Judge: Carolyn M. Caietti, Case: 37-2020-00023766-CU-PO-CTL, Date: 2024-03-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00023766-CU-PO-CTL CARNEY VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 10/14/2022

The Court received courtesy copies of Plaintiff's two Separate Statements and the Declarations of Thomas Leary, Jeff Arkulary and Kay Greeley, but these documents are not on file. Plaintiff is ordered to file these documents prior to the hearing so the Court can ensure a complete record.

The Court will hear from the parties on Defendant City of San Diego's Motion for Summary Judgment or Summary Adjudication as indicated below.

Defendants San Diego Family Housing, LLC and Lincoln Military Property Management, LP's Motion for Summary Judgment is DENIED.

Cross-Defendant San Diego Family Housing, LLC and Lincoln Military Property Management, LP's Motion for Summary Adjudication is DENIED.

Background On September 21, 2019, Plaintiff walked on a sidewalk near 8656 Iverson Street when she tripped and fell, sustaining injuries. The sidewalk surrounds a public park against San Diego Family Housing LLC and Lincoln Property Management (collectively SDFH/Lincoln). Plaintiff filed this lawsuit against the City and SDFH, asserting causes of action for: (1) dangerous condition of public property; (2) nuisance; and (3) negligence (against SDFH/Lincoln only). City filed a cross-complaint against SDFH, asserting: (1) breach of contract; (2) express and/or statutory indemnity; (3) equitable indemnity; and (4) contribution.

(ROA 306.) Statement of the Law Summary judgment is appropriate '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.' (C.C.P., § 437c(c).) To prevail on the motion, a defendant must demonstrate the plaintiff's cause of action has no merit. This requirement can be satisfied by showing either one or more elements of the cause of action cannot be established or that a complete defense exists. (C.C.P., § 437c(o), (p); Bardin v. Lockheed Aeronautical Systems Co. (1999) 70 Cal.App.4th 494, 499-500.) In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Calendar No.: Event ID:  TENTATIVE RULINGS

3004261  47 CASE NUMBER: CASE TITLE:  CARNEY VS CITY OF SAN DIEGO [IMAGED]  37-2020-00023766-CU-PO-CTL Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) A party may move for summary adjudication as to one or more causes of action within an action if the party contends the cause of action has no merit. (C.C.P., § 437c(f)(1).) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action. (Ibid.) Summary adjudication motions are 'procedurally identical' to summary judgment motions. (Serri, supra, 226 Cal.App.4th at p. 859.) City's Motion for Summary Judgment or Adjudication on the Complaint City's reply objections to the Declaration of Jeff Arkulary (ROA 378) are overruled as to Nos. 1 and 2 and sustained as to Nos. 3 and 4.

City's reply objections to the Declaration of Kay Greely (ROA 377) are overruled.

Dangerous Condition As explained in Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1105: 'In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect-in this case, on the depth or height of the walkway depression or elevation-although the defect's size 'may be one of the most relevant factors' to the court's decision.

(Citation.) The court should consider other circumstances which might have rendered the defect a dangerous condition at the time of the accident. (Citation.) [¶] These other circumstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrian's view of the defect, the plaintiff's knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. (Citations.) In sum, '[a] court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.' (Citation.)' Here, triable issues of material fact exist as to whether the property was in a dangerous condition at the time of the injury. First, there is a dispute over the height of the sidewalk uplift. City maintains it was one-inch. Comparatively, Plaintiff put forth evidence that the sidewalk where Plaintiff tripped and fell was uplifted by 1.5 to 1.8 inches (albeit with a picture and measurement taken years after Plaintiff's trip and fall). (See, Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 114, rev. denied (July 26, 2023) (finding 1 3/4-inch height differential weighed heavily against finding the sidewalk condition trivial as a matter of law and nearly double the one-inch threshold courts grow reluctant to take to the jury).) There is evidence Plaintiff was not walking on the side of the sidewalk nearest the tree where the sidewalk measures one-inch, but rather, in the middle of the sidewalk where the uplift increases. (AMF 10.) Even if the Court assumes only a one-inch uplift, other aggravating factors exist. A close review of PCOE 256 and 258, as City requests, shows debris at the sidewalk's uplift and jagged or broken concrete. It does not appear to be a clean uplift. Further, there is evidence of shadowing and camouflaging from the 'canopy' of Tipu trees (AMF 10.) Plaintiff testified, 'It was – there's quite the canopy of trees. And it was a sunny day. So the sidewalk, it was like dark sun coming through. The only way I can describe it, it's like camouflage, all the light. But, no, I – I didn't see anything.' (PCOE 414.) There are also sidewalk uplifts in the immediate area (AMF 13) and in the park perimeter sidewalk. (E.g., Calendar No.: Event ID:  TENTATIVE RULINGS

