Judge: Anne Hwang, Case: 20STCV39408, Date: 2024-05-23 Tentative Ruling

Case Number: 20STCV39408    Hearing Date: May 23, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Maria Raptis

4.      Declaration of Steve Scott

5.      Declaration of Christian Engelmann

6.      Declaration of Michelle L. Han

7.      Declaration of Luis Monterrubio

8.      Defendant’s Compendium of Exhibits in Support

OPPOSITION PAPERS

1.      Plaintiff’s Opposition; Memorandum of Points and Authorities

2.      Plaintiff’s Separate Statement of Disputed Material Facts in Opposition

3.      Declaration of Kevin M. Davis

4.      Declaration of Kay Greeley

5.      Compendium of Exhibits in Support

REPLY PAPERS

1.      Reply

2.      Reply to Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts

3.      Objections to Plaintiff’s Evidence

4.      Declaration of Michelle L. Han in Support

BACKGROUND

            On October 13, 2020, Plaintiff Edward Lopez (“Plaintiff”) filed a complaint against Defendants State of California, California Highway Patrol, the California Department of Transportation, and Does 1 to 100 for negligence and dangerous condition of public property under Government Code section 835. Plaintiff alleges that on March 26, 2020, he was driving on the northbound Interstate 5 freeway, near the Glendale Boulevard ramp exit, when his vehicle crashed into a tree, causing injuries. (Complaint ¶ 10.)

            Plaintiff alleges that the dangerous condition constituted a broken tree on the roadway and the failure “to create the proper width and number of lanes of the highway at this location, allowing the paved portion of the shoulder to be an insufficient width, and to allow and cause the shoulder just off the paved area to contain collision hazards including a tree or trees.” (Complaint ¶¶ 12, 19.)

            Defendant the People of the State of California, acting by and through the Department of Transportation (erroneously sued as “State of California” and “The California Department of Transportation”) (“Defendant”) now moves for summary judgment arguing the following: (1) it did not have actual or constructive notice of the alleged dangerous condition; (2) Interstate 5 was not a “dangerous condition” under Government Code section 830.2; and (3) Defendant is entitled to the design immunity provision of Government Code section 830.6, which provides an absolute defense.

            Plaintiff opposes and Defendant replies.

EVIDENTIARY OBJECTIONS

Even though Plaintiff asserted some evidentiary objections in his separate statement, he did not file the objections in a separate document pursuant to California Rules of Court, rule 3.1354. The Court therefore declines to rule on the objections.

The Court declines to rule on Defendant’s objections as they have no effect on the ruling herein.  

LEGAL STANDARD

            “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and 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. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

            “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action.” (Aguilar, supra, 25 Cal.4th at 855.) Alternatively, “[t]he defendant may […] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id.)¿This must be supported with evidence “including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Id. at 854–55 [quoting Code Civ. Proc. § 437c(b)].)

            “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

DISCUSSION

Government Code section 835 states:¿“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 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.”¿¿¿

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)

A. Actual or Constructive Notice

A public entity has actual notice of a dangerous condition if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  (Gov. Code § 835.2(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. [Citation.]”  (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.) 

A public entity has constructive notice of a dangerous condition only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.  (Gov. Code § 835.2 (b).)  On the issue of due care, admissible evidence includes, but is not limited to evidence of whether the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate or whether the public entity maintained and operated an inspection system with due care and did not discover the condition.  (Gov. Code § 835.2 (b)(1)-(2).)  “Whether the dangerous condition was obvious and whether it existed for a sufficient period of time are threshold elements to establish a claim of constructive notice.”  (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.)  “Where the plaintiff fails to present direct or circumstantial evidence as to either element, his claim is deficient as a matter of law.”  (Ibid.)      

Although the conspicuousness of the condition and the length of time it existed are normally questions of fact for resolution by the jury, they may be resolved as matter of law where the plaintiff's evidence as to either element is legally insufficient. (Kotronakis v. City & County of San Francisco (1961) 192 Cal.App.2d 624, 629 [jury verdict for plaintiff reversed where there was no evidence the puddle of vomit in which plaintiff slipped had been on the sidewalk longer than overnight]; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318-319, 321 [summary judgment proper where plaintiff failed to provide evidence to rebut the City's showing the condition was not obvious].)  

