Mary Volz v. R J Cassibba, et al.

1 Plaintiff’s complaint also named the City of Morgan Hill as a defendant and asserted a

cause of action of general negligence against the City of Morgan Hill. On December 1, 2025, Plaintiff filed a request for dismissal with prejudice as to the City of Morgan Hill. Plaintiff is continuing the action against the remaining Defendants.

On January 28, 2026, Defendants filed this Motion under Code of Civil Procedure section 437c. Plaintiff filed an Opposition on June 16, 2026 (“Opposition”), and Defendants filed a Reply on June 26, 2026 (“Reply”).

Analysis of Motion

I. Legal Standard on Motion for Summary Judgment/Summary Adjudication

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.” (Code Civ. Proc., § 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

“A defendant seeking summary judgment must show that at least one element of the cause of action cannot be established, or that there is a complete defense to the cause of action. . . . The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72, internal quotation marks and citations omitted, emphasis added.) When a defendant moves for summary judgment, “its declarations and evidence must either establish a complete defense to plaintiff’s action or demonstrate the absence of an essential element of plaintiff’s case.

If plaintiff does not counter with opposing declarations showing there are triable issues of fact with respect to that defense or an essential element of its case, the summary judgment must be granted.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81 (Gray).)

Throughout the process, the trial court “must consider all of the evidence and all of the inferences reasonably drawn therefrom[.]” (Aguilar, supra, 25 Cal.4th at p. 844, internal quotation marks omitted.) The moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed. (Id. at p. 843.)

“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).) A summary adjudication is properly granted only if a motion therefore completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (§ 437c, subd. (f)(1).) Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)” (Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464.)

II. Premises Liability

Civil Code section 1714 subdivision (a) establishes that a land possessor is responsible for harm caused by his or her failure to exercise ordinary care in the management of his or her property. (Civ. Code, §1714, subd. (a).) “‘The proper test to be

applied to the liability of the possessor of land...is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others...[.]’” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156, quoting Rowland v. Christian (1968) 69 Cal. 2d 108, 119, superseded by statute on other grounds as stated in Moses v. Roger-McKeever (2023) 91 Cal.App.5th 172, 187, fn. 6.)

“Under the common law, a landowner does not have any duty to repair abutting sidewalks along a public street, and does not owe any duty to pedestrians injured as a result of a defect in the sidewalks.” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1490, citing Schaefer v. Lenahan (1944) 63 Cal. App. 2d 324, 326.) Street and Highways Code section 5610 “imposes a duty of repair on the abutting property owners for defects in sidewalks, regardless of who created the defects, but does not of itself create tort liability to injured pedestrians or a duty to indemnify municipalities, except where a property owner created the defect or exercised dominion or control over the abutting sidewalk.” (Jordan v. City of Sacramento, supra, 148 Cal.App.4th at p. 1490, emphasis in original.)

But a possessor of land may be liable for injuries caused by a defect in an adjacent public sidewalk where the landowner created the defect. (Moeller v. Fleming (1982) 136 Cal.App.3d 241, 245 [a trier of fact could find that the property owner’s tree created the uplifted sidewalk where plaintiff fell such that owner’s motion for summary judgment was denied].)

In determining a property owner’s liability for defects in a sidewalk, courts closely analyze the owner’s notice of the issue, historical care and control for the sidewalk, and specifically with respect to cases where a plaintiff alleged that a tree’s roots caused a sidewalk defect, the degree to which the owner planted, maintained, or exercised control over the offending tree, regardless of who formally owns the tree. (Bean v. City of Thousand Oaks (2025) 114 Cal.App.5th 775, 786 [no liability for owner who owned tree that may have caused sidewalk defect because city “exercised crucial element of control” over the tree due to undisputed evidence that the City had trimmed and inspected the tree and no evidence owner had maintained or controlled the tree], Alpert v.

Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1336-1337 [property owner who had actual notice of a sidewalk defect and planted and maintained all of the trees which caused the city-owned sidewalk to be uplifted was liable], Jones v. Deeter (1984) 152 Cal.App.3d 798, 805-806 [any dangerous condition in sidewalk caused by the trees was attributable to the city, not to the owners of the abutting property, because the city planted the trees and performed all necessary maintenance].)

In this Motion for Summary Judgment, Defendants argue that Defendants cannot be liable for Plaintiff’s injuries because:

• as parties do not dispute that the location where Plaintiff fell was a sidewalk owned by the City of Morgan Hill,

• Defendants had no actual or constructive notice of a dangerous condition in the sidewalk, and

• any duty to inspect, repair, or maintain the sidewalk lay solely with the City of Morgan Hill.

(Motion at 2:9-15.)

a. Cause of Sidewalk Defect

Defendants argue that to the extent a dangerous condition existed in the sidewalk, the City of Morgan Hill created that dangerous condition through its own shoddy repair work. (Id. at p. 8:18-19.) In support of this argument, Defendants point to Plaintiff’s deposition testimony wherein she described tripping where asphalt met concrete, and asserts that this proves that Plaintiff fell “where the sidewalk ramping met the repair area.” (Motion for Summary Judgment, p. 8:15-16.) Defendants further state that “[t]he photographs attached to Plaintiff’s deposition show this transition area created by the City’s repair work.” (Id. at p. 8:16-17.)

After carefully reviewing Defendants’ argument and evidence, the Court rules that Defendants fail to meet the burden to show the nonexistence of a triable issue of material fact because a reasonable fact finder could find that a tree owned by Defendants created the defect in the sidewalk such that tort liability would attach. Parties do not dispute that Plaintiff caught her right big toe on an area where asphalt met concrete on the sidewalk. But this alone does not establish that only the City of Morgan Hill’s repair work could have caused the sidewalk defect: it does not follow that asphalt meeting concrete is prima facie evidence of a repair effort, let alone that the City of Morgan Hill did that repair effort, or that the repair effort was “shoddy.”

Notably, Defendants’ Separate Statement makes no mention of any repair effort by the City. (See Parsons v. Estenson Logistics, LLC (2022) 86 Cal.App.5th 1260, 1265, fn. 5 (Parsons) [if it is not set forth in the separate statement, it does not exist].)

Defendants also argue that photographs attached to Plaintiff’s deposition show the City’s repair work. Defendants submit the Declaration of Claudia Lozano in Support of Motion for Summary Judgment (“Lozano Decl.”). Excerpts of the transcript of the deposition of Plaintiff are attached to the declaration, (Lozano Decl., Ex. A.) but Exhibit A does not include any photos attached to Plaintiff’s deposition. Defendants’ evidence does not support the position that only the City of Morgan Hill could have caused the dangerous condition by repairing the sidewalk, and Defendants do not present any other evidence to support the position that Defendants could not have been responsible for the defect in the sidewalk.

In sharp contrast, Plaintiff’s documents show the existence of a triable issue of material fact. Plaintiff argues in opposition that Defendants own one of two trees adjacent to the sidewalk where Plaintiff fell, and that the tree owned by Defendants could have created a dangerous condition in the sidewalk such that Defendants would be liable to Plaintiff. (Opposition, p. 4:7-28.) Plaintiff submits the Declaration of Mary Volz in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Volz Decl.”), in which Plaintiff Volz states the following: “At approximately 9:00 p.m. on May 4, 2022, I tripped and fell as I was walking on the Church Street sidewalk near East

Edmundson Avenue in Morgan Hill. The defect over which I tripped was a sidewalk offset caused by tree roots growing under the sidewalk.” (Volz Decl., ¶ 3.) The Volz Declaration also states that Exhibit 1 to the declaration are “true and correct copies of two photographs that my daughter took on or about May 6, 2022, depicting the incident location.” (Volz Decl., Ex. 1.)

