Judge: Cynthia A Freeland, Case: 37-2021-00011594-CU-OR-NC, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 17, 2023

08/18/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  Other Real Property Summary Judgment / Summary Adjudication (Civil) 37-2021-00011594-CU-OR-NC WERNER VS CITY OF ESCONDIDO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/25/2023

Defendant/Cross-Complainant City of Escondido ('Defendant')'s motion for summary judgment or, alternatively, summary adjudication, is denied.

Initially, the court declines to entertain the parties' respective evidentiary objections that are interspersed in: (1) Plaintiff/Cross-Defendant Noah Werner, individually and as Trustee of the Noah Werner 2008 Family Trust dated February 18, 2008 ('Plaintiff')'s Separate Statement in Opposition to Defendant's Motion for Summary Judgment or Summary Adjudication (see ROA No. 80), and (2) Defendant's Response to Plaintiff's Separate Statement of Additional Triable Issues of Material Fact (see ROA No.

80, pp. 16-42), because they are procedurally deficient. California Rules of Court ('CRC'), Rule 3.1354 dictates the format in which evidentiary objections must be submitted: '[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.' Cal. R. Ct. 3.1354(b). The trial court does not abuse its discretion in refusing to rule on evidentiary objections that do not comply with CRC, Rule 3.1354. See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal. App. 4th 1, 8.

Factual Background and Procedural History This action concerns property damage allegedly caused by erosion from a creek/drainage channel.

Since November 2012, Plaintiff has co-owned the real property located at 2623 Auralie Drive, Escondido, CA 92025 (the 'Property'). See Defendant's Separate Statement of Undisputed Material Facts ('SSUMF') and Plaintiff's Response Thereto, ¶ 10; Werner Decl., ¶ 2. Defendant is a California public entity that owns Kit Carson Park (the 'Park'). See Defendant's SSUMF and Plaintiff's Response Thereto, ¶¶ 1-2. A creek known as Kit Carson Creek (the 'Creek') runs through an area of the Park known as the Panhandle. Ibid., ¶¶ 4-5. Defendant maintains and manages the dry land in the Panhandle but not the Creek bed or banks or the watercourse itself. Ibid., ¶ 22. If or when plant matter, be it a tree or other organic matter, is growing in the Creek or falls into the Creek, Defendant will generally leave it in place. Ibid., ¶ 23. Occasionally, Defendant will remove a limb or fallen tree in the Panhandle, but in most instances those limbs or trees are located within the Panhandle but outside of the Creek bed. Ibid., ¶ 24.

The Panhandle is a narrow and elongated area of the Park that extends out from the more expansive areas of the Park. Ibid., ¶ 7. The Panhandle starts on the north side of Las Palmas Avenue ('Las Palmas') and extends in a northerly direction from Las Palmas. Ibid., ¶ 8. From the northernmost area of the Panhandle to Las Palmas, the Panhandle is approximately two-thirds to three-quarters of a mile Calendar No.: Event ID:  TENTATIVE RULINGS

2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC long. Ibid., ¶ 9. The Panhandle is adjacent to the Property's backyard and western boundary. Ibid., ¶ 11.

Generally speaking, the properties around the Creek slope toward it. Ibid., ¶ 26. The Panhandle area adjacent to the Property is roughly one-half mile south of the north end of the Panhandle and one-fifth of a mile north of the southern end of the Panhandle at Las Palmas. Ibid., ¶¶ 12-13, 40. The Creek flows downstream from north to south through the Panhandle, under a wood bridge at Las Palmas, through the Park, and eventually into Lake Hodges. Ibid., ¶ 14. At one point, there was a dirt path (the 'Trail'), which the public used for recreation, running along the eastern side of the Creek connecting the southern and north ends of the Panhandle between Las Palmas and South Escondido Boulevard. Ibid., ¶¶ 41-42.