Here, it is undisputed that on March 26, 2020, Plaintiff was traveling northbound on State Route 5 and had just passed the Hyperion Ave overpass when a tree from the northbound State Route 5 right shoulder fell on his moving vehicle. (UMF 1–2.)

On the issue of notice, Defendant sets forth the following additional facts:

-          The State has no records of any complaints or concerns from the public or public officials about the health or condition of any of the trees on the northbound State Route 5 at or near the Glendale Blvd. exit in Los Angeles, California for one year before March 26, 2020. (UMF 7.)

-          In the one year prior to plaintiff’s injury, the State had not received any reports, complaints, or correspondence from the public or public officials regarding any tree falling accidents on the northbound State Route 5 at or near the Glendale exit in Los Angeles, California. (UMF 8.)

-          The State maintains a database of maintenance records in its Integrated Maintenance Management System (“IMMS”), which reflects all inspection and maintenance work conducted on its streets and highways, including at the subject location. (UMF 9.)

-          Per the Maintenance Manual and the Maintenance Policy Directives, a specialized level of tree inspection, an Annual Tree Inspection, was performed at the subject location by Tree Risk Assessment Qualified (“TRAQ”) personnel on September 23, 2019. (UMF 10.)

-          TRAQ personnel are those who have passed Module 7 of the Tree Safety and Aerial Rescue Guide, titled “Tree Risk Assessment,” prior to performing an Annual Tree Inspection. Module 7 addresses tree risk assessment strategies, descriptions, identification, and signs of tree conditions that may predispose a tree to structural failure. (UMF 11.)

-          Annual Tree Inspections identify tree conditions that may predispose a tree to structural failure. (UMF 12.)

-          Had there been any condition that could predispose a tree to structural failure (such as decay, leaners, codominant stems, multiple branches, hangers, cracks, splits, or dead trees and branches) at or near the subject location, the specific tree condition would have been noted and addressed as part of the 2019/2020 Annual Tree Inspection. (UMF 13.)

-          The September 23, 2019 ATI did not report any deficiencies at the incident location. (UMF 14.)

-          Maintenance personnel conducted a supervisor area inspection and maintenance work for areas of the roadway that included the subject location in the approximately two weeks before the subject accident. (UMF 15.)

-          Supervisor area inspections include a visual inspection of the roadway, including roadside trees and vegetation along transportation facility rights of way and at State facilities. (UMF 16.)

-          The IMMS Work Order report reflects that on September 10, 2019 and September 11, 2019, a maintenance crew removed dead trees at the southbound State Route 5 Glendale onramp at postmile 23.6, which is directly across from where the incident at issue occurred. (UMF 17.)

-          If maintenance personnel noticed deficiencies that needed to be addressed during the performance of their maintenance duties, a Work Order would be created in IMMS, maintenance personnel would respond to the area, inspect the location, perform whatever maintenance was necessary, and an IMMS log created for the response. (UMF 19.)

-          Had notice of any condition that could predispose a tree to structural failure for any of the trees on State Route 5 at the accident location, it would have been reflected in the IMMS Work Order Report and/or the 2019/2020 Annual Tree Inspection Work Order. (UMF 20.)

-          The IMMS Work Order Report and/or the 2019/2020 Annual Tree Inspection indicate that the State was not advised of any unresolved issue with the health or condition of any of the trees on State Route 5 at the accident location in the one year prior to the subject accident. (UMF 21.)

-          There was no notification from motorists, local agencies, local entities, the California Highway Patrol, or anyone else that any tree on State Route 5 at the accident location was in danger of potential structural failure in the one year prior to the subject accident. (UMF 24.)

Based on the above, Defendant has met its initial burden to show that it had no actual or constructive notice that the tree would fall. The IMMS Work Order Report shows that the area was inspected on September 23, 2019 and no issues were reported. (Def. Exh. L, p. 7–8.) This occurred roughly six months before the tree fell on March 26, 2020. There was also no report of the tree from a maintenance team in September 2019, which was removing dead trees from the opposite side of the freeway. Defendant also sets forth evidence that it received no complaint from the public or public officials about the subject tree. As a result, the burden shifts to Plaintiff to establish a triable issue of fact, specifically regarding the conspicuousness of the tree’s condition and the length of time it existed.

