Ibid.) Unless and until a defendant meets that burden, the plaintiff has no burden to present controverting evidence. (Consumer Cause, Inc. v.

SmileCare (2001) 91 Cal.App.4th 454, 468 [There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor."].) If a defendant fails to meet that burden, summary judgment must be denied, even if the plaintiff fails to file an opposition and fails to proffer any evidence. On the other hand, if the defendant "has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." (CCP Sec. 437c(p)(2).)

The plaintiff may not merely rely on allegations or denials in its pleadings to show that a triable issue of material fact exists, but instead "shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action." (Ibid.) "If the plaintiff cannot do so, summary judgment should be granted." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) III. DISCUSSION Evidentiary Objections · Declaration of Kay Greeley: Overruled. · Declaration of Brad Avrit: Overruled.

Motion City of Los Angeles moves for summary judgment or summary adjudication on grounds of immunity based on weather conditions, assumption of risk immunity, recreational activity immunity, roadway design immunity, and denial of the existence of a dangerous

condition. Plaintiff in opposition challenges the application of any and all immunity positions and contends triable issues of material fact exist as to a dangerous condition on public property. City in reply denies any notice of the alleged dangerous condition and reiterates the immunity protections. The court begins with consideration of the many immunity arguments. Weather Immunity City maintains its immunity from liability due to the weather conditions at the time of the fall. This argument relies on an assumption that the source of water on the road occurred from prior evening rainfall.

Plaintiff in opposition cites to expert testimony cited in a separate motion, wherein an expert testified that any prior precipitation in no way produced enough runoff into the road to constitute any impact at the time of the fall. Plaintiffs also cite to their own expert declaration for the same conclusion. [Declaration of Brad Avrit, P. 19.] City in reply reiterates the weather condition argument. "Neither a public entity nor a public employee is liable for an injury caused by the effect on the use of streets and highways of weather conditions as such.

Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such effect if it would not be reasonably apparent to, and would not be anticipated by, a person exercising due care. For the purpose of this section, the effect on the use of streets and highways of weather conditions includes the effect of fog, wind, rain, flood, ice or snow but does not include physical damage to or deterioration of streets and highways resulting from weather conditions." (Gov.

Code, Sec. 831.) City exclusively relies on the testimony of a co-rider's observations and assumptions without any other objective evidence regarding precipitation as the source of the runoff. [Compendium of Evidence, Ex 11: Deposition of Mossimo Mioni. 53:13-54:23.] City also represents no prior reports of bicycle accidents in the subject area, but the separate statement lacks any actual cited evidence to this position, and the Court finds no other apparent source for this representation. The Court therefore declines to consider the position barring a showing via admissible evidence somewhere in the motion, even if not presented in the separate statement. (San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.) Even assuming the truthfulness of this uncited representation that the sole source of water was weather related, City adds an additional position of an open and obvious condition or a situation created by third party conduct. Like the weather position, the motion lacks support for this representation, and the Court declines to assume Plaintiff on a bicycle riding downhill on Mulholland Drive was aware of said open and obvious or third party created condition in time to reasonably adjust.

The nexus between the positions therefore remains improperly assumptive and too attenuated for a finding of weather immunity and any other potential positions wedged into this opening argument. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810; Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1385.) City therefore fails to shift the burden given the lack of any evidence and legally supported positions.

Even if City shifted the burden, triable issues of material fact exist as to the actual source of the water and debris and the causation to the fall. [Avrit Decl.] Recreational and Assumption of Risk Immunity City next challenges the action on grounds of the assumption of risk and recreational activity defense. Plaintiff riding a bicycle on a public road in and of itself constitutes a knowingly potentially dangerous action to which an injured Plaintiff cannot seek relief from a government entity for injuries as a result of engaging in the activity (e.g. primary assumption of the risk). (See Jimenez v.

Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601.) City relies on the same evidence as the weather related immunity position: that is, road conditions, including wet roads from a prior night of rainfall, constitutes an inherent part of the risk within the activity. Plaintiff in opposition challenges any reliance on the assumption of risk doctrine to a public entity. (Loeb v. County of San Diego (2019) 43 Cal.App.5th 421, 436 ["Civil Code '[s]ection 846 does not apply to public entities' "].)

The section only applies to private landowners not city streets. City presents no apparent follow-up in reply. ". . . (a) An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section. (b) A "recreational purpose," as used in this section, includes activities such as ... riding, including ... all other types of vehicular riding ... " (Civ.

