Judge: Lisa R. Jaskol, Case: 22STCV15500, Date: 2025-02-19 Tentative Ruling
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Case Number: 22STCV15500 Hearing Date: February 19, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On May 10, 2022, Plaintiff Veronica Alexandre (“Plaintiff”) filed this action against Defendants City of Palos Verdes Estates (“City”) and Does 1-100 for dangerous condition on public property, premises liability, and general negligence.
On June 2, 2022, the City filed an answer.
On June 20, 2022, Plaintiff amended the complaint to include Defendant Southern California Edison (“Edison”) as Doe 51. On November 16, 2022, the Court dismissed the premises liability claim against Edison without prejudice. Also on November 16, 2022, Edison filed an answer to Plaintiff’s complaint. On June 20, 2024, the Court dismissed Edison from Plaintiff’s complaint with prejudice at Plaintiff’s request.
On September 22, 2022, Plaintiff amended the complaint to include Defendant Davey Tree Surgery Company as Doe 52 (“Davey”). On November 10, 2022, Davey filed an answer. On November 15, 2022, the Court dismissed the premises liability claim against Davey without prejudice. On June 20, 2024, the Court dismissed Davey from Plaintiff’s complaint with prejudice at Plaintiff’s request.
On January 24, 2023, the City filed a cross-complaint against Cross-Defendants Edison, Davey, and Roes 1-10 for equitable indemnity, comparable indemnity, declaratory relief, and contribution and repayment. On April 18, 2023, the City amended its cross-complaint to include Cross-Defendant Travers Tree Service, Inc. (“Travers”) as Roe 1. On July 16, 2024, the Court dismissed Edison and Davey from the City’s cross-complaint with prejudice at the City’s request. On November 15, 2024, Travers filed an answer to the City’s cross-complaint. On January 8, 2025, the Court dismissed Travers from the City’s cross-complaint with prejudice at the City’s request in exchange for a waiver of costs and fees and waiver of prevailing party status and rights under Code of Civil Procedure section 1032, subdivision (a)(4).
On February 27, 2023, Edison filed an answer to the City’s cross-complaint and filed a cross-complaint against Cross-Defendants Edison, Davey, and Roes 1-10 for equitable indemnity and contribution. On April 3, 2023, the City filed an answer to Edison’s cross-complaint. On May 23, 2023, Travers filed an answer to Edison’s cross-complaint. On June 28, 2024, the Court dismissed Edison’s cross-complaint with prejudice at Edison’s request.
On February 27, 2023, Davey filed an answer to the City’s cross-complaint and filed a cross-complaint against Cross-Defendants City, Travers, and Moes 1-100 for equitable indemnity, contribution, and declaratory relief. On April 3, 2023, the City filed an answer to Davey’s cross-complaint. On May 8, 2023, Travers filed an answer to Davey’s cross-complaint. On July 1, 2024, the Court dismissed the City and Travers from Davey’s cross-complaint with prejudice at Davey's request.
Trial is scheduled for March 24, 2025.
B. This motion
On June 28, 2024, the City filed a motion for summary judgment. The motion was set for hearing on January 22, 2025. On January 8, 2025, Plaintiff filed an opposition. On January 17, 2025, the City filed a reply. On January 22, 2025, Plaintiff filed a notice of errata. The Court continued the hearing to February 19, 2025.
PARTIES’ REQUESTS
The City asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
EVIDENTIARY OBJECTIONS
“In granting or denying a motion for summary judgment or summary adjudication, the court need only rule on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).)
A. Plaintiff’s evidentiary objections
Overruled: Code of Civil Procedure section 437c authorizes objections to evidence, not to material facts. (See Code Civ. Proc., § 437c, subd. (c) [“the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deductible from the evidence”].)
B. The City’s evidentiary objections
The Court has not relied on Plaintiff’s evidence in ruling on the City’s motion.
