Judge Jill Feeney, Case 19STCV00097 2022-07-28 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

On January 11, 2019, Plaintiff Jennifer Herbert filed her complaint against Defendant City of Pasadena (“City”) alleging negligence, willful failure to warn, dangerous condition of public property, and premises liability. Plaintiff alleges that she tripped on large tree roots and fell while jogging on the south side of San Pasqual St. where the sidewalk abruptly dropped into a pit of dirt. Plaintiff alleges she suffered serious injuries as a result of the fall.

On March 4, 2020, City filed its cross-complaint against Defendant Citicon, Inc. (“Citicon”), and Donald J. Schimmoller and Virginia S. Schimmoller as Trustees of Donald and Virginia Schimmoller Trust (“the Schimmollers”) alleging causes of action for indemnification, apportionment of fault, and declaratory relief. City alleges Cross-Defendants created the defect or failed to maintain the area where the incident occurred.

City argues that it is entitled to summary judgment because (1) Plaintiff cannot prove that the dangerous condition of City property was the proximate cause of her injuries; (2) the alleged defect does not constitute a dangerous condition under Government Code sections 830 and 835; (3) City did not create the alleged dangerous condition of public property and had no actual or constructive notice of the alleged dangerous condition with sufficient time to have taken measures to protect against it; (4) Plaintiff’s injuries were caused by a natural condition of unimproved public property; and (5) City’s actions taken to protect against any risk of injury created by the alleged dangerous condition were reasonable pursuant to Government Code section 835.4, subd. (b).

Plaintiff argues that the sidewalk adjacent to the dirt path where she fell was under City’s ownership and control. Plaintiff also argues that the City remains liable even if City property was made dangerous by conditions on an adjacent property. Plaintiff contends that the two-inch drop from the sidewalk into the dirt patch where she fell, coupled with the tree roots and obscuring leaves, exposed those using the City property to substantial risk of injury. According to Plaintiff, City improperly relied on the testimony of Kenneth Graham, who was not admitted as an expert and whose testimony should not have been offered as expert testimony. Plaintiff also argues the harm she suffered was foreseeable because she did not misuse property and exercised due care when jogging through the property. Plaintiff argues that City had notice of the dangerous condition because City inspected the sidewalk in 2014, 2015, and 2016, and that a lack of reports about the property was not dispositive of the property’s condition. Plaintiff argues that there is no reasonableness defense and even if there was, it was unreasonable that City used students to perform inspections of the sidewalk.

Cross-Defendant argues that there is a dispute over the cause of Plaintiff’s fall because there is no proof that the roots growing in the dirt patch belong to a privately owned tree. Additionally, Cross-Defendant alleges it would have no authority to remove the roots even if they did belong to the tree on his property. Cross-Defendant also argues that it owed no duty to Plaintiff because the sidewalk was owned and controlled by City.

City argues that Plaintiff has not created a triable issue of fact because Plaintiff does not supply admissible evidence to support her disputes over the facts. City also argues that information Plaintiff’s counsel obtained through conversations with city staff should not be admissible because the conversations constitute communication with a represented party. City also argues that Plaintiff’s opposition should not be considered because it was not timely served.

City argues that Plaintiff has not established that the tree root which she tripped on was a dangerous condition and cannot argue that a different property condition was the cause of her injuries. City also alleges that neither Plaintiff nor Citicon presented evidence that City was responsible for the condition of the tree root, nor did City have notice of a dangerous condition.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the 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 “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.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

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:

City argues that the condition of City property was not the proximate cause of Plaintiff’s fall. City provides evidence that the area where Plaintiff tripped was a patch of dirt that was never improved by City. (UMF No. 24) The patch of dirt originally belonged to the County of Los Angeles and City never improved the area after City acquired the land. (Id.) City also submits evidence that the root Plaintiff allegedly tripped over did not belong to the nearby City tree, but a tree from a private residence. (UMF Nos. 5,7,8,9; Graham Decl., ¶5, 6)

City’s evidence that the root Plaintiff allegedly tripped over belonged to a nearby tree from a private residence is a red herring. Regardless of which tree the root belonged to, there is no dispute that the root was on City property. In any event, the Court sustained Plaintiff’s objections to the Graham Declaration.

City argues that Plaintiff cannot be sure what the cause of her trip was and has not provided evidence that the City tree’s roots caused her trip. In support of this argument, City cites Plaintiff’s deposition testimony. (UMF No. 5) City’s argument relies on Bowman v. Wyatt, where the plaintiff believed the cause of a vehicle crash to be the brakes of a city-owned truck. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 293) However, that case is distinguishable from the present case because there was no evidence that the truck’s brakes were indeed the cause of a crash. (Id.) Here, the City cites the following deposition testimony by Plaintiff:

(UMF No. 5; Herbert Depo. at 69:14-25.) This deposition testimony is insufficient to show that the condition of the City’s property was not the proximate cause of Plaintiff’s injury. On the contrary, the testimony confirms that a tree root was very much the cause of Plaintiff’s fall and injury.

