CHARLOTTE CHO v. ETIWANDA SCHOOL DISTRICT, et al.

a witness has said about the events].) All of the facts are then repeated six times, once per cause

of action, providing a total of 282 “facts.”

In any event, the facts otherwise indicate Cho was five at the time of the incident, was

attending Calton P. Lightfoot Elementary, and prior to the incident she had not fallen off the

playground equipment (called the Verve VI Arch or the Arch) despite having previously used it.

(Fact No.’s 17-20.) Cho also never saw anything wrong with the playground or the floor, was never

instructed not to climb the equipment, and on the day of the incident there was a playground proctor

around two car lengths away. While climbing, Cho reached out for a bar with her left hand, missed,

and then fell, ending up in the middle of the equipment on the ground. A proctor (Rizk) came to

her right away and helped her to the nurse’s office. Cho still uses the playground equipment,

3 While not currently relevant, the City of Rancho Cucamonga and the County of San Bernardino were also named as defendants initially.

nothing has changed since the fall, and Cho has not seen other students fall before. (Fact No.’s 21-

29.)

The facts also indicate Arch was designed for children five years and older, though Cho

indicates that is the minimum stated age range and the rating does not mean the equipment is safe

for the youngest users under all conditions. (Fact No. 30, 37 and 42 and Responses.) Below the

Arch were 2’ x 2’ rubber tiles and the District contracted with Safeplay by Design Inc. (Safeplay)

to ensure compliance with California Playground Safety Regulations. Safeplay certified the rubber

tiles were compliant with all school safety standards in November 2017. Safeplay also certified

the Arch complied with all school safety standards and that it was for ages five and older. (Fact

No.’s 31-36.) The District also has no record of prior complaints or concerns about the Arch or

rubber tiles at the school, the playground, or playground surface. (Fact No. 36 and 41)

In the opposition, Cho notes that merely because the playground was inspected in 2017 and

certified does not mean the conditions were safe at the time of the incident, which was nearly six

years later. Cho also again reiterates that the rating does not mean use is safe for the youngest users

under all conditions. Furthermore, Cho argues that the District has no records of complaints

because no one was inspecting the tiles or testing their adequacy; while site custodians were

responsible for visually inspecting the playground equipment and surfaces, no one knew how to

assess the impact absorbing quality. Rizk was also never trained in how to inspect the playground.

(Response to Fact No.’s 31-36.)

The District also indicates that at the time of the incident there were six trained proctors

assigned to and present on the playground for supervision, which included Rizk, who was the

closest to Cho at the time of the incident. (Fact No. 38.) The District then contends appropriate

adult supervision was in place consistent with school practice at the time, which includes the

multiple proctors, adherence to District oversight. (Fact No. 47.)

However, Cho indicates there were three zones in the “big kid” yard, namely, the basketball

court, the playground area, and the handball court. There were normally 2 proctors assigned to the

playground area because it was crowded and included kids eating that may need assistance. On the

day of the incident, Rizk was alone and supervising 30 kindergarten children, 6-8 of whom were

eating. The other proctors were far away and Rizk did not witness the incident because she was

assisting a child with opening his food. (Response to Fact No. 38.)

Otherwise, it is undisputed that there were no complaints concerning Rizk’s employment

prior to the incident; the school had six kindergarten classes or around 134 kindergarten students

on the day of the incident; the District is not aware of any other kindergarten students experiencing

falls on the playground; and the equipment is still used at the school. (Fact No.’s 39-40, 43, 46.)

Finally, the District indicates after the incident, the playground was inspected and no

defects in the equipment or rubber were found and the rubber was designed for playground use.

(Fact No.’s 44-45.) Cho counters by indicating Georgia Wayne, the school principal who provided

the declaration underlying the facts asserted, is not qualified to render any opinions regarding the

existence of a defect on the playground equipment or surface, she does not remember inspecting

the condition of the surface even though part of the investigation protocol should have included

inspecting the surface, she did not know of any testing of the integrity of the surface prior to the

incident, and afterwards she did not conduct any such testing. (Response to Fact No.’s 44-45.)

