Preview
Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
DION N. COMINOS (SBN 136522)
dcominos@grsm.com
CATHERINE A. SALAH (SBN 154524)
csalah@grsm.com
GORDON REES SCULLY MANSUKHANI, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
Telephone: (415) 986-5900
Facsimile: (415) 986-8054
Attorneys for Defendant and Cross-complainant
CONGER, MOSS, GUILLARD, INC., dba
CMG LANDSCAPE ARCHITECTURE
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
06/14/2018
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
BERNADETTE BASS through Guardian Ad
Litem SAMANTHA BASS; and ANDREW
FITZGERALD,
Plaintiff,
vs.
)
)
)
)
)
)
)
CITY AND COUNTY OF SAN FRANCISCO; )
SAN FRANCISCO RECREATION AND )
PARKS DEPARTMENT; SAN FRANCISCO )
PARKS ALLIANCE, a California Nonprofit)
Public Benefit Corporation; RESIDENTS FOR )
NOE VALLEY TOWN SQUARE; CMG )
LANDSCAPE ARCHITECTURE; and DOES)
1 through 50, )
)
)
)
)
)
)
)
)
)
)
)
)
Defendants.
It
Ml
Mh
-l-
CASE NO. CGC-17-559094
DEFENDANT AND CROSS-
COMPLAINANT CONGER, MOSS,
GUILLARD, INC., DBA CMG
LANDSCAPE ARCHITECTURE’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE,
SUMMARY ADJUDICATION
Accompanying Papers:
Notice of Motion; Separate Statement of
Undisputed Material Facts; Declaration of
Chris Guillard; Declaration of Catherine A.
Salah; Request for Judicial Notice; Index of
Exhibits; [Proposed] Order; and Proof of
Service
Date: August 30, 2018
Time: 9:30 a.m.
Dept: 302
Reservation No. 06130830-08
Complaint Filed: May 22, 2017
Trial Date: November 26, 2018
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
Il.
Iv.
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
TABLE OF CONTENTS
INTRODUCTION .....ccscessseessessseessersseessesesueessesseeeseesserssersssessenssseseesssvesssessnasevecsneeeneesneenseese 5
PROCEDURAL BACKGROUND.
FACTUAL BACKGROUND... eesseesseesseesseesserssersserssecssessnessnsssreseessreesneeseeneennesy 6
A TRG Project ctetatatetabstenaldvcadedadsdudatatalahababaledaaldedatdatatabstababehdadsdetadadabelebabababahdaaldedaladatetel 6
B CMG’s Scope Of Services.......cccscseecsesesessseeesesesscsnesesseseseescenesesneacereocevesssateseresaneecd 6
Cc. Substantial Completion of the Project .........cccccsesesesessessesesseseesesesesssseaseeeseseeeseneee 7
D. The Accident
E. Inspection of Slide by Community Playgrounds, Inc. .......c.ccesesessesesseseeteeeeteseeneeee 7
LEGAL AUTHORITY .
A. Summary Judgment is Properly Granted Since Plaintiffs Cannot Establish
One or More Elements of their Claims Against CMG .00.......csccseceseeeseeeeeeeeseeeee 8
B. Plaintiffs’ First Cause of Action for Negligence Against CMG Fails
Because the “Completed and Accepted” Doctrine is a Complete Defense
to Liability for Plaintiffs’ Injuries Since CMG’s Work was Completed and
Accepted by the City 7
Cc. Since CMG Owes no Duty to Plaintiffs, CMG is Not Liable for Negligent
Infliction of Emotional Distress as a Matter of Law........csceessseseeeeseesteseeseesees 12
CONCLUSION 1... cccscesseesessceeseseseesseesssscasessecsessveesssassuesssersessseesessessueerssarssessessaseseeseaeseeeense 13
-2-Gordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
TABLE OF AUTHORITIES
Cases
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826...
Boswell v. Laird
(1857) 8 Cal. 469
Catsouras v. Department of California Highway Patrol
(2010) 181 Cal.App.4th 856
Colores v. Board of Trustees
(2003) 105 Cal.App.4th 1293 ....cssssscocsssssssssesnsscssnsosssssesevsntsnsseseunssessesnsnsesensoosinsnseyacesssaosennstinss 8
Dillion v. Legg
(1968) 68 Cal.2d 728 ooececececcceccec cece eceeeeeesesesesesescececeeecessnenesesessneneasaceseseseeeseenesansnaneasaseseeeeeeeees 13
Doe v. United States Youth Soccer Assn., Inc.
(2017) 8 Cal.App.5th 1118
Gaggero v. Yura
(2003) 108 Cal.App.4th 884... cceescecesecsesseeseesneseesssensssessesseesssesesecsessessneesssssssesseasesseeresseesecees 8
Hood y, Superior Court
(1995) 33 Cal. App.4th 319 ooo. cecceseseseesessessessneenesesenssneesecssessesssesseeessassussisssacssessesesresseeeseses 9
Jones v. P.S. Development Co., In
(2008)166 Cal.App.4th 707...
Ky. Fried Chicken of Cal.
(1997) 14 Cal.4th 814.
». Superior Court
Ladd v. County of San Mateo
(1996) 12 Cal.4th 913 oo cececesneseenessseeseenssesneassnesseessesnesssnesseessssnssssneassesesensseseesssesssenssesnenseees 9
Larsen v. Johannes
(1970) 7 Cal.App.3d 491
Lunardi v. Great-West Life Assurance Co.
(1995) 37 Cal. App.4th 807 ....ccccccessesseseesesssssesseseessssssnesssssssseseseseesesesseserssncssaeseaseseneeseseesesses 8
Mattingly v. Anthony Industries, Inc.
supra, 109 Cal. App. 3d at pp. 509... ccceccescssesseesessseessesssesseesesessesssscsnesesesacersucseeeeaneneeesseens 12
Neiman v. Leo A. Daly Co.
(2012) 210 Cal.App.4th 962.
Orey v. Superior Court
(2013) 213 Cal.App.4th 124] oes ecsseessesssecsseessecssecssecsneessessnessiesnsssssuesssueeneessesseesnee 9
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
Preston v. Goldman
supra, 42 Cal. 3d at p. 123 eceeceesecseccseseseeeescsessesseesseasssessesseeseessesesssesssesesasssessesseeseeneseees 12
Sanchez v. Swinerton & Walberg Co.
