Judge Michael D. Washington, Case Number: 37-2022-00034198-CU-PO-NC, Date: 2024-05-10 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2022-00034198-CU-PO-NC, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 09, 2024

05/10/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00034198-CU-PO-NC PIERCE VS CITY OF ENCINITAS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/09/2024

The Motion for Summary Judgment brought by defendant/cross-complainant Excel Landscape Inc.

(Excel or the Landscaper) is DENIED.

Objections to Evidence The Objections to Evidence brought by the Landscaper are disposed as set forth below. Prior to ruling on each of the objections, the Court notes that several of the objections indicate that the evidence being objected-to is 'immaterial/irrelevant.' Under Code of Civil Procedure § 437c(q), 'the court need rule only on those objections to evidence that it deems material to its disposition of the motion.' (Emphasis added.) To the extent that the objections themselves admit that the evidence in question is 'immaterial/irrelevant' the Court declines to rule on the objections under Code of Civil Procedure § 437c(q). Additionally, the Court notes that certain objections are to broad swaths of evidence. For example, Objection No. 11, is to a the 'deposition transcript of David Norgard.' To be clear, the entire deposition transcript has not been provided, but of the excerpt that has been provided, the Landscaper appears to be objecting to the entirety of the excerpt. While it is within the Landscaper's discretion to select the material that it wishes to object-to, and while broad objections to entire documents sometimes make sense (such as if the entire document has not been authenticated), the Court views such objections with regard to the entirety of the identified evidence. In other words, the Court will not parse the evidence for the objecting party – California Rules of Court, rule 3.1354(B) places that burden squarely on the objecting party. Thus, to the extent that any part of the objected-to evidence is not subject to the objection raised, the Court will overrule the objection. Thus, for example, with regard to Objection No. 11 which is to the entire excerpt of the deposition transcript of David Norgard, the objection that it violates the parol evidence rule because Mr. Norgard opines on the intent of the words of a contract is unavailing because the provided excerpt contains information other than opining on the intent of the contract.

Finally, the Court also notes that there are two 'Objection No. 6's' in the Objections to Evidence. The Court presumes this to be a typographical error. Rather than attempt to re-number all objections that flow after that, the ruling below will simply produce two 'Objection No. 6's' and the two should be respectively linked to the order in which the objections appear in the Objections to Evidence document.

Objection No. 1: Immaterial Objection No. 2: Immaterial Objection No. 3: Immaterial Objection No. 4: Immaterial Objection No. 5: Immaterial Calendar No.: Event ID: TENTATIVE RULINGS

3090854 CASE NUMBER: CASE TITLE: PIERCE VS CITY OF ENCINITAS [IMAGED] 37-2022-00034198-CU-PO-NC Objection No. 6: Immaterial Objection No. 6: Overruled Objection No. 7: Immaterial Objection No. 8: Immaterial Objection No. 9: Immaterial Objection No. 10: Immaterial Objection No. 11: Overruled Factual Background and Procedural History This is a premises liability case. It concerns a minor who, while bicycling, 'struck a [three-inch] cracked upheaval in the asphalt of the roadway' 'caused by a tree root...' The tree that caused the crack was about 26-feet from the crack where the accident occurred. The minor suffered significant injuries. The accident occurred on March 15, 2022.

The minor, through her father and Guardian ad Litem Eliot Pierce, filed the instant action about six months later on August 24, 2022. In the lawsuit, the minor, Daisy Pierce (Plaintiff), asserted causes of action for (1) dangerous condition of public property, (2) premises liability, and (3) negligence. She named two defendants at that time: --defendant City of Encinitas (the City) --defendant/cross-complainant Excel Landscape Inc. (Excel or the Landscaper) Excel subsequently filed a Cross-Complaint against cross-defendant West Coast Arborists (West Coast or the Tree Trimmers). It alleges causes of action including equitable indemnity, implied indemnity, comparative negligence, contribution, and declaratory relief.

Plaintiff subsequently amended her Complaint to add West Coast – i.e. the Tree Trimmers – as a 'doe' defendant in this lawsuit.

West Coast subsequently filed a Cross-Complaint against unnamed defendants, but it was subsequently dismissed. (ROAs 31 and 84.) The Landscaper is now moving for summary judgment of the claims that Plaintiff is making against it.

