Thomas vs. City of Rancho Santa Margarita

In her discovery responses, Plaintiff contends the hole developed after a tree was removed from the Property sometime between 2011 and 2015 when defendant Mission Landscape Companies, Inc. was the contracted landscaper for the premises. (Defendant’s Exh. 6 [Plaintiff’s Responses to Special Rogs.] No. 1.)

Mission moves for summary judgment, alternatively, summary adjudication of each cause of action, on the grounds that it did not own, possess, or control the property; did not create the hazardous condition; had no ongoing duty of care; and was not a substantial factor or otherwise caused Plaintiff’s injury.

Mission asserts Plaintiff fell in the City of Rancho Santa Margarita in the area around Ama Daisy (“Property”). (Defendant’s Facts 2.) Although the Property is public property, defendant Rancho Santa Margarita Landscape and Recreation Corporation (“SAMLARC”) was responsible for maintaining it. (UMF 3; Defendant’s Exh. 13 [the City’s Responses to Form Rogs.] Nos. 15.1 & 17.1 re RFA No. 7; Exh. 19 [Blair Depo], p. 19:4-12.) SAMLARC is a homeowner’s association. (Defendant’s Exh. 19 [Blair Depo.], p. 76:2.)

SAMLARC contracted with Mission to provide landscape maintenance work for the Property between January 2010 and December 31, 2018. (UMF 4-5.) Mission asserts it has not performed any landscape work at the Property since at least June 30, 2018. (UMF 8.) Mission’s contract with SAMLARC explicitly states that no tree work can be done without prior written proposal and approval from SAMLARC. (UMF 6.) Mission’s scope of work was limited to routine maintenance activities and did not include tree removal, excavation, or construction work. (UMF 7.)

Mission denies it ever owned, possessed, or controlled the Property and denies removing the tree from the Property. (UMF 9-10.) SAMLARC had contracts with other entities to provide landscaping services for the Property: O'Connell Landscape from April 1, 2016 to January 2019; Sunset Landscape from January 2019 to January 1, 2024; and defendant Andre Landscape, Inc. from January 1, 2024 to the present after it acquired Sunset Landscape. (UMF 11.)

Plaintiff contends triable issues of material fact exist as to each element of Plaintiff’s claims against Mission. Plaintiff asserts Mission’s services under the contract included tree removal and Mission removed between 50 and 100 trees for SAMLARC during the contract period. (Plaintiff’s Additional Material Facts (“PAMF”) 3-4.) A landscape contractor performing tree removal service for SAMLARC contract could remove a declining or dead tree without obtaining prior approval. (PAMF 10.) The proper postremoval practice is to remove the stump (mechanically or by grinding), backfill the resulting cavity, and replant with seed or sod to leave the area level. (PAMF 10.)

Proper stump grinding cuts the stump 12 to 18 inches below ground level and the resulting cavity must be backfilled to avoid leaving “a void in the ground.” This is something Mission had done for SAMLARC. (PAMF 12.) When a tree is removed, organic matter left behind in the cavity can decay over time, causing the ground in that area to sink and create a depression. (PAMF 11.)

According to Plaintiff, Google Street View imagery of the Property shows two trees standing in the parkway turf in August 2011 and only one tree remaining by April 2015. The relevant time period (August 2011 through April 2015) is entirely within Mission’s exclusive tree care contract with SAMLARC. (PAMF 5.) Plaintiff contends that Devin Sanders of Mosaic Consulting, SAMLARC’s landscape consultant, and Mission had been monitoring the subject tree as it was declining and eventually died; Mission then removed the tree. (PAMF 7.)

Mission’s landscape supervisor, Raul Salazar, made the decision to remove the tree. While standing at the location where the tree had been, Salazar admitted to Sanders that he “took it out.” (PAMF 8.) Mission’s PMQ, Osvaldo Barba, confirmed that Salazar was Mission’s landscape manager. (PAMF 9.) Barba has no recollection of any tree at the Property falling on its own or being removed by anyone other than Mission. (PAMF 6.) Neither Mission nor SAMLARC knew of the latent hole prior to the incident. (PAMF 14.)

In reply, Mission asserts Plaintiff has no admissible evidence that Mission removed the tree, performed the removal negligently, had notice of the alleged dangerous condition, or that Mission's conduct was a substantial factor in causing her injuries. Rather than produce evidence raising a triable issue of material fact, Plaintiff relies on hearsay, speculation, and impermissible inferential leaps that, even viewed in the light most

favorable to Plaintiff, are insufficient to create a conflict in the evidence.