Shortly after Plaintiff and his partner moved into the Property, they noticed that an area of the east bank of the Creek across from their parcel was eroding. See Werner Decl., ¶ 8; Nathanson Decl., ¶ 7. Plaintiff subsequently reported the erosion to the City Manager's office. Plaintiff followed up that report with an October 10, 2013 e-mail. Ibid. Plaintiff's October 10, 2023 e-mail marked the first of dozens of e-mails between Plaintiff and Defendant's staff and elected officials regarding the threats that the erosion along the Creek bank posed to the Property. See Plaintiff's Statement of Additional Triable Issues of Material Fact ('SAMF') and Defendant's Response Thereto, ¶¶ 35-51, 68. From 2013 until 2020, the east Creek bank steadily eroded eastward toward the Property. In April 2020, the Creek bank erosion advanced beyond the Property's boundary line, washing several areas of the yard into the Creek bank and undermining a fence and native oak tree on the Property. Ibid., ¶¶ 34, 54.

On March 16, 2021, Plaintiff commenced this action by filing a Complaint against Defendant. See ROA No. 1. The operative Second Amended Complaint (the 'SAC') filed on November 9, 2022 alleges causes of action for: (1) dangerous condition of public property under California Government Code ('CGC') § 835; (2) public nuisance; (3) private nuisance; and (4) inverse condemnation. See ROA No.

60; Defendant's Notice of Lodgment ('NOL'), Ex. 15. The SAC alleges, in relevant part, that the obstructions in the Creek and the erosion to its eastern bank were an open, obvious, and continuing dangerous condition that created a reasonably foreseeable risk of future damage to the Property. See SAC, ¶ 23. Defendant, for its part, created a dangerous condition on the Property by failing to adequately inspect, identify, and repair the obstructions and erosion, which ultimately damaged the Property. Ibid., ¶¶ 24, 26. Moreover, by acting negligently or by failing to act, Defendant allowed the erosion to persist which was harmful to health, offensive to the senses, and obstructed the free use of the Property and the Trail. Ibid., ¶¶ 29, 38. Plaintiff also seeks compensation for inverse condemnation under Article I, § 19 of the California Constitution because Defendant allegedly failed to properly design, redesign, maintain, and/or repair the Creek which proximately caused Plaintiff's damages. Ibid., ¶¶ 48-49, 51.

Defendant now moves for summary judgment as to each cause of action alleged in the SAC.

Alternatively, Defendant seeks summary adjudication of the following issues: (1) Defendant is immune from liability on the first cause of action ('Issue No. 1'); (2) Plaintiff cannot establish inverse condemnation ('Issue No. 2'); and (3) Defendant is immune from liability and otherwise has no duty to abate the alleged public and private nuisances ('Issue No. 3').

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

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2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC (1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of 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. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment as to the first cause of action for dangerous condition of public property is denied. CGC § 835 provides that: 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.

Cal. Gov't Code § 835.

For purposes of CGC § 835, a 'dangerous condition' is defined as '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.' Cal. Gov't Code § 830(a). Determining what constitutes a dangerous or defective condition depends upon a case's particular facts and circumstances and requires an analysis of an amalgam of factors. See Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal. App. 4th 1466, 1476.

'A dangerous condition of public property may arise from its damaged or deteriorated condition, from 'the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.'' Salas v. Department of Transportation (2011) 198 Cal. App. 4th 1058, 1069 (quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal. 4th 139, 149). A public entity has 'actual notice' under CGC § 835(b) 'if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.' Cal. Gov't Code § 835.2(a). A public entity has 'constructive notice' under CGC § 835(b) '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 duty care, should have discovered the condition and its dangerous character.' Cal. Gov't Code § 835.2(b).

Finally, for purposes of CGC § 835, '[a]djacent property' means 'the area that is exposed to the risk created by a dangerous condition of the public property.... [¶] ... A public entity may be liable only for dangerous conditions of its own property. But its own property may be considered dangerous if it creates a substantial risk of injury to adjacent property or to persons on adjacent property; and its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.' Bonanno, 30 Cal. 4th at 148 (quoting Cal. Law Revision Com.

com., reprinted at 32 West's Ann. Gov.Code (1995 ed.) foll. § 830, p. 299.).

In this case, Defendant contends that it is immune from liability under CGC §§ 831.2 and 831.25. CGC § 831.2 provides that '[n]either a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.' Cal. Gov't Code § 831.2. 'Section 831.2 codifies an absolute immunity for public entities and their employees for injuries caused by natural conditions of any unimproved public property.' McCauley v. City of San Diego (1987) 190 Cal. App. 3d 981, 986 Calendar No.: Event ID:  TENTATIVE RULINGS

2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC (emphasis in original). '[F]or a plaintiff 'to avoid the natural condition immunity, there must be a 'causal nexus between the dangerous condition and either human conduct or an artificial improvement.' [Citation.] The immunity applies unless an improvement or human conduct created, contributed to, or exacerbated the degree of, the danger associated with a natural condition.'' City of Chico v. Sup. Ct.