3004261  47 CASE NUMBER: CASE TITLE:  CARNEY VS CITY OF SAN DIEGO [IMAGED]  37-2020-00023766-CU-PO-CTL PCOE 300-355 & 481; Stack, supra, at p. 115 ['Although only the first defect physically tripped plaintiff, the evidence presented at trial supports a broader view of the sidewalk condition that plaintiff encountered.'].) In addition, the evidence shows Plaintiff was not familiar with the area as it was her first time walking on this sidewalk. (PCOE 413; Huckey, supra, 37 Cal.App.5th at p. 1105 (a plaintiff's familiarly with or knowledge of the area is a relevant factor in the analysis of the dangerousness of a condition).) Thus, a reasonable jury could conclude the size and nature of the sidewalk defect in this case – a one-inch height elevation (if not more) spanning the width of the sidewalk, covered in shadows at the time of the incident and Plaintiff's unfamiliarity with the area, posed a substantial risk of injury.

Construing the evidence in the light most favorable to Plaintiff, disputed facts exist.

Notice The Court will hear from the parties regarding notice.

A public entity must have actual or constructive notice of the dangerous condition for a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835(b).) For actual notice (Gov. Code, § 835.2(a)), Plaintiff maintains SDFH complained of more than 13 uplifts in the park perimeter sidewalk on several occasions in 2018 and, in June 2019, reported the sidewalk uplifting to the City's Get It Done website. But a close review of the evidence cited in support does not show the property management company actually reported the sidewalk deflections to the City as indicated in its notes. The property management's district manager also could not recall any Get It Done reports during or prior to September 2019.

Notwithstanding, Plaintiff also argues City requires its employees to scan the horizon for any potentially unsafe conditions and City employees were in the 'area' performing maintenance and inspections months before Plaintiff's injury. (PCOE 406-408; 248-251.) City does not reply to this argument. The Court will hear from the parties.

Notice can also be established by constructive notice. (Gov. Code, § 835.2(b); Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 317.) Here, Plaintiff's argument focuses on the City's knowledge about the type and number of trees planted next to the sidewalk and that 'City had at least constructive notice that roots from the Tipu trees would cause sidewalk uplifts and was required to maintain and follow an inspection regime.' The Court will hear from the parties.

Nuisance City argues Plaintiff's nuisance claim fails because the matter is one of dangerous condition of public property predicated on a trivial defect, relying on Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 384. But Longfellow has been characterized as an 'anomalous decision.' In Paterno v. State of California (1999) 74 Cal.App.4th 68, 103–104, the court found Longfellow's conclusion that if a count may be stated for a dangerous condition of public property, the same facts cannot be used to allege a nuisance count, did 'not follow logically.' Further, a given set of facts 'fortuitously supports liability on two legal theories is not a principled reason to deny a party the right to pursue each theory.' (Paterno, supra, citing Pfleger v. Superior Court (1985) 172 Cal.App.3d 421, 429–432 [criticizing Longfellow].) Thus, based on the parties' argument and analysis, City has not met its burden.

SDFH/Lincoln's Motion for Summary Judgment on the Complaint SDFH/Lincoln joined in the City's objections to the Declarations of Kay Greely and Jeff Arkulary as set forth above (ROA 398) and the same rulings apply.

As a threshold matter, SDFH/Lincoln did not alternatively ask for summary adjudication. (ROA 348.) This precludes summary adjudication of any issues. (Cal. Rules of Ct., rule 3.1350(b); see, Gonzales v. Calendar No.: Event ID:  TENTATIVE RULINGS

3004261  47 CASE NUMBER: CASE TITLE:  CARNEY VS CITY OF SAN DIEGO [IMAGED]  37-2020-00023766-CU-PO-CTL Superior Court (1987) 189 Cal.App.3d 1542, 1545-46 ['The language in [C.C.P., § 437c(f)] makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.'].) As discussed above, the motion must 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.' (C.C.P., § 437c(c) (emphasis added).) Here, SDFH/Lincoln did not show it is entitled to a judgment.

SDFH/Lincoln first argues the condition was trivial. They do not differentiate between the first (dangerous condition of property) or third (negligence) causes of action. SDFH/Lincoln principally relies on dangerous condition of public property cases. For the reasons stated above, disputed facts exist as to whether the defect was trivial. The evidence that creates this dispute includes, but is not limited to: photographs of the sidewalk at issue, measurements showing uplift of 1-inch and 1.5 to 1.8 inches, Plaintiff's deposition testimony about the tree shadowing and her unfamiliarity with the area and the other uplifts on the sidewalk. (E.g., PCOE 256, 258, 300-355, 413-414.) Next, SDFH/Lincoln argues it did not have notice of the condition because it was not dangerous. For the reasons discussed above, disputed facts exist as to whether the condition was not dangerous or was trivial. Disputed facts also exist on whether SDFH/Lincoln had notice. (Plaintiff's AMF 9, 12-14.) The evidence that creates this dispute includes SDFH/Lincoln's own record keeping of the sidewalk condition. (PCOE Ex. 19-22.) SDFH/Lincoln then argues it does not own and cannot maintain the sidewalk without City's permission.

