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1 ERIN E. HOLBROOK, Chief Counsel
G. MICHAEL HARRINGTON, Deputy Chief Counsel
2 SAMUEL C. LAW, Assistant Chief Counsel
JOSE A. GONZALEZ, Deputy Attorney (SBN: 248922)
3 California Department of Transportation - Legal Division
111 Grand Avenue, Suite 11-100, Oakland, CA 94612-3717
4 Mail: P.O. BOX 24325, OAKLAND, CA 94623-1325
Telephone: (510) 433-9100
5 Facsimile: (510) 433-9167 The State of California is exempt from filing fees under Government Code § 6103
6 Attorneys for Defendant STATE OF CALIFORNIA,
acting by and through the Department of Transportation,
7 sued herein as STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SAN MATEO
10
Case No. 20-CIV-05519
11 DEBORAH SKUCAS,
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
DEFENDANT STATE OF
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12 Plaintiff, CALIFORNIA’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
13 vs. SUPPORT OF STATE’S MOTION
FOR SUMMARY JUDGMENT OR, IN
14 COUNTY OF SAN MATEO; STATE OF THE ALTERNATIVE, SUMMARY
CALIFORNIA DEPARTMENT OF ADJUDICATION
15 TRANSPORTATION; and DOES 1 TO 100,
inclusive,
16 Date: May 5, 2023
Defendants. Time: 9:00 a.m.
17 Dept.: 21
Judge: Hon. Robert D. Foiles
18 Trial Date: July 31, 2023
19
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DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 TABLE OF CONTENTS
2 I. INTRODUCTION…………………………………………………………………………..1
3 II. FACTUAL BACKGROUND…………………………………………………………….....1
4 1. Plaintiff Runs Over Branches and Debris……………………………………………….1
5 2. Plaintiff Does Not Know the Period of Time the Branches & Debris Were in the
Bicycle Lane or Where They Came From………………………………………………2
6
7 3. Sheriff’s Deputy Lilian Tashiro Responds to the Accident; She Does Not Know The
Period of Time the Branches and Debris Were in the Bicycle Lane……………………3
8
4. Caltrans Maintenance Supervisor Does Not Know the Period of Time the Branches
9 and Debris were in the Bicycle Lane or How They Came To Be In the Bicycle Lane…3
10 5. The State Did Not Receive Complaints or Reports About Branches & Debris………...4
11
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
6. The Accident History for State Route 84 Reflects Only One Bicycle Collision, Which Is
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
Plaintiff’s Accident; No Other Reported Collisions Involving a Bicycle and/or Branches
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
and Debris are Reflected in the State’s Records…………………………………………5
13
7. Plaintiff’s Allegations Against the State………………………………………………...5
14
III. LEGAL ARGUMENT………………………………………………………………………7
15
16 1. A Motion for Summary Judgment or Summary Adjudication Should Be Granted When
the Defendant Demonstrates the Plaintiff Cannot Establish an Element of a Cause of
17 Action or the Defendant Has a Complete Defense……………………………………...7
18 2. The State Is Entitled to Judgment as a Matter of Law Based on Government Code §835
Because Plaintiff Cannot Establish All Elements Thereunder.…………………………8
19
20 i. Plaintiff Cannot Establish that the State Had Actual Notice of the Branches and
Debris Prior to Her Accident………………………………………………………..9
21
ii. Plaintiff Cannot Establish that the State Had Constructive Notice of the Branches
22 and Debris in the Bicycle Lane……………………..……………………………...11
23 iii. Plaintiff Cannot Establish that State Employees Wrongfully or Negligently Created
the Condition of Branches and Debris Being in the Bicycle Lane………………...15
24
25 IV. CONCLUSION…………………………………………………………………………….17
26
27
28
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DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 TABLE OF AUTHORITIES
2 California Statutes
3 Civ. Proc. Code §437c(f)……………………………………………………………………………7
4 Civ. Proc. Code §437c(o)(1)…………………………………………………………………….......7
5 Civ. Proc. Code §437c(p)(2)………………………………………………………………………...7
6 Evidence Code §702……………………………………………………………………….11, 15, 17
7 Evidence Code §800……………………………………………………………………….11, 15, 17
8 Government Code §835…………………………………………………………………..8, 9, 12, 16
9 Government Code §835(a)…………………………………………………………………………15
10 Government Code §835.2(b)…………………………………………………………………...11, 12
11
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
California Cases
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
13 Aguilar vs. Atlantic Richfield Co. (2001) 25 Cal.4th 826…………………………………………...7
14 Annod Corp. vs. Hamilton & Samuels (2002) 100 Cal.App.4th 1286………………………………7
15 Catalano vs. Superior Court (2000) 82 Cal.App.4th 91…………………………………………….7
16 Cordova vs. City of Los Angeles (2015) 61 Cal.4th 1099………………………………...8, 9, 12, 16
17 Heskel vs. City of San Diego (2014) 227 Cal.App.4th 313…………………………………….12, 15
18 Hilts vs. County of Solano (1968) 265 Cal.App.2d 161, 169…………………………………....9, 12
19 Hutton vs. Fidelity National Title Co. (2013) 213 Cal.App.4th 486………………………………...6
20 Kotronakis vs. City and County of San Francisco (1961) 192 Cal.App.2d 624……………….12, 13
21 Lilienthal & Fowler vs. Superior Court (1993) 12 Cal.App.4th 1848………………………………7
22 Metcalf vs. County of San Joaquin (2008) 42 Cal. 4th 1121…………………………………..15, 16
23 Milligan vs. Golden Gate Bridge Highway and Transp. Dist. (2004) 120 Cal.App.4th 1………….8
24 Sangster vs. Paetkau (1998) 68 Cal.App.4th 151…………………………………………………...7
25 Sosa vs. CashCall, Inc. (2020) 49 Cal.App.5th 42……………………………………………….7, 8
26 State vs. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396……………9, 12, 13, 15
27 Strongman vs. County of Kern (1967) 255 Cal.App.2d 308…………………………………...13, 15
28
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DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 This case arises from a bicycle accident that occurred on December 5, 2019 on State Route
3 84 in Woodside, California, in San Mateo County. Plaintiff DEBORAH SKUCAS (hereinafter, the
4 “Plaintiff”) alleges she was injured when she was riding her bicycle on State Route 84, came upon
5 branches and other debris in the bicycle lane, and ran them over, which caused her to fall.
