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1 Roger A. Colvin, Esq. (SBN 68773) (NO FEE – GOVERNMENT SECTION CODE 6103)
Sharon Medellin (SBN 213798)
2 ALVAREZ-GLASMAN & COLVIN
Attorneys at Law
3 13181 Crossroads Parkway North
Suite 400, West Tower 5/29/2020
4 City of Industry, CA 91746
(562) 699-5500 · Facsimile (562) 692-2244
5
6 Attorneys for Defendant City of Chico
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF BUTTE, NORTH COUNTY COURTHOUSE
10
11 WENDY MCKENZIE and LESLIE Case No.: 18CV00707
MCKENZIE,
12
Assigned for all purposes to the Honorable
13 Plaintiffs, Robert A Glusman
14 vs. DEFENDANT CITY OF CHICO’S REPLY
15 IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
16 CITY OF CHICO and DOES 1 through 25,
inclusive.
17
18 Defendants. Hearing:
Date: June 3, 2020
19 Time: 9:00 A.M.
Dept.: TBA
20
21 Action Filed: March 2, 2018
Trial Date: July 6, 2020
22
23
24
25 Defendant City of Chico (the “City”) hereby submits the within Reply brief in support of its
26 Motion for Summary Judgment on the Complaint of Plaintiffs Wendy McKenzie and Leslie
27 McKenzie on file herein.
28 ///
1
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
I. PLAINTIFFS HAVE FAILED TO RAISE A DISPUTED ISSUE OF MATERIAL FACT
1 SO AS TO DEFEAT SUMMARY JUDGMENT
2
A. Plaintiffs Have Not Identified Substantial Evidence That The Branch Posed A Significant Risk
3 Of Harm
4 Plaintiffs have utterly failed to identify any admissible evidence that the subject tree branch posed a
5 significant risk of harm to the public. The City notes that Plaintiffs attempt to entirely read out of the statutory
6 definition of “dangerous condition” the requirement that the subject property create a substantial (as
7 distinguished from a minor, trivial or insignificant) risk of injury. Metcalf v. County of San Joaquin, upon
8 which Plaintiffs rely, in no way changed the longstanding definition under Government Code Section 830(a).
9 Plaintiffs thereafter fail to offer any evidence to dispute the substantial evidence offered by the City that
10 the risk of injury posed by the tree to users of South Park Drive was trivial as a matter of law. (SS ⁋⁋ 7-11,
11 14-15, 27.) Instead, Plaintiffs rely on self-serving opinions offered by Gordon Mann, which at their core, boil
12 down to the conclusion that the branch was dangerous because it was large and heavy. That is not evidence.
13 A branch does not create a “substantial” risk of harm simply because it is large and heavy; it does not take
14 an expert witness to know that large and heavy tree branches exist everywhere, yet they do not all break.
15 Here, Mr. Mann concludes that the tree branch broke due to “excessive end weight and loading” without
16 reference to any admissible evidence. The term “excessive end weight” as used by Mr. Mann is a complete
17 misnomer. He does not explain what “excessive” weight means in terms of a branch failure or how he
18 determined that the weight of this branch was “excessive” aside from the fact that it broke. He does not opine
19 as to the weight of the branch that caused it to become “excessive” or how the City would have known when
20 the branch went from an acceptable weight to an “excessive” weight. Mr. Mann does not identify any tools
21 available to the City, nor are there any, for predicting the time when a branch becomes “excessively” heavy.
22 He likewise does not sufficiently explain how he determined that the “excessive” weight existed at the “end”
23 of the branch. To the contrary, the photographs attached to his Declaration as Exhibit 3 show that the branch
24 on the opposite side of the tree originated at or about the same angle (yet it has not broken) and that the
25 remaining branches actually taper toward the ends. Moreover, while Mr. Mann concedes that the subject
26 branch extended from the main trunk at a fairly upright angle as determined by Mr. Yniguez, he fails to offer
27 any explanation as to what about the photographs demonstrate the growth angle “shifted towards horizontal”
28 or what angle constitutes “towards horizontal.” (Mann Dec., 4:5-7.) Without any such information, he
2
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 nevertheless then goes on to conclude that any experienced arborist would have recognized that branch
2 failure was likely given the “angle of growth.” (Mann Dec., 4:21-23.) Finally, he does not explain “loading”
3 as opposed to “leverage,” what external loading factors, if any, existed, or how they contributed to the
4 breakage, if they did. It is quite easy to look at a healthy branch lying on the ground and say that it fell because
5 itwas too heavy. Mr. Mann’s opinions amount to nothing more than quintessential Monday morning
6 quarterbacking.
7 Simply put, Mr. Mann’s “opinion” amounts to nothing more than a reverse analysis that the branch had
8 excessive end weight because it broke, which ignores the basic tenet that the mere happening of an accident
9 is not in and of itself evidence that public property was in a dangerous condition. (Gov. Code, § 830.5(a).)
10 B. The City Acted Reasonably With Respect To The Subject Tree Branch
11 Plaintiffs have failed to create a disputed issue of fact as to whether the City acted reasonably with
12 respected to the subject tree branch, and the reasonableness of the public entity’s act or omission is an
13 affirmative defense to Plaintiffs’ claim. (Govt. Code, § 835.4.) The California Law Revision Commission
14 has emphasized that it is not the creation of a dangerous condition that imposes liability; rather “[a] public
15 entity may be held liable for a ‘dangerous condition’ of public property only if it has acted unreasonably in
16 creating or failing to remedy or warn against the condition under the circumstances described in subsequent
17 sections.” (Cal. Law Revision Com. Com., reprinted at 32 West’s Ann. Gov.Code (1995 ed) foll. § 830, p.
18 298, emphasis added.) Indeed, Government Code Section 835.4 provides a defense to liability even if the
19 plaintiff has otherwise established the elements of Section 835.
20 “’Liability does not necessarily exist if the evidentiary requirements of this section are met.
Even if the elements stated in the statute … are established, a public entity may avoid liability
21 if it shows that it acted reasonably in the light of the practicability and cost of pursuing
alternative courses of action available to it.’ … The reasonableness standard referred to in
22 Section 835.4 differs from the reasonableness standard that applies under Sections 830 and
23 835 and ordinary tort principles. Under the latter principles, the reasonableness of the
defendant’s conduct does not depend on the existence of other, conflicting claims on the
24 defendant’s resources or the political barriers to acting in a reasonable manner. But as the
California Law Revision Commission recognized, public entities may also defend against
25 liability on the basis that, because of financial or political constraints, the public entity may
not be able to accomplish what reasonably would be expected of a private entity.”
26
27 (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1137-38, citations omitted.) The public entity may
28 defend under the provisions of Section 835.4, “a defense that is unique to public entities.” (Id. at 1139.)