The documents presented in connection with the motion and opposition

The motion is supported by a separate statement of fact; the complaint and answer; portions

of the transcript from the deposition of Cho; declarations from Michael Higgins (Etiwanda’s

Director of Operations and Facilities), Wayne, and Rizk; photographs of the playground; a

purchase order for the “Verve VI Arch” climber and the interlocking rubber tiles; a safety

inspection report and certifications from Safeplay by Design, Inc.; an impact attenuation report; a

notice of completion; the bell schedule for the 2023-2024 school year; and a roster of employees.

The opposition is supported by an opposing separate statement of fact; portions of the

transcript from the depositions of Rizk, Wayne, Higgins, and Sarah Tims; an opposing separate

statement of fact; declarations from purported experts Craig Cunningham and Thomas Parco; and

objections to the declarations from Higgins, Wayne, and Rizk. 4

Defendants have replied and submit objections to the declarations from Cunningham and

Parco5 in addition to a reply separate statement. 6

DISCUSSION

An Overview of the Law Applicable to Motions for Summary Judgment/Adjudication

4 The Court Sustains objection no.’s 1-2 to the Higgins declaration (except overrule as to what Higgins could have personally observed about the conditions as a lay person); sustain objection no.’s 3-4 to the Wayne declaration (except overrule as to what Wayne could have personally observed about the conditions as a lay person and Wayne’s assertion about falls being an inherent risk of age-appropriate playground equipment), but overrule objection no. 5; overrules objection no. 6 to the Rizk declaration (though noting that while the argument is not a true evidentiary objection, the Court can ignore the inconsistent assertions under Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604), but sustains objection no. 7 and sustains objection no.’s 8-10 (except overrules as to what Rizk could have personally observed about the conditions as a lay person).

5 Defendants’ objections consist of several objections asserted to several paragraphs, simultaneously, or entire declarations. Evidentiary objections must be specific and particularized. To the extent the material cited as being objectionable contains any statement that is non-objectionable, even if meritorious objections could have been posed to unspecified portions of the material, the objections are overruled. (OCFCD v. Sunny Crest Dairy, Inc. (1978) 77 Cal. App. 3d 742, 753; see also Rose v. State (1942) 19 Cal. 2d 713, 742 [discussion in context of motion to strike out inadmissible evidence].) As a result, the Court overrules Defendants’ objections to the Cunningham and Parco declarations.

6 “There is no provision in [Code of Civil Procedure section 437c] for” a reply to a separate statement in opposition. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Summary judgment is proper where there is no triable issue as to any material fact and the

movant is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

The analysis requires the trial court to engage in three steps:

First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading. [Citations.] [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant’s favor. [Citations.] The motion must stand self- sufficient and cannot succeed because the opposition is weak. [Citations.]

A party cannot succeed without disproving even those claims on which the opponent would have the burden of proof at trial. [Citations.] [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal.App.3d 1061, 1064-65.)

When the moving party is a plaintiff, the initial burden is met by a showing that there is no

defense to the action or rather by proving each element of the cause or causes of action. (See Code

Civ. Proc., § 437c, subd. (p)(1).) Likewise, defendants can meet their initial burden by showing

that a cause or causes of action have no merit because one or more elements of the claims “cannot

be established.” (See Code Civ. Proc., § 437c subd. (p)(2).) Once the movant has met the initial

burden, the burden then shifts to the opposing party to produce admissible evidence showing that

there is a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) However, if the

movant does not satisfy the initial burden, the motion must be denied and it is unnecessary for the

court to consider the opposition. (Swanson v. Morongo Unif. Sch. Dist. (2014) 232 Cal.App.4th

954, 963.)

The party opposing an MSJ must provide proof showing a triable issue of fact; equivocal

evidence will not suffice. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial § 10:203

(“Weil & Brown”), citing Ahrens v. Sup. Ct. (Pac. Gas & Elec. Co. (1988) 197 Cal.App.3d 1134,

1152.) Declarations and evidence offered in opposition to a motion for summary judgment must

be liberally construed, while the moving party’s evidence must be construed strictly. The opposing

party cannot controvert the moving party’s declarations by evidence “based on speculation,

imagination, guess work, or mere possibilities.” (Weil & Brown, supra, § 10:203.1, citing Doe v.

