Judge: Daniel M. Crowley, Case: 21STCV31130, Date: 2023-02-10 Tentative Ruling

Case Number: 21STCV31130    Hearing Date: February 10, 2023    Dept: 28

Defendant West Coast Arborists, Inc.’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On August 23, 2021, Plaintiffs Glenda Guerrero (“Glenda”), Daraly Guerrero (“Daraly”), Gabriela Espinoza (“Espinoza”), David Guerrero (“David”), Yerie Castillo (“Castillo”) and Cecilia Espinosa (“Espinosa”) filed this action against Defendants City of La Verne (“City”) and Bonita Unified School District (“BUSD”) for dangerous condition of public property, negligence/vicarious liability, negligent infliction of emotional distress and negligence/premises liability. Plaintiffs later amended the complaint to include Defendant West Coast Arborists, Inc. (“WCA”).

On January 26, 2022, Plaintiffs filed the FAC, changing the causes of action to dangerous condition of public property, tortious act or omission of independent contractor, negligence, negligent infliction of emotional distress and premises liability.

On February 15, 2022, BUSD filed an answer. On October 13, 2022, BUSD was dismissed, without prejudice, pursuant to Plaintiff’s request.

On March 7, 2022, WCA filed an answer and a Cross-Complaint against Cross-Defendants Moes 1-100 for equitable indemnity, contribution and declaratory relief.

On March 14, 2022, the City filed an answer and a Cross-Complaint against Cross-Defendants Roes 1-100 for indemnity, apportionment of fault, contribution and declaratory relief.

On October 11, 2022, WCA filed a Motion for Summary Judgment to be heard on February 10, 2023. On January 27, 2023, Plaintiffs filed an opposition. On January 30, 2023, the City filed an opposition. On February 3, 2023, WAC filed a reply.

Trial is currently scheduled for July 21, 2023.

PARTY’S REQUESTS

WCA requests the Court grant summary judgment as there are no triable issues of material fact as to WCA’s duty to Plaintiffs.

Plaintiffs and the City request the Court deny the motion.

OBJECTIONS

City’s Objections:

Sustained: 4, 5, 6, 7

Overruled: 1, 2, 3

WCA’s Objection is SUSTAINED.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “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.) 

Once 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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The first element, duty, ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a sidewalk fault. For example, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured). 

DISCUSSION

Plaintiffs allege that, on September 6, 2020, they were at the subject park, operated by the City, eating lunch at a picnic area. As they approached the picnic bench, a tree branch from a park tree fell and hit minors Glenda, Daraly and Castillo. (UMF 2.) David, Espinoza and Espinosa all watched their children get hit by the subject tree branch. Plaintiffs filed this action for negligence, negligent infliction of emotional distress and premises liability against WCA. (UMF 4-5.)

WCA argues that it had no duty to Plaintiffs. WCA did not own the subject trees—nor did it control the subject trees. WCA’s contract did not require ongoing inspection of the trees.  A duty of care may only arise from a statute, contract or a special relationship. (Lake Almanor Assocs. L.P. v. HuffmanBroadway Group, Inc. (2009) 178 Cal.App.4th 1194, 1205.) WCA argues that none apply here. WCA had a contractual relationship with the City in which WCA would provide tree maintenance services at the subject park according to the City’s direction.

In fact, a statutory does exist.  Civil Code § 1714 (a) provides,

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”

Here, Plaintiff alleges that WCA failed to exercise ordinary care in the maintenance of the subject tree. 

WCA and the City entered into an Agreement for Tree Maintenance Services on July 1, 2013, and extending beyond the date of the incident. (UMF 3.) The contract between the City and WCA prescribed a “scheduled grid trimming” and required WCA to respond in a timely fashion to the City’s requests for maintenance. (Ex. D.). The subject agreement provides that WCA will indemnify the City for any injury arising out of any willful or negligent act or omission committed by WCA. (Ex. D.) All work performed by WCA, including trimming of the subject tree, was done pursuant to this agreement. (UMP 7.) WCA was not permitted to perform work on trees without prior authorization of the City. (UMF 8.) The last time WCA worked on the subject tree was April 24, 2019, more than a year before the subject incident, in which WCA trimmed the subject tree pursuant to a service request. (UMF 9-10.) The City is entitled to inspect WCA’s work and identify defective work prior to accepting it for payment; the City paid WCA in full for this work. (UMF 11-12.) However, the subject contract provides that the mere fact that the subject work was accepted and paid for does not necessarily relieve WCA from claims of defective work. (Ex. D).

WCA argues that the subject agreement does not extend to Plaintiffs, but rather only to the City—that any liability due to breach of contract would only extend to the City.  This is incorrect.  Civil Code § 1714 (a) provides that everyone is responsible for injuries caused by their lack of due care.  Plaintiffs correctly argue  that WCA has a duty to Plaintiffs based on the theory of negligent undertaking. Negligent undertaking is based on the concept that one who undertakes to render services to another, which should be recognized as necessary to protect a third person, is subject to liability for injury imposed due to failure to exercise reasonable care in performing the undertaking. (Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 615.) Part of WCA’s duty included reporting rotting branches to supervisors in order to avoid potential injuries. (SSAMF 26-27.) Plaintiffs argue that the subject branch appeared to be diseased and would have been subject to such reporting. (SSAMF 28.) Should WCA have failed to report this potential hazard, WCA may be liable under a theory of negligent undertaking. It is not unreasonable to assume that, at least in part, tree-trimming is done to ensure that there are not injuries to patrons from falling branches or overgrown trees.  Mere acceptance of WCA’s work is insufficient to establish that there were no such conditions at the time, as the subject agreement makes clear.

The Court finds that WCA has not met its burden of establishing that it is entitled to judgment as a matter of law. The issue of the state of the tree when trimmed by WCA is a question of fact that the jury must decide.  Court denies the motion.

CONCLUSION

Defendant West Coast Arborists, Inc.’s Motion for Summary Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.