Judge: Nick A. Dourbetas, Case: 2020-01153798, Date: 2022-08-26 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant City of Yorba Linda’s Motion for Summary Judgment and Summary Adjudication of Issues is GRANTED in part and DENIED in part. (See Code Civ. Proc. § 437c.)

Summary judgment is denied on the grounds that defendant fails to meet its initial burden to show the entire action has no merit.  (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [same].)

Defendant also failed to meet its initial burden as to Noticed Issues No. 3 & 4.

As to Noticed Issues No. 1 & 2, plaintiff met her shifted evidentiary burden to show that triable issues of material fact exist. (See Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850.)

Plaintiff’s additional material facts no. 1, 4, 5, 8, 10, 12, 14, 15, 16 and 18 create triable issues of material as to whether the height of the curb that plaintiff tripped upon was a hazardous condition, and whether the dangerous condition was created by a public employee’s negligent or wrongful act or omission.

The court elects to treat Noticed Issue No. 5 as a common law motion for judgment on the pleadings (See Cordova v. 21st Century Insurance (2005) 129 Cal.App.4th 89, 109) and grants this noticed issue on the grounds that governmental entities such as Yorba Linda are not liable except as specifically established by statute. (See Gov. Code §  815(a): Yee v. Superior Court  (2019) 31 Cal.App.5th 26, 33.) Neither the third or fourth causes of action are established by statute.

The court declined to consider the reply separate statement, as Calif. Code Civil Procedure, section 437c only authorizes a moving and opposing separate statement. The court also declined to rule on the evidentiary objections therein. (See Calif. Rule Court, rule 3.1354 [requiring separate pleading and specified format].)

Plaintiff’s evidentiary objections are overruled.

Defendant is ordered to give notice.