Salesian Soc. (2008) 159 Cal.App.4th 474, 481.) Opposing declarations, while liberally construed,

cannot contain inadmissible evidence, either hearsay or conclusions. (Overland Plumbing, Inc. v.

Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.) Any evidentiary objections not made are

deemed waived. The Court, additionally, must consider reasonable inferences drawn from the

presented evidence by the parties. (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th

at p. 843.)

The opposing party may not rely upon the allegations or denials in its pleadings, but must

“set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc.,

§ 437c, subd. (p)(2).) The opposing party’s failure to file counter-declarations or opposition does

not relieve the moving party of the above burden, i.e., it is still the moving party’s burden to prove

he is entitled to judgment. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743-45; FSR Brokerage,

Inc. v. Sup. Ct. (1995) 35 Cal.App.4th 69, 73-75, fn. 4.)

The court’s sole function on a motion for summary judgment is issue finding, not issue

determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.) The judge must determine

from the evidence submitted whether there is a triable issue as to any material fact. (Id. at p. 926.)

If there is a single such issue, the motion must be denied. (Joseph Schlitz Brewing Co. v. Downey

Distributor (1980) 109 Cal.App.3d 908, 914.)

A party may also move for summary adjudication as to one or more causes of action within

an action, one or more affirmative defenses, one or more claims of damages, or one or more issues

of duty. (Code Civ. Proc. §437(f).) A summary adjudication motion may be made by itself, or as

an alternative to a summary judgment motion, and is subject to the same rules and procedures as

a summary judgment motion. (Lomes v. Hartford Financial Service Group, Inc. (2001) 88

Cal.App.4th 127, 131.)

The First Cause of Action for Dangerous Condition of Public Property

An overview of the applicable law

Government Code section 835, which is the statutory basis for a cause of action for

dangerous condition of public property, provides:

“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)

To state a cause of action against a public entity under Government Code section 835, a

plaintiff must plead: (1) a dangerous condition existed on the public property at the time of the

injury; (2) the condition proximately caused the injury; (3) the condition created a reasonably

foreseeable risk of the kind of injury sustained; and (4) the public entity had actual or constructive

notice of the dangerous condition of the property in sufficient time to have taken measures to

protect against it. (Gov. Code, § 835; Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434,

439.)

Government Code section 830 defines a “[d]angerous condition” as “a condition of

property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of

injury when such property is used with due care in a manner in which it is reasonably foreseeable

that it will be used.” Property is not “dangerous” within the meaning of the statutory scheme if the

property is safe when used with due care and the risk of harm is created only when foreseeable

users fail to exercise due care. (Gov. Code, § 830.) Even though it is foreseeable that persons may

use public property without due care, a public entity may not be held liable for failing to take

precautions to protect such persons. (Fuller v. State of California (1975) 51 Cal.App.3d 926, 939.)

The existence of a dangerous condition

In this case, the motion suggests that Cho’s allegations fail to adequately identify a

dangerous condition, but the complaint broadly suggests, among other things, that the playground

equipment and surrounding areas were deteriorated. (Compl. at ¶ 43.) The allegations would

therefore include the theory now advanced that the rubber flooring had deteriorated and was in a

dangerous condition,

Next, Defendants attempt to affirmatively show there was no dangerous condition, citing

to the absence of prior complaints, Cho’s own testimony, the ratings and certifications provided

when the equipment was installed, as well as the general inspections conducted before and after

the incident. However, the ratings and certifications provided when the equipment was installed in

2017 would not be indicative of the conditions existing when the incident occurred in 2023.

The declarants offered by Defendants have also failed to show, beyond defects a lay person

could observe, that the playground was truly free from defects. Indeed, Higgins conceded he would

have needed to have a “certified person” test the impact attenuation of the rubber, that the ability

to absorb energy of the rubber diminishes with age, and that there were no procedures in place

between 2017 to the time of the incident to test the adequacy of the surface. (Higgins Dep. at pp.

