RONNY SHAWN LAMMY, AN INDIVIDUAL VS RAMMOHAN SINGH, AN INDIVIDUAL, ET AL.

Tentative Rulings

Case Number: 19STCV29717 Hearing Date: June 5, 2023 Dept: 29

Case Number: 19STCV29717    Hearing Date: March 04, 2021    Dept: 29

Case Number: 19STCV36276    Hearing Date: March 04, 2021    Dept: 29

Nicholas Hernandez v. James Aber Wagner. et al

Motion for Summary Judgment filed by Defendant City of Burbank

TENTATIVE

Defendant’s motion for summary judgment is GRANTED.

· Judicial Notice

The Court takes judicial notice of the Google Map photos submitted by Defendant. (Evid. Code ; 452.)

The Court also takes notice of the Burbank Municipal Code, Chapter 4. (Evid. Code ; 452.)

· Objections

a. Paintiff’s Objections to Defendant’s Evidence:

i. The following are overruled: 2, 3

ii. The following are sustained: 1

ANALYSIS

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure (“CCP”) section 437c(c) “requires the trial judge to grant summary judgment 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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP ; 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) 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.)

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 that cause of action or a defense thereto.

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Discussion

Dangerous Condition of Public Property

Defendant contents that Plaintiff cannot establish three elements for a cause of action for dangerous condition of public property.

To prove a governmental entity’s liability under Government Code section 835,a plaintiff must prove: (1) the property was under the ownership and/or control of the entity; (2) the property was in a dangerous condition; (3) the plaintiff’s harm was proximately caused by the dangerous condition; (4) the dangerous condition created a reasonably foreseeable risk of the kind of injury which incurred; and (5) the entity had actual or constructive notice of the dangerous condition with sufficient time to have taken measures to protect against the dangerous condition. (Govt. Code ; 835; Judicial Council of California Civil Jury Instructions (2017), CACI 1100.)

Defendant contends that Plaintiff cannot establish (1) the property was in a dangerous condition, (2) the condition created a reasonably foreseeable risk of injury that Plaintiff suffered, and/or (3) Defendant had notice of any dangerous condition of the Tree.

I. The Tree was a Dangerous Condition

“Dangerous Condition” is defined as “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.” (Govt. Code ; 830.)

“[A] claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340, 1347, citation omitted.) A dangerous condition exists when public property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,” or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users. (Id. at 1347-48.) “A condition is not dangerous . . . if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property . . . was used with due care in a manner which was reasonably foreseeable that it would be used.” (Govt. Code ; 830.2.) “A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.) 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, supra, 161 Cal. App. 4th at 1347.)

Defendant alleges the truck driven by James was clipped on the passenger-side corner. (SSUF No. 1.) Defendant’s records reflect that the Tree had been regularly maintained since 2003 and was in good condition prior to and after the incident. (SSUF No. 6.) The Tree’s last prune, prior to the incident, was on May 15, 2017. (Id.) Defendant’s Forestry Division did not perform any maintenance or repairs to the tree after the incident. (SSUF No. 8.)

Defendant alleges Plaintiff failed to provide evidence to suggest that the Tree or the circumstances surrounding the incident made the Tree more dangerous than it otherwise would be. Instead, the evidence suggests the Tree canopied, a residential street in Burbank, and the day of the incident was a clear morning. (Def. SSUF No. 4, 9, 11.) In addition, James testified he constantly drives and was aware that he needed to keep an eye out for low hanging branches. (Def. SSUF No. 10.) James also testified that he had driven down Parkside avenue in the same truck between 30 to 40 times without incident and knew he had to keep an eye out for low hanging branches. (SSUF No. 10; Vander Decl., Exh. C p. 21-23, 28, 32-33.) James further testified he had driven under the Tree “hundreds of times,” and saw the tree just before the incident. (Vander Decl., Exh. C p. 44, 46.) Prior to the incident, Defendant had no record of complaints about the Tree. (SSUF No. 7.)

Accordingly, Defendant has presented sufficient evidence to meet its burden of showing the Tree was not a dangerous condition, or that there were additional circumstances that would have made the Tree more dangerous than the Tree itself would suggest. This shifts the burden to Plaintiff to offer evidence that the Tree was a dangerous condition. (Sangster, supra, 68 Cal.App.4th at 166.)

