2015-00185035-CU-PO

Ian S. Willis vs. City of Sacramento

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Loorz, Shawn C.

Defendant United Revolver Club of Sacramento, Inc.’s (“URC”) Motion for Summary Adjudication is GRANTED IN PART and DENIED IN PART. URC’s Motion for Summary Judgment is DENIED.

Plaintiffs’ Evidentiary Objections nos. 21-22 are sustained and no. 23 is overruled. (CCP §473c(q) [In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.])

The Court notes that only URC’s one objection to evidence, filed separately with its reply, complies with Cal. Rules of Court Rule 3.1354(b). The Court declines to rule on the remaining objections by URC due to their lack of compliance with the rule of court.

This is a negligence and dangerous condition of public property action brought by Plaintiffs Kenneth J. Gosling, Joycelyn Verma, Ian Willis, Arthur Finch, Addie Hauschild-Willis, and Laeken J. Willis, by and through his guardian ad litem, Larke A. Hauschild (“Plaintiffs”) against URC and numerous other defendants, including the City of Sacramento (“The City”). Plaintiffs Ian Willis, Arthur Find, and Kenneth Gosling were range officers and instructors for California Security Training Academy (“CTSA”), a security company that used the City’s James Mangan Park Rifle and Pistol Range (“the Range”) to conduct their firearm training classes. These plaintiffs allege they were exposed to hazardous levels of lead at the Range from 2010 to 2015 during their employment for CSTA, and the two other plaintiffs allege exposure to second-hand lead contamination from Ian Willis.

The Range is owned by the City. (UMF 1.) The Range is open to the public, but URC and other private groups, including other named defendants, used the Range regularly. (UMF 36.) URC members also volunteered as range officers on a weekly basis. (Id.) URC would also ensure that the shooters picked up their used cartridges and held a yearly “cleaning party” to clean the range and make repairs to the tracks holding the targets. (UMF 4, 37.)

From 2004 to July 2014, Greg Narramore was the City superintendent responsible for the oversight of the Range (UMF 53), and Bill Jackson was the City’s maintenance operator who supervised the crew responsible for cleaning and removing lead accumulation from the range. (UMF 54.) Jackson and his cleaning crew cleaned the

Range monthly after receiving training and equipment from the City. (UMF 55-65.) In 2007 or 2008, Jackson and his crew increased the frequency and scope of their cleaning and began lead testing. (UMF 67.) The City’s Environmental Health and Safety Specialist, Bill Vannett, recommended that the Range be closed due to safety concerns regarding lead exposure, but the City did not close the Range and did not inform URC of the results of the NRA’s inspection. (UMF 75-76.) According to Jackson, the City stopped cleaning the Range in July 2014. (UMF 85.)

In November 2014, the City proposed an Operating Agreement with URC where the City would transfer the responsibility of cleaning the Range to URC, which URC rejected. (UMF 89-91, 101-103.) The Range was closed on January 15, 2015. (UMF 92, 104.)

URC now moves for summary judgment, or summary adjudication, of (1) Plaintiffs’ causes of action for negligence and dangerous condition of public property on the grounds that it had no duty to Plaintiff to maintain or perform lead remediation at the Range, and (2) Plaintiffs’ cause of action for dangerous condition of public property on the grounds that URC is not a public entity and thus did not own or control the public property. Plaintiffs oppose.

Standards on Motions for Summary Adjudication/Summary Judgment

In evaluating a motion for summary judgment or summary adjudication the court engages in a three step process. The Court first identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382). Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. An issue that is “within the general area of issues framed by the pleadings” is properly before the court on a summary judgment or summary adjudication motion. (Lennar Northeast Partners v. Buice (1996) 49 Cal. App. 4th 1576, 1582-1583.) The Court cannot consider an unpleaded issue in ruling on motion for summary judgment or adjudication. Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541. The papers filed in response to a defendant’s motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.

Next, the Court is required to determine whether the moving party has met its burden. A defendant [or, as here, cross-defendant] moving for summary judgment bears the burden of persuasion that one or more elements of the plaintiffs/opposing party’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 850, quoting CCP §437c(p)(2)). A defendant is not required to conclusively negate one or more elements of the plaintiffs cause of action; (Saelzer v Advance, Group 400 (2001) 25 Cal. 4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. Aguilar v Atlantic Richfield Co., supra, 25 Cal 4th at pp. 853-855). Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it.