Plaintiff sets forth the declaration of Kay Greeley, a Master Arborist, who opined that based on a Google Maps image of the alleged tree that fell, it posed a high risk of failure. (Pl. Exh. 5, Greeney Decl. ¶ 7–8; Exh. 6.) However, in reply, Defendant argues that the tree Ms. Greeney identified in the Google Maps image is not the subject tree that fell. The Court agrees. Plaintiff set forth photographs of the fallen tree on the date of the incident. Exhibit 4, photograph 15.2, shows that the subject tree was positioned near the top of the hill. To the right, the photograph shows the tree that Ms. Greeley analyzed in her declaration, which is positioned lower down the hill, and did not fall. Therefore, Plaintiff fails to show the existence of a triable issue of fact that the subject tree was in an obvious dangerous condition from the freeway.

Plaintiff also argues that Defendant’s tree inspectors should have inspected the trees by foot, instead of driving by. He argues that driving by the trees violated Defendant’s TRAQ 7 Module requirements. (Opp., 8.) Plaintiff also argues that the Qualified Tree Risk Assessors who checked the subject area were not properly trained since everyone passes Module 7—which instructs on how to identify at-risk trees. (Pl. Exh. 1, Scott Depo. 43:13–44:2.) However, even assuming that the TRAQ personnel were not qualified, Plaintiff fails to set forth evidence that the tree was in an obviously dangerous condition for a certain amount of time that Defendant, in exercising due care, should have become aware of it and taken corrective action. (See Heskel, supra, 227 Cal.App.4th at 321.)

Lastly, Plaintiff argues the entry for September 23, 2019, for postmile 23.6 where the accident happened indicates that Caltrans was going to address a defective eucalyptus tree “ASAP” and never stated what corrective action, if any was taken. (See Pl. Resp. UMF 10.) Plaintiff does not state exactly where this entry is found in exhibit L. However, in Plaintiff’s response to UMF 14, he quotes an entry from the IMMS Work Order Report that refers to a eucalyptus tree near the Los Feliz Boulevard off ramp that needs trimming. (Pl. Resp. UMF 14.) Nevertheless, reviewing exhibit L, there appear to be no entries referencing a eucalyptus near the Glendale exit or postmile 23.6 where the incident occurred. Plaintiff fails to set forth further evidence that would support an inference that the tree referenced is the subject tree. 

As a result, Plaintiff fails to meet his burden to establish a triable issue of fact regarding actual or constructive notice.

B. No Evidence that Defendant’s Employee Created Dangerous Condition

            Defendant provides written discovery responses by Plaintiff. In response to Special Interrogatory numbers 17 and 18, regarding notice, Plaintiff provides no argument that Defendant’s employee caused the tree to fall. (Def. Exh. D.) Additionally, the opposition does not assert that Defendant’s employee caused the dangerous condition, but rather should have discovered it during an inspection. As a result, Defendant meets its burden to show that Plaintiff has no evidence that its employee created the dangerous condition.

            Plaintiff offers no facts in his separate statement showing that an employee created the condition in the tree, and therefore fails to meet his burden.

            C. Dangerous Condition of Freeway

Defendant argues that the design of the freeway itself was not in a dangerous condition. Plaintiff alleged Defendant failed “to create the proper width and number of lanes of the highway at this location, allowing the paved portion of the shoulder to be an insufficient width, and to allow and cause the shoulder just off the paved area to contain collision hazards including a tree or trees.” (Complaint ¶ 19.) As a result, it was necessary to address this allegation in the motion. (Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1018 [“In a motion for summary judgment, the issues are framed by the pleadings.”].) Defendant sets forth evidence that Plaintiff failed to provide evidence that it failed to create the proper width and number of lanes on the freeway. (UMF 26.) Plaintiff concedes it is not alleging that Interstate 5 was defective; instead, they argue the tree’s placement and fact that it was apparent that it would fall constitutes the dangerous condition. (See Opp., 8; Pl. Resp. UMF 30 [“Common sense tells you that this design has no impact on the tree that ultimately fell over.”].) Therefore, Defendant meets its burden to show no triable issue of fact regarding the design of the freeway. Plaintiff sets forth no evidence establishing that the lanes or width of the freeway was in a dangerous condition and thus fails to meet his burden.

Therefore, the motion for summary judgment is granted. As a result, the Court declines to address Defendant’s argument surrounding immunity under Government Code section 830.6.  

CONCLUSION AND ORDER

Therefore, Defendant’s motion for Summary Judgment is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.