18-CIV-01063 TIMOTHY NELSON VS. CITY OF SAN MATEO, ET AL.

TIMOTHY NELSON CITY OF SAN MATEO, A MUNICIPALITY
ARA JABAGCHOURIAN DAVID S. ROSENBAUM

MOTION BY DEFENDANT, CITY OF SAN MATEO FOR SUMMARY OF JUDGMENT OR IN THE ALTERNATIVE ADJUDICATION

TENTATIVE RULING:

Defendant City of San Mateo’s motion for summary judgment is denied. The motion for summary adjudication of issues is denied as to all three causes of action.

A. First Cause of Action (Inverse Condemnation)

The motion is denied as to the first cause of action.

1. A Triable Issue Exists About Whether Plaintiff Knew or Should Have Known of the Damage Before March 2015.

The statute of limitations is 3 years. Plaintiff filed his complaint on March 2, 2018. The issue is whether Plaintiff knew or should have known of the damage no earlier than March 2, 2015.

CITY’s argues that Plaintiff admitted that the Google Images accurately depict his house “at all relevant times.” (UMF 1.) The cited evidence is Plaintiff’s deposition at pp. 102-107. Pages 102 through 104 are omitted. Plaintiff’s testimony on pages 105-107 is that the Google Image of 2018 accurately depicts Plaintiff’s house as of January 2018. Nothing shows that Plaintiff conceded that the images from other dates accurately depict the house.

Further, Plaintiff testified that he did not know if the Google Image from 2015 and 2011 depicted what the house looked during those years. (Plaintiff Depo at 110 & 111 (Plaintiff’s Ex. A.) City argues that “Plaintiff admitted that he knew the sidewalk near the garage had lifted enough by May 2015 to warrant a sidewalk repair due to tree roots.” (Motion at 7:22-25.) None of the UMFs make this assertion, and the P&A cites no evidence.

Triable issues of fact exist about when Plaintiff knew or should have known, or discovered, the damage before March 2, 2015.

The statute of limitations argument does not support summary adjudication.

2. A Triable Issue Exists About Whether the Trees Were a Work of Public Improvement

UMF 17 states, “There are no records indicating that CITY planted the trees,” supported by the declaration of CITY employee Karen Bertrand, who conducted a search for such records. Fact 17 does not establish that CITY did not plant the trees, only that no records exist. Plaintiff submits evidence that CITY issued a Notice of Public Improvement in 1939, calling for planting of the sycamore trees, but that evidence does not show who actually planted them. However, Plaintiff also offers evidence that CITY maintains trees that it planted (See evidence in opposition to UMF 17) and that CITY maintains the trees at issue. (Deposition of Heartquist Vol. 2 at 29:16-22.)

A jury could conclude that, since CITY maintains trees it planted, and CITY maintains the trees at issue, then CITY planted the trees. The jury could also reach the opposite conclusion based the absence of direct evidence. A triable issue exists as to whether CITY planted the trees as a work of public improvement. 3. Triable Issue: Whether CITY’s Maintenance Plan Was Deficient.

“To establish an inverse condemnation claim based on a government entity’s maintenance of one of its improvements, the property owner must show that the plan of maintenance was deficient in light of a known risk inherent in the improvement.” (Mercury Cas. Co. v. City of Pasadena (2017) 14 Cal. App. 5th 917, 930–31.) At trial, Plaintiff will have the burden of establishing that the maintenance plan was deficient. On summary judgment, however, CITY has the burden to establish that the plan was not deficient. CITY fails to meet this burden.

The issue of maintenance plan deficiency is addressed by UMFs 21 through 25, and they are undisputed. Still, however, whether the plan is “deficient” is a question of fact. The Court cannot determine whether the maintenance plan is, as a matter of law, deficient. Even when the material facts are undisputed, summary judgment cannot be granted if the undisputed facts can give rise to more than one reasonable conclusion. 4. The Complaint Fails to State a Cause of Action for Inverse Condemnation. . City argues that a claim for inverse condemnation must arise from a “public improvement,” and Plaintiff’s Complaint fails to allege that the trees were a “public improvement.” Plaintiff does not address this argument, but merely cites general pleading requirements as set forth by Witkin.