Merits of Motion The theory that comes out of the briefing is that the City contracts with different agencies to take care of its landscaping and tree-trimming needs. Very summarily, it appears that the Landscaper (which is the present moving party) takes care of a lot of low-level maintenance like trimming hedges and bushes, mowing lawns, etc., while the Tree Trimmers (i.e. West Coast) takes care of 'up in the sky' formal trimming and pruning of big trees.

The City's contract with the Landscaper, however, includes obligations to do things like: report observations of hazards or potential hazards and inspect and identify unsafe conditions and notify the City immediately of any that are discovered. The Landscaper takes issue with this – in part because some of the proof Plaintiff offers in support of this position is parol evidence provided by an employee of the City rather than by actually looking to the language of the agreement. The agreement, however, contains several clauses that might apply, including, but not necessarily limited to, the following: 1.09 The CONTRACTOR shall perform a weekly maintenance inspection during daylight hours of all areas within the premises. Such inspection shall be both visual and operational. It shall include operation of all irrigation systems to check for proper condition and reliability. CONTRACTOR shall take immediate steps to correct any observed irregularities, and submit a written report regarding such circumstances to the CONTRACT OFFICER.

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3090854 CASE NUMBER: CASE TITLE: PIERCE VS CITY OF ENCINITAS [IMAGED] 37-2022-00034198-CU-PO-NC 1.11 CONTRACTOR shall report to the CONTRACT OFFICER all observations of: graffiti and other vandalism; illegal activities; transient camps; missing or damaged equipment or signs; hazards or potential hazards.

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10.01 CONTRACTOR agrees to perform all work outlined in this CONTRACT in such a manner as to meet all accepted standards for safe practices during the maintenance operation and to safely maintain stored equipment, machines, and materials or other hazards consequential or related to the work; and agrees additionally to accept the sole responsibility for complying with the CITY, County, State or Federal requirements at all times so as to protect all persons, including CONTRACTOR's employees, agents of the CITY, vendors, members of the public or others from foreseeable injury, or damage to their property. CONTRACTOR shall make weekly inspections for any potential hazards at said facilities and keep a log indicating date inspected and action taken.

10.02 It shall be the CONTRACTOR's responsibility to inspect, and identify, any condition(s) that renders any portion of the premises unsafe, as well as any unsafe practices occurring thereon. The CONTRACT OFFICER shall be notified immediately of any unsafe condition that requires major correction. CONTRACTOR shall be responsible for making minor corrections including, but not limited to; filling holes in ground, turf or paving, using barricades or traffic cones to alert patrons of the existence of hazards; replacing valve box covers; and the like, so as to protect members of the public or others from injury. (Notice of Lodgments, Ex. 6 (bold added).) The Landscaper argues that the above obligations are contractual in nature and that Plaintiff was not a party to the contract between the Landscaper and the City. Plaintiff, on the other hand, cites authority for the proposition that contractual obligations can give rise to a formal duty to a third party under tort law.

See Shipp v. Western Engineering, Inc. (2020) 55 Cal.App.5th 476, 490 (citation omitted); see also Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204. Though the Seo court ultimately did not hold that a duty applied in that case, the pertinent language of Seo that the parties argue here is the assertion that: 'A special relationship may also arise out of a statutory duty or a contractual duty.' Seo, supra, 97 Cal.App.4th at 1203, citing 6 Witkin, Summary of California Law (9th ed. 1990) Torts, § 859, p. 223.) 'If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract.' Id. at 1203, citing 6 Witkin, Summary of California Law (9th ed. 1990) Torts, § 889, p. 260. Here, it seems from the contractual language that the public was intended to benefit from at least some aspects of the agreement in question – aspects which are pertinent to the instant case such as the obligation to inspect and report on hazards and to take actions to 'protect... members of the public from foreseeable injury...' Even though the question of whether a duty is owed is a question for a court (rather than a jury) the question of duty does not have to be resolved via summary judgment – it may require trial and fact-finding. As such, while the Court is not today foreclosing the possibility that a duty does not apply – should evidence at trial when credibility can be weighed come out that way – the Court readily concludes that there are, at a minimum, triable issues of fact as to the question being presented by the Landscaper: i.e. whether the Landscaper owed no duty to Plaintiff, a member of the public who suffered injury from an alleged hazard caused by the roots of a tree that warped the asphalt on which she was riding her bicycle.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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3090854