CCP 437c(p). (see, generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327). In ruling on the motion, the court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 843.)

Once the burden shifts, Plaintiff may not rely on mere allegations or denials, but instead must set forth evidence of specific facts. (Code Civ. Proc, § 437c, subd. (o).) Speculation does not constitute the kind of “substantial responsive evidence” plaintiff needs to carry her burden on a motion for summary judgment. (Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1009.)

ISSUE 1: URC had No Duty to Maintain or Perform Lead Remediation at the Range

URC’s Control Over the Lead Accumulation and/or Maintenance of the Range

URC first argues that both causes of action must fail because it is undisputed that URC had no control over the lead accumulation or maintenance at the Range, and did not have the authority to perform lead remediation at the Range. (UMF 34-35.) URC asserts that URC did not own the Range. (Id.) URC was also not permitted to enter into contracts on behalf of the City, or repair, modify, or close the Range. (UMF 46.)

In opposition, Plaintiffs argue that URC did have possession and control over the Range. They assert that the City and URC had a long-term partnership to run the Range. (PUMF 1.) Plaintiffs provide evidence that URC range safety officers open and close the Range on nights open to the public and would collect an entrance fee on the City’s behalf, depositing a portion of each fee in a safe for the City and keeping the remainder. (PUMF 10, 12, 14, 26-28.) URC also created, enforced, and interpreted rules of the Range (PUMF 21-23), and URC range safety officers were considered “City volunteers.” (PUMF 99.) Additionally, URC purchased and stored items that belonged to the club and its members at the Range, hosted gatherings at the Range, and treated the Range as their club house. (PUMF 43, 47, 53, 56, 58, 60.) Thus, Plaintiffs argue there is a dispute of material fact as to whether URC had possession and control over the Range.

On reply, URC asserts that only the City undertook the duty to undertake the hazardous and expensive lead remediation, which included extensive training and safety precautions. URC argues that there is no evidence that it agreed to – or did – any such intensive hazardous waste removal.

At the outset, the Court would note that duty “is an essential element” of the tort of negligence. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Duty “may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Id. at p. 985.) The existence of a legal duty “ ‘ “depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” ’ ” (Erlich v. Menezes (1999) 21 Cal.4th 543, 552; Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) Moreover, as provided by statute: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).) Generally, absent the right to control either the premises or the dangerous

condition, there generally is no duty to correct or to warn. (See Gillespie v. City of Los Angeles (1950) 36 Cal. 2d 553, 556.) “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 134; Gray v. America West Airlines, Inc. (1989) 209 Cal. App. 3d 76, 81 [“In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.”].)

Here, URC has not “unequivocally established” its absence of ownership, possession, or control over the Range. As set forth above, Plaintiffs have provided evidence that raises a question of material fact as to whether URC had sufficient possession or control over the Range to impose a duty. Mr. Narramore, the City superintendent responsible for the oversight of the Range from 2004 to 2014, testified that URC and the City were “partner[s]” with a “longstanding relationship” with respect to the Range. (UMF 53, PUMF 1.) The evidence provided by Plaintiffs shows that URC created, interpreted, and enforced rules at the Range, collected payments from the public at least one night per week on behalf of both the City and the URC, and provided volunteer range safety officers. Mr. Narramore referred to the URC volunteers as “City volunteers.” (PUMF 99.) As set forth above, URC also purchased numerous items for the Range and, as set forth in greater detail below, assisted in the cleaning and maintenance of the Range. Accordingly, there is therefore raised a question of material fact as to URC’s ownership, possession, and control over the Range.

URC’s Voluntary Assumption of Duty to Clean and Maintain

URC next argues that it did not voluntarily assume the duty to perform remediation of lead or other hazardous waste at the Range. Although URC members volunteered as range officers when the Range was open to the public to ensure the public was safely handling their firearms, and the URC held a yearly “cleaning party,” URC argues that this limited volunteer work is insufficient to impose a duty to undertake specialized lead remediation and hazardous waste removal. (UMF 36, 37.) URC contends that in any event, there is no evidence that URC members were negligent in the performance of their voluntary activities, as the lead accumulation was caused by the defective design of the Range. (UMF 72.)