3
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 While Plaintiffs attempt to paint the City in a nefarious light by claiming a “lack of concern” over its
2 trees that manifested itself in “utter neglect” of the urban forest, the fact of the matter is that those accusations
3 bear no relation to reality and are immaterial to a determination of the Motion. Like most other public entities,
4 the City was dealing with severe budget cuts during the relevant time period that required cuts to the tree
5 maintenance budget. (Dreyer Dec., Ex. 7, 80:13-25.) The City likewise saw cuts to police and fire services
6 (i.e., other public safety measures). In other words, the City did not wrongfully elect to defer certain tree
7 maintenance efforts for no reason; it was fiscally unavoidable. Moreover, the City focused what limited funds
8 it did have for tree maintenance and inspection efforts in Lower Bidwell Park in the Caper Acres and
9 Sycamore Pool areas of the park, where occupancy rates were much higher than the portion of South Park
10 Drive where this incident took place and where children were known to congregate. (Supp. Medellín Dec.,
11 Ex. 11, 42:13-43:7, 87:13-15.) Thus, the City properly prioritized its tree maintenance and inspection efforts
12 and its actions were reasonable “considering the practicability and cost of inspection weighed against the
13 likelihood and magnitude of the potential danger to which failure to inspect would give rise.” (Gov. Code, §
14 835.2(b)(1).) In fact, the City’s commitment to the care of its urban forest is exemplified by its allocation of
15 $9.07 per capita toward tree care (Dryer Dec., Ex. 16, p. 1), when the National Arbor Day Foundation and
16 the National Association of State Foresters require a mere $2 per capita commitment to receive the Tree City
17 USA designation. Furthermore, the decision-making process and decisions regarding tree maintenance, good
18 or bad, are purely discretionary, as they each involve the making of decisions based on the interpretation of
19 best management practices and the law, precluding liability against the City. (Gov. Code, § 815.2(b), 820.2.)
20 C. Plaintiffs Have Failed To Raise A Triable Issue Of Fact Regarding Notice
21 Plaintiffs have failed to meet their burden of establishing either actual or constructive notice of the
22 allegedly dangerous condition of the tree branch. To the extent that Plaintiffs rely on the deposition testimony
23 of David Bettencourt and James Logsdon indicating that they had been in the area before the incident and
24 never reported the condition, the logical inference is that the condition was NOT of “such an obvious nature”
25 that the City should have discovered its dangerous character. In the case of Heskel v. City of San Diego, the
26 testimony that City workers had been in the area of the allegedly dangerous condition within at least the one-
27 year period leading up to the accident created a reasonable inference that the condition was NOT obvious.
28 (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318.) Additionally, the defendant therein relied on
4
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 reports or complaints from citizens regarding conditions of its streets and there were no complaints
2 concerning the area of the incident in the 5-year period preceding the incident. (Id. at 318-319.) As in Heskel,
3 the City relies on complaints by citizens made directly to the City concerning the presence of potentially
4 dangerous conditions (SS, ⁋ 12; Supp. Medellín Dec., Ex. 12, Constantin Depo. Trans., 74:17-77:1, 85:21-
5 86:10; Dryer Dec., Exs. 23, 24), and there were no complaints regarding this particular tree (SS, ⁋ 13). With
6 those combined facts, the Court in Heskel concluded that the defendant presented substantial evidence that
7 the condition was not obvious and that it was, therefore, entitled to summary judgment. Moreover, Plaintiffs’
8 “evidence” that the condition did not happen “overnight” and that it existed “prior” to the subject incident is
9 woefully insufficient to establish constructive notice. Indeed, in Heskel the Court concluded that a similar
10 argument advanced by the plaintiffs therein that the “condition speaks for itself” failed to substantiate the
11 allegedly obvious nature of the dangerous condition at issue. (Id. at 320-321.) The same analysis applies here
12 and warrants granting of the City’s Motion. The assertion that a “large, heavy cantilevered, horizontally
13 growing tree branch,” assuming for the moment that each of those facts is true, does not automatically equate
14 to a condition creating a substantial risk of injury, let alone notice of such a condition. Rather, it amounts to
15 the same type of “the condition speaks for itself” argument rejected in Heskel.
16 The expert opinions of Mr. Mann likewise do not create a triable issue of fact regarding notice because
17 they are based on mere speculation. A party opposing a Motion for Summary Judgment cannot rely on
18 speculation, surmise, or conjecture of expert witnesses or otherwise (Leslie G. v. Perry & Associates (1996)
19 43 Cal.App.4th 472, 483, 487.) Mr. Mann essentially assumes that the subject branch was dangerous because
20 it was big. However, he offers no actual evidence to support his opinion that the weight of the branch was
21 “excessive” or that the “end weight” of the branch rendered the tree unable to support the weight of the
22 branch a sufficient amount of time prior to this incident so as to impart notice on the City. Indeed, logic
23 dictates that the weight of the branch only reached the point of being “excessive” at the time it broke. Prior
24 to breaking, the tree was able to support the weight of the branch, no matter how that weight was distributed
25 along the branch. Mr. Mann’s opinions do not even remotely address the critical factors in determining
26 whether the City had constructive notice of the tree. At what point in time did the forces of nature become
27 too strong for the tree? How would the City know when that actually occurred? At what point did the branch
28 go from constituting an acceptable risk of injury (for which the City cannot be held liable) to posing a
5
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 “substantial” risk of injury? At what point was there notice to the City that an unacceptable level of new
2 growth to the branch created a “substantial” risk? What outwardly visible attributes of the branch informed
3 the City that the branch went from being a branch of normal weight and length to one that was excessive in
4 weight? Plaintiffs inability to identify the point in time when any of those things occurred is fatal to the issue
5 of notice. (Strongman v. County of Kern (1967) 255 Cal.App.2d 308.)
6 Plaintiffs likewise cannot premise constructive notice on the City on a theory that it dd not have a
7 program for proactively inspecting the trees in Bidwell Park for hazards under the unique facts of this case.
8 Again, the City routinely relies on reports from employees and members of the public regarding conditions
9 of its property that may pose a safety risk to members of the public, and no such reports were received
10 regarding this tree.1 (SS, ⁋⁋ 12-13; Supp. Medellín Dec., Ex. 12, Constantin Depo. Trans., 74:17-77:1, 85:21-
11 86:10; Dryer Dec., Exs. 23, 24.) Importantly, there is absolutely no evidence in this case that, even if the
12 City had a tree inspection program that was to Plaintiff’s liking, the purportedly dangerous nature of this
13 particular tree would have been discovered. Indeed, Plaintiffs’ star witness and disgruntled former City
14 employee Daniel Efseaff had to admit as much during his deposition. (Supp. Medellín Dec., Ex. 10, 127:1-
15 5.) Moreover, general statements in the deposition testimony of Denice Britton concerning the benefits of
16 routine maintenance are not evidence as to this particular tree or when it allegedly became a “substantial”
17 risk of harm to visitors of Lower Bidwell Park due to an alleged unacceptable amount of new growth.
18 In sum, Plaintiffs cannot establish the first cause of action for the existence of an allegedly dangerous
19 condition of public property on a theory of either actual or constructive notice.
D. There Is No Evidence To Support Thwarting The Public Policy Behind The Natural
20
Condition Immunity In This Case
21 The incident at issue in action is precisely the type of incident Section 831.2 was enacted to address. As
22 explained in the Motion, the purpose of the natural condition immunity is “to encourage public entities to
23 open their property for public recreational use, because ‘the burden and expense of putting such property in
24
25 1 Insofar as Plaintiffs attempt to impute liability on the City based on tree inspections performed by
Aaron Holt, which they claim would have revealed the dangerous nature of this tree and which
26
indisputably occurred after the date of this incident (Supp. Medellín Dec., Ex. 9, 36:2-21), any such
27 evidence is inadmissible pursuant to Evidence Code Section 1151. “When, after the occurrence of an
event, remedial or precautionary measures are taken, which, if taken previously, would have tended
28 to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove
negligence or culpable conduct in connection with the event.” (Evid. Code, § 1151.)