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the 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.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[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.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
B. Dangerous condition of public property
Government Code section 835 provides:
“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.”
(Gov. Code, § 835.)
Government Code section 830 provides:
“As used in this chapter:
“(a) ‘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.
“(b) ‘Protect against’ includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.
“(c) ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”
(Gov. Code, § 830.)
Government Code section 835.2 provides:
“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 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. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
(Gov. Code, § 835.2.)
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.’ ” (Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 108 (Stack), quoting Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) “To recover under section 835, a plaintiff must prove that a “ ‘dangerous condition proximately caused his or her injury; that the condition created a reasonably foreseeable risk of the type of injury that was actually incurred; and that the public entity either created the dangerous condition through a negligent or wrongful act or omission of its employee, or had actual or constructive notice of the dangerous condition sufficiently in advance of the accident as to have had time to remedy it.’ ” (Id. at pp. 108-109, quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 155.) “ ‘An initial and essential element ... is proof a dangerous condition existed.’ ” (Id. at p. 109, quoting Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)
For purposes of Government Code section 835, “ ‘ “[d]angerous 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.’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Gov. Code, § 830, subd. (a).) Conversely, “ ‘a condition is not a dangerous condition ... if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.’ ” (Ibid., quoting Gov. Code, § 830.2, footnote omitted.)
“These statutory parameters are meant to ‘ “guarantee that cities do not become insurers against the injuries arising from trivial defects.” ’ ” (Stack, supra, 91 Cal.App.5th at p. 109, quoting Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755.) “Together with the surrounding case law, they form what is known as the ‘trivial defect doctrine,’ shielding public entities from liability for defects that a court deems trivial as a matter of law.” (Ibid.)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
The City was one of the owners or managers of a tree within the Palos Verdes Estates Loop and/or Boundary Trail in Palos Verdes Estates, California (“premises”) which fell onto a residence located at or near 3325 Via La Selva, Palos Verdes Estates, California 90274 on December 30, 2021, injuring Plaintiff.
“The PREMISES, specifically a deteriorated, unstable, and improperly maintained tree with negligent trimming causing it to be extremely unstable, among other things, was in a dangerous condition at the time of Plaintiff sustaining Plaintiff’s injury as a result of Plaintiff being hit with the tree and/or portions of a residential roof after the subject tree collapsed on the residence that Plaintiff was asleep therein.” (Complaint ¶ 14.)
B. Undisputed facts
During the week before December 30, 2021, the City experienced a heavy rainstorm.
As the basis for her claim for dangerous condition of public property, Plaintiff alleges that she was hit by a tree and/or a portion of a residential roof after the tree collapsed on the building, injuring her. Robert Alexander Roosa (“Roosa”) owned the premises.
At or about 2:15 a.m., a loud noise caused by the impact of the tree on the roof awakened Plaintiff. At or about 2:19 a.m., Plaintiff sent a text message to Roosa stating that part of the ceiling had collapsed into the room. According to the text message, she walked up to the door to see what the horrendous noise was. At this point, Plaintiff had not been hit by any large pieces of the ceiling because the ceiling parts fell on the opposite side of the bed where the dog was sleeping and not where the Plaintiff was allegedly sleeping. She woke up and was able to get out of the bed and go to the door and take a photograph of the ceiling.
After the tree incident, Plaintiff called Roosa to let him know about the tree incident, but at no point did she tell Roosa that she was injured in any way or was hit by the tree and/or a portion of the residential roof. When Roosa asked Plaintiff during the phone call if she was okay, she only told him she was scared.
At or about 3:32 a.m., Roosa received a text message along with a photograph of the ceiling from Plaintiff asking him to call her. Plaintiff sent similar text messages with the photograph to her son (received at 3:56 a.m.). In the text message to her son, Plaintiff admitted that she was “ok.” In none of the text messages did Plaintiff mention anything about being hit by a piece of ceiling.
At or about 7:05 a.m., Los Angeles Fire Department personnel helped Plaintiff get down the stairs and reported no civilian injuries.
