Case Name: Seetharaman Narayanan v. Denise A. Arriola, et al.
Case No.: 1-13-CV-240102
Defendants Jose G. DeOliveira (“Jose”), Kathleen R. DeOliveira, and DeOliveira Family Revocable Trust (collectively, “the Property Owners”) bring a motion for summary judgment against both plaintiff Seetharaman Narayanan and defendant/cross-complainant City of San Jose (“the City”). (See Code Civ. Proc. [“CCP”], § 437c.)
Since Plaintiff’s evidentiary objections do not comply with California Rules of Court, rules 3.1352 and 3.1354, they are OVERRULED.
The Property Owners’ evidentiary objections on the grounds of lack of personal knowledge and lack of qualification to offer expert opinion are OVERRULED. (See Evid. Code, §§ 702, subd. (a), 720, subd. (a), & 801, subd. (b).) The evidence at issue is Plaintiff’s deposition testimony wherein he proffered his lay opinion. An individual’s personal opinion is a matter of his or her personal knowledge and does not require an expert qualification.
Plaintiff asserts claims for negligence and premises liability against the Property Owners and the City. The elements of a negligence claim are (1) existence of a legal duty, (2) breach of the duty, (3) proximate and actual cause, and (4) damages. (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 875.) Premises liability is a “form of negligence” in which the owner, lessor, and/or possessor of land has a duty to exercise ordinary care in the management of the premises to avoid exposing persons to an unreasonable risk of harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) To establish this claim, a plaintiff must prove: (1) the defendant owned, leased, occupied, or controlled the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed; and (4) the defendant’s negligence was a substantial factor in causing plaintiff’s harm. (CACI, No. 1000.) The City asserts claims for indemnification, apportionment of fault, and declaratory relief against the Property Owners with respect to Plaintiff’s causes of action. The City’s claims for indemnity, apportionment of fault, and declaratory relief rely on some underlying liability against the Property Owners. (See Civ. Code, §§ 1431 & 2772; see also Postley v. Harvey (1984) 153 Cal.App.3d 280, 285.)
The Property Owners bear the initial burden to demonstrate that one or more elements of the aforementioned causes of action cannot be established or that there is a complete defense to the claim. (See CCP, § 437c, subd. (p)(2).) They contend that they are entitled to summary judgment on the ground Plaintiff cannot establish the existence of a legal duty because they do not own or control certain foliage that abuts the side of the driveway on the Property (“the Foliage”). If the Foliage is the only dangerous condition that caused the accident, and if the Property Owners do not own or control the Foliage, then they did not owe a duty to repair or warn of the dangerous condition created by the Foliage. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156; see also Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 846, citing Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 857-860; Gibson v. Garcia (1950) 96 Cal.App.2d 681, 683; Barton v. Capitol Market (1943) 57 Cal.App.2d 516, 518.) The Property Owners proffer a portion of Jose’s deposition transcript wherein he testified that the Property Owners do not own or control the Foliage as evidence to support their motion. (The Property Owners’ Sep. Statement, Nos. 9-10; citing the Property Owners’ Evidence, Ex. F at pp. 20:14-19, 21:8-15, & 35:7-19.) Thus, they have submitted evidence sufficient to shift the burden to Plaintiff to demonstrate that there are triable issues of material fact with respect to (1) whether the Foliage is the dangerous condition, and if so, then (2) whether the Property Owners own or control the Foliage. (See CCP, § 437c, subd. (p)(2).)
Whether the Foliage is the dangerous condition that caused defendant Denise A. Arriola (“the Driver”) to collide with Plaintiff is a question of fact. (See, e.g., Vescovo v. New Way Enterprises, Ltd. (1976) 60 Cal.App.3d 582, 589.) Plaintiff submits the deposition testimony of the Driver as evidence that the dangerous condition at issue is the driveway itself, and not the Foliage. (Plaintiff’s Sep. Statement, No. 8; Menekshe Decl., Ex. C at pp. 28:13-29:5.) From the portions of the Driver’s deposition transcript submitted by Plaintiff, it seems that on May 11, 2012, as the Driver attempted to make a left turn out of the driveway, the Foliage obstructed her view of the sidewalk to her left. (Menekshe Decl., Ex. C at pp.49:22-50:4.) She then slowly crossed over the sidewalk, but she could not see to her right because her vision was obstructed by bushes to the right of the driveway (not the Foliage on the left side of the driveway). (Id., Ex. C at pp. 27:17-29:25.) To see past the obstruction caused by bushes to her right, the Driver idled forward into the public roadway and came to a stop for “a second and a half,” at which time Plaintiff collided with her vehicle in “a flash.” (Id., Ex. C at pp. 20:20-21:1, & 29:2-25.) From this evidence, Plaintiff has demonstrated that there is a triable issue of a material fact as to whether the Foliage caused the visual obstruction that allegedly caused the Driver to collide with Plaintiff.
Assuming arguendo that the Foliage is the dangerous condition at issue, whether the Property Owners own or exercise control over the Foliage such that they had a duty to protect or warn others of the danger is a question of fact. (See Alcaraz, supra, at pp. 1157-1162; see also Alpert v. Villa Romana Homeowners Assoc. (2000) 81 Cal.App.4th 1320, 1335, [“[i]n settings where the abutting owners have planted the trees or have habitually trimmed or cared for them, these abutting owners have the duty to maintain the trees in a safe condition”].) Plaintiff proffers portions of Jose’s deposition transcript wherein he testified that he had occasionally pulled branches and weeds from the Foliage. (Plaintiff’s Sep. Statement, at No. 9; Menekshe Decl., Ex. A at p. 20:16-19.) The Property Owners cite portions of Jose’s transcript wherein he testified that the owner of the neighboring property who purportedly owns the Foliage hires someone to trim the Foliage once or twice per year. (The Property Owners’ Sep. Statement, at No. 11.) Given the infrequency of the neighbor’s maintenance of the Foliage, the fact that Jose has occasionally pulled weeds and branches from the Foliage may suffice as exercising control over the Foliage. Therefore, there is a triable issue of material fact with respect to whether the Property Owners exercised control over the Foliage such that they had a duty to correct or warn of any dangerous condition caused by the Foliage.
Accordingly, the Property Owners’ motion for summary judgment is DENIED.