6
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 a safe condition and the expense of defending claims for injuries would probably cause many public entities
2 to close such areas to public use.’ ” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417 [citing
3 legislative comment to Section 831.2].) In addition, the Legislature intended Section 831.2 to “‘continue and
4 extend’” existing law and, therefore, the natural condition immunity should not be construed narrowly.
5 (Fuller v. State of California (1975) 51 Cal.App.3d 926, 938.) “[W]hen the Legislature has stated the purpose
6 of its enactment in unmistakable terms, [the court] must apply the enactment in accordance with the
7 legislative direction, and all other rules of construction must fall by the wayside.” (Milligan v. City of Laguna
8 Beach (1983) 34 Cal.3d 829, 831, emphasis added.) To that end, the natural condition immunity applies
9 regardless of the public entity’s knowledge of the condition, whether actual or constructive. (Morin v.
10 County of Los Angeles (1989) 215 Cal.App.3d 184, 194; Mercer v. State of California (1987) 197 Cal.App.3d
11 158, 166.) The Legislature’s comment on Section 831.2 concludes by pointing out the shortage of funds for
12 improving property for recreational use and the fairness of requiring users to assume the risk of injury.”
13 (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 833.) Section 831.2 prevails over the liability
14 provisions of the Government Claims Act. (Arroyo v. State of California (1995) 34 Cal.App.4th 755, 763.)
15 “The Government Claims Act in general, and Section 831.2 in particular, fail to either define or establish
16 ‘a precise standard for determining when, as the result of developmental activity, public property in its natural
17 state ceases to be ‘unimproved.’” (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 887-
18 888.) Nevertheless, what is clear is that there must be a “causal nexus between the dangerous condition and
19 either human conduct or an artificial improvement. (Id. at 888.) The Legislature “intended to preclude
20 liability for unimproved natural conditions unless the public entity engaged in conduct which actively
21 increased the degree of dangerousness of a natural condition.” (City of Santa Cruz v. Superior Court (1988)
22 198 Cal.App.3d 999, 1006-1007, emphasis added.)
23 Plaintiffs assert that the City has lost the protections of the natural condition immunity purportedly by
24 pruning the tree so as to alter the size and structure of the tree and branch. In doing so, Plaintiffs misstate the
25 testimony of Mr. Bamlet and espouse theoretical possibilities that cannot serve to overcome summary
26 judgment. Mr. Bamlet testified that he observed callouses on this branch after it fell to the ground that may
27 have been evidence of prior pruning. (Dryer Dec., Ex. 2, 124:25-125:18.) Mr. Bamlet further testified that
28 such pruning could cause other remaining branches to grow longer than they otherwise would have absent
7
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 the pruning. (Id.) Plaintiffs offer no evidence that pruning on this branch caused this branch to be longer than
2 it otherwise would have been. Similarly, Mr. Bamlet testified that he saw evidence suggesting there may
3 have been pruning to other parts of the tree. (Dryer Dec., Ex. 2, 196:4-23.) There is no evidence that such
4 pruning, even assuming it occurred, affected this branch from a strength or weight standpoint. Indeed, there
5 is no evidence that any such pruning affected the subject branch in any way and, critically, absolutely no
6 evidence that the pruning caused the branch to break. Indeed, while Mr. Mann offers a myriad of statements
7 regarding what he believes caused the branch to fall, wholly absent from his Declaration is any opinion
8 whatsoever that tree pruning, as opposed to a failure to prune, contributed in any way to the breakage,
9 eliminating the issue of a causal nexus. Simply put, even assuming for the moment that the tree had been
10 pruned at locations other than the branch that fell, there is no evidence of a causal nexus between the falling
11 of the branch and pruning, which is required to prevent application of the immunity under California law.
12 Plaintiffs’ belief regarding a legal conclusion to be drawn from pruning does not create a triable issue in the
13 absence of any evidence supporting that legal conclusion.
14 Likewise, the case of County of San Mateo v. Superior Court relied on by Plaintiffs is readily
15 distinguishable. There, the plaintiff introduced specific evidence establishing that manmade changes created
16 by development, urbanization, construction and intense camping uses directly led to the tree’s infection by
17 Armillaria and ultimately to its failure. There is no similar evidence in thiscase. Moreover, Plaintiffs
18 interpretation of the law is contrary to the Legislature’s stated mandate that Section 831.2 “‘continue and
19 extend’” existing law and that the immunity is to be given “a broad application.” (Fuller v. State of California
20 (1975) 51 Cal.App.3d 926, 938; Rendak v. State of California, supra, at 288.) Plaintiffs brazenly rely on
21 dicta for the proposition that the natural condition immunity can only apply to “primitive regions of the
22 State,” without any discussion of the meaning of that phrase. The City is aware of no legal authority declining
23 to apply the immunity because the subject public property was not in a sufficiently “primitive region” of the
24 state. To the contrary, the immunity was found to apply at Santa Monica Beach, which certainly cannot be
25 said to constitute a “primitive region” of California. (Geffen v. County of Los Angeles (1987) 197 Cal.App.3d
26 188, 194-195.) In Geffen, the immunity was found to apply despite a lifeguard building, lifeguard towers,
27 parking lots, food concessions, a promenade, breakwater, pier, and signage. (Id.) Accordingly, County of San
28 Mateo provides absolutely no legal basis to prevent application of the natural condition immunity here.
8
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 Additionally, Plaintiffs focus on the proximity of the tree to South Park Drive (an argument they
2 expressly waive, as explained in Section E immediately below) and “a nearby picnic site” to suggest that the
3 natural condition immunity does not apply, even though it is the rule that “improvement of a portion of a
4 park area does not remove the immunity from the unimproved areas.” (Rendak v. State of California (1971)
5 18 Cal.App.3d 286, 288.) (Although immaterial for purposes of the Motion, the closest picnic table to the
6 subject tree is 235 feet to the east. Supp. Medellín Dec., ⁋ 7.) A “natural condition” of land is one that has
7 been unchanged by an act of man, including natural growth of trees on land not artificially made receptive
8 to them. (Coates v. Chinn (1958) 51 Cal.2d 304, 308.) In that regard, Plaintiffs do not dispute that the subject
9 tree is part of a naturally occurring woodland that was not planted by the City. (Opp. SS, ⁋⁋ 39-40, 42-43.)
10 In any event, there is no evidence, nor can there be, that South Park Drive and/or a picnic site caused the
11 subject branch to break. To impose liability merely because the City installed a bike bath in the vicinity would
12 “seriously thwart accessibility and enjoyment of public lands by discouraging the construction of such
13 improvements as restrooms, fire rings, camp sites, entrance gates, parking areas and maintenance buildings.”
14 (Mercer v. State of California, supra, at 165.) Plaintiffs concede that the immunity must be applied when to
15 do so would further its express purpose (Opp. 15:13-15), yet their application of the facts frustrates the very
16 purpose of the immunity.