(1996) 47 Cal. App-4th 1461 ccccscsccsssssssessssssssessssssssensesssssnssssestessseteseensesesssseserseeee 9, 10, 11
Thing v. La Chusa
(1989) 48 Cal.3d 644
Tomko Woll Group Architects v. Superior Court
(1996) 46 Cal.App.4th 1326
Vaerst v. Tanzman
(1990) 222 Cal. App.3d 1535 voeccsccsssecesssesesseseeseesssssenesssesssssssesssssessnseessneevesssssessessessssneaneeees 12
Wong v. Jing
(2010) 189 Cal. App. 4th 1354... ceeeecsecseeseesseeessnessesseesesseersseseesssensssessaeseesnseeeessessees 13
Statutes
Code of Civil Procedure
pS@CHiOn 33M elt lle lelatat eal ledededadelatatatatatatabsdhdedadadelalslalatabaldiaededadadababalslalabsbaaaededadeded 11
Code of Civil Procedure
Section 437c..
Other Authorities
California Civil Jury Instructions
PMO IDG 2 i oeeteratetataacaadadedatedatelalslalabddadadedadadalatabalhehatalsdadalatalatalabalalabddadadetadelalatabebabahdedadedatedat 13
4.
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
Pursuant to California Code of Civil Procedure Section 437¢ Defendant and Cross-
Complainant CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE
ARCHITECTURE (“CMG”) hereby submits the following Memorandum of Points and.
Authorities in support of its Motion for Summary Judgment or, in the alternative, Summary
Adjudication as to the Complaint filed by Plaintiffs BERNADETTE BASS, through her
Guardian Ad Litem Samantha Bass, and ANDREW FITZGERALD on the grounds that there are
no triable issues of material fact with respect to Plaintiffs’ First Cause of Action for General
Negligence and Fourth Cause of Action for Negligent Infliction of Emotional Distress since
Plaintiffs cannot establish one or more elements of such claims and/or CMG has a complete
defense thereto and the claims are barred as a matter of law.
L INTRODUCTION
This action arises out of a playground accident. Plaintiff Bernadette Bass, a minor,
claims injuries as a result of allegedly striking her head on corner of the step to a slide at a
playground at Noe Valley Town Square in San Francisco, California on November 15, 2016.
Plaintiffs father, Andrew Fitzgerald, claims damages arising out of allegedly witnessing the
incident. Plaintiffs contend that CMG, the landscape architect for the Noe Valley Town Square
project (“the Project”), negligently selected the slide in issue, which Plaintiffs assert was in a
dangerous condition at the time of the incident.
CMG moves for summary judgment as to Plaintiffs’ Complaint on the grounds that its
services were completed and accepted by the City and County of San Francisco and/or the San
Francisco Recreation and Park Department prior to Plaintiff Bernadette Bass’ accident, and
therefore, as a matter of law CMG owed no duty to Plaintiffs based upon the “Completed and
Accepted” Doctrine defense.
I. PROCEDURAL BACKGROUND
Plaintiffs are Bernadette Bass, through her mother and Guardian ad Litem, Samantha
Bass, and Plaintiff's father, Andrew Fitzgerald. In addition to CMG, Plaintiffs name the
following Defendants: City and County of San Francisco, San Francisco Parks Alliance, a
California non-profit public benefit corporation (“SFPA”), San Francisco Recreation and Park
-5-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
Department and Residents for Noe Valley Town Square (““RNVTS”), Community Playgrounds,
Inc. and Columbia Cascade. (See Complaint, Exhibit 1 to CMG’s Request for Judicial Notice
[“RJN”].) Although Plaintiffs initially alleged causes of action for Products Liability and
Premises Liability against CMG, they subsequently dismissed the same. (See Request for
Dismissal, Exhibit 2 to RJN.) As such, Plaintiffs are proceeding against CMG solely on causes
of action for Negligence and Negligent Infliction of Emotional Distress.
Il. FACTUAL BACKGROUND
A. The Project
The slide in issue was installed as part of the development and construction of Noe
Valley Town Square, located at 24" Street in San Francisco (“the Project.”) (See Separate
Statement of Undisputed Material Facts [“UMF”], fact No. 1.) The subject property is owned by
the City of San Francisco. (UMF No. 2.) An agreement for the design and construction of the
Project was entered into on September 30, 2015 between San Francisco Parks Alliance
(“SFPA”), a California nonprofit public benefit corporation acting as fiscal sponsor for Residents
for Noe Valley Town Square (“RNVTS”), and the City and County of San Francisco acting
through its Recreation and Park Department. (UMF No. 3.) The City, through its Recreation
and Park Department, is responsible for operating and maintaining the subject property. (UMF
No. 4.) Pursuant to the Agreement for Construction of Noe Valley Town Square, the Recreation
and Park Department was to provide Project Management and Construction Management
services for the construction. (UMF No. 5.)
B. CMG’s Scope of Services
CMG is a landscape architecture firm. (UMF No. 6.) CMG provided certain landscape
architectural services for the Project pursuant to an agreement with San Francisco Parks
Alliance, dated April 1, 2016. (UMF No. 7.) The project involved , among other things, the
design and construction of a children’s playground. (UMF No. 8.) As part of its services related
to the children’s playground, CMG selected a slide manufactured by Defendant Columbia
Cascade Company. (UMF No. 9.) The slide was selected from Columbia Cascade Company’s
playground equipment catalog, which expressly represents that the subject slide complies with
-6-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
both the Consumer Product Safety Commission (“CPSC”) Guidelines for Public Playground
Safety and the ANSI - ASTM F1487 Standard Consumer Safety Performance Specification for
Playground Equipment for Public Use. (UMF No. 10.)
CMG was never, at any time prior to Plaintiffs’ filing of their Complaint, advised or
placed on notice by the City/County of San Francisco or its Recreation and Park Department, or
any other individual and/or entity, of any defect or dangerous condition with the subject slide.
(UMF No. 11.)
Cc. Substantial Completion of the Project
On October 27, 2016 the City, through its Department of Public Works, issued a Notice
of Substantial Completion. The Department of Public Works stated in the Notice that, with the
exception of remaining punchlist items, the project was substantially completed on October 27,
2016. (UMF No. 12.)
D. The Accident
Plaintiffs contend that as Bernadette Bass attempted to utilize the slide on November 15,
2016 she fell and struck her forehead against a “sharp metal edge.” (UMF No. 13.) In discovery
responses, Plaintiff clarified that the alleged sharp metal edge was at the “accessible point” at the
base of the slide, referring to the step leading up to the chute. (UMF No. 14.) There are no
independent witnesses to the accident. The only witness is Bernadette’s father, Plaintiff Andrew
Fitzgerald.