C. The City’s arguments
1. Notice
The City contends that it is entitled to summary judgment because Plaintiff cannot establish that the City had actual or constructive notice of the allegedly dangerous condition. According to the City, the dangerous condition did not exist until the tree began to rest against the premises, which occurred the night of the incident. Therefore, the City concludes, it could not have had actual or constructive notice of the allegedly dangerous condition in time to take measures to protect against it.
To support these arguments, the City has submitted the deposition testimony of City forester Carl Moritz (“Moritz”), who testified “no” in response to the question, “At any time that you inspected the subject the subject tree between 2017 and the date of the incident, did it show any signs of disease, decay, or cause any concern of safety?” (Exh. B, p. 151.)
However, the City has not presented evidence showing how often Moritz or other City employees inspected the tree or when the City last inspected the tree before the incident. Therefore, Moritz’s testimony that he did not see signs of disease, decay, or reason for concern is not probative.
The City also argues that “[n]o other trees on the Trail became unstable or fell in the days preceding the subject incident.” (Motion pp. 17-18.) But the City’s evidence shows simply that on December 30, 2021, the tree at issue was the only tree to fall. (Exh. B, p. 115.)
The Court does not consider the new arguments which the City raises in its reply.
The City has not carried its initial burden on summary judgment of showing that it lacked constructive notice of the allegedly dangerous condition.
2. Causation and damages
The City argues that Plaintiff cannot present evidence that she was harmed by the allegedly dangerous condition. The City cites Plaintiff’s texts to her son and landlord, the Fire Department’s report, and medical records.
The City’s evidence includes a partially redacted medical record which states in part: “Pleasant 76-year-old female presenting for evaluation status post head injury with complaints of neck and head pain. Patient on exam nontoxic, well-appearing, neurological exam is normal. CT imaging of the head and neck appears negative for fracture, bleeding, swelling, other acute abnormalities. No neuro deficits, do not suspect spinal cord compression. Do not suspect subdural hematoma, [rest of paragraph is redacted].” Under the heading “Discharge Instructions,” the document also states: “You were evaluated for head injury in the emergency department today. Your CT scan of your brain and neck today do not show signs of fracture, swelling, internal bleeding [rest of document is redacted].” (Exh. O.)
The City has also provided (1) the deposition testimony of Plaintiff’s son, who testified that after the incident he gave his mother painkillers and ice for her head (exh. N, p. 45) and (2) a text which Plaintiff sent the day of the incident stating that she touched her hair and “chunks of ceiling are still in there” (exh. E).
In addition, the City has provided the declaration of its medical expert, Vu Le, M.D., who states that Plaintiff testified at her deposition that “while asleep on the bed two pieces of drywall from the ceiling fell and struck her head . . . .” (Exh. Q, ¶ 7.) Dr. Le states, however, that he believes Plaintiff was not struck by the two pieces of drywall. (Exh. Q, ¶¶ 8-9.)
The Court does not consider the new arguments which the City raises in its reply.
As noted above, in ruling on a motion for summary judgment, the court must view the evidence and inferences reasonably drawn from it in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.) Applying this standard, the Court concludes that the City has not carried its initial summary judgment burden of showing that Plaintiff cannot present evidence of causation and damages. Even if the City's expert does not believe that Plaintiff was struck by drywall from the ceiling, a fact-finder could believe Plaintiff's testimony that the drywall struck her on the head, injuring her. And the medical report stating that examination of Plaintiff after the incident did not show fracture, bleeding, swelling, other acute abnormalities, neuro deficits, spinal cord compression, or subdural hematoma does not mean that Plaintiff is precluded as a matter from law from presenting evidence that she suffered an injury as a result of the incident.
The Court denies the City’s motion for summary judgment.
CONCLUSION
The Court DENIES Defendant City of Palos Verdes Estate’s motion for summary judgment.
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.