92-93 and 115.) As a result, Defendants failed to meet their initial burden of showing the absence

of a dangerous condition, even if only failing to foreclose on the possibility that the rubber had

deteriorated or failing to address what impact absorption, if any, remained on the rubber tiles at

the time of the incident. It is also notable that the year after the incident, the surface was tested and

it failed, causing the District to replace the surface. (Additional Fact No. 28.)

The notice of the condition

The public entity’s notice of the condition need not be actual; constructive notice of the

dangerous condition is enough if it existed for “a sufficient time prior to the injury to have taken

measures to protect against the dangerous condition.” (Gov. Code § 835.2.) It is well settled that

“constructive notice can be shown by the long continued existence of the dangerous or defective

condition, and it is a question of fact for the jury to determine whether the condition complained

of has existed for a sufficient time to give the public agency constructive notice.” (Erfurt v. State

of California (1983) 141 Cal.App.3d 837, 844–845.) “Admissible evidence for establishing

constructive notice is defined by [Government Code section 835.2(b)] as including whether a

reasonably adequate inspection system would have informed the public entity, and whether it

maintained and operated such an inspection system with due care.” (Heskel v. City of San Diego

(2014) 227 Cal.App.4th 313, 317.)

In this case, the Defendants largely ignore the constructive notice theory. (Opening Brief

at p. 12 [focusing on actual notice]; Compl. at ¶¶ 45 and 59 [alleging both actual and constructive

notice].) Thus, arguably Defendants again failed to meet their initial burden, and as noted above,

the evidence indicates the District, through Higgins, was aware that the rubber’s ability to absorb

energy diminishes with age, and there were no procedures in place to test the adequacy of the

surface. Higgins further conceded he would have needed to have a “certified person” test the

impact attenuation of the rubber. (Higgins Dep. at pp. 92-93 and 115.)

The principal, Wayne, had also observed that the surface had faded and it may have been

“worn” “as anything does,” but there were no procedures in place to test the adequacy of the

surface and no one at the school knew how to assess the impact absorbing quality of the rubber.

(Additional Fact No.’s 39, 49, and 50-51.)

In the reply, Defendants argue Cho has not established the existence of constructive notice,

but at the summary judgment stage it is Defendants’ burden to disprove the theory and they

completely ignore the constructive notice allegations. There is also no evidence from Defendants

indicating the rubber had not lost its impact attenuation qualities by the time of the incident, that

there was insufficient time between that occurrence and the incident to discover the condition, and

the District also conceded it had no inspection system in place to test the adequacy of the rubber’s

impact attenuation, which is significant because as noted above constructive notice can arise if a

reasonably adequate inspection system would have informed the public entity of the condition,

and whether it maintained and operated such an inspection system with due care. (Heskel v. City

of San Diego (2014) 227 Cal.App.4th 313, 317.)

The causation element

Finally, as for the causation issue, Defendants fail to explain, let alone produce evidence

showing, why the condition of the rubber at the time of the incident was not a substantial factor in

causing the incident. If nothing else, it would seem that the condition of the rubber, if it had lost

its impact attenuation, could have exacerbated Cho’s injuries. The motion is denied as to the first

cause of action.

The Second Cause of Action for Vicarious Liability

An overview of the applicable law

Government Code section 815.2, subdivision (a), provides that a public entity “is liable for

injury proximately caused by an act or omission of an employee of the public entity within the

scope of his employment if the act or omission would, apart from this section, have given rise to a

cause of action against that employee or his personal representative.” “To establish a cause of

action for negligence, the plaintiff must show that the “defendant had a duty to use due care, that

[it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.”

[Citation.] Recovery for negligence depends as a threshold matter on the existence of a legal duty

of care.” (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113, 125.) The

existence of a duty is a legal question of law (Ibid.)

“[A] school district and its employees have a special relationship with the district’s pupils,

a relationship arising from the mandatory character of school attendance and the comprehensive

control over students exercised by school personnel, ‘analogous in many ways to the relationship

between parents and their children.’ ” (Doe v. Lawndale Elementary School Dist. (2021) 72

Cal.App.5th 113, 125–126.) Because of that special relationship, school personnel generally have

a duty to supervise and protect students, including from “foreseeable injury at the hands of third

parties acting negligently or intentionally.” (Ibid.)