6 Plaintiff alleges one basis for establishing liability against Defendant STATE OF
7 CALIFORNIA, acting by and through the Department of Transportation, sued herein as STATE
8 OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, (hereinafter, the “State”) in her
9 Complaint (hereinafter, the “Complaint”) under the First Cause of Action (Premises Liability),
10 Count Three for a dangerous condition of public property. Plaintiff alleges the State is responsible
11 for her injuries because the bicycle lane on State Route 84 was in a dangerous condition. Plaintiff
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
alleges the dangerous condition was branches and debris in the bicycle lane.
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
13 In this case, there is no dispute of material fact and the State is entitled to judgment as a
14 matter of law.
15 The State moves for summary judgment because:
16 1) Plaintiff cannot establish that the State had actual notice of the alleged dangerous
17 condition prior to Plaintiff’s accident;
18 2) Plaintiff cannot establish that the State had constructive notice of the alleged dangerous
19 condition; and
20 3) Plaintiff cannot establish that one or more State employees negligently or wrongfully
21 created the alleged dangerous condition within the scope of their employment.
22 Alternatively, the State seeks summary adjudication as to the following issues:
23 Issue #1) Plaintiff has not established a cause of action under Government Code §835.
24 Accordingly, the State respectfully requests the Court grant its Motion for Summary
25 Judgment or, in the alternative, Motion for Summary Adjudication.
26 II. FACTUAL BACKGROUND
27 1. Plaintiff Runs Over Branches and Debris.
28 On December 5, 2019, at or about 2:30 p.m., Plaintiff was riding her bicycle on State Route
1
DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 84, in Woodside, California (in the County of San Mateo). (Undisputed Material Fact “UMF” #1.)
2 The part of State Route 84 that runs through Woodside, CA, is also known as Woodside Road.
3 (UMF #2.) State Route 84, within Woodside, CA, has two travel lanes, one lane going eastbound
4 and one lane going westbound. (UMF #3.) There is a bicycle lane on either side of State Route 84.
5 (UMF #4.) Next to the eastbound bicycle lane, there is an embankment that runs along the bicycle
6 lane; this embankment has vegetation including trees and shrubs. (Deposition of Deborah Skucas,
7 taken on August 3, 2021, set forth on the Declaration of Jose A. Gonzalez (“Gonzalez Dec.”) and
8 attached as Exhibit A to the State’s Index of Exhibits (“Skucas Depo”) at pp. 37: 5-9 & 20-25 and
9 38: 1-24, Exhibit #2 from the Skucas Depo; Declaration of Gabriel Venegas, ¶ 6.)
10 Specifically, on December 5, 2019, at or about 2:30 p.m., Plaintiff was riding her bicycle in
11 the eastbound bicycle lane on State Route 84 and she was traveling eastbound. (UMF #5.) Plaintiff
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
noticed tree branches and debris in the bicycle lane before she came upon them. (Skucas Depo at
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
13 pp. 43: 21-25, 44: 1-3.) Branches and debris covered 75%, or maybe more, of the bicycle lane from
14 the curb to the white traffic line and extended for less than 10 feet in length. (Skucas Depo at p. 44:
15 9-23.) Plaintiff’s bicycle ran over branches and debris in the bicycle lane and Plaintiff fell from her
16 bicycle. (UMF #6.) The accident occurred in the eastbound bicycle lane on State Route 84, in
17 Woodside, CA, at or around 200 feet west of Hobart Heights. (UMF #7.) Postmile 21.3 to postmile
18 21.4 on State Route 84 in San Mateo County encompasses the area at and around 200 feet west of
19 Hobart Heights in Woodside, CA. (UMF #42.)
20 Plaintiff sustained injuries as a result of the bicycle accident. (Skucas Depo at p. 57: 19-24.)
21 2. Plaintiff Does Not Know the Period of Time the Branches & Debris Were in the
Bicycle Lane or Where They Came From.
22
Plaintiff does not know how long the branches and debris were in the bicycle lane prior to
23
the accident. (UMF #8.) Plaintiff does not know where the branches and debris came from. (UMF
24
#9.) Plaintiff does not know if someone put the branches and debris in the bicycle lane prior to the
25
accident. (UMF #10.) On the day of the accident, Plaintiff did not inspect any of the vegetation
26
adjacent to the accident site. (UMF #11.) On the day of the accident, Plaintiff did not inspect any
27
of the branches and debris she ran over with her bicycle in the accident. (UMF #12.) Prior to the
28
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DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 day of the accident, Plaintiff did not inspect any vegetation adjacent to the accident site. (UMF
2 #13.)
3 3. Sheriff’s Deputy Lilian Tashiro Responds to the Accident; She Does Not Know The
Period of Time the Branches and Debris Were in the Bicycle Lane.