(2021) 68 Cal. App. 5th 352, 362 (quoting Alana M. v. State of California (2016) 245 Cal. App. 4th 1482, 1489). Notably, an improvement as to only a portion of a park area does not remove immunity from the unimproved areas. See Meddock v. Yolo County (2013) 220 Cal. App. 4th 170, 178-179. For purposes of CGC § 831.2, '[a]bsolute immunity is the rule, 'so long as the public entity's conduct does not amount to negligence in creating or exacerbating the degree of danger normally associated with a natural condition.'' Arroyo v. State of California (1995) 34 Cal. App. 4th 755, 764 (quoting McCauley, 190 Cal. App. 3d at 990-991) (emphasis in original).

CGC § 831.25(a) provides that '[n]either a public entity nor a public employee is liable for any damage or injury to property, or for emotional distress unless the plaintiff has suffered substantial physical injury, off the public entity's property caused by land failure of any unimproved public property if the land failure was caused by a natural condition of the unimproved public property.' Cal. Gov't Code § 831.25(a). For purposes of CGC § 831.25, 'a natural condition exists and property shall be deemed unimproved notwithstanding the intervention of minor improvements made for the preservation or prudent management of the property in its unimproved state that did not contribute to the land failure.' Cal. Gov't Code § 831.25(b). 'Land failure' is 'any movement of land, including a landslide, mudslide, creep, subsidence, and any other gradual or rapid movement of land.' Cal. Gov't Code § 831.25(c). CGC § 831.25 is not intended to 'benefit any public entity or public employee who had actual notice of probable damage that is likely to occur outside the public property because of land failure and who fails to give a reasonable warning of the danger to the affected property owners.' Cal. Gov't Code § 831.25(d).

The Fourth District Court of Appeal has explained the relationship between CGC §§ 831.2 and 831.25: [S]ection 831.25 is subject to the same policies as section 831.2. The primary difference between the two provisions is that the former applies to injuries and damages to property caused by natural conditions of adjacent state-owned land, while the latter applies to injuries sustained on the state-owned land. However, the policies behind these two provisions are similar. Both seek to relieve the State from liability for injuries caused by natural conditions of its land; both encourage public use and enjoyment of land, while relieving the State of the burden and expense of litigation and damages claims. Thus, it is reasonable that the policies set forth in the Legislative Committee comment for section 831.2 also apply to section 831.25. Consistent with those policies, the State has no duty with respect to property injuries and damage on adjacent land due to land failure caused by a natural condition both before and after the injury or damage occurs.

Schooler v. State of California (2000) 85 Cal. App. 4th 1004, 1013.

In this case, the court agrees with Plaintiff that Defendant cannot avail itself of CGC § 831.2's protections. As set forth above, CGC § 831.2 applies to injuries sustained on state-owned land. In this case, the undisputed evidence establishes that the damage to the Property occurred as a result of a condition on land owned by a public entity; however, Defendant does not own the Property and there is no evidence that the Property is city property. Instead, the evidence shows that the Creek is adjacent land owned by Defendant. Consequently, CGC § 831.2 does not apply.

As to CGC § 831.25, summary adjudication is not appropriate because there is a triable issue of material fact as to whether Defendant failed to give Plaintiff a reasonable warning of the danger(s) the Creek posed to the Property. The evidence shows that Plaintiff expressed his concerns regarding the erosion caused by the Creek as early as October 10, 2013. Through various e-mail correspondence, Defendant had actual knowledge of the existence of this issue. For example, Plaintiff's October 10, 2013 e-mail to Defendant's Executive Assistant to the City Manager, Robin Ekblad, identified that section of the eastern bank of the Creek that was eroding and characterized it as a 'potential serious safety concern.' On January 22, 2014, Defendant's Public Works Director and City Engineer, Ed Domingue, e-mailed Plaintiff Calendar No.: Event ID:  TENTATIVE RULINGS