This photograph from Exhibit 1 is an image of a sidewalk with one tree on each side of a height differential in the sidewalk. A building is visible in the upper right third of photo. There is a tree between the building and the sidewalk and another tree is visible in the foreground of the image on the side of the sidewalk opposite from the building, closer to the street. The portion of the sidewalk visible in the left quadrant of the image is at a lower elevation than the portion of the sidewalk on the right quadrant of the image. Where the two differently elevated portions of sidewalk meet, there is a gap in the sidewalk and a strip of asphalt in that gap.

In reply, Defendants argue that “the exhibits that Plaintiff attaches to her declaration are hearsay and should not be considered. Exhibit 1 is a photograph not taken by Plaintiff and being offered to explain the location of her fall. Plaintiff already testified regarding where she fell. The location is not in dispute.” (Reply, p. 4:5-8.) But Exhibit 1 is not being offered to explain the location of Plaintiff’s fall, but rather to show that there are triable issues of material fact as to the extent to which the adjacent trees caused the dangerous condition of the sidewalk at the location where Plaintiff fell. (Opposition, p. 4:7-28.) Accordingly, the Court rejects Defendants’ argument and finds that this photograph does raise triable issues of material facts.

In the Declaration of Keri Russell in Support of Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (“Russell Decl.”), the Maintenance Manager for the City of Morgan Hill Public Services Department states that “[a]t 90 E. Edmundson Avenue the City of Morgan Hill owns and maintains park strip trees located between the

street and the sidewalk. Any tree located on the other side of the sidewalk is not owned by the City and is on private property.” (Russell Decl., ¶¶ 1, 2.)

Plaintiff has thus presented evidence that there is a tree on either side of the location where Plaintiff fell, the City of Morgan Hill denies owning and maintaining one of those trees and contends that the tree belongs to the property owner, and that this tree may have caused the dangerous condition in the sidewalk where Plaintiff fell. Plaintiff has thus established that there is a triable issue of material fact as to whether a tree created the defect in the sidewalk and whether Defendants maintained and controlled that tree such that Defendants could be liable to Plaintiff.

Plaintiff also asserts the existence of another disputed fact with respect to the ownership of one of the trees, claiming that Defendants deny owning the tree and that Defendants have claimed that the City of Morgan Hill owns both trees. (Opposition, p. 4:7-28.) Plaintiff’s evidence to support this assertion is Exhibit 3 to the Declaration of Louis S. Abronson in Support of Plaintiff’s Opposition to Motion for Summary Judgment (“Abronson Decl.”), which declarant states are “true and correct excerpts from R.J. Cassibba’s responses to Form Interrogatories, Set Two. Portions of the document have been highlighted for ease of reference. (The responses from Victoria Cassibba and the R J and Victoria Cassibba Revocable Trust were identical.)” (Abronson Decl., Ex. 3.)

In Exhibit 3, among the highlighted portions are: “Responding party owned the land on which TREE #2 was located at the time of the incident. Responding party did not own TREE #2...Responding party owned the land on which TREE #2 was located at the time of the incident. Responding party did not own TREE #2. The City of Morgan Hill owned and controlled TREE #2.” (Ibid.) The Court was not provided with a means of ascertaining what Defendants were referring to as “TREE #2” and as such cannot determine if Defendants deny ownership of one or both of the trees such that ownership of the trees is a disputed fact.

While Plaintiff’s Opposition includes a photo wherein the tree on the side of the property is labeled “Tree #2” and the tree in between the sidewalk and the public street is labeled “Tree #1” (Opposition, p. 4:13-22.), the Court was not provided with the Form Interrogatories that Plaintiff sent to Defendants and thus cannot conclude that Defendants were referring to the same “Tree #1” and “Tree #2” as Plaintiff was referring to in her opposition papers.

Nevertheless, the City of Morgan Hill denies ownership and control over one of the trees that may have caused the defect in the sidewalk and that tree is located on Defendants’ property. Thus, there is a triable issue of material fact as to ownership of the tree on Defendants’ property. Defendants have not established that any particular tree or the prior repair by the City caused the defect in the sidewalk. Accordingly, Defendants have not established that the tree on their property did not cause the defect in the sidewalk.