E. Inspection of Slide by Community Playgrounds, Inc.
Community Playgrounds, Inc. performed a certified playground safety inspection of the
playground equipment on February 16, 2017, several months after the incident, which included
an inspection of the subject slide. (UMF No. 15.) Community Playgrounds concluded: “The
Play Equipment was found to be Compliant with California State Safety Standards.”
(UMF No. 16.)
-7-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
Iv. LEGAL AUTHORITY
A. Summary Judgment is Properly Granted Since Plaintiffs Cannot Establish
One or More Elements of their Claims Against CMG
Pursuant to Code of Civil Procedure section 437c the Court has authority to grant
summary judgment where no triable issue of material fact exists. A defendant moving for
summary judgment meets its burden of persuasion by showing that one or more elements of a
cause of action cannot be established or it has a complete defense to that cause of action. (Code
Civ. Proc., § 437c, subds. (a), (0)(1), (2), (p)(2); Gaggero v. Yura (2003) 108 Cal.App.4th 884,
889.) The defendant need not conclusively negate an element of a plaintiff's cause of action.
(bid; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1304; Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 853.) Rather, a defendant may show that the plaintiff
cannot prove at least one element of the cause of action by showing the plaintiff does not possess
or cannot reasonably obtain necessary evidence. (Code Civ. Proc., § 437c, subd. (h); Gaggero,
supra, at pp. 889-890.)
Once the defendant has made such a showing, 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 as to a defense
to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd.
(p)(2).) To avoid summary judgment, the plaintiff must produce specific, substantial, admissible
evidence showing that a triable issue of fact exists and may not rely upon the mere allegations
and denials of his or her pleadings. (Code Civ. Proc., § 437c.). C.C.P. section 437c likewise
permits a court to grant summary adjudication of a plaintiff's causes of action. (C.C.P. §
437c(f)(2).) Such a motion follows the same procedure as, and can be included as an alternative
to, a motion for summary judgment. (C.C.P. § 437c(f)(1); see also, Lunardi v. Great-West Life
Assurance Co. (1995) 37 Cal.App.4th 807, 810 [motions for summary adjudication are subject to
the same rules and procedures as motions for summary judgment].)
California courts recognize that “[jJustice requires that a defendant be as much entitled to
be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.” (Larsen v.
Johannes (1970) 7 Cal.App.3d 491, 507.) Summary judgment is not a disfavored procedure, but
-8-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
rather serves the important purpose of promoting the administration of justice and expediting
litigation whenever possible. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323.)
Applying these principles to the case at hand, summary judgment, or in the alternative, summary
adjudication should be properly granted in favor of CMG since Plaintiffs cannot establish each of
the requisite elements of their claims against CMG and CMG has a complete defense thereto.
B. Plaintiffs’ First Cause of Action for Negligence Against CMG Fails Because
the “Completed and Accepted” Doctrine is a Complete Defense to Liability
for Plaintiffs’ Injuries Since CMG’s Work was Completed and Accepted by
the City
“The elements of negligence are 1) a legal duty to use due care; 2) the breach of such
legal duty, and 3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court
(2013) 213 Cal.App.4” 1241, 1255, citing Ladd v. County of San Mateo (1996) 12 Cal.4" 913,
917.) “The first element, duty, ‘may be imposed by law, be assumed by the defendant, or exist by
virtue of a special relationship.”” (Doe v. United States Youth Soccer Assn., Inc. (2017) &
Cal.App.Sth 1118, 1128.) “[T]he existence of a duty is a question of law for the court.” (Ky.
Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)
The long standing Completed and Accepted Doctrine defense relieves a contractor or
architect of liability to a third person for injuries caused by the condition of the work done, even
if the contractor or architect was negligent if he or she completed his or her work and the owner
has accepted it. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal. App.4th 1461, 1466, citing
Boswell v. Laird (1857) 8 Cal. 469; see also Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4"
962, 969.) The Sanchez court instructs:
Parties for whom work contracted for is undertaken, must see to it before
acceptance, that the work, as to strength and durability, and all other particulars
necessary to the safety of the property and persons of third parties, is subject to
proper tests, and that it is sufficient. By acceptance and subsequent use, the
owners assume to the world the responsibility of its sufficiency, and to third
parties, the liability of the contractors has ceased, and their own commenced.
(Sanchez, supra, at 1466. )
In Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4" 962, the court expressly extended
the completed and accepted doctrine to architects. In Neiman the plaintiff sued the architect who
designed a theater and observed its construction, alleging the improperly “marked and
-9-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
delineated’” stairs at a theater caused her to fall while walking down the stairs. (/d. at p. 965.)
Discovery revealed that contrast marking stripes required by the plans for the theater and by the
California Building Code were never placed on the stairs. Neiman held that the absence of
«6
contrast marking stripes on the stairs was an ‘““obvious and apparent’ condition.” (dd. at p. 971)
Neiman held that the trial court did not err in granting the architect’s motion for summary
judgment based on the defense of the completed and accepted doctrine. (/d. at p. 973.) Neiman
provides:
[When a contractor completes work that is accepted by the owner, the contractor
is not liable to third parties injured as a result of the condition of the work, even if
the contractor was negligent in performing the contract, unless the defect in the
work was latent or concealed. [Citation.] The rationale for this doctrine is that an
owner has a duty to inspect the work and ascertain its safety, and thus the owner's
acceptance of the work shifts liability for its safety to the owner, provided that a
reasonable inspection would disclose the defect. [Citation.]” Jones v. P.S.