A defendant’s arguments “about specific measures it has already taken,” such as whether

the district’s administrators did enough to prevent harm “concern[] whether defendant in fact took

reasonable care, a question of breach usually for the jury.” (Doe v. Lawndale Elementary School

Dist. (2021) 72 Cal.App.5th 113, 126.) Foreseeability is also generally a question of fact.

“Nevertheless, “ ‘[e]ven if an organization has a special relationship with the tortfeasor or plaintiff,

“[t]he court may depart from the general rule of duty ... if other policy considerations clearly

require an exception.” “ (Doe v. Lawndale Elementary School Dist. (2021) 72 Cal.App.5th 113,

127.) In the school context, the courts consult the Rowland factors in determining whether the

“relevant policy considerations counsel limiting that duty.” (Ibid.)

The Rowland factors are “the foreseeability of harm to the plaintiff, the degree of certainty

that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct

and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of

preventing future harm, the extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting liability for breach, and the

availability, cost, and prevalence of insurance for the risk involved.” (Doe v. Lawndale Elementary

School Dist. (2021) 72 Cal.App.5th 113, 127 [referencing Rowland v. Christian (1968) 69 Cal.2d

108].)

Defendants’ motion

In this case, the second cause of action is based upon the duty owed by Rizk and the “Doe”

defendants to monitor, supervise, care for, and look after the children playing on the playground

in addition to the oversight of persons inspecting, monitoring, watching over, looking after, and

managing school playgrounds to keep them free from dangerous conditions. (Compl. at ¶ 58.)

The motion and the opposition focus on the number of proctors, six for around 134

students, in addition to their location on the playground. The facts also indicate one of the proctors,

Rizk, was only two car lengths away from Cho and she (Cho) could see the proctor. Then,

following the incident, the proctor came right away. (Fact No.’s 38-39, 47, 70, and 72.) The District

therefore argues that appropriate adult supervision was in place on the playground at the time.

(Fact No. 47.)

The District’s argument appears reasonable. Requiring the District to employ another adult

would impose a significant burden. Moreover, it is unclear how more adult supervision or different

placement of the supervision would have changed anything. For instance, the facts appear to

suggest that Cho and other kindergarten children were permitted to use the Arch because it was

rated for their age, there were no safety complaints reported or complaints about Rizk, Cho herself

had used the Arch in the past without incident as did other kindergarten students, Cho was never

instructed not to use the Arch, and the equipment is still in use. (See, e.g., Fact No.’s 37, 40-43,

and 46.)

Thus, to the extent the children were permitted to use the Arch, having several more

proctors in the general area would not have prevented the fall itself, even if one of those proctors

was specifically charged with only observing the Arch, because the incident appears to have

happened too fast. (See Fact No. 24 [Cho reached out for a bar with her left hand, missed, then

fell].) That is unless Cho suggests that a proctor should have been tasked with assisting students

with climbing the Arch and personally providing fall protection to students. It appears Cho makes

such a suggestion (Opposition at 17:3-8), but such a duty would again appear unrealistic to impose.

It also does not appear that Cho suggests kindergarten students should have been prevented

from using the Arch altogether, that is if the flooring had not degraded; Cho only suggests the

District should have closed the Arch since there was only one proctor assigned to the “zone.”

(Opposition at p. 16.) Again though, it does not appear that an additional proctor would have

changed anything absent a proctor specifically charged with fall prevention.

On the other hand, the claim could be based upon the negligence in permitting the children

to use the Arch given its dangerous condition. The claim is also based upon negligence in the

oversight of the persons inspecting, monitoring, watching over, looking after, and managing school

playgrounds to keep them free from dangerous conditions. (Compl. at ¶ 58.) As indicated above,

the District, through Higgins, was aware that the rubber’s ability to absorb energy diminishes with

age, yet there were no procedures in place between 2017 to the time of the incident to test the

adequacy of the surface. Higgins further conceded he would have needed to have a “certified

person” test the impact attenuation of the rubber. (Higgins Dep. at pp. 92-93 and 115.)

