Case Number: BC618728 Hearing Date: January 10, 2019 Dept: A

# 4. Gerrit Scheenstra v. City of Paramount

Case No.: BC618728

Matter on calendar for: motion for summary judgment

Tentative ruling:

I. Background

Plaintiff Gerrit Scheenstra alleges that on June 8, 2015, he was landscaping a lawn across from a sidewalk when a tree collapsed and fell on him. The First Amended Complaint (“FAC”) contains one cause of action for dangerous condition of public property against defendant the City of Paramount.

The City moves for summary judgment. The motion was originally filed on June 23, 2017, but was continued on multiple occasions, ultimately to January 10, 2019.

The opposition was due December 27, 2018. As of January 7, 2019, no opposition has been filed.

For the reasons set forth below, the Court grants the motion for summary judgment.

II. Standard

A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)

III. Analysis

The City’s request for judicial notice of plaintiff’s FAC is granted.

A. Dangerous condition under Government Code § 835

Scheenstra moves under Government Code § 835. Under this statute, a public entity is liable for an injury caused by a dangerous condition on its property if: (1) the property was in a dangerous condition at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the injury was a reasonably foreseeable risk of the kind of injury which was incurred; and (4) either (a) a negligent or wrongful act or omission of an employee, within their scope of employment, created the dangerous condition; or (b) the public entity had actual or constructive notice under Government Code § 835.2 with sufficient time to have taken measures to protect against it. (Gov. Code, § 835.)

Under Government Code § 835.2(a), actual notice is satisfied where the entity had actual knowledge of the condition and knew or should have known of its dangerous character. Constructive notice requires a plaintiff to establish that the condition existed “for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.” (Gov. Code, § 835.2(b).)

The City provides the declaration of Richard Sommers, the public works superintendent for the City of Paramount. He states that his duties include the supervision of facilities, landscape, and roads departments. (Decl. Sommers ¶¶ 1–2.) His declaration also describes the City’s inspection procedures. (Id. ¶¶ 7–10.) Sommers states that the City’s inspections did not identify the tree or its hazardous condition. (Id. at ¶ 19.) Additionally, no complaints about the tree were submitted to the City. (Ibid.)

The proffered evidence shows there is no triable issue of material fact because the City did not have actual or constructive notice of the dangerous condition. The burden now shifts to the plaintiff.

As there is no opposition to the motion for summary judgment, the plaintiff fails to show a triable issue of material fact.

IV. Ruling

The motion for summary judgment is granted.