4
San Mateo County Sheriff’s Deputy Lilian Tashiro responded to the accident scene on
5
December 5, 2019 and investigated Plaintiff’s accident. (Deposition of San Mateo County Sheriff’s
6
Deputy Lilian Tashiro taken on March 17, 2022, set forth on Gonzalez Dec. attached as Exhibit E
7
to the State’s Index of Exhibits (“Tashiro Depo”) at pp. 4: 6-16; 9: 4-8; 13: 8-21; 14: 2-8; and 16:
8
3-5.) Deputy Tashiro spoke with Plaintiff about how the accident occurred. (Tashiro Depo at p. 34:
9
15-17.) Plaintiff did not show Deputy Tashiro which branches she may have hit. (UMF #14.) At
10
the accident site, Plaintiff did not tell Deputy Tashiro how long the branches or debris were in the
11
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
road before she hit them. (UMF #15.) Deputy Tashiro does not know which branches and debris,
Mail: P.O. Box 24325, Oakland, CA 94623-1325
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
in the bike lane, Plaintiff hit. (UMF #16.) Deputy Tashiro does not know what period of time the
13
branches and debris were in the bike lane before Plaintiff hit them. (UMF #17.)
14
4. Caltrans Maintenance Supervisor Does Not Know the Period of Time the Branches
15 and Debris were in the Bicycle Lane or How They Came To Be In the Bicycle Lane.
16 Gabriel Venegas has been a Caltrans Woodside Maintenance Supervisor, responsible for
17 overseeing maintenance services performed by the State on State Route 84 in San Mateo County,
18 including the location of the accident, from January 2018 through the present. (Deposition of
19 Gabriel Venegas taken on October 1, 2021, set forth on Gonzalez Dec., attached as Exhibit F to the
20 State’s Index of Exhibits (“Venegas Depo”) at pp. 6: 8-12; 23: 1-25; 27: 25; 28: 1-25; 29: 1-23; 64:
21 13-17; and 66: 20-25; Declaration of Gabriel Venegas, ¶ 2, 3.)
22 Mr. Venegas did not witness Plaintiff’s accident. (Declaration of Gabriel Venegas, ¶ 9.)
23 However, Mr. Venegas is familiar with Plaintiff’s accident, State Route 84 (including the part of
24 State Route 84 that runs through Woodside, California) and the location where Plaintiff’s accident
25 occurred, on State Route 84, 200 feet west of Hobart Heights. (Venegas Depo at pp. 14: 1-13; 26:
26 19-25; 27: 1-2 & 9-25; and 28: 1-9; Declaration of Gabriel Venegas, ¶¶ 4, 6, 7.)
27 From November 5, 2019 to December 5, 2019, Mr. Venegas drove on State Route 84,
28 going eastbound, including through the area at or around 200 feet west of Hobart Heights,
3
DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 approximately 15 to 20 times. (UMF #18.) During the times he drove on State Route 84 from
2 November 5, 2019 to December 5, 2019, Mr. Venegas did not see any branches or debris in the
3 eastbound bicycle lane on State Route 84, at or around 200 feet west of Hobart Heights. (UMF
4 #19.)
5 Also, Mr. Venegas did not know there were branches and debris in the eastbound bicycle
6 lane on State Route 84, at or around 200 feet west of Hobart Heights prior to Plaintiff’s accident on
7 December 5, 2019. (UMF #20.) After Plaintiff’s accident, Mr. Venegas found out that there were
8 branches and debris in the bicycle lane. (UMF #21.)
9 Mr. Venegas does not know how long the branches and debris were in the bicycle lane
10 prior to the accident. (UMF #22.) Mr. Venegas does not know how the branches and debris came
11 to be in the bicycle lane. (UMF #23.) Mr. Venegas does not know where the branches and debris
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
came from. (UMF #24.) And Mr. Venegas did not put the branches and debris that Plaintiff hit in
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
13 the bicycle lane. (UMF #25.)
14 5. The State Did Not Receive Complaints or Reports About Branches & Debris.
15 The State has no record of the public reporting or complaining to the State (through its
16 customer service request online program), from December 5, 2018 through December 5, 2019,
17 about branches and debris being on any part of State Route 84 (in Woodside, California) or any
18 part of the bicycle lanes on either side of State Route 84 (in Woodside, California). (UMF #26.)
19 The State has no record of receiving reports or complaints (through its incident response
20 system) from December 5, 2018 to December 5, 2019 about branches and debris being on any part
21 of State Route 84 (including the travel lanes and bicycle lanes) from postmile 21.3 to 21.4, which
22 encompasses the area at or around 200 feet west of Hobart Heights in Woodside, CA. (UMF #27.)
23 Additionally, prior to the accident on December 5, 2019, Plaintiff did not contact the
24 California Department of Transportation regarding any issues with the bicycle lane. (UMF #28.)
25 Prior to the date of her deposition (on March 17, 2022), Deputy Tashiro did not complain to
26 the California Department of Transportation regarding the accident site. (UMF #29.) And Deputy
27 Tashiro has not directly received a complaint from someone in the public complaining about the
28 branches and debris being in the bicycle lane at the location of Plaintiff’s accident. (UMF #30.)
4
DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 From December 5, 2018 to December 5, 2019, Mr. Venegas never received a complaint or
2 reports of issues, problems, or concerns from a citizen regarding the eastbound bicycle lane on
3 State Route 84. (UMF #31.) From December 5, 2018 to December 5, 2019, Mr. Venegas never
4 received a complaint or reports of issues, problems, or concerns from a citizen regarding branches
5 and debris being on any part of the eastbound bicycle lane on State Route 84. (UMF #32.) And
6 from December 5, 2018 to December 5, 2019, Mr. Venegas never received a complaint or reports
7 of issues, problems, or concerns from any of the employees he supervises about the eastbound
8 bicycle lane on State Route 84 or about branches and debris being in the eastbound bicycle lane on
9 State Route 84. (UMF #33.)
10 6. The Accident History for State Route 84 Reflects Only One Bicycle Collision, Which
Is Plaintiff’s Accident; No Other Reported Collisions Involving a Bicycle and/or
11
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
Branches and Debris are Reflected in the State’s Records.
