Case Name: Hector Rivera, et al. v. City of Sunnyvale, et al.
Case No.: 2013-1-CV-240935

Currently before the Court is the motion by defendant and cross-defendant City of Sunnyvale (“City”) for summary judgment or, alternatively, summary adjudication.

Factual and Procedural Background

This action was originally brought by plaintiffs Hector Rivera and Ramon Rivera (collectively, “Plaintiffs”), tenants and homeowners in a mobilehome park, alleging among other things negligence and dangerous condition of public property against City and defendant and cross-complainant Casa De Amigos Mobilehome Park (“Casa”) (collectively, “Defendants”). Defendants filed cross-complaints against each other. Plaintiffs subsequently settled with Defendants and dismissed their complaint, leaving only the cross-complaints. A few years later, City voluntarily dismissed its cross-complaint against Casa.

On June 9, 2017, Casa filed the operative third amended cross-complaint (“TAXC”) against City, alleging causes of action for: (1) declaratory relief; (2) indemnification; (3) apportionment of fault; (4) injury to property; (5) nuisance; and (6) dangerous condition of public property.

Thereafter, City filed a demurrer to the TAXC and a motion to strike portions of the TAXC. City’s demurrer was overruled as to the first cause of action and sustained, without leave to amend, as to the sixth cause of action. City’s motion to strike was granted in part and denied in part. Specifically, the motion to strike was granted, without leave to amend, as to the second and third causes of action and paragraphs 40-46, 54, 90-94, 103, 104 and 105 of the TAXC. The motion to strike was denied in all other respects. Thus, the claims that remain at issue are the first cause of action for declaratory relief, the fourth cause of action for injury to property, and the fifth cause of action for nuisance.

On February 9, 2018, City filed the instant motion for summary judgment or, alternatively, summary adjudication. Casa filed papers in opposition to the motion on April 13, 2018.

Discussion

Pursuant to Code of Civil Procedure section 437c, City moves for summary judgment of the TAXC or, in the alternative, summary adjudication of the first, fourth, and fifth causes of action of the TAXC.

I. Procedural Issue

As a preliminary matter, Casa argues that the instant motion is “essentially a motion for reconsideration” and the motion should be denied because City has not identified new or different facts, circumstances, or law. (Opp’n., pp. 1:22-4:22.) Casa contends that the pending motion is one for reconsideration because prior demurrers, motions for judgment on the pleadings, and motions for summary judgment or adjudication raised the same issues as the instant motion.

Casa’s argument is not well-taken. The motion currently before the Court does not seek reconsideration of a prior court order. (See Code Civ. Proc., § 1008 [regarding motions for reconsideration].) As articulated above, the instant motion seeks summary judgment of the TAXC or, in the alternative, summary adjudication of the first, fourth, and fifth causes of action of the TAXC. City’s prior motions for summary judgment or adjudication filed on February 24 and October 13, 2015, were not directed at the TAXC. Similarly, City’s demurrer and/or motion for judgment on the pleadings filed on April 17, 2017, was not directed at the TAXC. Consequently, the instant motion does not seek reconsideration of those matters or the court orders addressing the same. (See Meyer v. State Bd. of Equalization (1954) 42 Cal.2d 376, 384 [“It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.”]; see also Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1035 [an amended pleading is treated as a new pleading and a defendant is free to respond to it in the same manner as the original complaint].) The only prior matters challenging the TAXC were City’s most recent demurrer and motion to strike. However, the instant motion does not ask the Court to reconsider its rulings on those matters; rather, this motion asks the Court for summary judgment or adjudication of the remaining claims at issue. Notably, in its earlier demurrer and motion to strike, the City did not, and could not, seek such relief. Because the instant motion is not one for reconsideration, City did not need to comply with the requirements of Code of Civil Procedure section 1008.

II. Requests for Judicial Notice

A. City’s Request

City asks the Court to take judicial notice of: Casa’s second amended complaint and third amended complaint; the court orders dated May 25 and December 26, 2017; and Chapter 13.16 of the Sunnyvale Municipal Code.