In response, Plaintiffs argue that the URC volunteers are City volunteers who assumed a duty to clean and maintain the Range. (PUMF 1.) Plaintiffs provide evidence that URC maintained the Range’s target system (PUMF 49, 50) and conducted regular maintenance, including cleaning and restocking the bathrooms, cleaning the kitchen and classrooms, and cleaning the bullet traps. (PUMF 61, 66, 67.) The City would rely on URC to inform it if improvements or maintenance were necessary. (PUMF 78.) URC range safety officers would remove spent shells, maintain targets, clean the brass and spent shells from the floor, and lock up on URC public nights. (PUMF 11, 35 -36, 39, 77.)

Under the negligent undertaking doctrine, “a volunteer who, having no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if one of two conditions is met: either (a) the volunteer’s failure to exercise such care increases the risk of harm to the other person, or (b) the other person reasonably relies upon the volunteer’s

undertaking and suffers injury as a result.” (Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 249; Jackson, supra, 233 Cal.App.4th at 1175 [emphasis added].) Thus, under this doctrine, “courts have found that a duty may be created or assumed where a person who otherwise has no duty to act ‘undertakes to come to the aid of another.’ [Citation.]” (Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 335.) “In effect, the initial undertaking creates a ‘special relationship’ between the volunteer and the one being helped, giving rise to a duty to use due care. [Citation.]” (Ibid.; accord Paz v. State of Calif. (2000) 22 Cal.4th 550. Additionally, “foreseeability remains a highly relevant factor-even in cases in which a legal duty is found (and regardless of the doctrine under which it is found).” (Delgado, supra, 36 Cal. 4th at 250; Jackson, supra, 233 Cal.app.4th at 1176.) The Court would further observe: “It is important to ‘note that the negligent undertaking doctrine is not favored in the law, and many cases discussing its principles … have refused to apply it.” ( Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1176.)

Here, plainly, Plaintiffs have raised a question of material fact as to whether URC assumed a duty, through its cleaning and maintenance of the Range, to ensure that their activities met the standard of care for cleaning lead and hazardous materials. Specifically, as set for the above, Plaintiffs provide evidence that URC would regularly maintain the premises and would specifically sweep the floors for brass, dispose of brass and shell casings, clean the bullet traps, and maintain the targets. The City also relied on URC to discuss maintenance issues with the City regarding the Range. As there is a question of material fact as to whether URC assumed the duty, the motion fails on these grounds.

Next, URC has failed to meet its burden to show that the lead accumulation was caused solely by the defective design of the Range, rather than by URC members’ negligent performance of their voluntary activities. (UMF 72.) Civil Code section 1714

(a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 768.)

The only evidence that URC provides in support of its contention that the lead accumulation was caused by the Range’s defective design is deposition testimony from the City’s Environmental Health and Safety Specialist, specifically, Mr. Vannett, who references the findings of the NRA’s 2011 report regarding design flaws in the facility. (UMF 72.) However, Plaintiffs object to this testimony on multiple grounds, including lack of foundation, authentication, hearsay, and others. (Pl. Obj. 21-23.) Indeed, URC does not provide a copy of the purported report, and thus Mr. Vannett’s testimony violates the best evidence rule. Moreover, there is no foundation laid for Mr. Vannett’s knowledge of the report.

Even if the Court accepted that Mr. Vannett’s representation of the contents of the NRA report are true – that design defects at the Range caused lead accumulation – URC still does not meet its burden to show that URC’s cleaning and disposal of materials at the Range met the standard of care and thus did not also contribute to lead accumulation. Instead, URC simply states that there is no evidence that URC’s actions failed to meet the standard of care.

The California Supreme Court has rejected the view that a moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove his or her case. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826.) Unlike the federal rule,

California requires that the moving party support the motion with concrete evidence beyond bare assertions. (Id. at 854, approving Union Bank v. Superior Court (1995)

31 Cal. App. 4th 573.) The method for establishing a prima facie entitlement to summary judgment requires the moving party to demonstrate a negative, that is, that there is no evidence to support an element of the opponent’s case. (Rio Linda Unified School Dist. v. Superior Court (1997) 52 Cal. App. 4th 732, 735, 735 n.1, 739-740.; see also Weber v. John Crane, Inc. (2006) 143 Cal. App. 4th 1433, 1442 [in asbestos case, plaintiff’s testimony that he was unable to recall working with defendant’s products did not permit an inference that plaintiff neither possessed, nor reasonably could obtain, evidence that plaintiff was exposed to defendant’s products and therefore burden did not shift to plaintiff.])

Moreover, Plaintiffs have provided evidence of (1) the standard for cleaning and treating lead and hazardous waste at the Range, and (2) URC’s cleaning and maintenance of hazardous materials at the Range, which did not match that level of care. Plaintiffs cite to testimony from Mr. Vannett regarding the instructions he gave to City employees as to the standard of care for operating, maintaining, and cleaning the Range. (PUMF 80, 83-97.) However, Plaintiff asserts that URC acted below that standard of care in numerous ways. For example, Mr. Mitchell, a URC range safety officer, collected spent shells from the floor and put them in the trash can, and he would see a pile of dust in front of the shooting stations when he swept the floors for brass, which he would dump into the brass or trash can. (PUMF 11, 38-39.) He would also allow members of the public to sweep or pick up shell casings. (PUMF 40.) URC range safety officers, including Mr. Mitchell, would reuse spent shell casing as ammunition, and collect spent bullets from bullet trays in a 5 gallon plastic bucket. (PUMF 45, 67, 76.) The Department of Parks and Recreation knew URC would remove brass and lead from the Range regularly and recycle it for the revenue. (PUMF 46.) As of 2008, it was solely URC’s responsibility to clean the bullet traps at the Range. (PUMF 67, 76.)

Accordingly, even if URC had met its burden, Plaintiffs have raised a question of material fact as to whether URC breached the standard of care. The motion is denied on these grounds as well.

Duty to Warn – “Special Relationship”

Finally, URC argues that it had no duty to warn Plaintiffs of the risk of exposure to levels of lead because there was no “special relationship” between URC and Plaintiffs and because URC had no knowledge that there was a risk of lead exposure. (UMF 33.)

In opposition, Plaintiffs argue that URC had a special relationship with members of the public, which created a duty to inspect and make the premises safe. Plaintiffs’ evidence shows that URC collected $5 entrance fees from the public and kept $2 from each $5 payment as compensation for running the Range. (PUMF 25, 27-29.) Additionally, URC was present during lead testing by TRS and directed TRS where to test for lead in the Range. (PUMF 71.) Robert Mitchell, a URC range safety officer, saw dust piles in front of shooting stations when he swept, which he dumped into trash cans at the Range. (PUMF 38-39.) Mr. Mitchell also talked to members of the groups that would train security guards at the Range. (PUMF 68.) Thus, Plaintiffs assert that URC was aware of the toxic lead levels and aware that other members of the public used the Range but did not warn them.

On reply, URC argues that Plaintiffs’ evidence only supports a finding that Mr. Mitchell learned that the lead levels were high in late 2014, shortly before the Range closed and at the same time that Plaintiffs themselves learned of the lead levels.

Under general common law rules, one person owes no duty to control the conduct of another or to warn those endangered by that conduct. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258.) However, California courts have recognized that “special relationships” may create special duties, including the duty to protect against the harmful acts of third persons. (See Tarasoff v. Regents of Univ. of Cal. (1976) 17 Cal.3d 425, 435; Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199.) A duty is imposed on a defendant to control the conduct of others if the defendant has some special relationship either with the person whose conduct needs to be controlled or with the person who is the foreseeable victim of that conduct. (See Tarasoff, supra, 17 Cal.3d at 435-436; Todd v. Dow, supra, 19 Cal.App.4th at 258.) A duty arising from a special relationship may encompass a duty to warn, a duty to control the dangerous conduct of a third person, or both. (See Tarasoff, supra, 17 Cal.3d at 436.)

Special relationships generally involve some kind of dependency or reliance on the defendant. (Olson v. Children’s Home Soc’y (1988) 204 Cal.App.3d 1362, 1366.). “Typically, in special relationships, the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 893.) For example, special relationships generally exist between parent and child (Rest. 2d Torts, § 316 ), master and servant (Id. , § 317), the possessor of land or chattels (who has a duty to control the conduct of a licensee) (Id., § 318), and “[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled … .” (Id., § 319.)

Plaintiffs have raised a question of material fact as to whether a special relationship existed between URC and Plaintiffs, which would impose a duty to warn on URC. As cited at length above, Plaintiffs have provided evidence that URC collected money from the public on the nights that it ran the Range, cleaned and maintained the premises – including casings, bullets, and dust – and drafted and implemented rules at the Range. The evidence provided by Plaintiffs is sufficient to raise a question of material fact regarding whether a special relationship exists.

URC has also failed to meet its burden to show that it lacked knowledge of the lead accumulation or hazardous lead exposure at the Range. In support of its assertion that URC lacked knowledge, URC cites only to UMF 33, which states that URC is made up of private citizens who share an interest in pistol shooting. (UMF 33.) This does not conclusively show that URC lacked knowledge of the lead accumulation at the Range.