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12 The State’s accident records reflect that from November 7, 2013 through December 5, 2019
13 there was only one reported bicycle collision for State Route 84, in Woodside, CA, between
14 postmiles 21.3 and 21.4. (UMF #34.) The one reported bicycle collision in the State’s records from
15 November 7, 2013 through December 5, 2019 for State Route 84 between postmiles 21.3 and 21.4
16 was Plaintiff’s bicycle collision. (UMF #35.) No other collisions involving a bicycle, branches and
17 debris, or all of these items are reflected in the State’s records from November 7, 2013 through
18 December 5, 2019 for State Route 84 between postmiles 21.3 and 21.4. (UMF #36.)
19 Also, the State has no record (in its incident response system) of any incident occurring on
20 State Route 84 (including the travel lanes and bicycle lanes), in Woodside, CA, from postmile 21.3
21 to 21.4 from December 5, 2018 to December 5, 2019. (UMF #37.)
22 Additionally, Plaintiff is unaware of any other bicycle accidents involving the same
23 branches and debris that she contacted. (UMF #38.) Plaintiff is unaware of any other bicycle
24 accidents that occurred at the location where her accident occurred. (UMF #39.)
25 Deputy Tashiro is not aware of any other bicycle accidents that have occurred at the
26 location of Plaintiff’s accident. (UMF #40.)
27 7. Plaintiff’s Allegations Against the State.
28 A moving defendant on summary judgment is only required to “negate plaintiff's theories
5
DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 of liability as alleged in the complaint; that is, a moving party need not refute liability on some
2 theoretical possibility not included in the pleadings” (Hutton vs. Fidelity National Title Co. (2013)
3 213 Cal.App.4th 486, 493 (italics in original).)
4 Here, Plaintiff’s Complaint asserts one cause of action (Premises Liability) against the
5 State and alleges there was a dangerous condition of public property in the bicycle lane on State
6 Route 84 in Woodside, CA. (Plaintiff’s Complaint, set forth on Gonzalez Dec., attached as Exhibit
7 C to the State’s Index of Exhibits, at p. 4.) Plaintiff’s Complaint alleges the dangerous condition
8 was the branches and debris in the bicycle lane. (Plaintiff’s Complaint, at p. 4.) Plaintiff’s
9 Complaint alleges that the State had actual and constructive notice of the alleged dangerous
10 condition. (Plaintiff’s Complaint, at p. 4.) Plaintiff’s Complaint also alleges that the dangerous
11 condition was created by employees of the State. (Plaintiff’s Complaint, at p. 4.)
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
In Plaintiff’s Amended Response to the State’s Special Interrogatories, Set One, No. 6,
Telephone: (510) 433-9100, Facsimile: (510) 433-9167
12
13 Plaintiff asserts that “the place of the incident was in a dangerous condition at the time of the
14 incident because there were tree branches and debris on the bicycle lane.” (Plaintiff’s Amended
15 Response to State’s Special Interrogatory No. 6, set forth on Gonzalez Dec., attached as Exhibit I
16 to the State’s Index of Exhibits at p. 4: 2-3)
17 In Plaintiff’s Response to the State’s Special Interrogatories, Set One, No. 28, Plaintiff
18 stated that “the incident occurred at or about 2:30 p.m. on December 5, 2019, at State Route 84,
19 City of Woodside, County of San Mateo at or around 200 feet west of Hobart Heights on the
20 bicycle lane.” (Plaintiff’s Response to State’s Special Interrogatory No. 28, set forth on Gonzalez
21 Dec., attached as Exhibit B to the State’s Index of Exhibits at p. 13: 7-9.)
22 Plaintiff admitted that the State did not have actual notice of a dangerous condition at the
23 accident site a sufficient time before the accident happened to have taken measures to protect
24 against the dangerous condition. (UMF #41.)
25 Here, since Plaintiff alleged one cause of action in her Complaint and alleged that there was
26 a dangerous condition of public property, and she alleged that the dangerous condition was the
27 branches and debris in the bicycle lane, this Motion is directed at that cause of action/claim and
28 allegations. To that end, Plaintiff cannot establish that 1) the State had actual notice of the alleged
6
DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
1 dangerous condition, 2) the State had constructive notice of the alleged dangerous condition, or 3)
2 the State’s employee(s) wrongfully or negligently created the alleged dangerous condition.