Development Co., Inc. (2008) 166 Cal.App.4th 707, 712, 82 Cal.Rptr.3d 882
[Jones], disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th
512, 532, fn. 7, 113 Cal.Rptr.3d 327, 235 P.3d 988; Sanchez v. Swinerton &
Walberg Co. (1996) 47 Cal.App.4th 1461, 1466-1471, 55 Cal.Rptr.2d 415
[Sanchez].) Stated another way, “when the owner has accepted a structure from
the contractor, the owner's failure to attempt to remedy an obviously dangerous
defect is an intervening cause for which the contractor is not liable. (Sanchez,
supra, 47 Cal.App.4th at p. 1467, 55 Cal.Rptr.2d 415.) The doctrine applies to
patent defects, but not latent defects. (Sanchez, supra. 47 Cal.App.4th at p. 1467,
55 Cal.Rptr.2d 415.) (Id. at p. 961.)
In a later case, Jones v. P.S. Development Co., Inc. (2008)166 Cal.App.4th 707, the
Second District followed its earlier holding in Sanchez and applied the completed and accepted
doctrine to portions of work that had been accepted, even though other parts of the project
remained ongoing. The case involved a Transportation Security Administration (TSA) employee
at the Los Angeles International Airport (LAX). LAX hired a contractor to install several
explosive detection system (EDS) machines at the airport. The contractor designed the anchoring
system to secure the EDS machines to the ground. The plaintiff tripped over a machine's anchor
bolt and was injured. He sued the subcontractor that installed the system and bolted the EDS
machines to the ground in accordance with the design. The testimony showed that TSA had
accepted the EDS machine and put it into full operation two months prior to the accident. The
trial court applied the completed and accepted doctrine and granted summary judgment in favor
of the defendant. The Court of Appeal affirmed the trial court's decision and concluded that the
-10-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
doctrine shielded the defendant from liability. The court found the fact that the defendant was
still working on other EDS machines in LAX to be immaterial to the application of the
completed and accepted doctrine. In the court's view, the defendant had completed the work and
retained no control over the machine in question. In explaining its decision, the court in Jones
commented:
[T]he rationale underlying the "completion and acceptance" doctrine is dispositive
of the question before us. As the court explained in Sanchez, liability for the
safety of a contractor's work shifts to the owner upon acceptance of the work, that
is, when the owner has had an opportunity to examine the work, and thereafter
represents that it is safe....By acceptance and subsequent use, the owners assume
to the world the responsibility of its sufficiency, and to third parties, the liability
of the contractors has ceased, and their own commenced. Here, there are no
triable issues regarding these matters: prior to [plaintiff's] accident, TSA had put
the machine with the installed anchors into full operation, and [plaintiff], his co-
workers, and a "lead" were, in fact, aware of the hazard. As there is no evidence
that respondents retained control over the machine, we conclude that they are not
liable for plaintiffs injuries. (Jones, supra, 166 Cal.App.4th at 717-718, citations
and certain internal quotation marks removed.)
Here, at the time of the accident in issue CMG had completed its landscape architectural
services in connection with the selection of the subject slide, the City and/or one of its
departments had issued a Notice of Substantial Completion for the overall project and the
playground was open to the public.
While CMG does not concede it was negligent or that the slide constituted a dangerous
condition, as noted in Sanchez and Neiman, the “Completed and Accepted” Doctrine defense
applies to patent defects. An alleged defect is patent if it would be discovered by the inspection
an owner would make in the exercise of ordinary care and prudence. (Neiman, supra at 962; see
also CCP §337.1(e) (“Patent deficiency” means a deficiency which is apparent by reasonable
inspection).) In contrast to a patent defect, a latent defect is one which is hidden or concealed,
and therefore could not be discovered by a reasonable inspection. (Neiman, supra at 970. )
Tomko Woll Group Architects v. Superior Court (1996) 46 Cal.App.4th 1326 held that a
determination as to whether a defect is patent or latent can be determined as a matter of law on
summary judgment. The test to determine whether a deficiency is patent is based on the average
consumer’s reasonable expectations. The test is thus objective rather than subjective; it is not
applied to each individual user. (/d. at 1339.) In Tomko, plaintiff alleged paver stones on a patio
-ll-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
which shifted after construction, and upon which he tripped and fell were a latent defect. The
court held as a matter of law that pavement, and the dangers attendant to it, are matters of such
common experience that a visible defect substantial enough to cause a pedestrian to trip and fall
constitutes a patent defect. (/d. at 1339 (citing Mattingly v. Anthony Industries, Inc., supra, 109
Cal. App. 3d at pp. 509-511 [the dangers attendant to the absence of a fence around a swimming
pool is a common experience, and assuming it constitutes a deficiency, it is patent]; Preston v.
Goldman, supra, 42 Cal. 3d at p. 123 [murky pond was a patent condition].)
In Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, the court determined as a matter of
law that a condition of a stairway handrail was patent. There, plaintiff, a visitor of a tenant,
tripped while descending stairs in a home. She alleged that the handrail, which did not extend to
the last step, caused her to believe she was at the end of the stairway and she fell over the
remaining step and broke her hip. The court upheld the trial court’s refusal of plaintiff's request
for a strict liability instruction where it was clear that a condition in the property she alleged
caused her slip and fall was patent, visible and easily detectable. (/d. at 1540.)
In the instant case, the corners of the single step up to the chute of the slide upon which
Plaintiff allegedly struck her forehead are open and obvious. As depicted in the photo of the
slide attached as an exhibit to Plaintiff's Complaint, nothing obscures the condition of the step
and/or its corners. As such, the condition of the slide should be found patent as a matter of law
and summary judgment, or alternatively summary adjudication, should be granted on the grounds
that CMG did not owe a duty of care to Plaintiffs on the basis that CMG’s work was completed
and accepted by the City/County of San Francisco prior to the subject accident.
Cc. Since CMG Owes no Duty to Plaintiffs, CMG is Not Liable for Negligent
Infliction of Emotional Distress as a Matter of Law
Plaintiff Andrew Fitzgerald, Bernadette Bass’ father, asserts a Fourth Cause of Action for
Negligent Infliction of Emotional Distress (“NIED”) from allegedly witnessing his daughter’s
accident. CMG is entitled to judgment in its favor on Plaintiffs’ NIED claim as well. It is well
accepted that a claim of negligent infliction of emotional distress is not an independent tort but
the tort of negligence to which the traditional elements of duty, breach of duty, causation, and
-12-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP
275 Battery Street, Suite 2000
San Francisco, CA 94111
we
wn
damages apply. (Wong v. Jing (2010)189 Cal. App. 4th 1354, 1377; (Catsouras v. Department
of California Highway Patrol (2010) 181 Cal.App.4" 856, 875-876.) To prove negligent
infliction of emotional distress as a bystander in California a plaintiff must show that: (1) The
plaintiff is closely related to the victim, (2) the defendant negligently caused injury or death to
the victim, (3) the plaintiff was present at the scene of the injury when it occurred and was aware
that the victim was being injured, and (4) as a result of the injury, the plaintiff reasonably
suffered serious emotional distress beyond that which would be anticipated in a disinterested
witness. (California Civil Jury Instructions (CACTI) 1621; Dillion v. Legg (1968) 68 Cal.2d 728;
Thing v. La Chusa (1989) 48 Cal.3d 644.) Here, since CMG owes no duty to Plaintiffs under the
Completed and Accepted Doctrine, their claim for NIED, predicated on the existence of a duty,
fails as a matter of law.