Moreover, Plaintiffs provide testimony that URC was present at the lead test conducted by TRS Services, and URC told TRS Services where to test. (PUMF 71.) While URC disputes when, exactly, it learned of the elevated lead levels, this also raises a question of material fact as to URC’s knowledge of the lead levels.

Based on the foregoing, the Court DENIES summary adjudication of Issue no. 1.

ISSUE 2: URC IS NOT A PUBLIC ENTITY AND DID NOT OWN OR CONTROL THE PUBLIC PROPERTY

URC argues that Plaintiffs’ first cause of action for Dangerous Condition on Public Property (Cal. Gov. Code §835) must also fail because URC is not a public entity and it did not own or control public property, as required by the statute. URC contends that because the Range was owned and controlled by the City, and URC did not own the Range or assume responsibility for lead remediation of the Range, it cannot be found liable under section 835.

In opposition, Plaintiffs argue that although URC is not itself a public entity, it is an “agent” of the City and has control over the Range. In support of its contention that URC is a City agent with control, Plaintiffs cite to much of the evidence already discussed, such as the fact that URC range safety officers had keys to the Range and would open and close it on their evenings, (PUMF 10, 12), URC would collect entrance fees on behalf of itself and the City (PUMF 25-28), URC created and enforced rules at the Range (PUMF 18, 22), URC range safety officers were considered City volunteers (PUMF 99), URC and the City were “partner[s]” with a “longstanding relationship” with respect to the Range, (UMF 53, PUMF 1), and URC purchased and stored equipment at the Range to be used by URC members and in some cases, the public. (PUMF 47, 48, 53, 56.)

The issues raised by a motion for summary adjudication or summary judgment are framed by the pleadings. (Dromy v. Lukovsky (2013) 219 Cal.App.4th 278, 282; Lennar Northeast Partners v. Buice (1996) 49 Cal.App.4th 1576, 1582.) Here, Plaintiffs assert a cause of action under Cal. Gov. Code §835 for Dangerous Condition of Public Property. The first cause of action is captioned “Dangerous Condition of Public Property.” The plain terms of Cal. Gov. Code §835 apply only to “a public entity.” It is established that the Government Claims Act “is a comprehensive statutory scheme that sets forth the liabilities and immunities of public entities and public employees for torts.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145, italics & fn. omitted.) Section 835, the provision of the Act at issue in this case, prescribes the conditions under which a public entity may be held liable for injuries caused by a dangerous condition of public property. (See Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.” Cordova v. City of Los Angeles (2015) 61 Cal. 4th 1099, 1104-1105 [emphasis added]. Indeed, Gov. Code §835 states, in pertinent part “Except as provided by statute, 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,

…” [emphasis added] Gov. Code § 830(c) provides “‘Property of a public entity’ and “public property” mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.” “For liability to be imposed on a public entity for a dangerous condition of property, the entity must be in a position to protect against or warn of the hazard. Therefore, the crucial element is not ownership, but rather control.” (Aaitui v. Grande Prop. (1994) 29 Cal.App.4th 1369, 1375.)

Here, URC has provided evidence that the Range was owned by the City, not URC. (UMF 1.) URC also provided evidence, including Request for Admission responses

from the City, admitting that URC is not the City’s agent. (URC Ex. A.) While Plaintiffs vaguely argue that URC is the City’s “agent,” Plaintiffs fail to provide evidence to meet their burden. Plaintiffs instead focus on whether URC had control over the Range, which is not relevant as to a section 835 cause of action unless the defendant is, in fact, a public entity. However, Plaintiffs do not provide any evidence that URC is a public entity, or provide any legal authority with evidence for their position that URC is the City’s “agent.” Even so, the salient inquiry is whether URC is a “public entity.” See, e.g. CACI VF-1100. While “control” may be applied to a public entity to establish liability over property not owned by the public entity, “control” or agency or maintenance cannot be applied to URC to establish liability under § 835. Plaintiffs’ premises liability claims (second cause of action) address URC’s alleged liability for its actions. Accordingly, Plaintiffs have failed to meet their burden.

The motion for summary adjudication of Issue 2 is GRANTED.

Based on the foregoing, the Motion for Summary Adjudication is DENIED as to Issue 1 and GRANTED as to Issue 2. The Motion for Summary Judgment is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.