3 III. LEGAL ARGUMENT
4 1. A Motion for Summary Judgment or Summary Adjudication Should Be Granted
When the Defendant Demonstrates the Plaintiff Cannot Establish an Element of a
5 Cause of Action or the Defendant Has a Complete Defense.
6 A party moving for summary judgment bears the burden of persuasion that there is no triable
7 issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar vs. Atlantic
8 Richfield Co. (2001) 25 Cal.4th 826, 850.) A cause of action has no merit if “one or more of the
9 elements of the cause of action cannot be separately established, even if that element is separately
10 pleaded.” (Civ. Proc. Code §437c(o)(1).) If the moving party is the defendant, the defendant must
11
CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION
show that one or more elements of a plaintiff’s cause of action cannot be established or there is a
111 Grand Avenue, Suite 11-100, Oakland, California 94612
Mail: P.O. Box 24325, Oakland, CA 94623-1325
Telephone: (510) 433-9100, Facsimil
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1 ERIN E. HOLBROOK, Chief Counsel G. MICHAEL HARRINGTON, Deputy Chief Counsel 2 SAMUEL C. LAW, Assistant Chief Counsel JOSE A. GONZALEZ, Deputy Attorney (SBN: 248922) 3 California Department of Transportation - Legal Division 111 Grand Avenue, Suite 11-100, Oakland, CA 94612-3717 4 Mail: P.O. BOX 24325, OAKLAND, CA 94623-1325 Telephone: (510) 433-9100 5 Facsimile: (510) 433-9167 The State of California is exempt from filing fees under Government Code § 6103 6 Attorneys for Defendant STATE OF CALIFORNIA, acting by and through the Department of Transportation, 7 sued herein as STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN MATEO 10 Case No. 20-CIV-05519 11 DEBORAH SKUCAS, CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION DEFENDANT STATE OF 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 Plaintiff, CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN 13 vs. SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN 14 COUNTY OF SAN MATEO; STATE OF THE ALTERNATIVE, SUMMARY CALIFORNIA DEPARTMENT OF ADJUDICATION 15 TRANSPORTATION; and DOES 1 TO 100, inclusive, 16 Date: May 5, 2023 Defendants. Time: 9:00 a.m. 17 Dept.: 21 Judge: Hon. Robert D. Foiles 18 Trial Date: July 31, 2023 19 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // i DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 TABLE OF CONTENTS 2 I. INTRODUCTION…………………………………………………………………………..1 3 II. FACTUAL BACKGROUND…………………………………………………………….....1 4 1. Plaintiff Runs Over Branches and Debris……………………………………………….1 5 2. Plaintiff Does Not Know the Period of Time the Branches & Debris Were in the Bicycle Lane or Where They Came From………………………………………………2 6 7 3. Sheriff’s Deputy Lilian Tashiro Responds to the Accident; She Does Not Know The Period of Time the Branches and Debris Were in the Bicycle Lane……………………3 8 4. Caltrans Maintenance Supervisor Does Not Know the Period of Time the Branches 9 and Debris were in the Bicycle Lane or How They Came To Be In the Bicycle Lane…3 10 5. The State Did Not Receive Complaints or Reports About Branches & Debris………...4 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 6. The Accident History for State Route 84 Reflects Only One Bicycle Collision, Which Is 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 Plaintiff’s Accident; No Other Reported Collisions Involving a Bicycle and/or Branches Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 and Debris are Reflected in the State’s Records…………………………………………5 13 7. Plaintiff’s Allegations Against the State………………………………………………...5 14 III. LEGAL ARGUMENT………………………………………………………………………7 15 16 1. A Motion for Summary Judgment or Summary Adjudication Should Be Granted When the Defendant Demonstrates the Plaintiff Cannot Establish an Element of a Cause of 17 Action or the Defendant Has a Complete Defense……………………………………...7 18 2. The State Is Entitled to Judgment as a Matter of Law Based on Government Code §835 Because Plaintiff Cannot Establish All Elements Thereunder.…………………………8 19 20 i. Plaintiff Cannot Establish that the State Had Actual Notice of the Branches and Debris Prior to Her Accident………………………………………………………..9 21 ii. Plaintiff Cannot Establish that the State Had Constructive Notice of the Branches 22 and Debris in the Bicycle Lane……………………..……………………………...11 23 iii. Plaintiff Cannot Establish that State Employees Wrongfully or Negligently Created the Condition of Branches and Debris Being in the Bicycle Lane………………...15 24 25 IV. CONCLUSION…………………………………………………………………………….17 26 27 28 ii DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 TABLE OF AUTHORITIES 2 California Statutes 3 Civ. Proc. Code §437c(f)……………………………………………………………………………7 4 Civ. Proc. Code §437c(o)(1)…………………………………………………………………….......7 5 Civ. Proc. Code §437c(p)(2)………………………………………………………………………...7 6 Evidence Code §702……………………………………………………………………….11, 15, 17 7 Evidence Code §800……………………………………………………………………….11, 15, 17 8 Government Code §835…………………………………………………………………..8, 9, 12, 16 9 Government Code §835(a)…………………………………………………………………………15 10 Government Code §835.2(b)…………………………………………………………………...11, 12 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 California Cases Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 13 Aguilar vs. Atlantic Richfield Co. (2001) 25 Cal.4th 826…………………………………………...7 14 Annod Corp. vs. Hamilton & Samuels (2002) 100 Cal.App.4th 1286………………………………7 15 Catalano vs. Superior Court (2000) 82 Cal.App.4th 91…………………………………………….7 16 Cordova vs. City of Los Angeles (2015) 61 Cal.4th 1099………………………………...8, 9, 12, 16 17 Heskel vs. City of San Diego (2014) 227 Cal.App.4th 313…………………………………….12, 15 18 Hilts vs. County of Solano (1968) 265 Cal.App.2d 161, 169…………………………………....9, 12 19 Hutton vs. Fidelity National Title Co. (2013) 213 Cal.App.4th 486………………………………...6 20 Kotronakis vs. City and County of San Francisco (1961) 192 Cal.App.2d 624……………….12, 13 21 Lilienthal & Fowler vs. Superior Court (1993) 12 Cal.App.4th 1848………………………………7 22 Metcalf vs. County of San Joaquin (2008) 42 Cal. 4th 1121…………………………………..15, 16 23 Milligan vs. Golden Gate Bridge Highway and Transp. Dist. (2004) 120 Cal.App.4th 1………….8 24 Sangster vs. Paetkau (1998) 68 Cal.App.4th 151…………………………………………………...7 25 Sosa vs. CashCall, Inc. (2020) 49 Cal.App.5th 42……………………………………………….7, 8 26 State vs. Superior Court of San Mateo County (1968) 263 Cal.App.2d 396……………9, 12, 13, 15 27 Strongman vs. County of Kern (1967) 255 Cal.App.2d 308…………………………………...13, 15 28 iii DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 This case arises from a bicycle accident that occurred on December 5, 2019 on State Route 3 84 in Woodside, California, in San Mateo County. Plaintiff DEBORAH SKUCAS (hereinafter, the 4 “Plaintiff”) alleges she was injured when she was riding her bicycle on State Route 84, came upon 5 branches and other debris in the bicycle lane, and ran them over, which caused her to fall. 6 Plaintiff alleges one basis for establishing liability against Defendant STATE OF 7 CALIFORNIA, acting by and through the Department of Transportation, sued herein as STATE 8 OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, (hereinafter, the “State”) in her 9 Complaint (hereinafter, the “Complaint”) under the First Cause of Action (Premises Liability), 10 Count Three for a dangerous condition of public property. Plaintiff alleges the State is responsible 11 for her injuries because the bicycle lane on State Route 84 was in a dangerous condition. Plaintiff CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 alleges the dangerous condition was branches and debris in the bicycle lane. Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 13 In this case, there is no dispute of material fact and the State is entitled to judgment as a 14 matter of law. 15 The State moves for summary judgment because: 16 1) Plaintiff cannot establish that the State had actual notice of the alleged dangerous 17 condition prior to Plaintiff’s accident; 18 2) Plaintiff cannot establish that the State had constructive notice of the alleged dangerous 19 condition; and 20 3) Plaintiff cannot establish that one or more State employees negligently or wrongfully 21 created the alleged dangerous condition within the scope of their employment. 22 Alternatively, the State seeks summary adjudication as to the following issues: 23 Issue #1) Plaintiff has not established a cause of action under Government Code §835. 24 Accordingly, the State respectfully requests the Court grant its Motion for Summary 25 Judgment or, in the alternative, Motion for Summary Adjudication. 26 II. FACTUAL BACKGROUND 27 1. Plaintiff Runs Over Branches and Debris. 28 On December 5, 2019, at or about 2:30 p.m., Plaintiff was riding her bicycle on State Route 1 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 84, in Woodside, California (in the County of San Mateo). (Undisputed Material Fact “UMF” #1.) 2 The part of State Route 84 that runs through Woodside, CA, is also known as Woodside Road. 3 (UMF #2.) State Route 84, within Woodside, CA, has two travel lanes, one lane going eastbound 4 and one lane going westbound. (UMF #3.) There is a bicycle lane on either side of State Route 84. 5 (UMF #4.) Next to the eastbound bicycle lane, there is an embankment that runs along the bicycle 6 lane; this embankment has vegetation including trees and shrubs. (Deposition of Deborah Skucas, 7 taken on August 3, 2021, set forth on the Declaration of Jose A. Gonzalez (“Gonzalez Dec.”) and 8 attached as Exhibit A to the State’s Index of Exhibits (“Skucas Depo”) at pp. 37: 5-9 & 20-25 and 9 38: 1-24, Exhibit #2 from the Skucas Depo; Declaration of Gabriel Venegas, ¶ 6.) 10 Specifically, on December 5, 2019, at or about 2:30 p.m., Plaintiff was riding her bicycle in 11 the eastbound bicycle lane on State Route 84 and she was traveling eastbound. (UMF #5.) Plaintiff CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 noticed tree branches and debris in the bicycle lane before she came upon them. (Skucas Depo at Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 13 pp. 43: 21-25, 44: 1-3.) Branches and debris covered 75%, or maybe more, of the bicycle lane from 14 the curb to the white traffic line and extended for less than 10 feet in length. (Skucas Depo at p. 44: 15 9-23.) Plaintiff’s bicycle ran over branches and debris in the bicycle lane and Plaintiff fell from her 16 bicycle. (UMF #6.) The accident occurred in the eastbound bicycle lane on State Route 84, in 17 Woodside, CA, at or around 200 feet west of Hobart Heights. (UMF #7.) Postmile 21.3 to postmile 18 21.4 on State Route 84 in San Mateo County encompasses the area at and around 200 feet west of 19 Hobart Heights in Woodside, CA. (UMF #42.) 20 Plaintiff sustained injuries as a result of the bicycle accident. (Skucas Depo at p. 57: 19-24.) 21 2. Plaintiff Does Not Know the Period of Time the Branches & Debris Were in the Bicycle Lane or Where They Came From. 22 Plaintiff does not know how long the branches and debris were in the bicycle lane prior to 23 the accident. (UMF #8.) Plaintiff does not know where the branches and debris came from. (UMF 24 #9.) Plaintiff does not know if someone put the branches and debris in the bicycle lane prior to the 25 accident. (UMF #10.) On the day of the accident, Plaintiff did not inspect any of the vegetation 26 adjacent to the accident site. (UMF #11.) On the day of the accident, Plaintiff did not inspect any 27 of the branches and debris she ran over with her bicycle in the accident. (UMF #12.) Prior to the 28 2 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 day of the accident, Plaintiff did not inspect any vegetation adjacent to the accident site. (UMF 2 #13.) 