On 02/15/2018 a Personal Injury - Other Personal Injury case was filed by ANAHITA SHAHGALDIAN against CITY OF BURBANK in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
****4061
02/15/2018
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
SHAHGALDIAN ANAHITA
LOS ANGELES COUNTY OF
GLENDALE CITY OF
DOES 1 TO 50
BURBANK CITY OF
5/8/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
5/8/2018: Summons on Cross Complaint
5/10/2018: REQUEST FOR DISMISSAL
5/31/2018: PROOF OF SERVICE SUMMONS
8/10/2018: Amendment to Complaint (Fictitious/Incorrect Name)
8/27/2018: ORDER ON COURT FEE WAIVER (SUPERIOR COURT)
8/29/2018: PROOF OF SERVICE SUMMONS
10/15/2018: Notice of Deposit - Jury
1/17/2019: Notice of Deposit - Jury
5/15/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person
5/24/2019: Amendment to Complaint (Fictitious/Incorrect Name)
6/3/2019: Amendment to Complaint (Fictitious/Incorrect Name)
4/27/2018: Summons on Cross Complaint
4/27/2018: DEFENDANT CITY OF BURBANK'S ANSWER TO COMPLAINT
4/27/2018: CROSS COMPLAINT - PERS. INJURY PROPERTY DAMAGE, WRONG DEATH (2 PAGES)
2/15/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
2/15/2018: ORDER ON COURT FEE WAIVER
2/15/2018: SUMMONS
Amendment to Complaint (Fictitious/Incorrect Name); Filed by Anahita Shahgaldian (Plaintiff)
Amendment to Complaint (Fictitious/Incorrect Name); Filed by Anahita Shahgaldian (Plaintiff)
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Burbank, city of (Defendant)
Notice of Deposit - Jury; Filed by Varliyan, Gabriyel (Doe 1) (Defendant)
Notice of Deposit - Jury; Filed by Burbank, city of (Defendant)
Proof of Service (not Summons and Complaint); Filed by Anahita Shahgaldian (Plaintiff)
PROOF OF SERVICE SUMMONS
Request-Waive Addl Court Fees
Request to Waive Additional Court Fees (Superior Court)
Request to Waive Additional Court Fees (Superior Court)
PROOF OF SERVICE SUMMONS
Request to Waive Court Fees
ORDER ON COURT FEE WAIVER
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
SUMMONS
Request-Waive Court Fees
Request to Waive Court Fees; Filed by Anahita Shahgaldian (Plaintiff)
Summons; Filed by Anahita Shahgaldian (Plaintiff)
Complaint; Filed by Anahita Shahgaldian (Plaintiff)
Order on Court Fee Waiver (Superior Court); Filed by Clerk
Case Number: BC694061 Hearing Date: December 03, 2019 Dept: 4B
[TENTATIVE] ORDER RE: DEEFENDANT CITY OF BURBANK’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION On February 17, 2017, plaintiff Anahita
Shahgaldian (“Plaintiff”) was leaving a residence when a branch from a
jacaranda tree fell on her back. (Defendant’s Undisputed Material Fact (“UMF”) No. 1.) It was windy. (UMF Nos. 2-5.) The last time the
tree was pruned was on January 31, 2017. (UMF No. 5.) Defendant City of
Burbank (“Defendant”) has a proactive inspection program where trees are
inspected and trimmed every five or six years, or sooner by complaint. (UMF No. 6.) Jacaranda trees are messy trees that shed flowers, leaves, and branches
in the surrounding areas. (UMF No.
8.) On the date of the incident,
Defendant’s Forestry Division responded to thirty calls of broken branches or
fallen trees. (UMF No. 9.) An average number of calls per day is 3 to 5
fallen branches or trees. (UMF No.
9.) On
February 15, 2018, Plaintiff filed this action against Defendant, City of
Glendale, City of Los Angeles, and County of Los Angeles for premises liability
and negligence. Defendant moves for
summary adjudication on: (1) Plaintiff’s first cause of action for general
negligence because general negligence is not a viable cause of action against a
public entity; (2) Plaintiff’s second cause of action for dangerous condition
of public property because the jacaranda tree was not a dangerous condition;
(3) Plaintiff’s second cause of action because Defendant did not have actual or
constructive notice of any dangerous condition which caused Plaintiff’s alleged
injury; and (4) punitive damages are not recoverable against Defendant. II. LEGAL STANDARDS In
reviewing a motion for summary judgment, courts must apply a three-step
analysis: “(1) identify the issues framed by the pleadings; (2) determine
whether the moving party has negated the opponent’s claims; and (3) determine
whether the opposition has demonstrated the existence of a triable, material factual
issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “A
party may move for summary adjudication as to one or more causes of action
within an action, one or more affirmative defenses, one or more claims for
damages, or one or more issues of duty, if that party contends that the cause
of action has no merit or that there is no affirmative defense thereto, or that
there is no merit to an affirmative defense as to any cause of action, or both,
or that there is no merit to a claim for damages . . . or that one or more
defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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).) A motion for summary adjudication shall
proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).) “[T]he
initial burden is always on the moving party to make a prima facia showing that
there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc.
(2005) 128 Cal.App.4th 1510, 1519.) A
defendant moving for summary judgment or summary adjudication “has met his or her
burden of showing that a cause of action has no merit if the party has shown
that one or more elements of the cause of action . . . cannot be established,
or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively
negate an element of plaintiff’s cause of action. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) To
meet this burden of showing a cause of action cannot be established, a
defendant must show not only “that the plaintiff does not possess needed
evidence” but also that “the plaintiff cannot reasonably obtain needed
evidence.” (Aguilar, supra, 25
Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the
absence of evidence. (Gaggero v. Yura
(2003) 108 Cal.App.4th 884, 891.) The
defendant “must also produce evidence that the plaintiff cannot reasonably
obtain evidence to support his or her claim.” (Ibid.) The supporting evidence
can be in the form of affidavits, declarations, admissions, depositions,
answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.) “Once
the defendant . . . has met that burden, the burden shifts to the plaintiff . .
. to show that a triable issue of one or more material facts exists as to the
cause of action or a defense thereto.” (Code
Civ. Proc., § 437c, subd. (p)(2).) The
plaintiff may not merely rely on allegations or denials of its pleadings to
show that a triable issue of material fact exists, but instead, “shall set
forth the specific facts showing that a triable issue of material fact exists
as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical
Center (2008) 159 Cal.App.4th 463, 467.) III. EVIDENTIARY OBJECTIONS Plaintiff’s Objection Nos. 1, 2, 3, 5,
6, 7, and 8 are OVERRULED. Plaintiff’s Objection Nos. 4 and 9
are SUSTAINED. Defendant’s Objection Nos. 1, 6, 7, 8,
9, 10, 11, 12, 15, 16, 19, 20, and 21 are OVERRULED. Defendants’ Objection Nos. 2, 3, 4,
5, 13, 14, 17, and 18 are SUSTAINED. IV. DISCUSSION First
Cause of Action: General Negligence Public
entities cannot be liable for common law theories of general negligence. (Miklosy
v. Regents of University of California (2008) 44 Cal.4th 876, 899 [“section
815 abolishes common law tort liability for public entities”].) Therefore, liability against a public entity
must be authorized by statute. (Eastburn v. Regional Fire Protection
Authority (2003) 31 Cal.4th 1175, 1179; Gov. Code, § 815, subd. (a) [“A
public entity is not liable for an injury . . . except as otherwise provided by
statute”].) Plaintiff pleads a cause of action
for general negligence against Defendant and does not cite a statutory basis
for liability. Plaintiff’s opposition
brief does not mention this cause of action or oppose summary adjudication on
this cause of action. Defendant’s motion
for summary adjudication on Plaintiff’s first cause of action is GRANTED. Second Cause of Action: Dangerous Condition of Public Property To
hold a public entity liable for injury caused by a dangerous condition, a
plaintiff must prove (1) that the property was a dangerous condition at the
time of the injury, (2) that the injury was proximately caused by the dangerous
condition, (3) that the dangerous condition created a reasonably foreseeable
risk of the kind of injury which was incurred, and (4) that either 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 the public entity
had actual or constructive notice of the dangerous condition and sufficient
time prior to the injury to have taken measures to protect against the
dangerous condition. (Gov. Code, § 835.) A
claim alleging a dangerous condition of public property must “specify in what
manner the condition constituted a dangerous condition” and “a plaintiff’s
allegations, and ultimately the evidence, must establish a physical deficiency
in the property itself.” (Mixon v. Pacific Gas & Electric Co.
(2012) 207 Cal.App.4th 124, 131.) “To
establish a qualifying condition, the plaintiff must point to at least one
‘physical characteristic’ of the property.” (Cole v. Town of Los Gatos
(2012) 205 Cal.App.4th 749, 759.) A
dangerous condition exists where the property is “physically damaged,
deteriorated, or defective in such a way as to foreseeably endanger those using
the property, or possesses a physical characteristic in its design, location,
features or relationship to its surroundings that endanger users. (Mixon,
supra, 207 Cal.App.4th at p. 131.) The existence of a dangerous condition is ordinarily
a question of fact but can be decided as a matter if law if reasonable minds
can come to only one conclusion. (Id. at p. 148.) As
framed by the pleadings, Plaintiff alleges that the dangerous condition was “a
defective and poorly maintained tree.” Defendant argues that the jacaranda tree was not defective because
Defendant regularly maintained it, and seventeen days before the incident, Defendant’s
tree trimmers had trimmed the tree and noted it to be in fair condition on
visual inspection. (UMF No. 5.) In Defendant’s separate statement, Defendant
cites to excerpts of the deposition transcript of Michael Del Campo. Mr. Del Campo, the Landscape and Forestry
Services Superintendent, testified about the content of a Tree Report attached
as Exhibit E to his declaration which states the jacaranda tree was in “Fair”
condition. Defendant contends the tree
branch broke due to high winds. In
opposition, Plaintiff introduces the declaration of an arborist, Guy Stivers, who
provides his opinion, based on his review of Defendant’s Tree Keeper reports
and his examination of the tree on July 17, 2019, that the jacaranda was at the
end of its life, in poor health due to old age, infested, decaying, and poorly
trimmed, which among other issues with the tree made it a liability or
dangerous condition. This is sufficient
to raise a triable issue of material fact exists as to the whether the
jacaranda tree constituted a dangerous condition. Notice A
public entity had actual or constructive notice of a dangerous condition if it
had actual knowledge of the existence of the condition and knew or should have
known of its dangerous character. (Gov.
Code, § 835.2, subd. (a).) A public
entity had constructive notice of a dangerous condition 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. (Gov. Code, § 835.2, subd. (b).) On the issue of due care, admissible evidence
includes, but is not limited to evidence of whether the condition and its
dangerous character would have been discovered by an inspection system that was
reasonably adequate or whether the public entity maintained and operated an
inspection system with due care and did not discover the condition. (Gov. Code, § 835.2, subds. (b)(1)-(b)(2).) “Whether the dangerous condition was obvious and whether it existed
for a sufficient period of time are threshold elements to establish a claim of
constructive notice.” (Heskel v. City of San Diego (2014) 227
Cal.App.4th 313, 317.) “Where the
plaintiff fails to present direct or circumstantial evidence as to either
element, his claim is deficient as a matter of law.” (Ibid.) Defendant argues that the tree
at issue was routinely maintained as part of its inspection system and cites to
the Del Campo deposition transcript. Mr.
Del Campo discussed why trees drop branches and explained that whether a tree
branch is going to drop cannot be determined by visual inspection and cannot be
discovered despite using a proactive inspection system. In opposition, Plaintiff does not dispute that
Defendant had a proactive inspection program for the trees, but argues that the
inspection program was not adequate and that this specific tree could not have
been routinely maintained because it was in poor health as far back as
2002. Plaintiff also argues Defendant was
on notice of the trees branches breaking because the tree had at least five
branches break before the incident at issue, was approximately 70-years old,
and had survived numerous droughts. Plaintiff’s
expert Stivers
stated that the defects with the tree were apparent to someone inspecting or
trimming the tree. Thus, Plaintiff has raised a
triable issue of material fact as to whether Defendant had actual or
constructive notice. Punitive
Damages Plaintiff does not mention
punitive damages in its opposition, thereby conceding that it has no basis for
a punitive damages claim against Defendant. Accordingly the motion for summary adjudiction of the punitive damages
claims is GRANTED. V. CONCLUSION In light of the foregoing, the
Motion for summary adjudication as to the First Cause of Action for General
Negligence and the punitive damages claim is GRANTED. The Motion for summary adjudication as to the
Second Cause of Action is DENIED. Moving
party to give notice. Parties who intend to submit on this
tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit
on the tentative.