Judge: Melissa R. Mccormick, Case: Babaie v. City of Huntington Beach, Date: 2022-10-06 Tentative Ruling
Defendant City of Huntington Beach’s Motion for Summary Judgment or, in the alternative, Summary Adjudication
Defendant City of Huntington Beach moves for summary judgment or, in the alternative, summary adjudication of plaintiffs Masoud Babaie and Negin Hervin-Babaie’s causes of action against the City. Plaintiffs’ causes of action arise from Babaie’s fall into a planter on a sidewalk in the City. For the following reasons, the City’s motion is denied.
A defendant seeking summary judgment bears the burden of persuasion and burden of proof by a preponderance of the evidence to negate the plaintiff’s claim. It may do this by demonstrating the claim has no merit, that the plaintiff cannot prove an element of the claim, or that the defendant has a complete defense entitling it to judgment as a matter of law. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.
If a defendant does not meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840. If the defendant meets this initial burden, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. Cal. Civ. Proc. Code § 437c(p)(2); Aguilar, 25 Cal.4th at 850-51.
After the City filed this motion, the parties stipulated to dismiss plaintiffs’ second, third and fourth causes of action. Plaintiffs accordingly allege two remaining causes of action against the City: plaintiff Masoud Babaie’s cause of action for dangerous condition of public property (first cause of action), and plaintiff Negin Hervin-Babaie’s cause of action for loss of consortium (fifth cause of action).
As an initial matter, although the City styles its motion as a motion for summary judgment or, in the alternative, summary adjudication, because the City’s motion papers do not comply with California Rule of Court 3.1350(b), the court must treat the motion solely as a motion for summary judgment. Rule 3.1350(b) states:
“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. 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.”
The City’s notice of motion states the City seeks “summary judgment” because (i) plaintiff Masoud Babaie cannot maintain a cause of action for a dangerous condition of public property, and (ii) plaintiff Negin Hervin-Babaie’s loss of consortium cause of action fails because Babaie’s dangerous condition of public property cause of action fails. Notice of Motion at 2:6-11, 22-23. The City’s separate statement does not state the two causes of action. Because the City’s separate statement does not state the specific causes of action on which the City purports to seek summary adjudication, the City’s summary adjudication motion is denied. See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743-44 (“A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must ‘state[ ] specifically in the notice of motion and . . . repeat[ ], verbatim, in the separate statement of undisputed material facts,’ ‘the specific cause of action, affirmative defense, claims for damages, or issues of duty’ as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers.”). Thus, to prevail on its motion, the City must demonstrate it is entitled to summary judgment on both of plaintiffs’ remaining causes of action.
The City argues Babaie cannot prevail on his cause of action for dangerous condition of public property because allegedly undisputed facts show (i) no dangerous condition existed because Babaie “was not using the planter with due care,” and (ii) the City had no notice of the allegedly dangerous condition.
The City contends a failure to exercise due care by Babaie may preclude a finding of a dangerous condition of public property. The law is the opposite: “The status of a condition as ‘dangerous’ for purposes of the statutory definition does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care.” Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768 (italics in original).
The City has not carried its initial burden of demonstrating the planter was not dangerous or that the City did not have notice of the allegedly dangerous condition. The evidence on which the City premises these contentions is inadmissible because Justin Torres provides no foundation for his testimony. The Memorandum of Understanding (Said Decl. Ex. 6) and the alleged palm tree pruning schedule (Said Decl. Ex. 7), which are of questionable relevance, are not properly authenticated. Furthermore, and in any event, the parties’ evidence, including the competing site photographs and Babaie’s deposition testimony, demonstrates triable issues of fact exist regarding the alleged dangerousness of the planter See, e.g., Babaie’s Responsive Separate Statement No. 14; Said Decl. Ex. 1 (Babaie Depo. at 32:18-33:9).
The City’s request for judicial notice is overruled. The image is not the proper subject of judicial notice.
Plaintiffs’ evidentiary objections to the Said Declaration are sustained. Plaintiffs’ second and third evidentiary objections to the Torres Declaration are sustained. Torres’s declaration does not provide any foundation for either of the statements to which plaintiffs object. Plaintiff’s first evidentiary objection to the Torres Declaration is overruled.
The City’s evidentiary objections to the Burns Declaration and to various exhibits were not material to the disposition of the motion. Cal. Civ. Proc. Code § 437c(q).
The court disregarded the new evidence the City submitted with its reply (i.e., the City’s reply request for judicial notice; the Herbel Declaration; the Erickson Declaration; the reply Torres Declaration; and the reply Said Declaration). Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (“The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.”).
Plaintiffs to give notice.