3 3. Sheriff’s Deputy Lilian Tashiro Responds to the Accident; She Does Not Know The Period of Time the Branches and Debris Were in the Bicycle Lane. 4 San Mateo County Sheriff’s Deputy Lilian Tashiro responded to the accident scene on 5 December 5, 2019 and investigated Plaintiff’s accident. (Deposition of San Mateo County Sheriff’s 6 Deputy Lilian Tashiro taken on March 17, 2022, set forth on Gonzalez Dec. attached as Exhibit E 7 to the State’s Index of Exhibits (“Tashiro Depo”) at pp. 4: 6-16; 9: 4-8; 13: 8-21; 14: 2-8; and 16: 8 3-5.) Deputy Tashiro spoke with Plaintiff about how the accident occurred. (Tashiro Depo at p. 34: 9 15-17.) Plaintiff did not show Deputy Tashiro which branches she may have hit. (UMF #14.) At 10 the accident site, Plaintiff did not tell Deputy Tashiro how long the branches or debris were in the 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 road before she hit them. (UMF #15.) Deputy Tashiro does not know which branches and debris, Mail: P.O. Box 24325, Oakland, CA 94623-1325 Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 in the bike lane, Plaintiff hit. (UMF #16.) Deputy Tashiro does not know what period of time the 13 branches and debris were in the bike lane before Plaintiff hit them. (UMF #17.) 14 4. Caltrans Maintenance Supervisor Does Not Know the Period of Time the Branches 15 and Debris were in the Bicycle Lane or How They Came To Be In the Bicycle Lane. 16 Gabriel Venegas has been a Caltrans Woodside Maintenance Supervisor, responsible for 17 overseeing maintenance services performed by the State on State Route 84 in San Mateo County, 18 including the location of the accident, from January 2018 through the present. (Deposition of 19 Gabriel Venegas taken on October 1, 2021, set forth on Gonzalez Dec., attached as Exhibit F to the 20 State’s Index of Exhibits (“Venegas Depo”) at pp. 6: 8-12; 23: 1-25; 27: 25; 28: 1-25; 29: 1-23; 64: 21 13-17; and 66: 20-25; Declaration of Gabriel Venegas, ¶ 2, 3.) 22 Mr. Venegas did not witness Plaintiff’s accident. (Declaration of Gabriel Venegas, ¶ 9.) 23 However, Mr. Venegas is familiar with Plaintiff’s accident, State Route 84 (including the part of 24 State Route 84 that runs through Woodside, California) and the location where Plaintiff’s accident 25 occurred, on State Route 84, 200 feet west of Hobart Heights. (Venegas Depo at pp. 14: 1-13; 26: 26 19-25; 27: 1-2 & 9-25; and 28: 1-9; Declaration of Gabriel Venegas, ¶¶ 4, 6, 7.) 27 From November 5, 2019 to December 5, 2019, Mr. Venegas drove on State Route 84, 28 going eastbound, including through the area at or around 200 feet west of Hobart Heights, 3 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 approximately 15 to 20 times. (UMF #18.) During the times he drove on State Route 84 from 2 November 5, 2019 to December 5, 2019, Mr. Venegas did not see any branches or debris in the 3 eastbound bicycle lane on State Route 84, at or around 200 feet west of Hobart Heights. (UMF 4 #19.) 5 Also, Mr. Venegas did not know there were branches and debris in the eastbound bicycle 6 lane on State Route 84, at or around 200 feet west of Hobart Heights prior to Plaintiff’s accident on 7 December 5, 2019. (UMF #20.) After Plaintiff’s accident, Mr. Venegas found out that there were 8 branches and debris in the bicycle lane. (UMF #21.) 9 Mr. Venegas does not know how long the branches and debris were in the bicycle lane 10 prior to the accident. (UMF #22.) Mr. Venegas does not know how the branches and debris came 11 to be in the bicycle lane. (UMF #23.) Mr. Venegas does not know where the branches and debris CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 came from. (UMF #24.) And Mr. Venegas did not put the branches and debris that Plaintiff hit in Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 13 the bicycle lane. (UMF #25.) 14 5. The State Did Not Receive Complaints or Reports About Branches & Debris. 15 The State has no record of the public reporting or complaining to the State (through its 16 customer service request online program), from December 5, 2018 through December 5, 2019, 17 about branches and debris being on any part of State Route 84 (in Woodside, California) or any 18 part of the bicycle lanes on either side of State Route 84 (in Woodside, California). (UMF #26.) 19 The State has no record of receiving reports or complaints (through its incident response 20 system) from December 5, 2018 to December 5, 2019 about branches and debris being on any part 21 of State Route 84 (including the travel lanes and bicycle lanes) from postmile 21.3 to 21.4, which 22 encompasses the area at or around 200 feet west of Hobart Heights in Woodside, CA. (UMF #27.) 23 Additionally, prior to the accident on December 5, 2019, Plaintiff did not contact the 24 California Department of Transportation regarding any issues with the bicycle lane. (UMF #28.) 25 Prior to the date of her deposition (on March 17, 2022), Deputy Tashiro did not complain to 26 the California Department of Transportation regarding the accident site. (UMF #29.) And Deputy 27 Tashiro has not directly received a complaint from someone in the public complaining about the 28 branches and debris being in the bicycle lane at the location of Plaintiff’s accident. (UMF #30.) 4 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 From December 5, 2018 to December 5, 2019, Mr. Venegas never received a complaint or 2 reports of issues, problems, or concerns from a citizen regarding the eastbound bicycle lane on 3 State Route 84. (UMF #31.) From December 5, 2018 to December 5, 2019, Mr. Venegas never 4 received a complaint or reports of issues, problems, or concerns from a citizen regarding branches 5 and debris being on any part of the eastbound bicycle lane on State Route 84. (UMF #32.) And 6 from December 5, 2018 to December 5, 2019, Mr. Venegas never received a complaint or reports 7 of issues, problems, or concerns from any of the employees he supervises about the eastbound 8 bicycle lane on State Route 84 or about branches and debris being in the eastbound bicycle lane on 9 State Route 84. (UMF #33.) 