Wayne also observed that the surface had faded and it may have been “worn” “as anything

does,” but there were no procedures in place to test the adequacy of the surface and no one at the

school knew how to assess the impact absorbing qualities. (Additional Fact No. 39, 49, and 50-

51.) Therefore, if nothing else the second cause of action could be based upon a theory of negligent

hiring, training, supervision, or retraining as it relates to the rubber surface and the absence of

trainings, the absence of policies and procedures, the absence of a method to test the rubber, the

negligence in failing to hire a “certified person” to conduct the test at any time over six years, etc.

The Third Cause of Action for Negligent Supervision of Students, the Fourth Cause of Action

for Negligence, and the Fifth Cause of Action for Negligent Hiring, Training, Supervision, or

Retention.

The third, fourth, and fifth causes of action appear duplicative, of both each other and the

vicarious liability and dangerous condition causes of action. For example, the claims appear broad

enough to include a theory that the District and its employee’s were negligent in allowing Cho to

play on the dangerous Arch or that the District failed to ensure employees were trained and

supervised to, and that it lacked policies and procedures to, determine whether the rubber lost its

impact attenuation. (See Compl. at ¶¶ 70, 74, and 74 [third cause of action based on negligent

supervision of students, Gov. Code, § 815.2, and the failure to protect against the reasonably

foreseeable physical harm]; Compl. at ¶¶ 81, 83, and 88 [fourth cause of action based upon

oversight of persons inspecting, monitoring, looking after, and managing playground equipment

to keep them free from dangerous conditions; defendants broadly breached their duty by failing to

protect Cho from foreseeable physical harm; and employees were unfit to manage school

playgrounds and keep them free from dangerous conditions]; and Compl. at ¶¶ 92 and 95 [fifth

cause of action based upon Gov. Code, § 815.2 and Defendants alleged duty to safeguard against

dangerous conditions of playground equipment they knew or should have known posed a serious

risk of injury].)

However, redundancy is not a ground raised in the notice of motion. While the opening

brief attempts to address what could be construed as particular theories within the causes of action,

the notice of motion should have been directed at those theories instead of the causes of action as

a whole. (See Notice of Motion at pp. 2-3 [broadly indicating each of the claims fail because Cho

cannot show breach of duty, causation, actionable injury, or that there was a dangerous condition

that contributed to the incident]; Blue Mountain Enterprises, LLC. v. Owen (2022) 74 Cal.App.5th

537, 549, as modified (Jan. 19, 2022) [party may move for summary adjudication that does not

completely dispose of a cause of action if the party presents a motion that pertains to one or more

“distinct wrongful acts are combined in the same cause of action in a complaint” and the trial court

does not abuse its discretion in summarily adjudicating such a motion].)

As a result, the analysis outlined above related to the first two causes of action applies.

Defendants failed to show that the property was not in a dangerous condition, that Defendants

were not on constructive notice of the condition, and that there were adequate policies and

procedures in place or that employees were properly trained and supervised with respect to

monitoring the conditions of the rubber or that permitting the use of the Arch under such conditions

was not negligent.

On the other hand, the notice of motion also notes that the fourth cause of action has no

statutory basis. Indeed, the claim does not reference any statute, not even Government Code

section 815.2. That is significant because public entities are generally immune from liability except

as otherwise provided by statute (Gov. Code, § 815; Tansavatdi v. City of Rancho Palos Verdes

(2023) 14 Cal.5th 639 [tort liability must be based in statute]; Searcy v. Hemet Unified School Dist.

(1986) 177 Cal.App.3d 792, 802 [“Since the duty of a governmental agency can only be created

by statute or ‘enactment,‘ the statute or ‘enactment‘ claimed to establish the duty must at the very

least be identified”].)

The Motion as to Rizk

Finally, it is notable that the motion makes no real distinction between Rizk and the

District. In fact, it is not even argued that Rizk cannot be liable for the first cause of action for

dangerous condition of public property because Government Code section 840.4 (which is not

cited by Defendants) outlines different conditions for imposing such liability upon an employee

for dangerous conditions.