17 The quotation cited by Plaintiffs from Professor Van Alstyne regarding “developed” lands has no bearing
18 on this case. (Opp., 16:27-17:4.) As explained in Meddock, “[a]lthough these passages can be read to refer
19 to the location of the injury, rather than its cause, they were general, and do not raise any plausible ambiguity
20 within section 831.2 itself. … What is noteworthy for our purposes is that Smith was cited by Professor Van
21 Alstyne’s report (that led to the enactment of the Government Claims Act) as an example of unwarranted
22 public liability in recreational settings. Thus, the Legislature had decaying trees in mind when it drafted
23 section 831.2.” (Meddock v. County of Yolo, supra, at 179-180, emphasis original, internal citations omitted.)
24 In sum, this “is exactly the type of complaint section 831.2 was designed to protect public entities
25 against” (Mercer v. State of California, supra, at 169).
E. South Park Drive And Its Relation To The Subject Tree Warrant Application of the Trail
26
Immunity
27 The City has met itsburden of establishing that it is entitled to immunity in this lawsuit under
28 Government Code Section 831.4. As an initial matter, and as explained in the Motion, Plaintiffs specifically
9
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 allege in their Complaint that that the purported dangerous condition at issue in this case consisted of the
2 subject tree and its proximity to the paved surface upon which Ms. McKenzie was jogging. (SS, ⁋ 3.) The
3 City does not merely “insinuate” Plaintiffs’ allegation, as they claim in the Opposition (Opp. p. 18, fn 1); it
4 is an explicit allegation that evidently Plaintiffs now wish they had not made. In an attempt to salvage the
5 dangerous condition claim, Plaintiffs now indicate that they waive “any claim related to the condition of
6 South Park Drive, including its “design and location.” (Opp, p. 18, n. 1.) Plaintiffs’ purported “waiver” does
7 not aid their cause. The allegation regarding the proximity of the subject tree to South Park Drive as giving
8 rise to liability on the part of the City amounts to a judicial admission that is binding on Plaintiffs for purposes
9 of this Motion. Plaintiffs cannot simply ignore the allegation because it is determinative of the trail immunity
10 and warrants judgment in favor of the City. As one court has put it, “a pleader cannot blow hot and cold as
11 to the facts positively stated.” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.)
12 Moreover, to the extent the Court accepts Plaintiffs’ waiver of any claim related to the “design and location”
13 of South Park Drive, Plaintiffs thereby waive any argument that: (1) the tree was dangerous because a portion
14 was growing over South Park Drive; (2) the tree was dangerous because of an allegedly high occupancy rate
15 on South Park Drive; and (3) the natural condition immunity does not apply in this case because of
16 “improvements” in the area. Any such arguments are necessarily dependent on the location of South Park
17 Drive vis-à-vis the tree.
18 Furthermore, Plaintiffs’ legal authority does not support a determination that South Park Drive and the
19 subject tree have no relation to one another. The legal analysis involved in Toeppe v. City of San Diego is
20 inapplicable to facts of this case. The trail involved in that case did not provide the only access to the
21 dangerous condition at issue, and there were “picnic tables, benches, and trash cans off the trail near” the
22 dangerous condition. In other words, park visitors did not need to use the trail to access the location of
23 facilities near the dangerous tree. Here, on the other hand, South Park Drive provided the only access past
24 the subject tree for joggers such as Ms. McKenzie. Anyone using South Park Drive to traverse Lower Bidwell
25 Park necessarily would travel past the subject tree. While Plaintiffs note that the tree is on a separate grassy
26 area accessible to the public, it is South Park Drive that provides access to the grassy area and, hence, the
27 tree. Exhibits 2 and 3 to Mr. Mann’s Declaration unequivocally establish that the area adjacent to the subject
28 tree is heavily wooded, surrounded by shrubs and natural debris, and does not provide a pathway or access
10
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 to adjacent facilities.Indeed, there are no facilities similar to those in Toeppe near this tree to be accessed by
2 visitors to Lower Bidwell Park. Although Plaintiffs make repeated references to a picnic site, the closest
3 picnic area to the subject tree is 235 feet to the east (Supp. Medellín Dec., ⁋ 7), corroborated by the fact that
4 there are no picnic benches in any of the photographs relied on by Mr. Mann. Simply put, Plaintiff would
5 not have been in the location if she were not jogging on South Park Drive. Her sole purpose for being in the
6 park was to jog, and there were no other surfaces suitable for jogging impacted by the fallen tree branch.
7 Consequently, the conclusion reached in Toeppe that the tree was “independent” of the trail does not apply.
8 Moreover, Plaintiffs’ reliance on Garcia v. American Golf Corp. is entirely misplaced because that case
9 involved materially different facts. There, a finding of immunity under Section 831.4 was reversed because,
10 unlike here, the risk of harm was created by third parties (i.e., golfers) and the subject walkway was only part
11 of the larger “Loop” that otherwise provided access to the golf course. Critically, from a public policy
12 standpoint, it was not likely that liability would cause the City to close the trail because the golf course was
13 generating revenue for the City. Again, the purpose of the immunity is to encourage public entities to open
14 their property for public recreational use and amounts to a recognition by the Legislature that the burden and
15 expense of putting recreational property in a safe condition and the expense of defending claims for injuries
16 would probably cause many public entities to close such areas to public use. Here, it would be cost prohibitive
17 to require the City to maintain the universe of trees in Bidwell Park so as to eliminate all risk of injury to
18 visitors (including those who venture off paved surfaces as Plaintiffs suggest), assuming for the moment that
19 it would be possible for the City to do so, and very likely would result in the closure of Bidwell Park. Again,
20 there is no way to eliminate all risk posed by trees and even trees that have been pruned or otherwise
21 maintained can still lose branches. (SS, ⁋⁋ 25, 28.) Best management practices do not require such measures
22 in any event. (SS, ⁋ 26.)
23 II. CONCLUSION
Based on the foregoing, the City’s Motion for Summary Judgment should be granted.
24
25 DATED: May 29, 2020 ALVAREZ-GLASMAN & COLVIN
26 /S/ _ ______
Sharon Medellín
27 Attorneys for Defendant
28 CITY OF CHICO
11
DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
PROOF OF SERVICE
1 STATE OF CALIFORNIA, COUNTY OF BUTTE
2
I am employed in the County of Los Angeles, State of California. I am over the age of
3 18 and not a party to the within action; my business address is 13181 Crossroads Parkway North,
Suite 400, City of Industry, CA 91746.
4
5 On May 29, 2020, I served the foregoing documents described as DEFENDANT CITY
OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the
6 interested parties in this action by placing true copies thereof as follows:
7
Roger A. Dreyer, Esq.
8 Anton J. Babich, Esq.
Dreyer, Babich, Buccola, Wood, Campora, LLP
9 20 Bicentennial Circle
10 Sacramento, CA 95826
Telephone: (916) 379-3500
11 Facsimile: (916) 379-3599
12 Attorneys for Plaintiffs
13
By Overnight Courier Service (C.C.P. 1013(c); CRC2.306): By delivering the
14 document(s) listed above in a sealed envelope(s) or package(s) designated by the express service
carrier, with delivery fees paid or provided for, addressed as per the service list, to a facility
15 regularly maintained by the express service carrier or to an authorized courier or driver
16 authorized by the express service carrier to received documents.
17 Executed on May 29, 2020, at City of Industry, California.
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(State) I declare under penalty of perjury under the laws of the State of California that
19 the above is true and correct.
20 (Federal) I declare that I am employed in the office of a member of the bar of this court
21 at whose direction the Service was made.