Casa’s second and third amended complaints and the prior court orders are generally proper subjects of judicial notice. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records]; see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“There is … a precondition to the taking of judicial notice in either its mandatory or permissive form—any matter to be judicially noticed must be relevant to a material issue.”].) In addition, Chapter 13.16 of the Sunnyvale Municipal Code is a proper subject of judicial notice. (See Evid. Code, § 452, subd. (b) [permitting judicial notice of Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States]; see also City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433, fn. 1 [taking judicial notice of sections of a municipal code]; Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265, 1274, fn. 2 [same].)

Accordingly, City’s request for judicial notice is GRANTED.

B. Casa’s Request

Casa asks the Court to take judicial notice of: court orders filed on October 20, 2015, January 22, 2016, May 25, 2017, and December 26, 2017; excerpts from City’s memorandum of points and authorities filed in support of a prior motion for summary judgment; the declarations of Brian Pierce, Manuel Pineda, Lee Ouye, and James Lewis filed in connection with City’s earlier motions for summary judgment; and an aerial photo of Sunnyvale from the United States Geological Survey dated May 1, 1968 to June 14, 1968.

First, Casa does not cite any legal authority, and the Court is aware of none, providing that the photograph of Sunnyvale is a proper subject of judicial notice. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (Schaeffer) [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Consequently, the Court cannot take judicial notice of the subject photograph.

Second, the remaining documents identified by Casa are generally proper subjects of judicial notice. “ ‘Evidence Code sections 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” [Citations.]’ ” (People v. Woodell (1998) 17 Cal.4th 969B, 455.) Thus, the Court may properly take judicial notice of the existence of the subject court records and the truth of the results reached in the court orders.

Accordingly, Casa’s request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to the photograph. The request is GRANTED as to the existence of the subject court records and the truth of the results reached in the court orders.

III. Legal Standard on Motions for Summary Judgment

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a).) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of
action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects
as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-718.)

IV. Analysis

A. Claim for Declaratory Relief

City argues that the first cause of action for declaratory relief fails because Casa is not entitled to the sought-after declarations. City asserts that the claim for declaratory relief seeks a declaration of rights regarding: (1) Casa’s claim of indemnity damages resulting from Plaintiffs’ complaint; and (2) damage from the claims of other Casa residents against Casa due to tree root damage. City states that “[t]hese two sources of damages are only set forth in” the second and third causes of action for indemnification and apportionment of fault. (Mem. Ps. & As., p. 8:6-7.) City points out that its prior demurrer to the second and third causes of action was sustained without leave to amend and, thereafter, the second and third causes of action were stricken from the TAXC. The City concludes that Casa, therefore, “has no legally viable claims for the damage issues on which it seeks a declaration of rights.” (Id., at p. 8:11-12.) City asserts that, as a result, Casa is not entitled to a declaration in its favor.

In the first cause of action, Casa seeks a declaration of “the full or comparative liability of Casa and Sunnyvale for” the damages caused by the Shamel Ash trees; a declaration of Sunnyvale’s responsibility for full or comparative indemnity to Casa for any sums that Casa may be compelled to pay for which Sunnyvale is determined responsible, entirely or in part; and a declaration regarding the rights and duties of Casa and Sunnyvale with respect to any other claims of Casa residents whose mobilehomes, mobilehome foundations, and driveways have been damaged by the encroachment of the roots of the Shamel Ash trees—specifically, a declaration of the full or comparative liability of Casa and Sunnyvale for any sums that Casa may be compelled to pay for which Sunnyvale is determined responsible, entirely or in part. (TAXC, ¶¶ 57-58.) Thus, the claim for declaratory relief seeks declarations regarding the issues of indemnification and apportionment of fault.

