Case Name:??? Cu Thanh Nguyen v. City of San Jose, et al. ?
Case No.:??????? 2014-1-CV-268209
Factual and Procedural Background
This personal injury action arises out of an incident occurring at a tennis court located at Fowler Creek Park.? The tennis court, owned by defendant the City of San Jose (the ?City?), is surrounded by a sloping water culvert and a metal chain-link fence.? (See Complaint at ? 8.)? On December 10, 2013, plaintiff Cu Thanh Nguyen (?Plaintiff?) was playing tennis when he moved to play a shot and slipped on the culvert, causing him to lose his balance and fall.? (Id. at ? 9.)? He struck his head against a steel pole holding up the chain link fence, breaking his neck and causing paralysis from the shoulders down. (Id. at ? 12.)
On July 18, 2014, Plaintiff filed his complaint against the City and Does 1 through 50, asserting three causes of action for dangerous condition of public property, premises liability, and negligence.? Plaintiff later named defendant Central Fence Company (?Central Fence?) as Doe 2 and defendant Granite Rock Company (?GRC?) as Doe 4.
Currently before the Court are: (1) the City?s motion for summary judgment, or in the alternative, summary adjudication to the complaint; (2) Central Fence?s motion for summary judgment, or in the alternative, summary adjudication to the complaint; and (3) GRC?s motion for summary judgment, or in the alternative, summary adjudication to the complaint.? The parties have filed requests for judicial notice and objections to evidence in conjunction with the motions.? Plaintiff filed written oppositions to the motions.? No trial date has been set.
City?s Motion for Summary Judgment, or in the Alternative, Summary Adjudication??
The City moves for summary judgment, or in the alternative, summary adjudication on the following grounds: (1) design immunity; (2) Plaintiff assumed the risk of injury attendant to the game; (3) Plaintiff was engaged in a recreational activity that gives rise to the immunity found in Government Code section 831.7; and (4) the tennis court at Fowler Park was not a dangerous condition of public property as defined by Government Code section 830.? The Court previously sustained the City?s demurrer to the premises liability and negligence claims without leave to amend.? Thus, the sole cause of action alleged against the City is for dangerous condition of public property.
Request for Judicial Notice
?Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.?? (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
The City requests judicial notice of Plaintiff?s complaint in this action.? The complaint constitutes a record of the superior court subject to judicial notice under Evidence Code section 452, subdivision (d).? (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].)
Therefore, the request for judicial notice is GRANTED.
Plaintiff?s Evidentiary Objections
In opposition, Plaintiff submitted a series of evidentiary objections to the City?s evidence.? ?In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.? Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.?? (Code Civ. Proc., ? 437c, subd. (q).)? With subsection (q) in mind, the Court OVERRULES objection no. 3 and declines to rule on the remaining objections.
City?s Evidentiary Objections
Given the Court?s ruling for the reasons stated below, the Court declines to render formal rulings on the City?s evidentiary objections.
Legal Standard?
?Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.? A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense.? Once the defendant has met that burden, the burden shifts to the plaintiff ?to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.?? ?There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.??? (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)
Similarly, ?[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff.? A motion for summary adjudication?shall proceed in all procedural respects as a motion for summary judgment.?? (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)
Design Immunity????
A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventative measures.? (Gov. Code, ? 835, subd. (b); Mirzada v. Department of Transp. (2003) 111 Cal.App.4th 802, 806.)
?However, a public entity may avoid such liability by raising the affirmative defense of design immunity.? (Gov. Code, ? 830.6.)? A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.? [Citations.]?? (Mirzada v. Department of Transp., supra, 111 Cal.App.4th at p. 806.)
The rationale behind design immunity ?is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.?? (Baldwin v. State of California (1972) 6 Cal.3d 424, 432, fn. 7.)? ?(T)o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.? [Citations.]?? (Cameron v. State of California (1972) 7 Cal.3d 318, 326.)
The defense of design immunity is often raised on motion for summary judgment or nonsuit, enabling the trial court to find the defense established as a matter of law.? (Johnston v. County of Yolo (1969) 274 Cal.App.2d 46, 56.)? ?The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed.? [Citation.]? The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence.? [Citation.]?? (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.)