Vv. CONCLUSION
Based on all evidence submitted and the foregoing authority, CMG respectfully requests
that the Court enter summary judgment in its favor and against Plaintiffs. Alternatively,
summary adjudication as to the First and Fourth causes of action pled in the Complaint against
CMG is appropriate.
Dated: June 14, 2018 GORDON REES SCULLY MANSUKHANI, LLP
Ch pf Gul
By: = :
CATHERINE A. SALAH
Attorneys for Defendant and Cross-Complainant
CONGER, MOSS, GUILLARD, INC. dba
CMG LANDSCAPE ARCHITECTURE
-13-
CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION
Preview
Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn DION N. COMINOS (SBN 136522) dcominos@grsm.com CATHERINE A. SALAH (SBN 154524) csalah@grsm.com GORDON REES SCULLY MANSUKHANI, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 Telephone: (415) 986-5900 Facsimile: (415) 986-8054 Attorneys for Defendant and Cross-complainant CONGER, MOSS, GUILLARD, INC., dba CMG LANDSCAPE ARCHITECTURE ELECTRONICALLY FILED Superior Court of California, County of San Francisco 06/14/2018 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO BERNADETTE BASS through Guardian Ad Litem SAMANTHA BASS; and ANDREW FITZGERALD, Plaintiff, vs. ) ) ) ) ) ) ) CITY AND COUNTY OF SAN FRANCISCO; ) SAN FRANCISCO RECREATION AND ) PARKS DEPARTMENT; SAN FRANCISCO ) PARKS ALLIANCE, a California Nonprofit) Public Benefit Corporation; RESIDENTS FOR ) NOE VALLEY TOWN SQUARE; CMG ) LANDSCAPE ARCHITECTURE; and DOES) 1 through 50, ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants. It Ml Mh -l- CASE NO. CGC-17-559094 DEFENDANT AND CROSS- COMPLAINANT CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Accompanying Papers: Notice of Motion; Separate Statement of Undisputed Material Facts; Declaration of Chris Guillard; Declaration of Catherine A. Salah; Request for Judicial Notice; Index of Exhibits; [Proposed] Order; and Proof of Service Date: August 30, 2018 Time: 9:30 a.m. Dept: 302 Reservation No. 06130830-08 Complaint Filed: May 22, 2017 Trial Date: November 26, 2018 CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn Il. Iv. CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION TABLE OF CONTENTS INTRODUCTION .....ccscessseessessseessersseessesesueessesseeeseesserssersssessenssseseesssvesssessnasevecsneeeneesneenseese 5 PROCEDURAL BACKGROUND. FACTUAL BACKGROUND... eesseesseesseesseesserssersserssecssessnessnsssreseessreesneeseeneennesy 6 A TRG Project ctetatatetabstenaldvcadedadsdudatatalahababaledaaldedatdatatabstababehdadsdetadadabelebabababahdaaldedaladatetel 6 B CMG’s Scope Of Services.......cccscseecsesesessseeesesesscsnesesseseseescenesesneacereocevesssateseresaneecd 6 Cc. Substantial Completion of the Project .........cccccsesesesessessesesseseesesesesssseaseeeseseeeseneee 7 D. The Accident E. Inspection of Slide by Community Playgrounds, Inc. .......c.ccesesessesesseseeteeeeteseeneeee 7 LEGAL AUTHORITY . A. Summary Judgment is Properly Granted Since Plaintiffs Cannot Establish One or More Elements of their Claims Against CMG .00.......csccseceseeeseeeeeeeeseeeee 8 B. Plaintiffs’ First Cause of Action for Negligence Against CMG Fails Because the “Completed and Accepted” Doctrine is a Complete Defense to Liability for Plaintiffs’ Injuries Since CMG’s Work was Completed and Accepted by the City 7 Cc. Since CMG Owes no Duty to Plaintiffs, CMG is Not Liable for Negligent Infliction of Emotional Distress as a Matter of Law........csceessseseeeeseesteseeseesees 12 CONCLUSION 1... cccscesseesessceeseseseesseesssscasessecsessveesssassuesssersessseesessessueerssarssessessaseseeseaeseeeense 13 -2-Gordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn TABLE OF AUTHORITIES Cases Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826... Boswell v. Laird (1857) 8 Cal. 469 Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856 Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293 ....cssssscocsssssssssesnsscssnsosssssesevsntsnsseseunssessesnsnsesensoosinsnseyacesssaosennstinss 8 Dillion v. Legg (1968) 68 Cal.2d 728 ooececececcceccec cece eceeeeeesesesesesescececeeecessnenesesessneneasaceseseseeeseenesansnaneasaseseeeeeeeees 13 Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118 Gaggero v. Yura (2003) 108 Cal.App.4th 884... cceescecesecsesseeseesneseesssensssessesseesssesesecsessessneesssssssesseasesseeresseesecees 8 Hood y, Superior Court (1995) 33 Cal. App.4th 319 ooo. cecceseseseesessessessneenesesenssneesecssessesssesseeessassussisssacssessesesresseeeseses 9 Jones v. P.S. Development Co., In (2008)166 Cal.App.4th 707... Ky. Fried Chicken of Cal. (1997) 14 Cal.4th 814. ». Superior Court Ladd v. County of San Mateo (1996) 12 Cal.4th 913 oo cececesneseenessseeseenssesneassnesseessesnesssnesseessssnssssneassesesensseseesssesssenssesnenseees 9 Larsen v. Johannes (1970) 7 Cal.App.3d 491 Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App.4th 807 ....ccccccessesseseesesssssesseseessssssnesssssssseseseseesesesseserssncssaeseaseseneeseseesesses 8 Mattingly v. Anthony Industries, Inc. supra, 109 Cal. App. 3d at pp. 509... ccceccescssesseesessseessesssesseesesessesssscsnesesesacersucseeeeaneneeesseens 12 Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962. Orey v. Superior Court (2013) 213 Cal.App.4th 124] oes ecsseessesssecsseessecssecssecsneessessnessiesnsssssuesssueeneessesseesnee 9 CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn Preston v. Goldman supra, 42 Cal. 3d at p. 123 eceeceesecseccseseseeeescsessesseesseasssessesseeseessesesssesssesesasssessesseeseeneseees 12 Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal. App-4th 1461 ccccscsccsssssssessssssssessssssssensesssssnssssestessseteseensesesssseserseeee 9, 10, 11 Thing v. La Chusa (1989) 48 Cal.3d 644 Tomko Woll Group Architects v. Superior Court (1996) 46 Cal.App.4th 1326 Vaerst v. Tanzman (1990) 222 Cal. App.3d 1535 voeccsccsssecesssesesseseeseesssssenesssesssssssesssssessnseessneevesssssessessessssneaneeees 12 Wong v. Jing (2010) 189 Cal. App. 4th 1354... ceeeecsecseeseesseeessnessesseesesseersseseesssensssessaeseesnseeeessessees 13 Statutes Code of Civil Procedure pS@CHiOn 33M elt lle lelatat eal ledededadelatatatatatatabsdhdedadadelalslalatabaldiaededadadababalslalabsbaaaededadeded 11 Code of Civil Procedure Section 437c.. Other Authorities California Civil Jury Instructions PMO IDG 2 i oeeteratetataacaadadedatedatelalslalabddadadedadadalatabalhehatalsdadalatalatalabalalabddadadetadelalatabebabahdedadedatedat 13 4. CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn Pursuant to California Code of Civil Procedure Section 437¢ Defendant and Cross- Complainant CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE (“CMG”) hereby submits the following Memorandum of Points and. Authorities in support of its Motion for Summary Judgment or, in the alternative, Summary Adjudication as to the Complaint filed by Plaintiffs BERNADETTE BASS, through her Guardian Ad Litem Samantha