Plaintiff alleges that Defendant is responsible for maintaining the Tree which hung over the Subject Premises. (See BMC Art. 1. Trees, Shrubs, and Plants 7-4-104.) Plaintiff also alleges Defendant’s forestry service is responsible for providing a 14-foot vehicle clearance “in the path of travel,” which is Defendant’s informal policy. (Consolo Decl. ¶ 6, Exh. E. p. 17.) Plaintiff contends what constitutes the “path of travel” is a question for the jury to determine. Plaintiff further alleges that Defendant had the authority to and should have removed the Tree because it was obstructing public travel in violation of its BMC section 7-4-110.

Plaintiff’s basis that the Tree was a dangerous condition is that it hung over Parkside Avenue at a height lower than Defendant’s required 14-foot vehicle clearance in the path of travel. Plaintiff does not contend that the tree was obstructed or that it was a surprise obstacle. Here, James testified he saw the tree before he hit it, had driven under the tree hundreds of times, and had driven the route he did on the day of the incident between 30 to 40 times, without issue. (Cordova v. City of Los Angeles, 61 Cal. 4th 1099, 1111. [“[T]he object is not a ‘dangerous condition’ with[in] the meaning of section 835 if it does not create a substantial risk that motorists driving in a reasonable manner will be injured by striking it.] Plaintiff has failed to present any evidence that a person driving in a reasonable manner would have been injured by the Tree. In fact, the evidence suggests that James had driven the route he drove on the day of the incident between 30 to 40 times, without incident, and had driven under the Tree hundreds of times, also without incident. Plaintiff has failed to present substantial responsive evidence that the Tree was a dangerous condition.

Thus, Plaintiff failed to establish a triable issue of material fact regarding whether the Tree was a dangerous condition.

II. A Dangerous Condition Created a Reasonably Foreseeable Risk of The Kind of Injury Incurred

Under Code of Civil Procedure section 835, Plaintiff must prove “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred.” “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) There must be evidence that the danger exists when the property is used with due care and in the manner in which it is reasonably foreseeable that it will be used. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) “[O]ne can conjure up all manner of extreme measures which might have prevented this particular injury but that is not the issue. The fundamental inquiry is whether the duty of a landowner to exercise reasonable care in preventing injury to persons on the premises [citation] required such measures.” (Edwards v. California Sports, Inc. (1988) 206 Cal.App.3d 1284, 1287.) “There is a limit as to how far society should go by way of direct governmental regulation of commercial and private activity, or indirect regulation thereof through the tort system, in order to protect individuals from their own stupidity, carelessness, daring or self-destructive impulses.” (Id.)

Defendant alleges Defendant James was aware that he had to drive carefully in the general area of the Subject Premises, and, as discussed above in detail, that he had traveled through the Subject Premises in the past, without issues. (Def. SSUF No. 10; Vander Decl., Exh. C p. 21-23, 28, 32-33.) Defendant also alleges that it is not foreseeable that the Tree would cause the type of lower jaw laceration Plaintiff suffered during the incident, as Plaintiff was the only person who was injured during the incident because he was not wearing a seatbelt at that time.

Accordingly, Defendant has presented sufficient evidence to meet its burden of showing that the Tree did not create a reasonably foreseeable risk of the kind of injury that Plaintiff suffered. This shifts the burden to Plaintiff to offer evidence that the Tree created a reasonably foreseeable risk of the injury Plaintiff suffered.

Plaintiff offers no evidence to establish that the Tree created a reasonably foreseeable risk for the type of injury he suffered. Plaintiff fails to establish that a person driving in a reasonable manner would strike the Tree. Here, the evidence suggests a person driving with due care, as James testified he had done in the past, would have driven past the tree without incident. Here, the evidence also suggests Plaintiff’s carelessness played a factor in the injuries he suffered, as he was the only person of five, who was injured during the incident and the only person who was not wearing a seatbelt at the time of the incident. The evidence suggests it was not reasonably foreseeable that the Tree created a risk for the type of injury suffered by Plaintiff.

Thus, Plaintiff failed to establish that there is a triable issue of material fact regarding whether the Tree created a reasonably foreseeable risk of the kind of injury he suffered.