10 6. The Accident History for State Route 84 Reflects Only One Bicycle Collision, Which Is Plaintiff’s Accident; No Other Reported Collisions Involving a Bicycle and/or 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION Branches and Debris are Reflected in the State’s Records. 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 The State’s accident records reflect that from November 7, 2013 through December 5, 2019 13 there was only one reported bicycle collision for State Route 84, in Woodside, CA, between 14 postmiles 21.3 and 21.4. (UMF #34.) The one reported bicycle collision in the State’s records from 15 November 7, 2013 through December 5, 2019 for State Route 84 between postmiles 21.3 and 21.4 16 was Plaintiff’s bicycle collision. (UMF #35.) No other collisions involving a bicycle, branches and 17 debris, or all of these items are reflected in the State’s records from November 7, 2013 through 18 December 5, 2019 for State Route 84 between postmiles 21.3 and 21.4. (UMF #36.) 19 Also, the State has no record (in its incident response system) of any incident occurring on 20 State Route 84 (including the travel lanes and bicycle lanes), in Woodside, CA, from postmile 21.3 21 to 21.4 from December 5, 2018 to December 5, 2019. (UMF #37.) 22 Additionally, Plaintiff is unaware of any other bicycle accidents involving the same 23 branches and debris that she contacted. (UMF #38.) Plaintiff is unaware of any other bicycle 24 accidents that occurred at the location where her accident occurred. (UMF #39.) 25 Deputy Tashiro is not aware of any other bicycle accidents that have occurred at the 26 location of Plaintiff’s accident. (UMF #40.) 27 7. Plaintiff’s Allegations Against the State. 28 A moving defendant on summary judgment is only required to “negate plaintiff's theories 5 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 of liability as alleged in the complaint; that is, a moving party need not refute liability on some 2 theoretical possibility not included in the pleadings” (Hutton vs. Fidelity National Title Co. (2013) 3 213 Cal.App.4th 486, 493 (italics in original).) 4 Here, Plaintiff’s Complaint asserts one cause of action (Premises Liability) against the 5 State and alleges there was a dangerous condition of public property in the bicycle lane on State 6 Route 84 in Woodside, CA. (Plaintiff’s Complaint, set forth on Gonzalez Dec., attached as Exhibit 7 C to the State’s Index of Exhibits, at p. 4.) Plaintiff’s Complaint alleges the dangerous condition 8 was the branches and debris in the bicycle lane. (Plaintiff’s Complaint, at p. 4.) Plaintiff’s 9 Complaint alleges that the State had actual and constructive notice of the alleged dangerous 10 condition. (Plaintiff’s Complaint, at p. 4.) Plaintiff’s Complaint also alleges that the dangerous 11 condition was created by employees of the State. (Plaintiff’s Complaint, at p. 4.) CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 In Plaintiff’s Amended Response to the State’s Special Interrogatories, Set One, No. 6, Telephone: (510) 433-9100, Facsimile: (510) 433-9167 12 13 Plaintiff asserts that “the place of the incident was in a dangerous condition at the time of the 14 incident because there were tree branches and debris on the bicycle lane.” (Plaintiff’s Amended 15 Response to State’s Special Interrogatory No. 6, set forth on Gonzalez Dec., attached as Exhibit I 16 to the State’s Index of Exhibits at p. 4: 2-3) 17 In Plaintiff’s Response to the State’s Special Interrogatories, Set One, No. 28, Plaintiff 18 stated that “the incident occurred at or about 2:30 p.m. on December 5, 2019, at State Route 84, 19 City of Woodside, County of San Mateo at or around 200 feet west of Hobart Heights on the 20 bicycle lane.” (Plaintiff’s Response to State’s Special Interrogatory No. 28, set forth on Gonzalez 21 Dec., attached as Exhibit B to the State’s Index of Exhibits at p. 13: 7-9.) 22 Plaintiff admitted that the State did not have actual notice of a dangerous condition at the 23 accident site a sufficient time before the accident happened to have taken measures to protect 24 against the dangerous condition. (UMF #41.) 25 Here, since Plaintiff alleged one cause of action in her Complaint and alleged that there was 26 a dangerous condition of public property, and she alleged that the dangerous condition was the 27 branches and debris in the bicycle lane, this Motion is directed at that cause of action/claim and 28 allegations. To that end, Plaintiff cannot establish that 1) the State had actual notice of the alleged 6 DEFENDANT STATE OF CALIFORNIA’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF STATE’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION 1 dangerous condition, 2) the State had constructive notice of the alleged dangerous condition, or 3) 2 the State’s employee(s) wrongfully or negligently created the alleged dangerous condition. 3 III. LEGAL ARGUMENT 4 1. A Motion for Summary Judgment or Summary Adjudication Should Be Granted When the Defendant Demonstrates the Plaintiff Cannot Establish an Element of a 5 Cause of Action or the Defendant Has a Complete Defense. 6 A party moving for summary judgment bears the burden of persuasion that there is no triable 7 issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar vs. Atlantic 8 Richfield Co. (2001) 25 Cal.4th 826, 850.) A cause of action has no merit if “one or more of the 9 elements of the cause of action cannot be separately established, even if that element is separately 10 pleaded.” (Civ. Proc. Code §437c(o)(1).) If the moving party is the defendant, the defendant must 11 CALIFORNIA DEPARTMENT OF TRANSPORTATION - LEGAL DIVISION show that one or more elements of a plaintiff’s cause of action cannot be established or there is a 111 Grand Avenue, Suite 11-100, Oakland, California 94612 Mail: P.O. Box 24325, Oakland, CA 94623-1325 Telephone: (510) 433-9100, Facsimil