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/S/ Liza Slaughter
24 Liza Slaughter
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4810-6675-4493, v. 2
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DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
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1 Roger A. Colvin, Esq. (SBN 68773) (NO FEE – GOVERNMENT SECTION CODE 6103) Sharon Medellin (SBN 213798) 2 ALVAREZ-GLASMAN & COLVIN Attorneys at Law 3 13181 Crossroads Parkway North Suite 400, West Tower 5/29/2020 4 City of Industry, CA 91746 (562) 699-5500 · Facsimile (562) 692-2244 5 6 Attorneys for Defendant City of Chico 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF BUTTE, NORTH COUNTY COURTHOUSE 10 11 WENDY MCKENZIE and LESLIE Case No.: 18CV00707 MCKENZIE, 12 Assigned for all purposes to the Honorable 13 Plaintiffs, Robert A Glusman 14 vs. DEFENDANT CITY OF CHICO’S REPLY 15 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 16 CITY OF CHICO and DOES 1 through 25, inclusive. 17 18 Defendants. Hearing: Date: June 3, 2020 19 Time: 9:00 A.M. Dept.: TBA 20 21 Action Filed: March 2, 2018 Trial Date: July 6, 2020 22 23 24 25 Defendant City of Chico (the “City”) hereby submits the within Reply brief in support of its 26 Motion for Summary Judgment on the Complaint of Plaintiffs Wendy McKenzie and Leslie 27 McKenzie on file herein. 28 /// 1 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. PLAINTIFFS HAVE FAILED TO RAISE A DISPUTED ISSUE OF MATERIAL FACT 1 SO AS TO DEFEAT SUMMARY JUDGMENT 2 A. Plaintiffs Have Not Identified Substantial Evidence That The Branch Posed A Significant Risk 3 Of Harm 4 Plaintiffs have utterly failed to identify any admissible evidence that the subject tree branch posed a 5 significant risk of harm to the public. The City notes that Plaintiffs attempt to entirely read out of the statutory 6 definition of “dangerous condition” the requirement that the subject property create a substantial (as 7 distinguished from a minor, trivial or insignificant) risk of injury. Metcalf v. County of San Joaquin, upon 8 which Plaintiffs rely, in no way changed the longstanding definition under Government Code Section 830(a). 9 Plaintiffs thereafter fail to offer any evidence to dispute the substantial evidence offered by the City that 10 the risk of injury posed by the tree to users of South Park Drive was trivial as a matter of law. (SS ⁋⁋ 7-11, 11 14-15, 27.) Instead, Plaintiffs rely on self-serving opinions offered by Gordon Mann, which at their core, boil 12 down to the conclusion that the branch was dangerous because it was large and heavy. That is not evidence. 13 A branch does not create a “substantial” risk of harm simply because it is large and heavy; it does not take 14 an expert witness to know that large and heavy tree branches exist everywhere, yet they do not all break. 15 Here, Mr. Mann concludes that the tree branch broke due to “excessive end weight and loading” without 16 reference to any admissible evidence. The term “excessive end weight” as used by Mr. Mann is a complete 17 misnomer. He does not explain what “excessive” weight means in terms of a branch failure or how he 18 determined that the weight of this branch was “excessive” aside from the fact that it broke. He does not opine 19 as to the weight of the branch that caused it to become “excessive” or how the City would have known when 20 the branch went from an acceptable weight to an “excessive” weight. Mr. Mann does not identify any tools 21 available to the City, nor are there any, for predicting the time when a branch becomes “excessively” heavy. 22 He likewise does not sufficiently explain how he determined that the “excessive” weight existed at the “end” 23 of the branch. To the contrary, the photographs attached to his Declaration as Exhibit 3 show that the branch 24 on the opposite side of the tree originated at or about the same angle (yet it has not broken) and that the 25 remaining branches actually taper toward the ends. Moreover, while Mr. Mann concedes that the subject 26 branch extended from the main trunk at a fairly upright angle as determined by Mr. Yniguez, he fails to offer 27 any explanation as to what about the photographs demonstrate the growth angle “shifted towards horizontal” 28 or what angle constitutes “towards horizontal.” (Mann Dec., 4:5-7.) Without any such information, he 2 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 nevertheless then goes on to conclude that any experienced arborist would have recognized that branch 2 failure was likely given the “angle of growth.” (Mann Dec., 4:21-23.) Finally, he does not explain “loading” 3 as opposed to “leverage,” what external loading factors, if any, existed, or how they contributed to the 4 breakage, if they did. It is quite easy to look at a healthy branch lying on the ground and say that it fell because 5 itwas too heavy. Mr. Mann’s opinions amount to nothing more than quintessential Monday morning 6 quarterbacking. 7 Simply put, Mr. Mann’s “opinion” amounts to nothing more than a reverse analysis that the branch had 8 excessive end weight because it broke, which ignores the basic tenet that the mere happening of an accident 9 is not in and of itself evidence that public property was in a dangerous condition. (Gov. Code, § 830.5(a).) 10 B. The City Acted Reasonably With Respect To The Subject Tree Branch 11 Plaintiffs have failed to create a disputed issue of fact as to whether the City acted reasonably with 12 respected to the subject tree branch, and the reasonableness of the public entity’s act or omission is an 13 affirmative defense to Plaintiffs’ claim. (Govt. Code, § 835.4.) The California Law Revision Commission 14 has emphasized that it is not the creation of a dangerous condition that imposes liability; rather “[a] public 15 entity may be held liable for a ‘dangerous condition’ of public property only if it has acted unreasonably in 16 creating or failing to remedy or warn against the condition under the circumstances described in subsequent 17 sections.” (Cal. Law Revision Com. Com., reprinted at 32 West’s Ann. Gov.Code (1995 ed) foll. § 830, p. 18 298, emphasis added.) Indeed, Government Code Section 835.4 provides a defense to liability even if the 19 plaintiff has otherwise established the elements of Section 835. 20 “’Liability does not necessarily exist if the evidentiary requirements of this section are met. Even if the elements stated in the statute … are established, a public entity may avoid liability 21 if it shows that it acted reasonably in the light of the practicability and cost of pursuing alternative courses of action available to it.’ … The reasonableness standard referred to in 22 Section 835.4 differs from the reasonableness standard that applies under Sections 830 and 23 835 and ordinary tort principles. Under the latter principles, the reasonableness of the defendant’s conduct does not depend on the existence of other, conflicting claims on the 24 defendant’s resources or the political barriers to acting in a reasonable manner. But as the California Law Revision Commission recognized, public entities may also defend against 25 liability on the basis that, because of financial or political constraints, the public entity may not be able to accomplish what reasonably would be expected of a private entity.” 26 27 (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1137-38, citations omitted.) The public entity may 28 defend under the provisions of Section 835.4, “a defense that is unique to public entities.” (Id. at 1139.) 