III. Defendant Had Actual or Constructive Notice of The Dangerous Condition

Under Code of Civil Procedure section 835, Plaintiff must prove Defendant had actual or constructive notice of the dangerous condition with sufficient time to have taken measures to protect against the dangerous condition. (Govt. Code ; 835; Judicial Council of California Civil Jury Instructions (2017), CACI 1100.)

Actual

“Actual notice” requires that the public entity 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).) To create a triable issue of fact on the issue of actual notice, there must be “some evidence that the employees had knowledge of the particular dangerous condition in question.” (State v. Superior Court (Rodenhuis) (1968) 263 Cal.App.2d 396, 399 (Rodenhuis).)

Defendant’s allege that the incident was the first notice it received of the Tree as a potential dangerous condition. (Campo Decl., ¶¶ 8-10.) Prior to the incident, other than requests for maintenance, which were completed, Defendant had not received complaints regarding the Tree. (Def. SSUF No. 7, 13.)

Accordingly, Defendant has presented sufficient evidence to meet its burden of showing that it did not have actual notice of the alleged dangerous condition of the Tree. This shifts the burden to Plaintiff to offer evidence that the Defendant had actual notice of the dangerous condition of the Tree.

Plaintiff alleges that Defendant had actual notice of the dangerous condition of the tree because it obstructed traffic and did not provide 14-foot vehicle clearance. (Pl. Resp. SSUF 13-15.)

Plaintiff fails to provide any evidence reflecting Defendant’s had actual knowledge of the alleged dangerous condition of the Tree.

Thus, Plaintiff failed to establish a triable issue of material fact regarding whether Defendant had actual notice of the tree as a dangerous condition.

Constructive

“Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection.” (Rodenhuis, supra, 263 Cal.App.2d at 400.) To establish constructive notice a plaintiff must prove (1) the dangerous condition has existed for a sufficient period of time before the accident and (2) that the dangerous condition was obvious. (Id.) “The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” (Id.)

Defendants allege that the Tree was not a dangerous condition because it was and continues to be in good condition. (SSUF Nos. 13, 15.) The Tree is one of many trees on Parkside Avenue that canopy that area. (Def. SSUF Nos. 4, 11.) In addition, there is no evidence establishing how long the alleged dangerous condition existed and that it existed for a reasonable period of time. Defendant regularly conducted routine maintenance of the tree, including a prune in May 2017. (SSUF No. 6, 16.) Defendant argues that placing any additional burden on the City to continually assess its 33,000 trees for imperfections would create an imbalance between “the practicability and cost of inspection” and the “likelihood and magnitude of the potential danger” from the condition. (See Gov. Code, ; 835.2, subd. (b).)

Accordingly, Defendant has presented sufficient evidence to meet its burden of showing that it did not have constructive notice of the alleged dangerous condition of the Tree. This shifts the burden to Plaintiff to offer evidence that the Defendant had constructive notice of the dangerous condition of the Tree.

As stated above, Plaintiff alleges that Defendant had constructive notice of the dangerous condition of the Tree because it obstructed traffic and did not provide a 14-foot vehicle clearance.

Here, the evidence suggests Defendant conducted maintenance of the Tree and it determined that it was in good condition. In addition, Plaintiff has not provided any evidence (direct or circumstantial) for the length of time prior to the incident that the alleged dangerous condition had existed.

Thus, Plaintiff failed to establish a triable issue of material fact regarding whether Defendant had constructive notice of the tree as a dangerous condition.

Therefore, the undisputed facts show that Plaintiff cannot establish a cause of action for dangerous condition of public property.

IV. Premises Liability

Defendant contends that Plaintiff erroneously named it as a defendant to the cause of action for premises liability.

The Government Claims Act, codified in Government Code section 815, abolished all

common law theories of government liability, and provides that “except as otherwise provided

by statute, a public entity is not liable for an injury, whether such injury arises out of an act or

omission of the public entity or public employee or any other person.” (Gov. Code ; 815, subd.

(a).)

In his Opposition, Plaintiff agrees that the premises liability cause of action against Defendant should be dismissed. (Pl. Opp. p. 9:3-7.)

Therefore, the undisputed facts show that Plaintiff cannot establish a cause of action for premises liability.

Conclusion

Defendant’s motion for summary judgment is GRANTED.

Moving party is ordered to give notice.