The first element of design immunity requires a showing that the plaintiff?s injuries were caused by a feature inherent in the approved plan or design, as opposed to some other cause.? (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 940.)? This element is ordinarily established by the allegations in the complaint that the injury occurred as a result of the plan or design.? (Id. at p. 941; see Fuller v. Dept. of Transp. (2001) 89 Cal.App.4th 1109, 1114.)? Here, the complaint alleges that the City owned, designed, and maintained the tennis courts where the accident occurred, and knew or should have known that the subject premises constituted a dangerous condition and unreasonable risk harm to Plaintiff.? (See Complaint at ?? 9-10.)?? Plaintiff?s injuries resulted from the design of the tennis court which included an open, unprotected, concrete culvert in violation of certain tennis court design standards including those promulgated by the USTA.? (Id. at ?? 11-12.)? Accordingly, the first element of design immunity has been established.
The second element, discretionary approval prior to construction, ?simply means approval in advance of construction by the legislative body or officer exercising discretionary authority.?? (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 526; Govt. Code, ? 830.6.)
In support of this element, the City includes a declaration from Jose Balingit (?Balingit?), a licensed landscape architect in the City?s Department of Public Works. (See Balinghit Declaration at ? 1.)? Balingit testifies that he designed the Fowler Creek Park Development based on a master plan approved by the City council in 2003.? (Ibid.)? His decisions regarding the design of the drainage system and the appropriate boundary fence were incorporated into the final plans for the park and ultimately used for construction.? (Id. at ? 3.)? The tennis courts were approved by: Timm Borden, the Deputy Director of Public Works (Registered Civil Engineer #45512); Sara Hensley, the Director of Parks, Recreation & Neighborhood Services; Katherine Jensen (a licensed landscape architect), the Division Manager of City Facilities Architectural Services Division; Bill Tucker, senior landscape architect; and Loren Rundle, Balingit?s supervisor.? (See City?s Separate Statement of Undisputed Facts at No. 1; Balingit Declaration at ? 4.)? The design of the park was approved in December 2005 before construction began and construction was completed in August 2007.? (See City?s Separate Statement of Undisputed Facts at No. 2; Balingit Declaration at ? 3.)? Furthermore, Balingit attaches the plans for construction of the park and tennis courts which are signed by City public officials.? (See Balingit Declaration at Exhibits A-1 through A-6; see also Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 940 [?A detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval.?].)? Therefore, the second element of design immunity has been established.
?The third element of design immunity, substantial evidence of reasonableness of design, requires only substantial evidence.? ?[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity.? The statute does not require that property be perfectly designed, only that it be given a design which is reasonable under the circumstances.?? [Citation.]? Generally, a civil engineer?s opinion regarding reasonableness is substantial evidence sufficient to satisfy this element.? [Citation.]? Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness.? [Citation.]? That a plaintiff?s expert may disagree does not create a triable issue of fact.? [Citation.]?? (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 941.)? Courts are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted.? (Id. at p. 940.)
Here, the City has established substantial evidence of the reasonableness of the design through the opinion testimony of its licensed landscape architect.? (See City?s Separate Statement of Undisputed Facts at Nos. 8 and 13; Balingit Declaration at ?? 6-8.)?? Specifically, Balingit testifies that, in his professional opinion, a standard chain-link fence was appropriate to surround the tennis court.? (See City?s Separate Statement of Undisputed Facts at No. 13; Balingit Declaration at ? 6.)? With respect to the gutter, Balingit states that the design was reasonable in order to accommodate drainage and concerns regarding maintenance.? (See City?s Separate Statement of Undisputed Facts at No. 8; Balingit Declaration at ?? 7-8.)? Accordingly, all of the elements of the design immunity defense have been met, and the City has satisfied its initial burden.? The burden now shifts to Plaintiff to demonstrate a loss of design immunity.
?Design immunity does not necessarily continue in perpetuity.? [Citation.]? To demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.? [Citations.]?? (Mirzada v. Department of Transp., supra, 111 Cal.App.4th at p. 806.)
In opposition, Plaintiff does not contest the first and second elements of the design immunity defense.? Rather, Plaintiff contends that there is no evidence to support reasonableness regarding the design of the fence and gutter.? However, as stated above, the City?s architect provides substantial evidence to support the reasonableness prong for design immunity.? Furthermore, approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness.? (Grenier v. City of Irwindale, supra, 57 Cal.App.4th at p. 941.)? Therefore, to overcome the defense, Plaintiff is required to provide evidence demonstrating any loss of design immunity.? Plaintiff fails to do so and thus the action is barred by this affirmative defense.
Accordingly, the motion for summary judgment is GRANTED.? Having granted the motion on this ground, the Court declines to address the remaining grounds for summary judgment.
Central Fence?s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
Central Fence moves for summary judgment, or in the alternative, summary adjudication on the following grounds: (1) there is no duty of care owed to Plaintiff; (2) there is no liability under the completed and accepted doctrine; (3) Plaintiff assumed the risk of injury attendant to the game; and (4) Central Fence is not a public entity or owner of the property where Plaintiff was injured.