2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC asking to discuss 'the Kid Carson Park North – erosion on trail Issue.' On March 16, 2014, Plaintiff e-mailed Mr. Domingue to notify him that the temporary fence near the Creek had been torn up and thrown into the stream. On December 15, 2014, Plaintiff e-mailed Mr. Domingue stating that the recent rains had caused an additional foot of erosion on the Property. On October 31, 2017, Defendant's Real Property Manager, Vince McCaw, e-mailed Plaintiff to follow up on issues with the Trail. On February 9, 2018, Mr. Dominigue wrote to Plaintiff indicating that things were 'moving forward' and that Defendant was evaluating options to resolve the issues on the Panhandle. On April 19, 2018, Mr. McCaw sent Plaintiff an e-mail outlining a rough schedule for repairing the erosion issue. Plaintiff provided additional notice to Defendant by e-mailing its various representatives/staff on August 21, 2019, December 6, 2019, and March 29, 2020. Additionally, Alicia Appel's March 2, 2018 Memorandum highlights that unchecked, the issue with the Creek would continue to erode adjacent properties. In sum, actual notice has been established.

However, whether Defendant's efforts to warn Plaintiff of the dangers posed by the erosion were reasonable under the circumstances is a triable issue of material fact. The communications that Plaintiff has submitted as Exhibit 10 to his NOL shows that Defendant agreed with Plaintiff that the erosion was a serious issue, and that Defendant was working on a plan to address it. Plaintiff admits as much in the SAC. Moreover, the May 2018 Occupancy License Agreement signed by Plaintiff references an eroding portion of the Trail. That being said, whether the foregoing efforts on Defendant's part were reasonable under the circumstances is a triable issue of material fact for the jury.

In addition, summary judgment is inappropriate because there is a triable issue of material fact as to whether Defendant acted reasonably in taking measures to protect against the issue once Defendant acquired actual knowledge of same. More specifically, the evidence shows that, through various correspondence, Defendant was aware of the erosion issue near the Property and Trail. While Defendant repeatedly reassured Plaintiff that it would address the issue and even drafted a March 2018 Memorandum containing a proposed project; however, Defendant seemingly reversed course in December 2019 and did not move forward with repairs owing to financial constraints.

Accordingly, the court denies Defendant's motion for: (1) summary judgment as to the first cause of action, and (2) summary adjudication as to Issue No. 1.

Defendant's motion for summary judgment as to the second cause of action for public nuisance and third cause of action for private nuisance is denied. 'Government Code section 815 does not bar nuisance actions against public entities to the extent that such actions are founded on Civil Code section 3479, 3480 and 3481, which define public and private nuisances.' Vedder v. County of Imperial (1974) 36 Cal. App. 3d 654, 661. See also Buchanan v. Los Angeles County Flood Control Dist. (1976) 56 Cal. App. 3d 757, 768 ('A public entity is not immune from liability for nuisance.'). Toward that end, California Civil Code ('CC') § 3479 defines 'nuisance' as '[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway[.]' Cal. Civ.

Code § 3479. CC § 3480 defines 'public nuisance' as a nuisance 'which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.' Cal. Civ. Code § 3480. 'Private nuisance' is every nuisance that does not qualify as a public nuisance. See Cal. Civ. Code § 3481. 'A private person has no direct remedy to abate a public nuisance unless the public nuisance is a private nuisance as to that person.' Friends of H Street v. City of Sacramento (1993) 20 Cal. App. 4th 152, 159.

Moreover, 'the existence of immunity precludes any duty to abate a nuisance.' Schooler, 85 Cal. App. 4th at 1011-1012.

In this case, Defendant's argument that it was under no obligation to abate the alleged nuisance owing to the existence of immunity is not well taken because, for the reasons set forth above: (1) CGC § 831.2 is inapplicable, and (2) there are triable issues of material fact as to CGC § 831.25's applicability.

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2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC Accordingly, the court denies Defendant's motion for: (1) summary judgment as to the second and third causes of action, and (2) summary adjudication as to Issue No. 3.