The term “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.” (Gov. Code, § 830, subd. (a).) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn. 5.) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)

City argues that the condition of the dirt patch did not create a substantial risk of injury to a reasonable person using due care. City asserts that the tree root Plaintiff tripped on belongs to a privately owned tree that has existed for some time and was not large and that the sidewalk clearly ended before the dirt area began. Thus, the dirt area was not a City sidewalk and should not be held to the same standard as a City sidewalk. Additionally, City argues Plaintiff had significant opportunity to observe other trees in the area with exposed roots and that there is no evidence Plaintiff’s view of the sidewalk was obstructed such that she could not see the tree root.

City has not met its burden of proving Plaintiff cannot show the public property was in a dangerous condition. City bases its assertion that the tree root in question was not large on the testimony of Graham, who was not admitted as an expert. Graham was limited to giving his opinion based on his perception. Thus, his opinion that the tree root was not large is not dispositive of whether the condition of the property was dangerous. City contends that the dirt patch is not part of the sidewalk. However, the dirt patch is still City property. Moreover, it is quite foreseeable that individuals would walk across the small dirt area as if it were a sidewalk since it is surrounded by sidewalk on either side.

Additionally, City has not met its burden of showing the condition of the dirt patch was open and obvious. Plaintiff’s view of other, unobscured tree roots does not prove that the condition of the tree root in the dirt patch was obvious. Thus, City has not met its burden of proving there are no triable issues of material fact concerning whether the area was in a dangerous condition.

Even if the Court found that City had met its initial burden, Plaintiff’s evidence submitted in opposition raises triable issues. For example, Plaintiff declares that the City property in question was a “ ‘big dirt hole,’ which was full of leaves” and which “was not filled in or graded to match the height of the sidewalk, with an approximate two-inch drop form the height of the sidewalk to the dirt patch.” (Herbert Decl., ¶ 5.) Plaintiff further declares that her right foot was caught on “a large tree root, inconspicuous as covered with leaves, and sticking up from the dirt patch.” (Ibid.)

City asserts that it had no constructive or actual notice of the condition of the sidewalk. Constructive notice exists when “a reasonable inspection would have disclosed the defect or dangerous condition; that is, that, had there been no neglect of duty, there would have been actual knowledge on the part of the city officers.” Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361, 365.

Here, City argues there was no constructive notice because there is no evidence of when the tree roots became exposed, the defect was not obvious, there were no other reports of incidents with the dirt patch, and others had used the sidewalk with the dirt patch without incident. City provides a declaration from an employee of City’s Department of Public Works to demonstrate that no reports were found in City’s Citizen Service Center. (Templeton Decl., ¶7) City also provides declarations from Cross-Defendant stating he never had issues walking through the dirt patch. (City UMF No. 31) City also provides evidence that it performed inspections that would have identified potential hazards to pedestrians including five-year forestry division inspections, reporting systems, and a 2014 survey of all sidewalks to document damage. (City UMF No. 21)

Constructive notice depends on whether City should have discovered the condition through reasonable inspection. Although City states none of its inspections or other protocols revealed any hazards with the dirt patch, City’s own witness demonstrates that City at knew about the dirt patch. City’s witness states that “Based on the records in the City’s possession, it appears that the place where the sidewalk stops before the dirt patch was the original boundary of the City and the area without a sidewalk formally belonged to the County of Los Angeles and that there was no sidewalk in the dirt area at any point before the date of Plaintiff’s incident.” (Wu-Bowman Depo.; City UMF No. 24)

There is not dispute that City employees were out in the area in 2014, 2015 and 2017 to inspect the sidewalk and the City tree (Motion at page 16). However, there is no indication that any City employee inspected the dirt area surrounded by sidewalk on either side. To establish constructive notice a plaintiff must establish 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 nature.

Plaintiff has met its burden of showing that there is a genuine issue of material fact with respect to constructive notice. The Declaration of Plaintiff as well as Exhibits C and D (Pictures taken on 12/14/2017) establish that there was a tree root of substantial size located on the dirt patch. Drawing all inferences in favor of Plaintiff, it appears due to the size of the tree root depicted in the photos the exposed root had been there for some time. This condition was of such an obvious nature that if anybody had conducted an inspection of the area, the condition and its dangerous nature would have been discovered. Essentially, there is evidence of substantial tree root located in an area where one might anticipate that members of the public would walk since either side of the area is bounded by paved sidewalk.

“It is now generally settled that human-altered conditions, especially those that have existed for some years, which merely duplicate models common to nature are still “natural conditions” as a matter of law for the purposes of Government Code section 831.2. (Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 314.)

City’s assertions that the dirt patch is unimproved fail because it is surrounded by man-made improvements, including sidewalks and a city road. Government Code section 831.2 covers unimproved areas such as lakes, streams, bays, rivers, or beaches. (Gov. Code section 831.2) The dirt patch surrounded by sidewalks and streets is not an unimproved area like a lake or a stream.