Request for Judicial Notice
Central Fence requests judicial notice of the following documents: (1) the complaint filed in this action along with the amendment to add Central Fence as ?Doe 2?; (2) City?s motion for summary judgment filed on May 4, 2016 in this action; (3) the cross-complaint in Granite Rock Company v. Central Fence Company, Inc., et al. filed on May 1, 2015; and (4) the cross-complaint in City of San Jose v. Central Fence Company, Inc., et al. filed on October 2, 2015.? These documents are subject to judicial notice as records of the superior court under Evidence Code section 452, subdivision (d).
Therefore, the request for judicial notice is GRANTED.
?
Premises Liability and Dangerous Condition of Public Property Claims
Central Fence argues that it cannot be held liable for premises liability or dangerous condition of public property because it did not own, control or possess the land nor is it a public entity.? (See Central Fence?s Separate Statement of Undisputed Facts at No. 1; see also Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [?Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.?]; Gov?t Code, ? 835 [public entity may be liable for injury caused by dangerous condition].)? In opposition, Plaintiff stipulates to dismissal of the premises liability and dangerous condition of public property claims.? (See OPP at p. 20:5-6.)? Thus, the only remaining cause of action is a claim for negligence.
Therefore, the motion for summary adjudication to the premises liability and dangerous condition of public property claims is GRANTED.
Duty of Care
Central Fence argues that it did not owe Plaintiff any duty of care to support a negligence cause of action.
The elements of a cause of action for negligence are: the ?defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.? [Citation.]?? (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292-293.) ??The existence and scope of any such duty are legal questions for the court.? [Citation.]? ?Duty, being a question of law, is particularly amenable to resolution by summary judgment.?? [Citation.]?? (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 593.)
?The pleadings play a key role in a summary judgment motion.?? (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493.)? ? ?The function of the pleadings in a motion for summary judgment is to delimit the scope of issues? ? and to frame ?the outer measure of materiality in a summary judgment proceeding.?? (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)? ?The materiality of a disputed fact is measured by the pleadings [citations], which ?set the boundaries of issues to be resolved at summary judgment.?? [Citations.]?? (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.)? ?Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff?s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.? [Citations.]?? (Hutton, supra.)
?A defendant?s motion for summary judgment necessarily includes a test of the sufficiency of the complaint.?? (American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117.)? Thus, as a threshold matter, the Court considers whether Plaintiff has stated a valid claim to support negligence.? After reviewing the complaint, the Court notes that Plaintiff fails to allege facts establishing any duty of care to support a claim for negligence.? Without allegations constituting a duty of care, the negligence claim fails as a matter of law.? (See Wise v. Sup. Ct. (1990) 222 Cal.App.3d 1008, 1013 [?A complaint which lacks facts to show that a duty of care was owed is fatally defective.?].)
However, if the court concludes the complaint (or any claim or defense) is insufficient as a matter of law, it ?may elect to treat the hearing on the summary judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect.?? (Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625 [disapproved on another point in Colmenares v. Braemer Country Club, Inc. (2003) 29 Cal.4th 1019, 1031].)? In such a case, ?[s]ummary judgment should be stayed pending the amendment.? [Citation.]?? (Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1384.)
As stated above, Plaintiff fails to allege a duty of care to support a claim for negligence.? Since the pleading is insufficient as a matter of law, the Court treats the motion for summary judgment as a motion for judgment on the pleadings.? In reviewing the opposition, it appears that Plaintiff may be able to amend to allege facts establishing a duty of care to support negligence.? Also, given the Court?s liberal policy of allowing amendments, the Court finds such amendment to be appropriate.? (See City of Stockton v. Sup. Ct. (2007) 42 Cal.4th 730, 747 [?If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.?].) Furthermore, there appears to be no prejudice to Central Fence as there is no trial date pending before the Court.
Accordingly, the motion for judgment on the pleadings to the negligence cause of action is GRANTED WITH 10 DAYS? LEAVE TO AMEND.? The motion for summary adjudication to the negligence cause of action is hereby STAYED pending amendment.
GRC?s Motion for Summary Judgment, or in the Alternative, Summary Adjudication
GRC moves for summary judgment, or in the alternative, summary adjudication on grounds similar to those raised in the motion by defendant Central Fence.? As stated above, the Court has stayed the motion for summary adjudication by Central Fence pending the amendment.? For purposes of judicial economy, the motion for summary judgment, or in the alternative, summary adjudication by defendant GRC is also STAYED pending amendment.