However, City fails to adequately explain why the dismissal of the second and third causes of action means that Casa is not entitled to the sought-after declarations. The Court originally sustained City’s demurrer to the second and third causes of action because Casa failed to comply with the claim filing requirements for those claims. Unlike the second and third causes of action, the Court overruled the demurrer to the first cause of action, finding that City failed to show that the declaratory relief claim was barred for failure to comply with the Government Claims Act. The Court noted that “the Government Claims Act generally does not impose any claim requirements on claims for declaratory relief. (See Gov. Code, §§ 905 [setting forth requirements for claims brought against local public entities for money or damages] and 945.4 [stating that no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board]; see also Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121 [‘ “[O]nly claimants seeking money or damages, as distinguished from other types of judicial relief, are required to conform to the claims procedure.’ The claims statutes do not ‘impose any … requirements for nonpecuniary actions, such as those seeking injunctive, specific, or declaratory relief.” ’], italics omitted; Hart v. Alameda County (1999) 76 Cal.App.4th 766, 782 … [‘The Claims Act generally applies only to claims for money or damages, and not to actions for declaratory relief.’].)” The Court further found that City did not otherwise show that the first cause of action was a claim to recover money damages. When the Court later struck the second and third causes of action from the TAXC, it did so simply because it previously sustained City’s demurrer to those claims without leave to amend.

In the instant motion, City does not attempt to establish that the Government Claims Act imposes claim requirements on Casa’s claim for declaratory relief. Because the second and third causes of action were dismissed for reasons that ostensibly do not apply to the first cause of action, City fails to adequately explain why the dismissal of the second and third causes of action means that Casa is not entitled to the sought-after declarations. Consequently, City does not meet its initial burden with respect to the first cause of action.

Accordingly, City’s motion for summary judgment of the TAXC and summary adjudication of the first cause of action is DENIED.

B. Claim for Injury to Property

City acknowledges that the fourth cause of action for injury to property is based on three separate and distinct categories of damages: (1) tree root damaged caused by trees located on Tasman Drive; (2) tree root damaged caused by trees located on Persian Drive; and (3) damages caused by defects in City’s sewer line. Regarding the first category of damages, City argues that it is not liable for the subject damages because Casa owns the trees located on Tasman Drive. With respect to the second category of damages, City argues that Casa cannot seek recovery for the subject damages because Casa cannot show compliance with the Government Claims Act. As to the third category of damages, City argues that any claim based on damage caused by defects in its sewer line is time-barred by the applicable statute of limitations. City contends that the Court may summarily adjudicate “these distinct allegations of causation” (Mem. Ps. & As., p. 9:17-19), citing Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.

As a preliminary matter, City’s contention that the Court may summarily adjudicate whether Casa can recover a particular category of damages is not well-taken. “A motion for summary adjudication tenders only those issues or causes of action specified in the notice of motion, and may only be granted as to the matters thus specified. The movant must ‘state[ ] specifically in the notice of motion and … repeat[ ], verbatim, in the separate statement of undisputed material facts,’ ‘the specific cause of action, affirmative defense, claims for damages, or issues of duty’ as to which summary adjudication is sought. (Former Cal. Rules of Court, rule 342(b); see now Cal. Rules of Court, rule 3.1350(b).) The motion must be denied if the movant fails to establish an entitlement to summary adjudication of the matters thus specified; the court cannot summarily adjudicate other issues or claims, even if a basis to do so appears from the papers.” (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 743–744.) In its notice of motion City only seeks summary adjudication of the first, fourth, and fifth causes of action. (Ntc. Mtn., p. 1:5-7.) In its notice of motion, City does not move for summary adjudication of particular categories of damages identified in the fourth cause of action or “distinct allegations of causation.” Thus, even assuming for the sake of argument that summary adjudication of a particular category of damages was generally appropriate, the Court cannot summarily adjudicate such issues given the scope of City’s notice of motion.

In light of the foregoing, City would only be entitled to summary adjudication of the fourth cause of action, as a whole, if there was no triable issue of material fact with respect to each and every one of the three categories of damages identified in the TAXC.