“To state a cause of action for inverse condemnation, the plaintiff must allege the defendant substantially participated in the planning, approval, construction, or operation of a public project or improvement which proximately caused injury to plaintiff’s property.” (Wildensten v. East Bay Regional Park Dist. (1991) 231 Cal.App.3d 976, 979–980, The Mercury case held that inverse condemnation could not be found because the evidence did not show that the subject trees were a work of public improvement. Plaintiff does not respond to the argument. Nor does Plaintiff cite any authority holding that inverse condemnation can occur in the absence of a public improvement, and Legal Research lacks the resources to conduct that research for him.

“In the course of deciding a motion for summary judgment, if a trial court concludes the complaint is insufficient as a matter of law, it may elect to treat the hearing of the judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect.” (Prue v. Brady Co./San Diego (2015) 242 Cal.App.4th 1367, 1384.) For failure to allege that the trees were a work of public improvement, the Complaint fails to state a cause of action. In this situation, the Court should treat the motion as one for judgment on the pleadings and grant the motion, with leave to amend. B. Second Cause of Action (Dangerous Condition)

The motion is denied as to the second cause of action.

1. Timeliness of Government Claim. As with the 1st cause of action, the Google Images (UMF 30) are not dispositive, because Plaintiff did not admit that any images other than January 2018 accurately depicted his house on those dates. Material Fact 31 is disputed. CITY argues that Material Facts 33 and 34 show that the dangerous conditions “would have been noticeable” prior to June 2017. Whether that is true is a question of fact. Triable issues of fact exist about whether Plaintiff’s government claim was timely.

2. Sufficiency of Pleading. It is true that the Complaint does not explicitly allege that CITY had “actual or constructive notice” of the dangerous condition. However, it does plead that CITY “knew” of the dangerous condition, which is tantamount to alleging that CITY had “notice.”

3. Notice of Dangerous Condition. CITY’s final argument is that “there is no evidence” that CITY had notice of the dangerous condition, citing UMFs 40, 41, and 50. The evidence supporting those facts does not establish that CITY had no notice before June 2017 (or January 2017). Rather, the evidence establishes only that June 2017 was when Plaintiff informed CITY of the dangerous condition. C. Third Cause of Action (Nuisance)

The motion is denied as to the third cause of action.

1. As set forth above, a triable issue of fact exists about whether Plaintiff knew or should have known of his claim more than one year before filing his government claim.

2. The nuisance claim is based on facts constituting negligence. Since triable issues of fact exist as to Plaintiff’s claim for dangerous condition, the same triable issues of fact exist as to the claim for nuisance.

D. Noneconomic Damages.

Even if the 2nd and 3rd causes of action are dismissed, the Court would deny CITY’s motion for summary adjudication against noneconomic damages. The only damages subject to summary adjudication are punitive damages. (DeCastro W. Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal. App. 4th 410, 421.) A party may move for summary adjudication as to other damages without disposing of an entire cause of action. (Code of Civ. Proc. § 437c, subd. (t).) However, the parties must agree to such a motion, both parties must file a declaration justifying the motion, and the court must determine whether the motion may be filed. (Code of Civ. Proc. § 437c(t)(2).) Those conditions do not exist here. E. Objections

Plaintiff’s objections to the Declarations of Brad Underwood and Tim Heartquist are overruled.

Defendant’s objection number 1 is overruled; Defendant’s objection number 2 is sustained for lack of foundation.

Defendant’s objections 3, 4, 6 through 17, and 19 are overruled as overinclusive. The cited testimony contains objectionable and admissible matter.

Defendant’s objections 4, 18, 20, and 21 are sustained.

Defendant’s objection 5 is overruled.

Defendant’s objection 22 is overruled.

F. Ruling

Defendant’s motion for summary judgment is denied.

Defendant’s motion for summary adjudication of issues is denied as to the first, second, and third causes of action.

The Court construes part of Defendant’s motion as to the first cause of action as a motion for judgment on the pleadings and grants the motion for failure to allege that the alleged trees were a work of public improvement. Plaintiff is granted leave of court until May 20, 2019, to file and serve a First Amended Complaint, if any, to address the pleading omission. Service shall be by personal or electronic service. If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.