3 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 While Plaintiffs attempt to paint the City in a nefarious light by claiming a “lack of concern” over its 2 trees that manifested itself in “utter neglect” of the urban forest, the fact of the matter is that those accusations 3 bear no relation to reality and are immaterial to a determination of the Motion. Like most other public entities, 4 the City was dealing with severe budget cuts during the relevant time period that required cuts to the tree 5 maintenance budget. (Dreyer Dec., Ex. 7, 80:13-25.) The City likewise saw cuts to police and fire services 6 (i.e., other public safety measures). In other words, the City did not wrongfully elect to defer certain tree 7 maintenance efforts for no reason; it was fiscally unavoidable. Moreover, the City focused what limited funds 8 it did have for tree maintenance and inspection efforts in Lower Bidwell Park in the Caper Acres and 9 Sycamore Pool areas of the park, where occupancy rates were much higher than the portion of South Park 10 Drive where this incident took place and where children were known to congregate. (Supp. Medellín Dec., 11 Ex. 11, 42:13-43:7, 87:13-15.) Thus, the City properly prioritized its tree maintenance and inspection efforts 12 and its actions were reasonable “considering the practicability and cost of inspection weighed against the 13 likelihood and magnitude of the potential danger to which failure to inspect would give rise.” (Gov. Code, § 14 835.2(b)(1).) In fact, the City’s commitment to the care of its urban forest is exemplified by its allocation of 15 $9.07 per capita toward tree care (Dryer Dec., Ex. 16, p. 1), when the National Arbor Day Foundation and 16 the National Association of State Foresters require a mere $2 per capita commitment to receive the Tree City 17 USA designation. Furthermore, the decision-making process and decisions regarding tree maintenance, good 18 or bad, are purely discretionary, as they each involve the making of decisions based on the interpretation of 19 best management practices and the law, precluding liability against the City. (Gov. Code, § 815.2(b), 820.2.) 20 C. Plaintiffs Have Failed To Raise A Triable Issue Of Fact Regarding Notice 21 Plaintiffs have failed to meet their burden of establishing either actual or constructive notice of the 22 allegedly dangerous condition of the tree branch. To the extent that Plaintiffs rely on the deposition testimony 23 of David Bettencourt and James Logsdon indicating that they had been in the area before the incident and 24 never reported the condition, the logical inference is that the condition was NOT of “such an obvious nature” 25 that the City should have discovered its dangerous character. In the case of Heskel v. City of San Diego, the 26 testimony that City workers had been in the area of the allegedly dangerous condition within at least the one- 27 year period leading up to the accident created a reasonable inference that the condition was NOT obvious. 28 (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318.) Additionally, the defendant therein relied on 4 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 reports or complaints from citizens regarding conditions of its streets and there were no complaints 2 concerning the area of the incident in the 5-year period preceding the incident. (Id. at 318-319.) As in Heskel, 3 the City relies on complaints by citizens made directly to the City concerning the presence of potentially 4 dangerous conditions (SS, ⁋ 12; Supp. Medellín Dec., Ex. 12, Constantin Depo. Trans., 74:17-77:1, 85:21- 5 86:10; Dryer Dec., Exs. 23, 24), and there were no complaints regarding this particular tree (SS, ⁋ 13). With 6 those combined facts, the Court in Heskel concluded that the defendant presented substantial evidence that 7 the condition was not obvious and that it was, therefore, entitled to summary judgment. Moreover, Plaintiffs’ 8 “evidence” that the condition did not happen “overnight” and that it existed “prior” to the subject incident is 9 woefully insufficient to establish constructive notice. Indeed, in Heskel the Court concluded that a similar 10 argument advanced by the plaintiffs therein that the “condition speaks for itself” failed to substantiate the 11 allegedly obvious nature of the dangerous condition at issue. (Id. at 320-321.) The same analysis applies here 12 and warrants granting of the City’s Motion. The assertion that a “large, heavy cantilevered, horizontally 13 growing tree branch,” assuming for the moment that each of those facts is true, does not automatically equate 14 to a condition creating a substantial risk of injury, let alone notice of such a condition. Rather, it amounts to 15 the same type of “the condition speaks for itself” argument rejected in Heskel. 16 The expert opinions of Mr. Mann likewise do not create a triable issue of fact regarding notice because 17 they are based on mere speculation. A party opposing a Motion for Summary Judgment cannot rely on 18 speculation, surmise, or conjecture of expert witnesses or otherwise (Leslie G. v. Perry & Associates (1996) 19 43 Cal.App.4th 472, 483, 487.) Mr. Mann essentially assumes that the subject branch was dangerous because 20 it was big. However, he offers no actual evidence to support his opinion that the weight of the branch was 21 “excessive” or that the “end weight” of the branch rendered the tree unable to support the weight of the 22 branch a sufficient amount of time prior to this incident so as to impart notice on the City. Indeed, logic 23 dictates that the weight of the branch only reached the point of being “excessive” at the time it broke. Prior 24 to breaking, the tree was able to support the weight of the branch, no matter how that weight was distributed 25 along the branch. Mr. Mann’s opinions do not even remotely address the critical factors in determining 26 whether the City had constructive notice of the tree. At what point in time did the forces of nature become 27 too strong for the tree? How would the City know when that actually occurred? At what point did the branch 28 go from constituting an acceptable risk of injury (for which the City cannot be held liable) to posing a 5 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 “substantial” risk of injury? At what point was there notice to the City that an unacceptable level of new 2 growth to the branch created a “substantial” risk? What outwardly visible attributes of the branch informed 3 the City that the branch went from being a branch of normal weight and length to one that was excessive in 4 weight? Plaintiffs inability to identify the point in time when any of those things occurred is fatal to the issue 5 of notice. (Strongman v. County of Kern (1967) 255 Cal.App.2d 308.) 6 Plaintiffs likewise cannot premise constructive notice on the City on a theory that it dd not have a 7 program for proactively inspecting the trees in Bidwell Park for hazards under the unique facts of this case. 8 Again, the City routinely relies on reports from employees and members of the public regarding conditions 9 of its property that may pose a safety risk to members of the public, and no such reports were received 10 regarding this tree.1 (SS, ⁋⁋ 12-13; Supp. Medellín Dec., Ex. 12, Constantin Depo. Trans., 74:17-77:1, 85:21- 11 86:10; Dryer Dec., Exs. 23, 24.) Importantly, there is absolutely no evidence in this case that, even if the 12 City had a tree inspection program that was to Plaintiff’s liking, the purportedly dangerous nature of this 13 particular tree would have been discovered. Indeed, Plaintiffs’ star witness and disgruntled former City 14 employee Daniel Efseaff had to admit as much during his deposition. (Supp. Medellín Dec., Ex. 10, 127:1- 15 5.) Moreover, general statements in the deposition testimony of Denice Britton concerning the benefits of 16 routine maintenance are not evidence as to this particular tree or when it allegedly became a “substantial” 17 risk of harm to visitors of Lower Bidwell Park due to an alleged unacceptable amount of new growth. 18 In sum, Plaintiffs cannot establish the first cause of action for the existence of an allegedly dangerous 19 condition of public property on a theory of either actual or constructive notice. D. There Is No Evidence To Support Thwarting The Public Policy Behind The Natural 20 Condition Immunity In This Case 21 The incident at issue in action is precisely the type of incident Section 831.2 was enacted to address. As 22 explained in the Motion, the purpose of the natural condition immunity is “to encourage public entities to 23 open their property for public recreational use, because ‘the burden and expense of putting such property in 24 25 1 Insofar as Plaintiffs attempt to impute liability on the City based on tree inspections performed by Aaron Holt, which they claim would have revealed the dangerous nature of this tree and which 26 indisputably occurred after the date of this incident (Supp. Medellín Dec., Ex. 9, 36:2-21), any such 27 evidence is inadmissible pursuant to Evidence Code Section 1151. “When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended 28 to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.” (Evid. Code, § 1151.) 