ANAHITA SHAHGALDIAN VS CITY OF BURBANK ET AL

Tentative Rulings

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.