STATE FARM GENERAL INSURANCE COMPANY vs CITY OF SIMI VALLEY

8. PAMF 22 is NOT ESTABLISHED by the cited evidence.

Defendant’s Evidentiary Objections: The Court DENIES and OVERRULES Defendant’s evidentiary objections to the declaration of Plaintiff’s expert witness Michael Gerold Neumann on procedural and/or substantive grounds. The objections fail to comply with California Rule of Court, rule 3.1354(b), by not conforming to the format of objections. Defendant asserts objections directed at Plaintiff’s UMFs in the separate statement, but not to the evidence itself. Facts in the separate statement are not evidence. (See Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 178, fn. 4.) Only objections to evidence are permitted. (Cal. Rules of Court, rule 3.1354.) No legal authority authorizes objections to facts stated in the separate statement.

Additionally, the objections are unnumbered and fail to state the page and line number of the material objected to. The objections also fail to quote the precise objectionable statement and targets multiple paragraphs in one objection, requiring the court to comb through multiple paragraphs to discern which specific passage is being objected to. The objections are also overruled on the merits because the Court liberally construes declarations opposing a summary judgment motion and the declaration of Plaintiff’s expert witness shows his qualifications to express opinions on the subject matter of the second-amended complaint.

Defendant’s MSJ/MSA:

The moving party fails to sustain its burden of proof/production as to the second cause of action for inverse condemnation. The MSJ’s ultimate facts appear primarily tailored to a fact pattern where a tree is alleged to be a public improvement. (E.g., Mercury Casualty Co. v. City of Pasadena (2017) 14 Cal.App.5th 917.) However, the SAC does not allege that the Subject Tree was a public improvement. The SAC alleges that Defendant performed sidewalk, curb, and gutter repairs next to the tree which caused damage to the tree roots such that it subsequently fell.

The moving evidence does not establish that the sidewalk repair itself was not a public improvement work or was not a substantial factor in causing the tree to fall. It does not establish as a matter of law that Defendant did not, during its sidewalk repair in May 2023, cause damage to the tree roots. Although UMFs 8, 10-14, 16, and 17 address the City’s maintenance of the tree, these facts do not establish that the City did not sever, cut, or otherwise damage the tree roots during its sidewalk repair.

Accordingly, the motion does not carry its initial burden of demonstrating that there are no triable issues of material facts.

Even if the Court were to assume arguendo that the burden shifted, Mr. Neumann’s declaration appears sufficient to create a triable issue as to whether the City’s sidewalk repair damaged the tree’s roots such that it fell a year later during strong winds. Regarding the first cause of action for dangerous condition under Government Code section 835, Defendant again fails to show that there are no triable issues as to whether the City was negligent in performing its sidewalk repair, by damaging the tree roots, so as to be held liable. The Court notes that a public entity is negligent if it “created the dangerous condition.” (§ 835; Fackrell v.

2024CUPP032226: STATE FARM GENERAL INSURANCE COMPANY vs CITY OF SIMI VALLEY

San Diego (1945) 26 Cal.2d 196, 203 [“The rule is well established that when it is shown that a certain street and sidewalk improvement has been planned by city officers and constructed in accordance with such plan, and that by carrying out the plan a dangerous or defective condition has been created, no further proof is needed to charge the city with notice of that condition.”].) Defendant emphasizes that it properly maintained the tree in terms of inspections and pruning and that the tree appeared healthy prior to its fall.

But again, Plaintiff’s claim is based on an active physical act of destruction (cutting structural roots during sidewalk repair). Proving that the tree looked healthy above ground or that the city performed standard branch pruning does not negate the separate, underlying factual allegation of below-ground root severing. Additionally, the Street Tree Review and Removal Form contained within Defendant’s compendium of exhibits indicates the tree was in “fair” condition (as opposed to “good” condition) as of 8/19/22. (Defendant’s Compendium of Evidence, Exh.

E, COSV00015.) Relying on the fact the tree passed a “stability test” also does not negate any element of the cause of action. For one thing, the stability test occurred on 5/17/23. (Sandoval Decl., ¶ 13.) However, the “concrete maintenance” record provided by Defendant appears to state that the “work date” for “sidewalk replace” was on 5/19/23, at 2:17 p.m. (Defendant’s Compendium of Evidence, Exh. E, COSV000024.) Thus, the stability test does not appear to show that the tree passed a stability test after the sidewalk repair work.

Also, the lack of any details regarding the methodology and scope of the stability test prevents the Court from reasonably concluding that the sidewalk work did not affect the stability of the tree. For much of the same reasons, the moving evidence also fails to show that there is no triable issue as to whether the defense stated in Government Code section 835.4 applies. As to the allegation that the City “avoided pruning structural roots,” UMF 16 does not support the fact. UMF 16 merely states that on 5/17/23, the tree passed a stability test and that “no structural roots were pruned at that time.” (Emphasis added.)

This fact does not show that no structural roots were pruned when the sidewalk was repaired, apparently on 5/19/23, or that a stability test was conducted after the 5/19/23 repairs were completed. Thus, the evidence does not establish the statutory reasonableness defense applies as a matter of law. For all of the foregoing reasons, Defendant’s Motion for Summary Judgment or alternatively Summary Adjudication is DENIED.

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