The cause of the dangerous condition at the location where Plaintiff fell, and Defendants’ potential liability in creating that dangerous condition, raise disputes of fact—rendering Summary Judgment inappropriate. Accordingly, Defendants’ Motion for Summary Judgment is DENIED.

b. Actual or Constructive Notice

Defendants argue that they cannot be held liable for Plaintiff’s injuries in the absence of actual or constructive notice. (Motion for Summary Judgment, p. 7:13-14.) But where a plaintiff presents evidence from which a reasonable inference could be drawn that the dangerous condition on the premises was created by the defendant, knowledge of the condition is imputed to the defendant. (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.) Here, Plaintiff presented evidence from which a reasonable inference could be drawn that a tree owned by Defendants caused the sidewalk defect and thus knowledge of the condition is imputed to Defendants such that evidence of actual or constructive notice is not required. (Volz Decl., ¶ 3 [Plaintiff states she fell on a sidewalk offset caused by tree roots growing under the sidewalk]; Volz Decl., Ex. 1 [photo described above showing that there was one tree on either side of the sidewalk where Plaintiff fell]; Russell Decl. ¶ 2 [City of Morgan Hill states that one of the trees is not owned by the City].)

Moreover, Defendants do not meet the first-step burden with respect to this element. Defendants’ undisputed material facts indicate only that Plaintiff herself did not inform Defendants of the defect in the sidewalk. (See Defendants’ Separate Statement, Undisputed Material Fact (“UMF”) No. 11.) But it is also undisputed that Plaintiff did not recall ever previously walking in the specific area where she tripped. (Id. at UMF No. 14.) Thus, Defendants have not shown that they did not learn of the defect from another source. (See Parsons, supra, 86 Cal.App.5th at p. 1265, fn. 5 [if it is not set forth in the separate statement, it does not exist].) Hence, the Court cannot sustain Defendants’ Motion for Summary Judgment on the basis that Defendants demonstrated lack of actual or constructive notice of a sidewalk defect.

c. Duty to Inspect, Repair, or Maintain

Defendants also argue that they had no duty to inspect, repair, or maintain the sidewalk and thus cannot be liable for Plaintiff’s injuries. (Motion for Summary Judgment, p. 7:17-20.) But Plaintiff argues not that Defendants had a duty to inspect, repair, or maintain the sidewalk where Plaintiff fell, but rather that Defendants had a duty to use reasonable care in the management of their own property to avoid creating a dangerous condition in the adjacent sidewalk. (Opposition, p. 6:15-16.) As discussed above, there remains a triable issue of material fact as to whether a tree on Defendants’ property could have caused the sidewalk defect.

Thus, Defendants’ argument about the duty to inspect, repair, or maintain the sidewalk is not a defense to Plaintiff’s action or a demonstration of the absence of an essential element of Plaintiff’s case. (Gray, supra, 209 Cal.App.3d at p. 81.) The Motion for Summary Judgment cannot be granted on this ground.

d. Motion for Summary Adjudication

In the alternative, Defendants also request Summary Adjudication. (Motion for Summary Judgment, p. 2:2-3.) But Defendants make no specific arguments at all in support of Summary Adjudication, let alone regarding any specific Cause of Action. So

Defendants have forfeited any arguments they might have had for Summary Adjudication. (See WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 895 [arguments unsupported by legal analysis or record citations are deemed forfeited].)

To the extent that in the alternative the Motion sought Summary Adjudication, the Motion for Summary Adjudication is DENIED.

Conclusion & Order

Accordingly, Defendants’ Motion for Summary Judgment or Summary Adjudication is DENIED.

SO ORDERED.

Date: July 8, 2026 Hon. Vincent I. Parrett Superior Court of the State of California, County of Santa Clara

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