In doing so, they ignore case law that an abutting property owner can be held liable if the dangerous condition in a sidewalk had been caused by the roots of a tree owned by the landowner with knowledge of the condition. (Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245 (reversing a grant of summary judgment and holding an abutting property owner could be held liable if the dangerous condition in a sidewalk had been caused by the roots of a tree owned by that landowner with his knowledge of the condition); Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1334.) SDFH/Lincoln also does not reply to Plaintiff's assessment of these cases in reply. Here, disputed facts exist as to whether SDFH/Lincoln maintained the trees and whether its roots caused the condition in the sidewalk.

(AMF 1-9.) On the nuisance cause of action, SDFH/Lincoln relies on Longfellow, supra, which is not only not helpful as discussed above, but concerns public entities and not private owners like SDFH/Lincoln.

Thus, the motion is DENIED.

SDFH/Lincoln's Motion for Summary Adjudication on the City's Cross-Complaint This motion for adjudication is to City's causes of action for: (i) breach of contract; and (ii) express and/or statutory indemnity.

City's request for judicial notice is granted and notice will be taken to the extent permitted. (ROA 368.) SDFH/Lincoln's objections to the Declaration of David Boss (ROA 382) are overruled.

SDFH/Lincoln's objections to the Declaration of Shawn Robinson (ROA 384) are overruled.

SDFH/Lincoln's objections to the Declaration of Brian Widener (ROA 386) are overruled.

SDFH/Lincoln's objections to the Declaration of Carols Contreras (ROA 391) are overruled.

SDFH/Lincoln's objections to the Declaration of Hao Vu (ROA 396) are overruled.

Calendar No.: Event ID:  TENTATIVE RULINGS

3004261  47 CASE NUMBER: CASE TITLE:  CARNEY VS CITY OF SAN DIEGO [IMAGED]  37-2020-00023766-CU-PO-CTL For each issue identified in the notice of motion, SDFH/Lincoln first maintains the causes of action fail because the contract cannot be located, precluding City from proving the existence of the agreement.

Disputed facts exist. Although City acknowledges it does not have the original or a copy of the pertinent EMRA, the contract can be proven with primary and secondary evidence. (Evid. Code, §§ 1521, 1523; Dart Indus., Inc. v. Com. Union Ins. Co. (2002) 28 Cal.4th 1059, 1070 ['The lost document cases illustrate a few of the many types of secondary evidence that courts have admitted to prove the contents of a missing instrument.'].) Here, there is secondary evidence of City's agreements with SDFH. In 2003, SDFH submitted parcel maps and plans for redevelopment to the City. In 2007, SDFH submitted a final parcel map, dedicating to public use certain streets, including Iverson Street. In 2012, the As Built plans were completed and approved by the City, which left in tact references to the EMRA and owners' responsibility for tree maintenance. (City's AMF 8-12.) Since then, SDFH has hired contractors including landscaping, tree contractors and arborists to maintain the trees. (AMF 13-14.) This ruling is made without prejudice to any evidentiary determinations at trial.

SDFH/Lincoln also maintains in the moving memorandum that the statute of frauds prohibits City's contract claims. This is not a grounds for adjudication in the notice of motion, nor reflected in the separate statement and will not be considered. (C.C.P., § 437c(b)(1) ['The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are disputed...The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.']; CRC 3.1350(b) ['If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts']; see also, O'Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal.App.4th 797, 800, fn. 1 [any evidence on which the parties wish to rely in support of or opposition to the summary judgment motion must appear in their separate statement; if it does not appear there, it does not exist]; CRC 3.1350(d); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865 [315 Cal.Rptr.3d 842, 852], review filed (Jan. 16, 2024) ['Trial courts [fn] should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement'].) The second basis for adjudication raised by SDFH/Lincoln is that the causes of action are barred by the doctrine of laches. SDFH/Lincoln has not met its burden. As explained in Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 601–602, laches is an affirmative defense that applies to an equitable action. To prevail, the defendant must show (i) unreasonable delay; and (ii) either acquiescence in the act about which plaintiff complains or prejudice to the defendant resulting from the delay. It is generally a factual question but may be decided as a matter of law on undisputed facts. (Ibid.) Here, SDFH/Lincoln argue 'City never requested an EMRA be executed and recorded at any point from 2003 to now.' (Memo., at p. 8:18-19.) But that is not what is alleged. Rather, City alleged on October 24, 2022, City tendered its defense and indemnity to SDFH and it denied the tender on November 1, 2022. (ROA 306 - SACC, at ¶ 37.) City filed the original complaint 2.5 months later on January 19, 2023. SDFH has not met its burden of showing unreasonably delay.

For these reasons, the motion is DENIED.

Calendar No.: Event ID:  TENTATIVE RULINGS

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