As articulated above, with respect to the first category of damages (i.e., tree root damage caused by trees located on Tasman Drive), City asserts that it is not liable for the subject damages because Casa owns the trees located on Tasman Drive. In support of its contention, City offers undisputed material fact (“UMF”) Nos. 8-11. Those UMF state: “[t]he only pre-judgment claim filed by Casa asserting tree root damage to its property is the July 30, 2013 alleged at ¶ 19 of the TAXC and attached thereto as Exhibit B, alleging damage to Casa’s sewer system on 1st Street adjacent to Tasman Drive, caused by eight trees on Tasman Drive” (UMF No. 8); “[t]he only complaint of tree root damage due to ash trees on Tasman Drive relate to ash trees adjacent to units 700-710” (UMF No. 9); “[t]he eight ash trees located near Casa’s sewer line on 1st Street adjacent to Tasman Drive are on Casa’s property” (UMF No. 10); and “Casa has never filed a claim with the City which alleges damages caused by tree root incursion from ash trees located on Persian Drive” (UMF No. 11). The evidence cited by Casa in support of these UMF adequately establishes each of the UMF. City then cites to Civil Code section 833, which provides that “[t]rees whose trunks stand wholly upon the land of one owner belong exclusively to him, although their roots grow into the land of another.” Lastly, City contends that sections 13.16.100 and 13.16.120 of the Sunnyvale Municipal Code hold the property owner liable for damage caused by trees on private property such that it owes no duty to manage the tree roots of the Shamel Ash trees on Tasman Drive. Based on the foregoing, City concludes that Casa owns the subject trees and it is not liable for the damage caused by the Shamel Ash trees on Tasman Drive.

The Court finds that City fails to meet its initial burden. First, City does not present any reasoned argument or cite any legal authority setting forth the elements of a claim for injury to property. Moreover, City does not present any reasoned argument or cite any legal authority providing that ownership of the subject trees is a necessary element of such a claim. Consequently, even if City’s evidence established that it did not own the Shamel Ash trees on Tasman Drive, City fails to demonstrate that its lack of ownership is fatal to the claim. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Second, the fourth cause of action is also premised on allegations that City maintains and/or controls the Shamel Ash trees. (TAXC, ¶¶ 74-69.) City’s UMF do not address whether City maintains or controls the Shamel Ash trees on Tasman Drive. Instead, City asserts that the Court should find that it “owes no duty to manage the tree roots of the Tasman Drive ash trees on Casa property” because section 13.16.120 of the Sunnyvale Municipal Code requires the property owner to reimburse City for any abatement costs. However, City does not provide reasoned argument or legal authority explaining why the existence of a reimbursement provision for the costs of abatement would relieve City of any duty to maintain or control the Shamel Ash trees. (See Badie, supra, 67 Cal.App.4th at pp. 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer, supra, 215 Cal.App.3d at p. 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].) Furthermore, City’s conclusory assertion fails to address the allegations in the TAXC that City actually undertook to maintain and control the subject trees. (See TAXC, ¶¶ 74-69; see also Valdez v. Taylor Auto. Co. (1954) 129 Cal.App.2d 810, 817 [“It is well established that a person may become liable in tort for negligently failing to perform a voluntarily assumed undertaking even in the absence of a contract so to do. A person may not be required to perform a service for another but he may undertake to do so—called a voluntary undertaking. In such a case the person undertaking to perform the service is under a duty to exercise due care in performing the voluntarily assumed duty, and a failure to exercise due care is negligence.”].)

For these reasons, City’s motion for summary adjudication of the fourth cause of action is DENIED.

C. Claim for Nuisance

City argues that the fifth cause of action for nuisance fails for the same reasons it articulated with respect to the fourth cause of action. However, for the reasons stated above, those arguments lack merit and City fails to meet its initial burden.

Consequently, City’s motion for summary adjudication of the fifth cause of action is DENIED.