Defendant's motion for summary judgment as to the fourth cause of action is denied. The Sixth District Court of Appeal has explained: 'Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.' (Cal. Const., art. I, § 19.) When a public use results in damage to private property without having been preceded by just compensation, the property owner may proceed against the public entity to recover it. Such a cause of action is denominated 'inverse condemnation.' (Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 65, 663, fn. 1, 39 Cal.Rptr. 903, 394 P.2d 719.) Arreola v. County of Monterey (2002) 99 Cal. App. 4th 722, 737. Article I, § 19 of the California Constitution defines 'public work or improvement' as 'facilities or infrastructure for the delivery of public services such as . . . parks . . . flood protection . . . utility, common carrier or other similar projects such as . . . water-related and wastewater-related facilities or infrastructure . . . and private uses incidental to or necessary for, the public work or improvement.' Cal. Const. Art. I, § 19. Inverse condemnation liability exists 'for any physical injury to real property proximately caused by a public improvement as deliberately designed and constructed, whether or not the injury was foreseeable and in the absence of fault by the public entity.' Ullery v. County of Contra Costa (1988) 202 Cal. App. 3d 562, 568. A 'public use' means 'a use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.' Yox v. City of Whittier (1986) 182 Cal. App. 3d 347, 352. 'To convert an existing watercourse into a public work, '[a] governmental entity must exert control over and assume responsibility for damage caused by the streamflow on a theory that the watercourse has become a public work.'' Shenson v. County of Contra Costa (2023) 89 Cal. App. 5th 1144, 1159 (quoting Locklin v. City of Lafayette (1994) 7 Cal. 4th 327, 370). In instances where damage is caused by the runoff of surface water from improvements on the public entity's property into a natural watercourse or from public improvements constructed in or on a watercourse, 'the public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff's property.' Locklin, 7 Cal. 4th at 367.

In this case, the court finds that summary judgment and/or summary adjudication is not appropriate owing to multiple triable issues of material fact. More specifically, there is a triable issue of material fact as to whether the Creek is part of Defendant's public storm drainage system or was otherwise converted into a public work or improvement. Defendant denies this fact; however, Plaintiff's expert, civil engineer Steven Norris, has testified that the Creek is located within Region 9, San Dieguito Hydrologic Unit, Hodges Hydrologic Area, Del Dios Hydrologic Subarea – 905.21. Subarea 905.21 is part of a Regional Watershed that is regulated by the County of San Diego Regional Water Quality Control Board. Within the watershed, Defendant owns and maintains a public drainage system to collect stormwater runoff from streets, roads, and sidewalks owned by Defendant. The stormwater runoff is channeled into the Creek through an 84-inch diameter reinforced concrete drainage pipe running beneath South Escondido Boulevard north of the Panhandle. The Creek conveys stormwater runoff from the 7-foot outlet to Las Palmas where the stormwater enters the lower portion of the Park into a large box culvert that carries it under the North County Fair mall site to Lake Hodges. Defendant owns and maintains extensive stormwater drainage improvements both directly upstream and downstream from the Creek as represented on the November 1995 Escondido Master Drainage Plan. Mr. Norris concludes that the Creek has been an integral part of Defendant's public storm drainage system since 1995 and was therefore subject to certain stormwater compliance requirements, requirements to which Defendant allegedly fell below the standard of care by failing to properly maintain the Creek. Consequently, there is a triable issue of material fact as to whether the Creek is a public work or improvement for purposes of inverse condemnation as well as whether Defendant, to the extent such a duty existed, acted unreasonably by failing to maintain the Creek. Additionally, even if the Creek qualifies as a public work or improvement, there are triable issues of material fact as to whether: (1) Defendant's conduct posed an Calendar No.: Event ID:  TENTATIVE RULINGS

2978580 CASE NUMBER: CASE TITLE:  WERNER VS CITY OF ESCONDIDO [IMAGED]  37-2021-00011594-CU-OR-NC unreasonable risk of harm to the Property; (2) Defendant's conduct was a substantial cause of the damage to the Property; and (3) Plaintiff's attempts at mitigating his damages, which included years of correspondence with Defendant's officials/staff/representatives as well as Mr. Nathanson placing sandbags around the oak tree on the Property, was reasonable under the circumstances.

Accordingly, the court denies Defendant's motion for: (1) summary judgment as to the fourth cause of action, and (2) summary adjudication as to Issue No. 2.

Conclusion In light of the foregoing, the court denies Defendant's motion for summary judgment or, alternatively, summary adjudication.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 18, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 18, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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