Code, Sec. 846.) As established in the opposition, the primary assumption of risk defense is not applicable to government entities. (Loeb v. County of San Diego, supra, 43 Cal.App.5th at p. 436.) City therefore fails to shift the burden on this issue. Permitted Activity Immunity City next relies on the permitted activities immunity statute. City depends on a finding that the alleged dangerous condition occurred during certain construction activities approved by the City permit. More specifically, excess run off from the inadequate drainage system on the City permitted project provides for complete immunity.

Plaintiff opposes on the grounds that Plaintiff in no way asserts the fall was caused by permitted construction activity, but by the unaddressed dangerous condition on the subject City street. City in reply presents no apparent follow-up position. "A public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked." (Gov.

Code, Sec. 818.4.) "Except as otherwise

provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. Gov." (Code, Sec. 820.2.) "A public employee is not liable for an injury caused by his issuance, denial, suspension or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order, or similar authorization where he is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked." (Gov.

Code, Sec. 821.2.) City's evidence again cites to the co-rider deposition, with additional support from expert witnesses Rock Miller and Ali Nahass. [Compendium of Exhibits, Ex. 13 & 15.] The declaration of Miller establishes the existence of the permit and scope of construction activity, including identification of intended run off direction. [Miller Decl., P.P. 13-20.] Nahass confirms the existence of the plan. [Nahass Decl., P.P. 9-10.] The pleadings frame the issues for motions, "since it is those allegations to which the motion must respond. (Citation.)" (Scolinos v.

Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) The motion, declaration and deposition testimony cited to by City fails to link the permitted activity with the claims in the complaint framing the issue as a City neglected dangerous condition caused by the City failing to ensure proper drainage and prevent run off into a public roadway. " None of the cases relied upon by respondent is controlling, since none involved a situation where the government's issuance of a permit created a dangerous condition of the government's own property as defined in section 830, subdivision (c)." (Hill v.

People ex rel. Dept. of Transportation (1979) 91 Cal.App.3d 426, 431.) City again fails to shift the burden. Even if City shifted the burden, triable issues of material fact exist regarding any nexus between the permit and the alleged dangerous condition. Questions regarding the scope of the permit, drainage direction and water volume, and protections for the acknowledged bicycle traffic remain at the center of any consideration for immunity and cannot be resolved as a matter of law. [Declaration of Joseph P.

Piery, Ex 5: Deposition of Raul Rocha; Ex. 37: Deposition of Michael Kouyoumdijian; Ex. 40: Declaration of Guy Stivers.] Dangerous Condition City presents a broader challenge to the action based on a denial that the water and debris runoff constituted a dangerous condition. This argument relies on the lack of any evidence of a "physical defect" with the roadway itself, and lack of any foreseeable danger when a user encounters the road in its ordinary and intended use. Plaintiff in opposition maintains irrigation system water and debris runoff originating from the permitted private property project onto the City controlled public roadway created a foreseeable dangerous condition.

Plaintiff disputes any position of a minor or insignificant condition due to recurring water and debris. Plaintiff notes City attempted to address the runoff during various visits and was therefore aware of the condition. Los Angeles Municipal Code section 62.80 even prohibits drainage of water onto a public street. City in reply leads with the denial of any dangerous condition based on the lack of prior notice. " (a) 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. "(b) 'Protect against' includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition. "(c) 'Property of a public entity' and 'public property' mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity." (Gov.

Code, Sec. 830.) "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used." (Gov.

Code, Sec. 830.2.) "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Govt.

Code, Sec. 835.) City again cites to the unsupported lack of any notice of prior incidents. The court again declines to consider this point. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 717.) Even if presented, prior reports for the last several decades in no way address the actual relied upon claim that the landscape improvements to the private property beginning in 2022 actually caused or contributed to the dangerous condition. (Fuller v. State of California (1975) 51 Cal.App.3d 926, 939.) Again, the complaint frames the issues.

City therefore fails to shift the burden on this position. Plaintiff

additionally denies any potential defense of an open and obvious condition. While no such argument appears in this section of the motion, the court addresses the standard. "Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. (Citation.) However, this is not true in all cases. '[I]t is foreseeable that even an obvious danger may cause injury, if the practical necessity of encountering the danger, when weighed against the apparent risk involved, is such that under the circumstances, a person might choose to encounter the danger.

The foreseeability of injury, in turn, when considered along with various other policy considerations such as the extent of the burden to the defendant and consequences to the community of imposing a duty to remedy such danger [citation] may lead to the legal conclusion that the defendant' owed a duty of due care to the person injured." (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) "[B]ecause the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which should be obvious to him in the ordinary use of his [or her] senses." (Danieley v.

Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.) The observation of co-rider Mioni in no way renders the circumstances sufficient to establish as a matter of law that the runoff constituted a trivial condition as a matter of law. (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) The directed flow of water and debris onto the road establishes that triable issues of material fact exist as to the condition constituting a greater than trivial or obvious standard. The unchallenged purported violation of the City's own Municipal Code section 62.80 further excludes any decision as a matter of law.

Furthermore, as referenced in the deposition of Rocha above, the designated area also included a designated bicycle lane. Additional triable issues of material fact exist as to a dangerous condition for a bicyclist sharing the road with vehicles in a designated bike lane and potentially encountering the subject conditions. [Avrit Decl., P.P. 22-28; Declaration of Kay Greeley; Declaration of Dale Dunlap.] (See Curreri v. City and County of San Francisco (1968) 262 Cal.App.2d 603, 612.) Design Immunity The City's penultimate and most substantive position relies on design immunity.

City relies on the circumstances of the accident, and the existence of the unchanged roadway as the basis of the defense. Plaintiff in opposition counters that the condition constitutes a "concealed trap," thereby vitiating any application of design immunity. Plaintiff also cites to the changes in adjacent property caused by the 2022 permitted activity, to which City cannot rely based on a 1939 drafted plan. City in reply offers no specific, apparent follow-up on this position. "Neither a public entity nor a public employee is liable under this chapter for an injury caused

by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.

Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee.

In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning." (Gov.

Code, Sec. 830.6.) "A public entity claiming design immunity must show the existence of three elements, '"(1) [a] causal relationship between the plan and the accident; (2) discretionary approval of the plan prior to construction; [and] (3) substantial evidence supporting the reasonableness of the design."'" (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939.) City seeks to frame the issue as the roadway design itself causing the accident, and reliance on the continuing existence of the roadway following construction based on the 1939 approved plan.

The reasonableness of the roadway plan remains unchallenged, but also irrelevant to the actual claim: the 2022 permitted landscape improvements caused the accident, not the design of the specific section of Mulholland Drive. (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187; Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525; Moritz v. City of Santa Clara (1970) 8 Cal.App.3d 573, 577.) City therefore fails to shift the burden due as it argument in this regard fails to address the actual basis of the claim, and its attempt to reframe the issue to fit its position. [See Miller Decl.]

Plaintiff otherwise raises triable issues of material fact regarding the creation of the dangerous condition separate, independent, and decoupled from the 1939 approved roadway conditions. Any consideration of the permit approved landscaping plan on the adjacent property, including lack of any warning signs, cannot be resolved as a matter of law. [Stivers Decl.] (Tansavatdi v. City of Rancho Palos Verdes (2023) 14

Cal.5th 639, 660.) Notice Finally, City challenges the complaint on the basis of lack of notice of any dangerous condition. Plaintiff challenges the motion on the grounds that a lack of any history of prior reports will not establish a lack of liability, and any prior lack of notice insufficiently reflects the relevant period following the 2022 permitted landscaping activities. City in reply denies notice, maintains sufficient inspection activities, and that such runoff has been over the subject section of the roadway for 80 plus years. " A public entity has 'actual notice of a dangerous condition' if it has (1) 'actual knowledge of the existence of the condition' and (2) 'knew or should have known of its dangerous character.' (Sec. 835.2, subd. (a).)

To establish actual notice, '[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question'; 'it is not enough to show that the [public entity's] employees had a general knowledge' that the condition can sometimes occur." (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.) Again, the argument that water flowed across this section of Mulholland Drive for over 80 years also lacks any evidentiary basis. Even accepting these positions, City also fails to acknowledge their own employee inspector testimony regarding the building construction occurring and acknowledgment of the bike lane requirements. [Rocha Depo.]

Again, accepting the City represented premise, City lacks any acknowledgment as to the impacts to the road from the 2022 landscape project or its own Municipal Code section regarding excess water runoff. Denial of notice based on an unsupported assumptions of lack of even constructive notice in no way shifts the burden of proof establishing a lack of notice of the previously disputed dangerous condition. " But the city cites no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of nondangerousness absent other evidence." (Lane v.

City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.) Even assuming City shifted the burden, triable issues of material fact exist as to sufficient notice given the inspections. [Rocha Depo., Avrit Decl., Keeley Decl.; Kouyoumdijian Depo; Deposition of Chris Demonbrun; See Declaration of David Campos.] IV. CONCLUSION Based on the foregoing, City of Los Angeles's motion for summary judgment and summary adjudication on Plaintiff's complaint is DENIED. // // // City of Los Angeles is ordered to give notice.

Dated: September 10, 2026 __________________________________ Hon.

Karen Moskowitz Judge of the Superior Court | Home -->)" -->