Plaintiff’s evidence adequately establishes Mission removed the tree. However, Plaintiff failed to meet her burden of demonstrating a triable issue. Plaintiff has not produced evidence showing Mission negligently removed the tree, Mission had notice of the subsequent hole, or Mission’s conduct was a substantial factor in causing Plaintiff’s injuries.

In her opposition, Plaintiff asserts “Mission failed to properly backfill the tree stump cavity. . . .” (Opp. 2:17.) This assertion is unsupported. Plaintiff has not presented any testimony, expert declarations or any other evidence establishing Mission failed to properly backfill the cavity or otherwise deviated from the standard of care. Testimony regarding the general practice for removing a tree and subsequent clean up does not alone establish Mission negligently removed the tree. “No suggestion of negligence arises from the mere happening of an accident.” (Brooks v.

Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734 (Buehler).) Conjecture that Mission must have acted negligently because a hole developed for an unknown reason at an unknown time after the tree was removed on an unknown date between August 2011 and April 2015 “is mere speculation which is legally insufficient to defeat a summary judgment.” (Buehler, supra, 224 Cal.App.3d at p. 734.)

In addition, once an independent contractor completes work that is accepted by the owner, the contractor no longer has a duty to inspect, maintain, or warn of conditions that may develop on the property. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712, disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512.) This is known as the “completed and accepted” doctrine. (Id. at p. 711.) There are three exceptions: (1) the defect was latent and the contractor knew or should have known of it at the time of completion but failed to disclose it; (2) the contractor's work created an imminently dangerous condition that the owner could not have discovered through reasonable inspection; or (3) the contractor engaged in willful misconduct or fraudulent concealment. (Code Civ.

Proc., § 337.15; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1467.) Plaintiff seemingly argues the “latent defects” exception should apply. However, Plaintiff

produces no evidence Mission knew or should have known of the alleged defect, i.e. the hole, at the time of completion.

Plaintiff effectively concedes lack of notice. A defendant cannot breach a duty to warn of or remedy a dangerous condition unless the defendant had actual or constructive notice of the condition. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (Ortega).) To establish actual notice of a dangerous condition, there must be evidence the defendant had knowledge of the particular dangerous condition in question. (Restivo v. City of Petaluma (2025) 111 Cal.App.5th 267, 275.) It is insufficient to show the defendant had general knowledge the condition can sometimes occur. (Ibid.) Here, Plaintiff’s Additional Material Fact No. 14 asserts that “[n]either Mission nor SAMLARC knew of the latent hole prior to the incident.”

To establish constructive notice, a plaintiff must show “the dangerous condition existed for at least a sufficient time” that the defendant, “exercising reasonable care,” should have discovered and remedied it. (Ortega, supra, 26 Cal.4th at p. 1207.) For an individual to be determined to have constructive notice, they must have, “actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1209.) A defendant “cannot be charged with constructive notice without a showing of some overt feature surrounding the dangerous condition, which would notify the [defendant] of its existence.” (Ibid.)

Plaintiff has produced no evidence the hole developed before Mission’s contract ended, or there were signs of decay or a hazardous condition before Mission’s contract ended. Therefore, Plaintiff cannot establish the hole existed for at least a sufficient time that Mission, exercising reasonable care, should have discovered it. Once Mission’s contract ended in 2018, its obligation to inspect the Property ended as well.

Finally, Plaintiff has not established causation. Devin Sanders, SAMLARC’s landscape consultant, testified Mission’s supervisor Raul Salazar told him “he took it out,” referring to the subject tree. While Sander’s testimony establishes Mission removed the tree at some point, it does not establish how Mission removed the tree, whether the stump was ground down using machinery, whether backfill was performed, or what material was

used to backfill. Sanders also testified as to one possible mechanism of soil depression, that organic matter left behind “can decay over years and create a depression.” However, he did not opine decay is the only possible cause of a depression or hole in the soil or whether that scenario occurred here. “[A] plaintiff cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions, devoid of any bias, explanation or reasoning.” (Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, 23 [cleaned up].)

Because Mission is still a cross-complainant and a crossdefendant, the court will not enter judgment at this time.

Clerk to give notice.