To the extent Rizk was not part of the installation, not the cause of the degradation of the

rubber, or that she lacked the ability to correct the rubber, she would not be liable under the first

cause of action, but again that argument is not advanced. Similarly, and presumably, Rizk’s role

as a proctor did not include any supervision over other employees and thus she would not be liable

for the negligent supervision of those employees, but again no such argument is advanced in the

motion. As a result, the motion is denied as to Rizk.

CONCLUSION

Based on the foregoing the Court rules as follows:

(1) Sustains Cho’s evidentiary objection no.’s 1-2 to the Higgins declaration (except overrules as

to what Higgins could have personally observed about the conditions as a lay person); sustains

objection no.’s 3-4 to the Wayne declaration (except overrule as to what Wayne could have

personally observed about the conditions as a lay person and Wayne’s assertion about falls

being an inherent risk of age-appropriate playground equipment), but overrule objection no. 5;

and overrules objection no. 6 to the Rizk declaration (though noting that while the argument

is not a true evidentiary objection, the Court ignores the inconsistent assertions in the

declaration under Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594,

604), but sustains objection no. 7 and sustain objection no.’s 8-10 to the Rizk declaration

(except overrule as to what Rizk could have personally observed about the conditions as a lay

person).

(2) Overrules Defendants’ objections to the Cunningham and Parco declarations.

a. The objections are too overbroad. (OCFCD v. Sunny Crest Dairy, Inc. (1978) 77 Cal.

App. 3d 742, 753.)

(3) Denies the motion for summary judgment.

a. For the reasons outlined below. It is also notable that the motion does not really raise

any arguments specific to Rizk.

(4) Grants summary adjudication as to the fourth cause of action for negligence.

a. Government tort claims must be based in statute, but the fourth cause of action does

not cite any statutory basis for the claim. (See Gov. Code, § 815; Tansavatdi v. City of

Rancho Palos Verdes (2023) 14 Cal.5th 639 [tort liability must be based in statute].)

(5) Denies the motion for summary adjudication as to first cause of action.

a. The motion attacks the allegations, but they are broad enough to include the theory that

the rubber on the playground had deteriorated and had lost its impact attenuation. (See,

e.g., Compl. at ¶ 43.) Defendants also failed to meet their initial burden on the claim or

there is otherwise a triable issue of material fact. Defendants have not disproved that

the rubber had lost its impact attenuation at the time of the incident, that the loss had

not existed for sufficient time before the incident to impart constructive notice, or that

the loss increased the severity of the harm to Cho.

b. Higgins also conceded he would have needed to have a “certified person” test the

impact attenuation, yet he admitted the ability to absorb energy of the rubber diminishes

with age and there were no procedures in place between 2017 to the time of the incident

to test the adequacy of the surface. (Higgins Dep. at pp. 92-93 and 115.) That is

significant because constructive notice can be established by the absence of a

reasonably adequate inspection system and the absence of such adequate inspections

performed with due care. (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313,

317.)

c. It is also notable that the year after the incident, the surface was tested and it failed,

causing the District to replace the surface and the material was not saved. (Additional

Fact No. 28.) Wayne had also observed that the surface had faded and it may have been

“worn” “as anything does,” but there were no procedures in place to test the adequacy

of the surface and no one at the school knew how to assess the impact absorbing

qualities. (Additional Fact No. 39, 49, and 50-51.)

(6) Denies the motion as to the second cause of action for vicarious liability.

a. While Defendants have the better position about the duty of care, the adequacy of the

supervision, etc., at least in the general sense, the claim is viable when viewed from the

perspective that the children and Cho were permitted to play on the playground despite

its dangerous condition. If nothing else, the claim is also based upon the alleged

negligence in the oversight of the persons inspecting, monitoring, watching over,

looking after, and managing the school playgrounds to keep them free from dangerous

conditions (Compl. at ¶ 58), a theory the motion largely fails to address and which is

corroborated by the Higgins and Wayne testimony.

(7) Denies the motion as to the third and fifth causes of action.

a. The claims are redundant of the viable claims outlined above (see Compl. at ¶¶ 70 and

74 in addition to ¶¶ 92 and 95), but redundancy is not raised in the motion nor is the

motion noticed as being directed at particular theories within the cause of action (see

Notice of Motion at pp. 2-3).

Counsel for the moving party is ordered to provide notice.

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