Bass, and ANDREW FITZGERALD on the grounds that there are no triable issues of material fact with respect to Plaintiffs’ First Cause of Action for General Negligence and Fourth Cause of Action for Negligent Infliction of Emotional Distress since Plaintiffs cannot establish one or more elements of such claims and/or CMG has a complete defense thereto and the claims are barred as a matter of law. L INTRODUCTION This action arises out of a playground accident. Plaintiff Bernadette Bass, a minor, claims injuries as a result of allegedly striking her head on corner of the step to a slide at a playground at Noe Valley Town Square in San Francisco, California on November 15, 2016. Plaintiffs father, Andrew Fitzgerald, claims damages arising out of allegedly witnessing the incident. Plaintiffs contend that CMG, the landscape architect for the Noe Valley Town Square project (“the Project”), negligently selected the slide in issue, which Plaintiffs assert was in a dangerous condition at the time of the incident. CMG moves for summary judgment as to Plaintiffs’ Complaint on the grounds that its services were completed and accepted by the City and County of San Francisco and/or the San Francisco Recreation and Park Department prior to Plaintiff Bernadette Bass’ accident, and therefore, as a matter of law CMG owed no duty to Plaintiffs based upon the “Completed and Accepted” Doctrine defense. I. PROCEDURAL BACKGROUND Plaintiffs are Bernadette Bass, through her mother and Guardian ad Litem, Samantha Bass, and Plaintiff's father, Andrew Fitzgerald. In addition to CMG, Plaintiffs name the following Defendants: City and County of San Francisco, San Francisco Parks Alliance, a California non-profit public benefit corporation (“SFPA”), San Francisco Recreation and Park -5- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn Department and Residents for Noe Valley Town Square (““RNVTS”), Community Playgrounds, Inc. and Columbia Cascade. (See Complaint, Exhibit 1 to CMG’s Request for Judicial Notice [“RJN”].) Although Plaintiffs initially alleged causes of action for Products Liability and Premises Liability against CMG, they subsequently dismissed the same. (See Request for Dismissal, Exhibit 2 to RJN.) As such, Plaintiffs are proceeding against CMG solely on causes of action for Negligence and Negligent Infliction of Emotional Distress. Il. FACTUAL BACKGROUND A. The Project The slide in issue was installed as part of the development and construction of Noe Valley Town Square, located at 24" Street in San Francisco (“the Project.”) (See Separate Statement of Undisputed Material Facts [“UMF”], fact No. 1.) The subject property is owned by the City of San Francisco. (UMF No. 2.) An agreement for the design and construction of the Project was entered into on September 30, 2015 between San Francisco Parks Alliance (“SFPA”), a California nonprofit public benefit corporation acting as fiscal sponsor for Residents for Noe Valley Town Square (“RNVTS”), and the City and County of San Francisco acting through its Recreation and Park Department. (UMF No. 3.) The City, through its Recreation and Park Department, is responsible for operating and maintaining the subject property. (UMF No. 4.) Pursuant to the Agreement for Construction of Noe Valley Town Square, the Recreation and Park Department was to provide Project Management and Construction Management services for the construction. (UMF No. 5.) B. CMG’s Scope of Services CMG is a landscape architecture firm. (UMF No. 6.) CMG provided certain landscape architectural services for the Project pursuant to an agreement with San Francisco Parks Alliance, dated April 1, 2016. (UMF No. 7.) The project involved , among other things, the design and construction of a children’s playground. (UMF No. 8.) As part of its services related to the children’s playground, CMG selected a slide manufactured by Defendant Columbia Cascade Company. (UMF No. 9.) The slide was selected from Columbia Cascade Company’s playground equipment catalog, which expressly represents that the subject slide complies with -6- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn both the Consumer Product Safety Commission (“CPSC”) Guidelines for Public Playground Safety and the ANSI - ASTM F1487 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use. (UMF No. 10.) CMG was never, at any time prior to Plaintiffs’ filing of their Complaint, advised or placed on notice by the City/County of San Francisco or its Recreation and Park Department, or any other individual and/or entity, of any defect or dangerous condition with the subject slide. (UMF No. 11.) Cc. Substantial Completion of the Project On October 27, 2016 the City, through its Department of Public Works, issued a Notice of Substantial Completion. The Department of Public Works stated in the Notice that, with the exception of remaining punchlist items, the project was substantially completed on October 27, 2016. (UMF No. 12.) D. The Accident Plaintiffs contend that as Bernadette Bass attempted to utilize the slide on November 15, 2016 she fell and struck her forehead against a “sharp metal edge.” (UMF No. 13.) In discovery responses, Plaintiff clarified that the alleged sharp metal edge was at the “accessible point” at the base of the slide, referring to the step leading up to the chute. (UMF No. 14.) There are no independent witnesses to the accident. The only witness is Bernadette’s father, Plaintiff Andrew Fitzgerald. E. Inspection of Slide by Community Playgrounds, Inc. Community Playgrounds, Inc. performed a certified playground safety inspection of the playground equipment on February 16, 2017, several months after the incident, which included an inspection of the subject slide. (UMF No. 15.) Community Playgrounds concluded: “The Play Equipment was found to be Compliant with California State Safety Standards.” (UMF No. 16.) -7- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn Iv. LEGAL AUTHORITY A. Summary Judgment is Properly Granted Since Plaintiffs Cannot Establish One or More Elements of their Claims Against CMG Pursuant to Code of Civil Procedure section 437c the Court has authority to grant summary judgment where no triable issue of material fact exists. A defendant moving for summary judgment meets its burden of persuasion by showing that one or more elements of a cause of action cannot be established or it has a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (a), (0)(1), (2), (p)(2); Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889.) The defendant need not conclusively negate an element of a plaintiff's cause of action. (bid; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1304; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) Rather, a defendant may show that the plaintiff cannot prove at least one element of the cause of action by showing the plaintiff does not possess or cannot reasonably obtain necessary evidence. (Code Civ. Proc., § 437c, subd. (h); Gaggero, supra, at pp. 889-890.) Once the defendant has made such a showing, 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 as to a defense to the cause of action. (Aguilar, supra, 25 Cal.4th at p. 849; Code Civ. Proc., § 437c, subd. (p)(2).) To avoid summary judgment, the plaintiff must produce specific, substantial, admissible evidence showing that a triable issue of fact exists and may not rely upon the mere allegations and denials of his or her pleadings. (Code Civ. Proc., § 437c.). C.C.P. section 437c likewise permits a court to grant summary adjudication of a plaintiff's causes of action. (C.C.P. § 437c(f)(2).) Such a motion follows the same procedure as, and can be included as an alternative to, a motion for summary judgment. (C.C.P. § 437c(f)(1); see also, Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 810 [motions for summary adjudication are subject to the same rules and procedures as motions for summary judgment].) California courts recognize that “[jJustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one.” (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507.) Summary judgment is not a disfavored procedure, but -8- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn rather serves the important purpose of promoting the administration of justice and expediting litigation whenever possible. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 323.) Applying these principles to the case at hand, summary judgment, or in the alternative, summary adjudication should be properly granted in favor of CMG since Plaintiffs cannot establish each of the requisite elements of their claims against CMG and CMG has a complete defense thereto. B. Plaintiffs’ First Cause of Action for Negligence Against CMG Fails Because the “Completed and Accepted” Doctrine is a Complete Defense to Liability for Plaintiffs’ Injuries Since CMG’s Work was Completed and Accepted by the City “The elements of negligence are 1) a legal duty to use due care; 2) the breach of such legal duty, and 3) the breach was the proximate or legal cause of injury.” (Orey v. Superior Court (2013) 213 Cal.App.4” 1241, 1255, citing Ladd v. County of San Mateo (1996) 12 Cal.4" 913, 917.) “The first element, duty, ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.”” (Doe v. United States Youth Soccer Assn., Inc. (2017) & Cal.App.Sth 1118, 1128.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) The long standing Completed and Accepted Doctrine defense relieves a contractor or architect of liability to a third person for injuries caused by the condition of the work done, even if the contractor or architect was negligent if he or she completed his or her work and the owner has accepted it. (Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal. App.4th 1461, 1466, citing Boswell v. Laird (1857) 8 Cal. 469; see also Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4" 962, 969.) The Sanchez court instructs: Parties for whom work contracted for is undertaken, must see to it before acceptance, that the work, as to strength and durability, and all other particulars necessary to the safety of the property and persons of third parties, is subject to proper tests, and that it is sufficient. By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties, the liability of the contractors has ceased, and their own commenced. (Sanchez, supra, at 1466. ) In Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4" 962, the court expressly extended the completed and accepted doctrine to architects. In Neiman the plaintiff sued the architect who designed a theater and observed its construction, alleging the improperly “marked and -9- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn delineated’” stairs at a theater caused her to fall while walking down the stairs. (/d. at p. 965.) Discovery revealed that contrast marking stripes required by the plans for the theater and by the California Building Code were never placed on the stairs. Neiman held that the absence of «6 contrast marking stripes on the stairs was an ‘““obvious and apparent’ condition.” (dd. at p. 971) Neiman held that the trial court did not err in granting the architect’s motion for summary judgment based on the defense of the completed and accepted doctrine. (/d. at p. 973.) Neiman provides: [When a contractor completes work that is accepted by the owner, the contractor is not liable to third parties injured as a result of the condition of the work, even if the contractor was negligent in performing the contract, unless the defect in the work was latent or concealed. [Citation.] The rationale for this doctrine is that an owner has a duty to inspect the work and ascertain its safety, and thus the owner's acceptance of the work shifts liability for its safety to the owner, provided that a reasonable inspection would disclose the defect. [Citation.]” Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 712, 82 Cal.Rptr.3d 882 [Jones], disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7, 113 Cal.Rptr.3d 327, 235 P.3d 988; Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1466-1471, 55 Cal.Rptr.2d 415 [Sanchez].) Stated another way, “when the owner has accepted a structure from the contractor, the owner's failure to attempt to remedy an obviously dangerous defect is an intervening cause for which the contractor is not liable. (Sanchez, supra, 47 Cal.App.4th at p. 1467, 55 Cal.Rptr.2d 415.) The doctrine applies to patent defects, but not latent defects. (Sanchez, supra. 47 Cal.App.4th at p. 1467, 55 Cal.Rptr.2d 415.) (Id. at p. 961.) In a later case, Jones v. P.S. Development Co., Inc. (2008)166 Cal.App.4th 707, the Second District followed its earlier holding in Sanchez and applied the completed and accepted doctrine to portions of work that had been accepted, even though other parts of the project remained ongoing. The case involved a Transportation Security Administration (TSA) employee at the Los Angeles International Airport (LAX). LAX hired a contractor to install several explosive detection system (EDS) machines at the airport. The contractor designed the anchoring system to secure the EDS machines to the ground. The plaintiff tripped over a machine's anchor bolt and was injured. He sued the subcontractor that installed the system and bolted the EDS machines to the ground in accordance with the design. The testimony showed that TSA had accepted the EDS machine and put it into full operation two months prior to the accident. The trial court applied the completed and accepted doctrine and granted summary judgment in favor of the defendant. The Court of Appeal affirmed the trial court's decision and concluded that the -10- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn doctrine shielded the defendant from liability. The court found the fact that the defendant was still working on other EDS machines in LAX to be immaterial to the