6 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 a safe condition and the expense of defending claims for injuries would probably cause many public entities 2 to close such areas to public use.’ ” (Armenio v. County of San Mateo (1994) 28 Cal.App.4th 413, 417 [citing 3 legislative comment to Section 831.2].) In addition, the Legislature intended Section 831.2 to “‘continue and 4 extend’” existing law and, therefore, the natural condition immunity should not be construed narrowly. 5 (Fuller v. State of California (1975) 51 Cal.App.3d 926, 938.) “[W]hen the Legislature has stated the purpose 6 of its enactment in unmistakable terms, [the court] must apply the enactment in accordance with the 7 legislative direction, and all other rules of construction must fall by the wayside.” (Milligan v. City of Laguna 8 Beach (1983) 34 Cal.3d 829, 831, emphasis added.) To that end, the natural condition immunity applies 9 regardless of the public entity’s knowledge of the condition, whether actual or constructive. (Morin v. 10 County of Los Angeles (1989) 215 Cal.App.3d 184, 194; Mercer v. State of California (1987) 197 Cal.App.3d 11 158, 166.) The Legislature’s comment on Section 831.2 concludes by pointing out the shortage of funds for 12 improving property for recreational use and the fairness of requiring users to assume the risk of injury.” 13 (Milligan v. City of Laguna Beach (1983) 34 Cal.3d 829, 833.) Section 831.2 prevails over the liability 14 provisions of the Government Claims Act. (Arroyo v. State of California (1995) 34 Cal.App.4th 755, 763.) 15 “The Government Claims Act in general, and Section 831.2 in particular, fail to either define or establish 16 ‘a precise standard for determining when, as the result of developmental activity, public property in its natural 17 state ceases to be ‘unimproved.’” (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 887- 18 888.) Nevertheless, what is clear is that there must be a “causal nexus between the dangerous condition and 19 either human conduct or an artificial improvement. (Id. at 888.) The Legislature “intended to preclude 20 liability for unimproved natural conditions unless the public entity engaged in conduct which actively 21 increased the degree of dangerousness of a natural condition.” (City of Santa Cruz v. Superior Court (1988) 22 198 Cal.App.3d 999, 1006-1007, emphasis added.) 23 Plaintiffs assert that the City has lost the protections of the natural condition immunity purportedly by 24 pruning the tree so as to alter the size and structure of the tree and branch. In doing so, Plaintiffs misstate the 25 testimony of Mr. Bamlet and espouse theoretical possibilities that cannot serve to overcome summary 26 judgment. Mr. Bamlet testified that he observed callouses on this branch after it fell to the ground that may 27 have been evidence of prior pruning. (Dryer Dec., Ex. 2, 124:25-125:18.) Mr. Bamlet further testified that 28 such pruning could cause other remaining branches to grow longer than they otherwise would have absent 7 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 the pruning. (Id.) Plaintiffs offer no evidence that pruning on this branch caused this branch to be longer than 2 it otherwise would have been. Similarly, Mr. Bamlet testified that he saw evidence suggesting there may 3 have been pruning to other parts of the tree. (Dryer Dec., Ex. 2, 196:4-23.) There is no evidence that such 4 pruning, even assuming it occurred, affected this branch from a strength or weight standpoint. Indeed, there 5 is no evidence that any such pruning affected the subject branch in any way and, critically, absolutely no 6 evidence that the pruning caused the branch to break. Indeed, while Mr. Mann offers a myriad of statements 7 regarding what he believes caused the branch to fall, wholly absent from his Declaration is any opinion 8 whatsoever that tree pruning, as opposed to a failure to prune, contributed in any way to the breakage, 9 eliminating the issue of a causal nexus. Simply put, even assuming for the moment that the tree had been 10 pruned at locations other than the branch that fell, there is no evidence of a causal nexus between the falling 11 of the branch and pruning, which is required to prevent application of the immunity under California law. 12 Plaintiffs’ belief regarding a legal conclusion to be drawn from pruning does not create a triable issue in the 13 absence of any evidence supporting that legal conclusion. 14 Likewise, the case of County of San Mateo v. Superior Court relied on by Plaintiffs is readily 15 distinguishable. There, the plaintiff introduced specific evidence establishing that manmade changes created 16 by development, urbanization, construction and intense camping uses directly led to the tree’s infection by 17 Armillaria and ultimately to its failure. There is no similar evidence in thiscase. Moreover, Plaintiffs 18 interpretation of the law is contrary to the Legislature’s stated mandate that Section 831.2 “‘continue and 19 extend’” existing law and that the immunity is to be given “a broad application.” (Fuller v. State of California 20 (1975) 51 Cal.App.3d 926, 938; Rendak v. State of California, supra, at 288.) Plaintiffs brazenly rely on 21 dicta for the proposition that the natural condition immunity can only apply to “primitive regions of the 22 State,” without any discussion of the meaning of that phrase. The City is aware of no legal authority declining 23 to apply the immunity because the subject public property was not in a sufficiently “primitive region” of the 24 state. To the contrary, the immunity was found to apply at Santa Monica Beach, which certainly cannot be 25 said to constitute a “primitive region” of California. (Geffen v. County of Los Angeles (1987) 197 Cal.App.3d 26 188, 194-195.) In Geffen, the immunity was found to apply despite a lifeguard building, lifeguard towers, 27 parking lots, food concessions, a promenade, breakwater, pier, and signage. (Id.) Accordingly, County of San 28 Mateo provides absolutely no legal basis to prevent application of the natural condition immunity here. 8 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 Additionally, Plaintiffs focus on the proximity of the tree to South Park Drive (an argument they 2 expressly waive, as explained in Section E immediately below) and “a nearby picnic site” to suggest that the 3 natural condition immunity does not apply, even though it is the rule that “improvement of a portion of a 4 park area does not remove the immunity from the unimproved areas.” (Rendak v. State of California (1971) 5 18 Cal.App.3d 286, 288.) (Although immaterial for purposes of the Motion, the closest picnic table to the 6 subject tree is 235 feet to the east. Supp. Medellín Dec., ⁋ 7.) A “natural condition” of land is one that has 7 been unchanged by an act of man, including natural growth of trees on land not artificially made receptive 8 to them. (Coates v. Chinn (1958) 51 Cal.2d 304, 308.) In that regard, Plaintiffs do not dispute that the subject 9 tree is part of a naturally occurring woodland that was not planted by the City. (Opp. SS, ⁋⁋ 39-40, 42-43.) 10 In any event, there is no evidence, nor can there be, that South Park Drive and/or a picnic site caused the 11 subject branch to break. To impose liability merely because the City installed a bike bath in the vicinity would 12 “seriously thwart accessibility and enjoyment of public lands by discouraging the construction of such 13 improvements as restrooms, fire rings, camp sites, entrance gates, parking areas and maintenance buildings.” 14 (Mercer v. State of California, supra, at 165.) Plaintiffs concede that the immunity must be applied when to 15 do so would further its express purpose (Opp. 15:13-15), yet their application of the facts frustrates the very 16 purpose of the immunity. 