Judge: Salvatore Sirna, Case: 23PSCV00355, Date: 2024-03-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on a tentative ruling by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 23PSCV00355    Hearing Date: March 20, 2024    Dept: G

Defendant City of Claremont’s Motion for Summary Judgment, or, in the Alternative. Summary Adjudication

Respondent: Plaintiff Interinsurance Exchange of the Automobile Club

TENTATIVE RULING

Defendant City of Claremont’s Motion for Summary Judgment is GRANTED.

BACKGROUND

This is an action for dangerous condition of public property and inverse condemnation. Plaintiff Interinsurance Exchange of the Automobile Club (IEAC) is an insurance provider who provided insurance coverage for Juan Cervera, Jr., the owner of a residential property in Claremont. After a tree fell onto Cervera’s Claremont property in January 2022, IEAC made payments in excess of $100,000 to Cervera for the damages. IEAC alleges the tree that fell onto Cervera’s property belonged to Defendant City of Claremont (the City).

On February 6, 2023, IEAC filed a complaint against the City and Does 1-10, alleging causes of action for (1) dangerous condition of public property and (2) inverse condemnation.

On December 27, 2023, the City filed the present motion. A hearing on the present motion is set for March 13, 2024, with a post-mediation status conference/trial setting conference set for June 24.

ANALYSIS

The City moves for summary judgment or adjudication of IEAC’s claims on the grounds that it cannot establish all the elements of its causes of action. For the following reasons, the court GRANTS the City’s motion.

Legal Standard

A motion for summary judgment or adjudication provides “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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) It must be granted “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, quoting Code Civ. Proc., § 437c, subd. (c).) To establish a triable issue of material fact, the opposing party must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Inverse Condemnation (Second Cause of Action)

The City argues they are entitled to summary judgment because IEAC cannot establish the City planted or directed the planting of the subject tree that fell onto Cervera’s property. The court agrees.

Legal Standard

Inverse condemnation arises from the constitutional prohibition on taking private property for public use without compensation. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 939.) It allows the property owner of taken or damaged property to obtain compensation from the state in the form of damages. (Regency Outdoor Advertising, Inc. v. City of Los Angeles (2006) 39 Cal.4th 507, 516; Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 777.) To succeed on a claim for inverse condemnation against a public entity, the property owner must establish that the public entity “substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff’s property.” (Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979-980.)

“A public project or improvement is a ‘use which concerns the whole community or promotes the general interest in its relation to any legitimate object of government.’” (Mercury Casualty Co. v. City of Pasadena (2017) 14 Cal.App.5th 917, 926 (Mercury Casualty), quoting Bauer v. County of Ventura (1955) 45 Cal.2d 276, 284.) “[A] tree constitutes a work of public improvement for purposes of inverse condemnation liability if the tree is deliberately planted by or at the direction of the government entity as part of a planned project or design serving a public purpose or use, such as to enhance the appearance of a public road.” (Id., at p. 928.)

Discussion

In this case, the Complaint alleges the subject tree was a public improvement because it was planted and maintained by the City. (Complaint, ¶ 28, 32.) The City argues there is no evidence to establish the subject tree was planted by or at the direction of the City. In support of this argument, the City points to a declaration by Brad Johnson, the City’s Director of Community Development. After conducting a search of the City’s records, Johnson was unable to determine when and by whom the subject tree was planted. (Johnson Decl., ¶ 8-9.) Johnson was also unable to locate any documents showing that the City planted the subject tree as part of a public improvement project. (Johnson Decl., ¶ 9.) According to Johnson, the area where the subject tree was located was annexed into the City from unincorporated Los Angeles County in 1980. (Johnson Decl., ¶ 8.) Johnson also stated that based on a review of aerial photographs from that same time period, the subject tree appeared to have been planted prior to the City’s annexation of the area. (Johnson Decl., ¶ 10.)

Next, the City points to IEAC’s discovery responses. In a supplemental response to a special interrogatory requesting all facts that supports IEAC’s contention that the City “inspected, maintained, owned, and exercised dominion and control over the subject tree,” IEAC stated the “[t]he tree at issue was planted in the public right of way within a uniform pattern equidistant from trees of the same species and size along the relevant street in front of multiple different private properties.” (Oren Decl., Ex. B, p. 5:24-26, 6:21-24.) But IEAC failed to identify any facts establishing the City or its predecessor-in-interest actually planted or directed the planting of the subject tree. Based on these facts, the City has met its burden as the moving party of establishing there are no facts to suggest the City or its predecessor-in-interest planted or directed the planting of the subject tree at issue.

In opposition, IEAC does not dispute the lack of evidence establishing the City planted or directed the planting of the subject tree. (Plaintiff’s Separate Statement (PSS), ¶ 4.) But IEAC does dispute the fact that there is no evidence to suggest the subject tree was planted as part of a planned project or design serving a public purpose. (PSS, ¶ 5.) In support, IEAC points to the following facts. First, IEAC states the subject tree was planted as part of an original subdivision development that was constructed in 1961. (PSS, ¶ 11.) But while IEAC cites the declaration of Johnson for this contention, the court does not find Johnson’s declaration provides any support for this fact. Johnson stated the subdivision where the subject tree was located was built in 1961. (Johnson Decl., ¶ 8.) While Johnson states the subject tree was planted as part of the original subdivision in 1961 based on aerial photographs from 1980, it is unclear on what foundation or basis Johnson is making this assertion. (Johnson Decl., ¶ 10.) Johnson’s unsupported speculation does not provide proper evidentiary support for the claim that the subject tree was planted in 1961.

Second, IEAC states the subject tree was one of at least twenty Canary Island pines that were planted along the same street at roughly the same time. (PSS, ¶ 12.) In support, IEAC provided a screenshot of a Google Maps street view. (Kraemer Decl., Ex. A.) But while this evidence shows how some of the trees looked in June 2018, it fails to establish when the trees were planted. IEAC also points to the declaration of Richard Hecker, the City’s landscape maintenance supervisor, who stated that six other Canary Island pines fell on the same street and roughly twenty were removed following storm damage. (Hecker Decl., ¶ 11.) But Hecker fails to state how many trees were located along the street in total and when they were planted. Thus, there is no evidence to support this contention. Third, IEAC states the Canary Island pines that included the subject tree were planted in a uniform pattern within the right-of-way and were roughly of the same size. (PSS, ¶ 14.) In support, IEAC also points to the same Google Maps screenshot. (Kraemer Decl., Ex. A.) But while the screenshot appears to a show a handful of pine trees with similar heights and placements, it does not establish when the pines were planted.

While IEAC admits there is no written evidence establishing who planted the subject tree, IEAC claims there is no reasonable argument that it was planted for any purpose other than a planned project or design. But even so, IEAC fails to introduce any facts that establish the project or design was a public improvement initiated or directed by a public agency. Although IEAC argues a factfinder could infer from the design of the trees that were planted by or at the direction of a public agency, this is pure speculation and insufficient to establish a triable issue of fact. “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196, quoting O’Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044-1045.)

In Mercury Casualty, the court held a tree was not a work of public improvement where there was no record of who planted the tree or for what purpose the tree was planted. (Mercury Casualty, supra, 14 Cal.App.5th at p. 929.) Here, there is also no evidence to establish who planted the subject tree or for what purpose. Accordingly, because there are no facts to establish that the subject tree was a public improvement, the City’s motion for summary judgment is GRANTED as to this cause of action.

Dangerous Condition of Public Property (First Cause of Action)

The City contends they are entitled to summary judgment because IEAC cannot establish the City created or had notice of a dangerous condition. The court agrees.

Legal Standard

Pursuant to Government Code section 835, “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.”

A “‘[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.” “The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.’” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347, quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.)

Discussion

In this case, the Complaint alleges the subject tree constituted a dangerous condition because it “it was dead or dying, was not properly planted, possessed an advanced insect infestation, was malnourished, existed in soil that had come to be in a poor condition, had appreciable root rot, appreciably shallow roots, and/or was not properly pruned/maintained to withstand expected winds.” (Complaint, ¶ 20.) The City contends there is no evidence to support the claim that the tree was in a dangerous condition. (DSS, ¶ 7-8.) In support, the City points to the declaration of Hecker who states the subject tree was last inspected by the City on March 21, 2019. (Hecker Decl., ¶ 7.) The inspection included searching for signs of distress and indications that the tree was at a risk of falling. (Hecker Decl., ¶ 7.) Hecker states the inspection did not show any signs of distress or indication of root structure compromise. (Hecker Decl., ¶ 7-8/) Based on these facts, the City has met its burden as the moving party of establishing there are no facts to suggest the subject tree constituted a dangerous condition.

In opposition, IEAC does not dispute these facts and fails to provide any additional facts that establish a triable issue of material fact regarding whether the subject tree constituted a dangerous condition. Accordingly, because there are no disputed facts upon which a reasonable factfinder could determine the subject tree was a dangerous condition, the City’s motion for summary judgment as to this cause of action is GRANTED.

CONCLUSION

Based on the foregoing, the court GRANTS the City’s motion for summary judgment.