application of the completed and accepted doctrine. In the court's view, the defendant had completed the work and retained no control over the machine in question. In explaining its decision, the court in Jones commented: [T]he rationale underlying the "completion and acceptance" doctrine is dispositive of the question before us. As the court explained in Sanchez, liability for the safety of a contractor's work shifts to the owner upon acceptance of the work, that is, when the owner has had an opportunity to examine the work, and thereafter represents that it is safe....By acceptance and subsequent use, the owners assume to the world the responsibility of its sufficiency, and to third parties, the liability of the contractors has ceased, and their own commenced. Here, there are no triable issues regarding these matters: prior to [plaintiff's] accident, TSA had put the machine with the installed anchors into full operation, and [plaintiff], his co- workers, and a "lead" were, in fact, aware of the hazard. As there is no evidence that respondents retained control over the machine, we conclude that they are not liable for plaintiffs injuries. (Jones, supra, 166 Cal.App.4th at 717-718, citations and certain internal quotation marks removed.) Here, at the time of the accident in issue CMG had completed its landscape architectural services in connection with the selection of the subject slide, the City and/or one of its departments had issued a Notice of Substantial Completion for the overall project and the playground was open to the public. While CMG does not concede it was negligent or that the slide constituted a dangerous condition, as noted in Sanchez and Neiman, the “Completed and Accepted” Doctrine defense applies to patent defects. An alleged defect is patent if it would be discovered by the inspection an owner would make in the exercise of ordinary care and prudence. (Neiman, supra at 962; see also CCP §337.1(e) (“Patent deficiency” means a deficiency which is apparent by reasonable inspection).) In contrast to a patent defect, a latent defect is one which is hidden or concealed, and therefore could not be discovered by a reasonable inspection. (Neiman, supra at 970. ) Tomko Woll Group Architects v. Superior Court (1996) 46 Cal.App.4th 1326 held that a determination as to whether a defect is patent or latent can be determined as a matter of law on summary judgment. The test to determine whether a deficiency is patent is based on the average consumer’s reasonable expectations. The test is thus objective rather than subjective; it is not applied to each individual user. (/d. at 1339.) In Tomko, plaintiff alleged paver stones on a patio -ll- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn which shifted after construction, and upon which he tripped and fell were a latent defect. The court held as a matter of law that pavement, and the dangers attendant to it, are matters of such common experience that a visible defect substantial enough to cause a pedestrian to trip and fall constitutes a patent defect. (/d. at 1339 (citing Mattingly v. Anthony Industries, Inc., supra, 109 Cal. App. 3d at pp. 509-511 [the dangers attendant to the absence of a fence around a swimming pool is a common experience, and assuming it constitutes a deficiency, it is patent]; Preston v. Goldman, supra, 42 Cal. 3d at p. 123 [murky pond was a patent condition].) In Vaerst v. Tanzman (1990) 222 Cal.App.3d 1535, the court determined as a matter of law that a condition of a stairway handrail was patent. There, plaintiff, a visitor of a tenant, tripped while descending stairs in a home. She alleged that the handrail, which did not extend to the last step, caused her to believe she was at the end of the stairway and she fell over the remaining step and broke her hip. The court upheld the trial court’s refusal of plaintiff's request for a strict liability instruction where it was clear that a condition in the property she alleged caused her slip and fall was patent, visible and easily detectable. (/d. at 1540.) In the instant case, the corners of the single step up to the chute of the slide upon which Plaintiff allegedly struck her forehead are open and obvious. As depicted in the photo of the slide attached as an exhibit to Plaintiff's Complaint, nothing obscures the condition of the step and/or its corners. As such, the condition of the slide should be found patent as a matter of law and summary judgment, or alternatively summary adjudication, should be granted on the grounds that CMG did not owe a duty of care to Plaintiffs on the basis that CMG’s work was completed and accepted by the City/County of San Francisco prior to the subject accident. Cc. Since CMG Owes no Duty to Plaintiffs, CMG is Not Liable for Negligent Infliction of Emotional Distress as a Matter of Law Plaintiff Andrew Fitzgerald, Bernadette Bass’ father, asserts a Fourth Cause of Action for Negligent Infliction of Emotional Distress (“NIED”) from allegedly witnessing his daughter’s accident. CMG is entitled to judgment in its favor on Plaintiffs’ NIED claim as well. It is well accepted that a claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and -12- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATIONGordon Rees Scully Mansukhani, LLP 275 Battery Street, Suite 2000 San Francisco, CA 94111 we wn damages apply. (Wong v. Jing (2010)189 Cal. App. 4th 1354, 1377; (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4" 856, 875-876.) To prove negligent infliction of emotional distress as a bystander in California a plaintiff must show that: (1) The plaintiff is closely related to the victim, (2) the defendant negligently caused injury or death to the victim, (3) the plaintiff was present at the scene of the injury when it occurred and was aware that the victim was being injured, and (4) as a result of the injury, the plaintiff reasonably suffered serious emotional distress beyond that which would be anticipated in a disinterested witness. (California Civil Jury Instructions (CACTI) 1621; Dillion v. Legg (1968) 68 Cal.2d 728; Thing v. La Chusa (1989) 48 Cal.3d 644.) Here, since CMG owes no duty to Plaintiffs under the Completed and Accepted Doctrine, their claim for NIED, predicated on the existence of a duty, fails as a matter of law. Vv. CONCLUSION Based on all evidence submitted and the foregoing authority, CMG respectfully requests that the Court enter summary judgment in its favor and against Plaintiffs. Alternatively, summary adjudication as to the First and Fourth causes of action pled in the Complaint against CMG is appropriate. Dated: June 14, 2018 GORDON REES SCULLY MANSUKHANI, LLP Ch pf Gul By: = : CATHERINE A. SALAH Attorneys for Defendant and Cross-Complainant CONGER, MOSS, GUILLARD, INC. dba CMG LANDSCAPE ARCHITECTURE -13- CONGER, MOSS, GUILLARD, INC., DBA CMG LANDSCAPE ARCHITECTURE’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT/ADJUDICATION