17 The quotation cited by Plaintiffs from Professor Van Alstyne regarding “developed” lands has no bearing 18 on this case. (Opp., 16:27-17:4.) As explained in Meddock, “[a]lthough these passages can be read to refer 19 to the location of the injury, rather than its cause, they were general, and do not raise any plausible ambiguity 20 within section 831.2 itself. … What is noteworthy for our purposes is that Smith was cited by Professor Van 21 Alstyne’s report (that led to the enactment of the Government Claims Act) as an example of unwarranted 22 public liability in recreational settings. Thus, the Legislature had decaying trees in mind when it drafted 23 section 831.2.” (Meddock v. County of Yolo, supra, at 179-180, emphasis original, internal citations omitted.) 24 In sum, this “is exactly the type of complaint section 831.2 was designed to protect public entities 25 against” (Mercer v. State of California, supra, at 169). E. South Park Drive And Its Relation To The Subject Tree Warrant Application of the Trail 26 Immunity 27 The City has met itsburden of establishing that it is entitled to immunity in this lawsuit under 28 Government Code Section 831.4. As an initial matter, and as explained in the Motion, Plaintiffs specifically 9 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 allege in their Complaint that that the purported dangerous condition at issue in this case consisted of the 2 subject tree and its proximity to the paved surface upon which Ms. McKenzie was jogging. (SS, ⁋ 3.) The 3 City does not merely “insinuate” Plaintiffs’ allegation, as they claim in the Opposition (Opp. p. 18, fn 1); it 4 is an explicit allegation that evidently Plaintiffs now wish they had not made. In an attempt to salvage the 5 dangerous condition claim, Plaintiffs now indicate that they waive “any claim related to the condition of 6 South Park Drive, including its “design and location.” (Opp, p. 18, n. 1.) Plaintiffs’ purported “waiver” does 7 not aid their cause. The allegation regarding the proximity of the subject tree to South Park Drive as giving 8 rise to liability on the part of the City amounts to a judicial admission that is binding on Plaintiffs for purposes 9 of this Motion. Plaintiffs cannot simply ignore the allegation because it is determinative of the trail immunity 10 and warrants judgment in favor of the City. As one court has put it, “a pleader cannot blow hot and cold as 11 to the facts positively stated.” (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746.) 12 Moreover, to the extent the Court accepts Plaintiffs’ waiver of any claim related to the “design and location” 13 of South Park Drive, Plaintiffs thereby waive any argument that: (1) the tree was dangerous because a portion 14 was growing over South Park Drive; (2) the tree was dangerous because of an allegedly high occupancy rate 15 on South Park Drive; and (3) the natural condition immunity does not apply in this case because of 16 “improvements” in the area. Any such arguments are necessarily dependent on the location of South Park 17 Drive vis-à-vis the tree. 18 Furthermore, Plaintiffs’ legal authority does not support a determination that South Park Drive and the 19 subject tree have no relation to one another. The legal analysis involved in Toeppe v. City of San Diego is 20 inapplicable to facts of this case. The trail involved in that case did not provide the only access to the 21 dangerous condition at issue, and there were “picnic tables, benches, and trash cans off the trail near” the 22 dangerous condition. In other words, park visitors did not need to use the trail to access the location of 23 facilities near the dangerous tree. Here, on the other hand, South Park Drive provided the only access past 24 the subject tree for joggers such as Ms. McKenzie. Anyone using South Park Drive to traverse Lower Bidwell 25 Park necessarily would travel past the subject tree. While Plaintiffs note that the tree is on a separate grassy 26 area accessible to the public, it is South Park Drive that provides access to the grassy area and, hence, the 27 tree. Exhibits 2 and 3 to Mr. Mann’s Declaration unequivocally establish that the area adjacent to the subject 28 tree is heavily wooded, surrounded by shrubs and natural debris, and does not provide a pathway or access 10 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 to adjacent facilities.Indeed, there are no facilities similar to those in Toeppe near this tree to be accessed by 2 visitors to Lower Bidwell Park. Although Plaintiffs make repeated references to a picnic site, the closest 3 picnic area to the subject tree is 235 feet to the east (Supp. Medellín Dec., ⁋ 7), corroborated by the fact that 4 there are no picnic benches in any of the photographs relied on by Mr. Mann. Simply put, Plaintiff would 5 not have been in the location if she were not jogging on South Park Drive. Her sole purpose for being in the 6 park was to jog, and there were no other surfaces suitable for jogging impacted by the fallen tree branch. 7 Consequently, the conclusion reached in Toeppe that the tree was “independent” of the trail does not apply. 8 Moreover, Plaintiffs’ reliance on Garcia v. American Golf Corp. is entirely misplaced because that case 9 involved materially different facts. There, a finding of immunity under Section 831.4 was reversed because, 10 unlike here, the risk of harm was created by third parties (i.e., golfers) and the subject walkway was only part 11 of the larger “Loop” that otherwise provided access to the golf course. Critically, from a public policy 12 standpoint, it was not likely that liability would cause the City to close the trail because the golf course was 13 generating revenue for the City. Again, the purpose of the immunity is to encourage public entities to open 14 their property for public recreational use and amounts to a recognition by the Legislature that the burden and 15 expense of putting recreational property in a safe condition and the expense of defending claims for injuries 16 would probably cause many public entities to close such areas to public use. Here, it would be cost prohibitive 17 to require the City to maintain the universe of trees in Bidwell Park so as to eliminate all risk of injury to 18 visitors (including those who venture off paved surfaces as Plaintiffs suggest), assuming for the moment that 19 it would be possible for the City to do so, and very likely would result in the closure of Bidwell Park. Again, 20 there is no way to eliminate all risk posed by trees and even trees that have been pruned or otherwise 21 maintained can still lose branches. (SS, ⁋⁋ 25, 28.) Best management practices do not require such measures 22 in any event. (SS, ⁋ 26.) 23 II. CONCLUSION Based on the foregoing, the City’s Motion for Summary Judgment should be granted. 24 25 DATED: May 29, 2020 ALVAREZ-GLASMAN & COLVIN 26 /S/ _ ______ Sharon Medellín 27 Attorneys for Defendant 28 CITY OF CHICO 11 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PROOF OF SERVICE 1 STATE OF CALIFORNIA, COUNTY OF BUTTE 2 I am employed in the County of Los Angeles, State of California. I am over the age of 3 18 and not a party to the within action; my business address is 13181 Crossroads Parkway North, Suite 400, City of Industry, CA 91746. 4 5 On May 29, 2020, I served the foregoing documents described as DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the 6 interested parties in this action by placing true copies thereof as follows: 7 Roger A. Dreyer, Esq. 8 Anton J. Babich, Esq. Dreyer, Babich, Buccola, Wood, Campora, LLP 9 20 Bicentennial Circle 10 Sacramento, CA 95826 Telephone: (916) 379-3500 11 Facsimile: (916) 379-3599 12 Attorneys for Plaintiffs 13 By Overnight Courier Service (C.C.P. 1013(c); CRC2.306): By delivering the 14 document(s) listed above in a sealed envelope(s) or package(s) designated by the express service carrier, with delivery fees paid or provided for, addressed as per the service list, to a facility 15 regularly maintained by the express service carrier or to an authorized courier or driver 16 authorized by the express service carrier to received documents. 17 Executed on May 29, 2020, at City of Industry, California. 18 (State) I declare under penalty of perjury under the laws of the State of California that 19 the above is true and correct. 20 (Federal) I declare that I am employed in the office of a member of the bar of this court 21 at whose direction the Service was made. 22 23 /S/ Liza Slaughter 24 Liza Slaughter 25 26 27 4810-6675-4493, v. 2 28 12 DEFENDANT CITY OF CHICO’S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT