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1 Roger A. Colvin, Esq. (SBN 68773) (NO FEE – GOVERNMENT CODE SECTION 6103)
Sharon Medellín, Esq. (SBN 213798)
2 ALVAREZ-GLASMAN & COLVIN
Attorneys at Law
3 13181 Crossroads Parkway North
Suite 400, West Tower 3/20/2020
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
Plaintiffs, Robert A. Glusman
13
14 vs. DEFENDANT CITY OF CHICO’S
SEPARATE STATEMENT OF
15 CITY OF CHICO and DOES 1 through 25, UNDISPUTED MATERIAL FACTS IN
inclusive. SUPPORT OF MOTION FOR SUMMARY
16
Defendants. JUDGMENT
17
Date: June 3, 2020
18 Time: 9:00 a.m.
Dept.: TBA
19
Trial Date: July 6, 2020
20 Action Filed: March 2, 2018
21
22
23 Defendant City of Chico (the “City”) hereby submits its Separate Statement of Undisputed
24 Material Facts in support of the City’s Motion for Summary Judgment filed concurrently herewith:
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26 ///
27 ///
28 ///
1
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
ISSUE 1: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A
1 DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE
THE SUBJECT TREE DID NOT CREATE A SUBSTANTIAL RISK OF
2 INJURY
3 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting
4 Supporting Evidence: Evidence:
5 1. Plaintiffs allege in this lawsuit that on
June 2, 2017, Ms. McKenzie was jogging
6
along South Park Drive in Lower Bidwell
7 Park as part of her regular exercise
routine when a large tree limb broke off a
8 nearby tree and landed on top of her.
9 (Declaration of Sharon Medellín, Ex. 1,
10 Complaint, ¶ 8.)
11 2. Plaintiffs further allege, pursuant to
12 Government Code Section 835, that the
subject incident was caused by a
13 dangerous condition of public property.
14 (Medellín Dec., Ex. 1, Complaint, ¶ 9.)
15 3. That allegedly dangerous condition
consisted of: “(1) failure to properly
16
maintain the subject tree, including failure
17 to prune and/or trim unsafe branches; (2)
failure to properly care for the subject
18 tree, including failure to adequately water
19 and/or chemically treat the subject tree;
(3) failure to remove the tree; (4) failure
20 to maintain appropriate advisory signs,
warnings, flags, barricades, and/or other
21 safety devices in the vicinity of the
22 incident location; and (5) inadequate
construction and/or design of the roadway
23 on which the tree fell, particularly as it
relates to the proximity of the roadway
24 with the subject tree.”
25
(Medellín Dec., Ex. 1, Complaint, ¶ 10.)
26
27
28
2
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 4. The tree itself is naturally occurring and is
approximately 130 years old (i.e.,
2 predates establishment of the park).
3 (Declaration of Richard Bamlet, ⁋ 4.)
4
5. South Park Drive at the location of this
5 incident is designated by the City as a
Class I bike path.
6
7 (Bamlet Dec., ⁋ 5.)
8 6. The portion of South Park Drive where
this incident occurred provides pedestrian
9
access through Lower Bidwell Park.
10 However, it is closed to public vehicle
traffic and only open to City vehicles for
11 maintenance and emergency services.
12 (Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2,
13 Chico Bike Map.)
14 7. There are no picnic benches, trash cans,
or restrooms adjacent to the subject tree
15
that would encourage park visitors to
16 congregate at the location. The only
installed improvement is the paved
17 surface itself.
18 (Bamlet Dec., ⁋ 5.)
19
8. Ms. McKenzie was jogging at the time of
20 the incident, was not stationary, and
21 therefore was within the area impacted by
the tree branch for a mere moment in
22 time.
23 (Medellín Dec., Ex. 1, Complaint, ¶ 8.)
24
9. No other park visitors were injured as a
25 result of this incident.
26 (Bamlet Dec., ⁋ 6.)
27
28
3
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 10. Ms. McKenzie had been in the same area
of South Park Drive “so many times”
2 prior to this incident. She visited Lower
Bidwell park approximately twenty times
3
just from the period of January 2017 to
4 June 2, 2017. Of those visits, she took the
same path of travel she did on the date of
5 this incident approximately ten times.
6 (Medellín Dec., Ex. 3, Wendy McKenzie
7 Depo. Trans., pp. 41:7-19, 44:2-15, 44:21-
45:8.)
8
11. Plaintiff never notified the City of ever
9
being injured by a falling tree branch
10 prior to this incident.
11 (Bamlet Dec., ⁋ 6.)
12 12. The City relies on reports from its
employees and members of the general
13
public regarding conditions of its property
14 that may need maintenance or that may
pose a potential hazard.
15
(Bamlet Dec., ⁋ 6.)
16
17 13. Prior to this incident, the City received no
complaints from members of the public or
18 reports from City employees regarding
concerns over the condition of the subject
19
tree.
20
(Bamlet Dec., ⁋ 6.)
21
14. The City is aware of no other incidents of
22
injury or property damage at the subject
23 location, despite the fact that the subject
tree is approximately 130 years old.
24
(Bamlet Dec., ⁋ 6.)
25
26 15. The tree showed no outward signs of
disease, decay, or any other conditions
27 that would have indicated that the limb
28 would detach.
4
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
(Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez,
1 ⁋⁋ 10, 13.)
2
16. Branches hanging horizontally are more
3 likely to succumb to SBD than branches
4 growing at a more vertical angle, and
branches of any size can experience SBD.
5
6 (Medellín Dec., Ex. 4, Denice Britton Depo.
Trans., pp. 19:20-20:9, 99:4-10; Medellín
7 Dec., Ex. 5, Aaron Holt Depo. Trans., pp.
8 34:19-35:6; Medellín Dec., Ex. 6, Bamlet
Depo. Trans., pp. 113:18-114:6.)
9
10 17. Prior to breaking, the branch was not
growing horizontally but at an upright
11 angle.
12 (Medellín Dec., Ex. 7, David Bettencourt
Depo. Trans., p. 86:19-25.)
13
14 18. The branch originated from the trunk of
the tree at an angle of at least 36 degrees
15 above horizontal.
16
(Yniguez Dec., ⁋ 12.)
17
19. The angle of attachment was not tightly
18 V-shaped, a condition that is sometimes
19 conducive to structural weakness.
20 (Yniguez Dec., ⁋ 12.)
21 20. The attachment was solid and sound,
22 giving no indication of internal structural
weakness or a predisposition to detach
23 from the parent stem.
24 (Yniguez Dec., ⁋⁋ 12-13)
25
26
27
28
5
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 21. There is no indication on the remaining
upright tree that the subject branch would
2 have exhibited any evidence of a
predisposition to failure.
3
4 (Yniguez Dec., ⁋ 13.)
5 22. There is no evidence of pre-existing
infection, crack, cavity, external decay,
6
fungi, or other condition that would have
7 been observable my means of a ground-
based or aerial inspection.
8
(Yniguez Dec., ⁋ 13.)
9
10 23. Not all defects or conditions that
predispose a tree or tree part to failure are
11 detectable, nor are all failures predictable.
12 (Yniguez Dec., ⁋ 7.)
13
24. Trees are living organisms and naturally
14 lose branches or fall.
15 (Yniguez Dec., ⁋ 8.)
16
25. Not all risk associated with trees can be
17 eliminated. It is impossible to maintain
trees free of risk, and some level of risk
18
must be accepted to experience the
19 benefits that trees provide.
20 (Yniguez Dec., ⁋ 7.)
21
26. Best management practices do not impose
22 a duty on public entities to ensure that no
branches are growing over public roads,
23 streets, sidewalks, or the like.
24 (Yniguez Dec., ⁋ 5.)
25
26
27
28
6
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
27. Plaintiffs’ verified responses to the City’s
1 Special Interrogatories (Set One), served
2 on November 15, 2018, included
Plaintiffs’ responses to Special
3 Interrogatory No. 5 which conceded, in
relevant part, “[t]housands if not tens of
4 thousands of vehicles, bicycles, and
5 pedestrians have walked past the tree along
the paved roadway.”
6
(Medellín Dec., ⁋ 10; Ex. 8, Plaintiffs’
7 Supplemental Responses to Special
8 Interrogatories, p. 12:14-15.)
9
10 ISSUE 2: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A
DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE
11 THE CONDITION WAS NOT CREATED BY A NEGLIGENT OR
WRONGFUL ACT OR OMISSION OF A CITY EMPLOYEE
12
The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting
13 Supporting Evidence: Evidence:
14 15. The tree showed no outward signs of
disease, decay, or any other conditions that
15 would have indicated that the limb would
16 detach.
17 (Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez,
⁋⁋ 10, 13.)
18
18. The branch originated from the trunk of
19 the tree at an angle of at least 36 degrees
20 above horizontal.
21 (Yniguez Dec., ⁋ 12.)
22 19. The angle of attachment was not tightly
23 V-shaped, a condition that is sometimes
conducive to structural weakness.
24
(Yniguez Dec., ⁋ 12.)
25
26
27
28
7
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 20. The attachment was solid and sound,
giving no indication of internal structural
2 weakness or a predisposition to detach from
the parent stem.
3
4 (Yniguez Dec., ⁋⁋ 12-13.)
5 21. There is no indication on the remaining
upright tree that the subject branch would
6
have exhibited any evidence of a
7 predisposition to failure.
8 (Yniguez Dec., ⁋ 13.)
9
22. There is no evidence of pre-existing
10 infection, crack, cavity, external decay, fungi,
or other condition that would have been
11 observable by means of a ground-based or
aerial inspection.
12
13 (Yniguez Dec., ⁋ 13.)
14 24. Trees are living organisms and naturally
lose branches or fall.
15
(Yniguez Dec., ⁋ 8.)
16
25. Not all risk associated with trees can be
17 eliminated. It is impossible to maintain
18 trees free of risk, and some level of risk
must be accepted to experience the
19 benefits that trees provide.
20 (Yniguez Dec., ⁋ 7.)
21
26. Best management practices do not
22 impose a duty on public entities to
ensure that no branches are growing over
23 public roads, streets, sidewalks, or the
24 like.
25 (Yniguez Dec., ⁋ 5.)
26
27
28
8
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 28. SBD is characterized as a sudden,
unanticipated failure of a tree branch with
2 little or no discernable defect often
associated with long, horizontal branches.
3
4 (Yniguez Dec., ⁋ 9.)
5 29. It is not possible to predict failure or
mitigate risk due to SBD.
6
(Yniguez Dec., ⁋ 9.)
7
8 30. A tree branch can succumb to SBD mere
days after trimming has significantly
9 reduced the branch weight.
10 (Medellín Dec., Ex. 5, Aaron Holt Depo.
Trans., pp. 46:16-47:8.)
11
12 31. Branches hanging horizontally are more
likely to succumb to SBD than branches
13 growing at a more vertical angle, and
14 branches of any size can experience
SBD.
15
(Medellín Dec., Ex. 4, Denice Britton Depo.
16 Trans., pp. 19:20-20:9, 99:4-10; Medellín
Dec., Ex. 5, Aaron Holt Depo. Trans., pp.
17
34:19-35:6 Medellín Dec., Ex. 6, Richard
18 Bamlet Depo. Trans., pp. 113:18-114:6.)
19
20 ISSUE 3: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A
DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE
21 THE CITY HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE
OF THE CONDITION
22
The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting
23 Supporting Evidence: Evidence:
24 12. The City relies on reports from its
25 employees and members of the general
public regarding conditions of its
26 property that may need maintenance or
that may pose a potential hazard.
27
(Bamlet Dec., ⁋ 6.)
28
9
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
13. Prior to this incident, the City received no
1 complaints from members of the public or
2 reports from City employees regarding
concerns over the condition of the subject
3 tree.
4 (Bamlet Dec., ⁋ 6.)
5 14. The City is aware of no other incidents of
6 injury or property damage at the subject
location, despite the fact that the subject
7 tree is approximately 130 years old.
8 (Bamlet Dec., ⁋ 6.)
9 15. The tree showed no outward signs of
disease, decay, or any other conditions
10
that would have indicated that the limb
11 would detach.
12 (Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez,
⁋⁋ 10, 13.)
13
18. The branch originated from the trunk of
14
the tree at an angle of at least 36 degrees
15 above horizontal.
16 (Yniguez Dec., ⁋ 12.)
17 19. The angle of attachment was not tightly
V-shaped, a condition that is sometimes
18 conducive to structural weakness.
19
(Yniguez Dec., ⁋ 12.)
20
21. There is no indication on the remaining
21 upright tree that the subject branch
would have exhibited any evidence of a
22 predisposition to failure.
23 (Yniguez Dec., ⁋ 13.)
24
22. There is no evidence of pre-existing
25 infection, crack, cavity, external decay,
fungi, or other condition that would have
26 been observable by means of a ground-
27 based or aerial inspection.
28 (Yniguez Dec., ⁋ 13.)
10
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
28. SBD is characterized as a sudden,
1 unanticipated failure of a tree branch
2 with little or no discernable defect often
associated with long, horizontal
3 branches.
4 (Yniguez Dec., ⁋ 9.)
5 29. It is not possible to predict failure or
6 mitigate risk due to SBD.
7 (Yniguez Dec., ⁋ 9.)
8 32. Special Interrogatory No. 11 asked
Plaintiffs to state the date on which they
9 contend the City had actual notice of the
allegedly dangerous condition. Plaintiffs’
10
responses stated, in relevant part, “it is
11 not now possible for Plaintiff to identify
the exact date in which the City of Chico
12 had actual notice that the subject tree
13 was in a dangerous condition.”
14 (Medellín Dec., Ex. 8, Plaintiffs’
Supplemental Responses to Special
15 Interrogatories, p. 16:16-24.)
16 33. Special Interrogatory No. 16 asked
Plaintiffs to state the date on which they
17
contend the City had constructive notice
18 of the allegedly dangerous condition.
Again, Plaintiffs responded, “it is not
19 now possible for Plaintiff to identify the
20 exact date in which the City had
constructive notice that the subject tree
21 was in a dangerous condition.”
22 (Medellín Dec., Ex. 8, Plaintiffs’
Supplemental Responses to Special
23 Interrogatories, pp. 20:21-21:2.)
24
25
26
27
28
11
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 34. With respect to Special Interrogatory No.
11, Plaintiffs’ supplemental responses
2 stated, “Plaintiff contends that the City
of Chico had actual notice of the
3
dangerous condition prior to the date of
4 the subject incident.”
5 (Medellín Dec., Ex. 8, Plaintiffs’
Supplemental Responses to Special
6 Interrogatories, p. 17:8-9.)
7 35. The supplemental responses to Special
8 Interrogatory No. 16 stated, “Plaintiff
contends that the City of Chico had
9 actual notice of the dangerous condition
prior to the date of the subject incident.”
10
(italics added)
11
(Medellín Dec., Ex. 8, Plaintiffs’
12 Supplemental Responses to Special
Interrogatories, p. 21:13-14.)
13
14 36. Upon inspection of the tree immediately
after the incident it was determined by
15 Richard Bamlet, the City’s Urban Forest
Manager, that the limb succumbed to a
16
condition referred to alternatively as
17 “sudden limb drop,” “summer limb
drop,” or “sudden branch drop”
18 (“SBD”), which is an unpredictable,
19 unexpected occurrence and the cause of
which is not entirely known among
20 arborists.
21 (Yniguez Dec., ⁋ 9; Medellín Dec., Ex. 4,
Denice Britton Depo. Trans., pp. 11:7-16,
22 18:7-17; Medellín Dec., Ex. 5, Aaron Holt
23 Depo. Trans., p. 47:11-20.)
24
25
26
27
28
12
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 37. Special Interrogatory No. 8 asked
Plaintiffs to state the date on which the
2 allegedly dangerous condition was
created. In response, Plaintiffs stated, “it
3
is not now possible for Plaintiffs to
4 identify the exact date in which the
subject tree became a dangerous
5 condition.” Plaintiffs’ supplemental
6 responses stated, “[t]he dangerous
condition existed prior to the date of the
7 subject incident.”
8 (Medellín Dec., Ex. 8, Plaintiffs’
Supplemental Responses to Special
9 Interrogatories, pp. 14:17-25.)
10
11 ISSUE 4: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A
DANGEROUS CONDITION OF PUBLIC PROPERTY IS BARRED
12 BECAUSE THE CITY IS IMMUNE FROM LIABILITY PURSUANT TO
GOVERNMENT CODE SECTION 831.2
13
The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting
14 Supporting Evidence: Evidence:
15 1. Plaintiffs allege in this lawsuit that on
16 June 2, 2017, Ms. McKenzie was
jogging along South Park Drive in Lower
17 Bidwell Park as part of her regular
exercise routine when a large tree limb
18
broke off a nearby tree and landed on top
19 of her.
20 (Dec. of Sharon Medellín, Ex. A, Complaint,
¶ 8.)
21
22 6. The portion of South Park Drive where
this incident occurred provides
23 pedestrian access through Lower Bidwell
Park. However, it is closed to public
24
vehicle traffic and only open to City
25 vehicles for maintenance and emergency
services.
26
(Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2,
27 Chico Bike Map.)
28
13
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 24. Trees are living organisms and naturally
lose branches or fall.
2
(Yniguez Dec., ⁋ 8.)
3
4 28. SBD is characterized as a sudden,
unanticipated failure of a tree branch
5 with little or no discernable defect often
associated with long, horizontal
6
branches.
7
(Yniguez Dec., ⁋ 9.)
8
36. Upon inspection of the tree immediately
9
after the incident it was determined by
10 Richard Bamlet, the City’s Urban Forest
Manager, that the limb succumbed to a
11 condition referred to alternatively as
“sudden limb drop,” “summer limb
12
drop,” or “sudden branch drop”
13 (“SBD”), which is an unpredictable,
unexpected occurrence and the cause of
14 which is not entirely known among
15 arborists.
16 (Yniguez Dec., ⁋ 9; Medellín Dec., Ex. 4,
Denice Britton Depo. Trans., pp. 11:7-16,
17 18:7-17; Medellín Dec., Ex. 5, Aaron Holt
Depo. Trans., p. 47:11-20.)
18
38. Bidwell Park is a municipal park located
19
in the City of Chico established in 1905
20 and is comprised of 3,670 acres.
21 (Bamlet Dec., ⁋ 4.)
22
39. It is located within the larger Sacramento
23 River Basin, which provides a natural
water source for the trees located in
24 Bidwell Park.
25 (Bamlet Dec., ⁋ 4.)
26
27
28
14
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
40. Bidwell Park is divided by Manzanita
1 Avenue, and the area of the park west of
2 Manzanita Avenue is referred to as Lower
Bidwell Park.
3
(Bamlet Dec., ⁋ 4.)
4
5 41. Bidwell Park, including Lower Bidwell
Park, is a naturally occurring riparian
6 woodland.
7 (Bamlet Dec., ⁋ 4.)
8
42. The species of tree at issue in this case,
9 including its surrounding trees, is the
Valley Oak. (quercus lobata).
10
(Bamlet Dec., ⁋ 4.)
11
12 43. It is endemic to California and is
indigenous flora to the Sacramento River
13 Basin.
14
(Bamlet Dec., ⁋ 4.)
15
44. The tree itself is naturally occurring and
16 is approximately 130 years old (i.e.,
17 predates establishment of the park).
18 (Bamlet Dec., ⁋ 4.)
19 45. No irrigation system or other artificial
20 water source has been installed to provide
water to the subject tree.
21
(Bamlet Dec., ⁋ 4.)
22
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15
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
ISSUE 5: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A
1 DANGEROUS CONDITION OF PUBLIC PROPERTY IS BARRED
BECAUSE THE CITY IS IMMUNE FROM LIABILITY PURSUANT TO
2 GOVERNMENT CODE SECTION 831.4
3 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting
Supporting Evidence: Evidence:
4
3. That allegedly dangerous condition
5
consisted of: “(1) failure to properly
6 maintain the subject tree, including failure
to prune and/or trim unsafe branches; (2)
7 failure to properly care for the subject
8 tree, including failure to adequately water
and/or chemically treat the subject tree;
9 (3) failure to remove the tree; (4) failure
to maintain appropriate advisory signs,
10 warnings, flags, barricades, and/or other
11 safety devices in the vicinity of the
incident location; and (5) inadequate
12 construction and/or design of the roadway
on which the tree fell, particularly as it
13 relates to the proximity of the roadway
14 with the subject tree.”
15 (Medellín Dec., Ex. 1, Complaint, ¶ 10.)
16 5. South Park Drive at the location of this
incident is designated by the City as a
17 Class I bike path.
18 (Bamlet Dec., ⁋ 5.)
19
6. The portion of South Park Drive where
20 this incident occurred provides pedestrian
access through Lower Bidwell Park.
21 However, it is closed to public vehicle
22 traffic and only open to City vehicles for
maintenance and emergency services.
23
(Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2,
24 Chico Bike Map.)
25
26
27
28
16
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
8. Ms. McKenzie was jogging at the time of
1 the incident, was not stationary, and
2 therefore was within the area impacted by
the tree branch for a mere moment in
3 time.
4 (Medellín Dec., Ex. 1, Complaint, ¶ 8.)
5 25. Not all risk associated with trees can be
6 eliminated. It is impossible to maintain
trees free of risk, and some level of risk
7 must be accepted to experience the
benefits that trees provide.
8
(Yniguez Dec., ⁋ 7.)
9
10 26. Best management practices do not
impose a duty on public entities to ensure
11 that no branches are growing over public
12 roads, streets, sidewalks, or the like.
13 (Yniguez Dec., ⁋ 5.)
14 30. A tree branch can succumb to SBD mere
15 days after trimming has significantly
reduced the branch weight.
16
(Medellín Dec., Ex. Aaron Holt Depo.
17 Trans., pp. 46:16-47:8.)
18
19
20 DATED: March 20, 2020 ALVAREZ-GLASMAN & COLVIN
21
/S/ Sharon Medellín
22
Sharon Medellín
23 Attorneys for Defendant
CITY OF CHICO
24
25
26
27
28
17
DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF BUTTE
3 I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action; my business address is 13181 Crossroads Parkway North,
4 Suite 400, City of Industry, CA 91746.
5
On March 20, 2020, I served the foregoing documents described as: DEFENDANT
6 CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
IN SU
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1 Roger A. Colvin, Esq. (SBN 68773) (NO FEE – GOVERNMENT CODE SECTION 6103) Sharon Medellín, Esq. (SBN 213798) 2 ALVAREZ-GLASMAN & COLVIN Attorneys at Law 3 13181 Crossroads Parkway North Suite 400, West Tower 3/20/2020 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 Plaintiffs, Robert A. Glusman 13 14 vs. DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF 15 CITY OF CHICO and DOES 1 through 25, UNDISPUTED MATERIAL FACTS IN inclusive. SUPPORT OF MOTION FOR SUMMARY 16 Defendants. JUDGMENT 17 Date: June 3, 2020 18 Time: 9:00 a.m. Dept.: TBA 19 Trial Date: July 6, 2020 20 Action Filed: March 2, 2018 21 22 23 Defendant City of Chico (the “City”) hereby submits its Separate Statement of Undisputed 24 Material Facts in support of the City’s Motion for Summary Judgment filed concurrently herewith: 25 /// 26 /// 27 /// 28 /// 1 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ISSUE 1: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A 1 DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE THE SUBJECT TREE DID NOT CREATE A SUBSTANTIAL RISK OF 2 INJURY 3 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting 4 Supporting Evidence: Evidence: 5 1. Plaintiffs allege in this lawsuit that on June 2, 2017, Ms. McKenzie was jogging 6 along South Park Drive in Lower Bidwell 7 Park as part of her regular exercise routine when a large tree limb broke off a 8 nearby tree and landed on top of her. 9 (Declaration of Sharon Medellín, Ex. 1, 10 Complaint, ¶ 8.) 11 2. Plaintiffs further allege, pursuant to 12 Government Code Section 835, that the subject incident was caused by a 13 dangerous condition of public property. 14 (Medellín Dec., Ex. 1, Complaint, ¶ 9.) 15 3. That allegedly dangerous condition consisted of: “(1) failure to properly 16 maintain the subject tree, including failure 17 to prune and/or trim unsafe branches; (2) failure to properly care for the subject 18 tree, including failure to adequately water 19 and/or chemically treat the subject tree; (3) failure to remove the tree; (4) failure 20 to maintain appropriate advisory signs, warnings, flags, barricades, and/or other 21 safety devices in the vicinity of the 22 incident location; and (5) inadequate construction and/or design of the roadway 23 on which the tree fell, particularly as it relates to the proximity of the roadway 24 with the subject tree.” 25 (Medellín Dec., Ex. 1, Complaint, ¶ 10.) 26 27 28 2 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 4. The tree itself is naturally occurring and is approximately 130 years old (i.e., 2 predates establishment of the park). 3 (Declaration of Richard Bamlet, ⁋ 4.) 4 5. South Park Drive at the location of this 5 incident is designated by the City as a Class I bike path. 6 7 (Bamlet Dec., ⁋ 5.) 8 6. The portion of South Park Drive where this incident occurred provides pedestrian 9 access through Lower Bidwell Park. 10 However, it is closed to public vehicle traffic and only open to City vehicles for 11 maintenance and emergency services. 12 (Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2, 13 Chico Bike Map.) 14 7. There are no picnic benches, trash cans, or restrooms adjacent to the subject tree 15 that would encourage park visitors to 16 congregate at the location. The only installed improvement is the paved 17 surface itself. 18 (Bamlet Dec., ⁋ 5.) 19 8. Ms. McKenzie was jogging at the time of 20 the incident, was not stationary, and 21 therefore was within the area impacted by the tree branch for a mere moment in 22 time. 23 (Medellín Dec., Ex. 1, Complaint, ¶ 8.) 24 9. No other park visitors were injured as a 25 result of this incident. 26 (Bamlet Dec., ⁋ 6.) 27 28 3 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 10. Ms. McKenzie had been in the same area of South Park Drive “so many times” 2 prior to this incident. She visited Lower Bidwell park approximately twenty times 3 just from the period of January 2017 to 4 June 2, 2017. Of those visits, she took the same path of travel she did on the date of 5 this incident approximately ten times. 6 (Medellín Dec., Ex. 3, Wendy McKenzie 7 Depo. Trans., pp. 41:7-19, 44:2-15, 44:21- 45:8.) 8 11. Plaintiff never notified the City of ever 9 being injured by a falling tree branch 10 prior to this incident. 11 (Bamlet Dec., ⁋ 6.) 12 12. The City relies on reports from its employees and members of the general 13 public regarding conditions of its property 14 that may need maintenance or that may pose a potential hazard. 15 (Bamlet Dec., ⁋ 6.) 16 17 13. Prior to this incident, the City received no complaints from members of the public or 18 reports from City employees regarding concerns over the condition of the subject 19 tree. 20 (Bamlet Dec., ⁋ 6.) 21 14. The City is aware of no other incidents of 22 injury or property damage at the subject 23 location, despite the fact that the subject tree is approximately 130 years old. 24 (Bamlet Dec., ⁋ 6.) 25 26 15. The tree showed no outward signs of disease, decay, or any other conditions 27 that would have indicated that the limb 28 would detach. 4 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez, 1 ⁋⁋ 10, 13.) 2 16. Branches hanging horizontally are more 3 likely to succumb to SBD than branches 4 growing at a more vertical angle, and branches of any size can experience SBD. 5 6 (Medellín Dec., Ex. 4, Denice Britton Depo. Trans., pp. 19:20-20:9, 99:4-10; Medellín 7 Dec., Ex. 5, Aaron Holt Depo. Trans., pp. 8 34:19-35:6; Medellín Dec., Ex. 6, Bamlet Depo. Trans., pp. 113:18-114:6.) 9 10 17. Prior to breaking, the branch was not growing horizontally but at an upright 11 angle. 12 (Medellín Dec., Ex. 7, David Bettencourt Depo. Trans., p. 86:19-25.) 13 14 18. The branch originated from the trunk of the tree at an angle of at least 36 degrees 15 above horizontal. 16 (Yniguez Dec., ⁋ 12.) 17 19. The angle of attachment was not tightly 18 V-shaped, a condition that is sometimes 19 conducive to structural weakness. 20 (Yniguez Dec., ⁋ 12.) 21 20. The attachment was solid and sound, 22 giving no indication of internal structural weakness or a predisposition to detach 23 from the parent stem. 24 (Yniguez Dec., ⁋⁋ 12-13) 25 26 27 28 5 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 21. There is no indication on the remaining upright tree that the subject branch would 2 have exhibited any evidence of a predisposition to failure. 3 4 (Yniguez Dec., ⁋ 13.) 5 22. There is no evidence of pre-existing infection, crack, cavity, external decay, 6 fungi, or other condition that would have 7 been observable my means of a ground- based or aerial inspection. 8 (Yniguez Dec., ⁋ 13.) 9 10 23. Not all defects or conditions that predispose a tree or tree part to failure are 11 detectable, nor are all failures predictable. 12 (Yniguez Dec., ⁋ 7.) 13 24. Trees are living organisms and naturally 14 lose branches or fall. 15 (Yniguez Dec., ⁋ 8.) 16 25. Not all risk associated with trees can be 17 eliminated. It is impossible to maintain trees free of risk, and some level of risk 18 must be accepted to experience the 19 benefits that trees provide. 20 (Yniguez Dec., ⁋ 7.) 21 26. Best management practices do not impose 22 a duty on public entities to ensure that no branches are growing over public roads, 23 streets, sidewalks, or the like. 24 (Yniguez Dec., ⁋ 5.) 25 26 27 28 6 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 27. Plaintiffs’ verified responses to the City’s 1 Special Interrogatories (Set One), served 2 on November 15, 2018, included Plaintiffs’ responses to Special 3 Interrogatory No. 5 which conceded, in relevant part, “[t]housands if not tens of 4 thousands of vehicles, bicycles, and 5 pedestrians have walked past the tree along the paved roadway.” 6 (Medellín Dec., ⁋ 10; Ex. 8, Plaintiffs’ 7 Supplemental Responses to Special 8 Interrogatories, p. 12:14-15.) 9 10 ISSUE 2: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE 11 THE CONDITION WAS NOT CREATED BY A NEGLIGENT OR WRONGFUL ACT OR OMISSION OF A CITY EMPLOYEE 12 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting 13 Supporting Evidence: Evidence: 14 15. The tree showed no outward signs of disease, decay, or any other conditions that 15 would have indicated that the limb would 16 detach. 17 (Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez, ⁋⁋ 10, 13.) 18 18. The branch originated from the trunk of 19 the tree at an angle of at least 36 degrees 20 above horizontal. 21 (Yniguez Dec., ⁋ 12.) 22 19. The angle of attachment was not tightly 23 V-shaped, a condition that is sometimes conducive to structural weakness. 24 (Yniguez Dec., ⁋ 12.) 25 26 27 28 7 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 20. The attachment was solid and sound, giving no indication of internal structural 2 weakness or a predisposition to detach from the parent stem. 3 4 (Yniguez Dec., ⁋⁋ 12-13.) 5 21. There is no indication on the remaining upright tree that the subject branch would 6 have exhibited any evidence of a 7 predisposition to failure. 8 (Yniguez Dec., ⁋ 13.) 9 22. There is no evidence of pre-existing 10 infection, crack, cavity, external decay, fungi, or other condition that would have been 11 observable by means of a ground-based or aerial inspection. 12 13 (Yniguez Dec., ⁋ 13.) 14 24. Trees are living organisms and naturally lose branches or fall. 15 (Yniguez Dec., ⁋ 8.) 16 25. Not all risk associated with trees can be 17 eliminated. It is impossible to maintain 18 trees free of risk, and some level of risk must be accepted to experience the 19 benefits that trees provide. 20 (Yniguez Dec., ⁋ 7.) 21 26. Best management practices do not 22 impose a duty on public entities to ensure that no branches are growing over 23 public roads, streets, sidewalks, or the 24 like. 25 (Yniguez Dec., ⁋ 5.) 26 27 28 8 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 28. SBD is characterized as a sudden, unanticipated failure of a tree branch with 2 little or no discernable defect often associated with long, horizontal branches. 3 4 (Yniguez Dec., ⁋ 9.) 5 29. It is not possible to predict failure or mitigate risk due to SBD. 6 (Yniguez Dec., ⁋ 9.) 7 8 30. A tree branch can succumb to SBD mere days after trimming has significantly 9 reduced the branch weight. 10 (Medellín Dec., Ex. 5, Aaron Holt Depo. Trans., pp. 46:16-47:8.) 11 12 31. Branches hanging horizontally are more likely to succumb to SBD than branches 13 growing at a more vertical angle, and 14 branches of any size can experience SBD. 15 (Medellín Dec., Ex. 4, Denice Britton Depo. 16 Trans., pp. 19:20-20:9, 99:4-10; Medellín Dec., Ex. 5, Aaron Holt Depo. Trans., pp. 17 34:19-35:6 Medellín Dec., Ex. 6, Richard 18 Bamlet Depo. Trans., pp. 113:18-114:6.) 19 20 ISSUE 3: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A DANGEROUS CONDITION OF PUBLIC PROPERTY FAILS BECAUSE 21 THE CITY HAD NEITHER ACTUAL NOR CONSTRUCTIVE NOTICE OF THE CONDITION 22 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting 23 Supporting Evidence: Evidence: 24 12. The City relies on reports from its 25 employees and members of the general public regarding conditions of its 26 property that may need maintenance or that may pose a potential hazard. 27 (Bamlet Dec., ⁋ 6.) 28 9 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 13. Prior to this incident, the City received no 1 complaints from members of the public or 2 reports from City employees regarding concerns over the condition of the subject 3 tree. 4 (Bamlet Dec., ⁋ 6.) 5 14. The City is aware of no other incidents of 6 injury or property damage at the subject location, despite the fact that the subject 7 tree is approximately 130 years old. 8 (Bamlet Dec., ⁋ 6.) 9 15. The tree showed no outward signs of disease, decay, or any other conditions 10 that would have indicated that the limb 11 would detach. 12 (Bamlet Dec., ⁋ 7; Dec. of Dennis Yniguez, ⁋⁋ 10, 13.) 13 18. The branch originated from the trunk of 14 the tree at an angle of at least 36 degrees 15 above horizontal. 16 (Yniguez Dec., ⁋ 12.) 17 19. The angle of attachment was not tightly V-shaped, a condition that is sometimes 18 conducive to structural weakness. 19 (Yniguez Dec., ⁋ 12.) 20 21. There is no indication on the remaining 21 upright tree that the subject branch would have exhibited any evidence of a 22 predisposition to failure. 23 (Yniguez Dec., ⁋ 13.) 24 22. There is no evidence of pre-existing 25 infection, crack, cavity, external decay, fungi, or other condition that would have 26 been observable by means of a ground- 27 based or aerial inspection. 28 (Yniguez Dec., ⁋ 13.) 10 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 28. SBD is characterized as a sudden, 1 unanticipated failure of a tree branch 2 with little or no discernable defect often associated with long, horizontal 3 branches. 4 (Yniguez Dec., ⁋ 9.) 5 29. It is not possible to predict failure or 6 mitigate risk due to SBD. 7 (Yniguez Dec., ⁋ 9.) 8 32. Special Interrogatory No. 11 asked Plaintiffs to state the date on which they 9 contend the City had actual notice of the allegedly dangerous condition. Plaintiffs’ 10 responses stated, in relevant part, “it is 11 not now possible for Plaintiff to identify the exact date in which the City of Chico 12 had actual notice that the subject tree 13 was in a dangerous condition.” 14 (Medellín Dec., Ex. 8, Plaintiffs’ Supplemental Responses to Special 15 Interrogatories, p. 16:16-24.) 16 33. Special Interrogatory No. 16 asked Plaintiffs to state the date on which they 17 contend the City had constructive notice 18 of the allegedly dangerous condition. Again, Plaintiffs responded, “it is not 19 now possible for Plaintiff to identify the 20 exact date in which the City had constructive notice that the subject tree 21 was in a dangerous condition.” 22 (Medellín Dec., Ex. 8, Plaintiffs’ Supplemental Responses to Special 23 Interrogatories, pp. 20:21-21:2.) 24 25 26 27 28 11 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 34. With respect to Special Interrogatory No. 11, Plaintiffs’ supplemental responses 2 stated, “Plaintiff contends that the City of Chico had actual notice of the 3 dangerous condition prior to the date of 4 the subject incident.” 5 (Medellín Dec., Ex. 8, Plaintiffs’ Supplemental Responses to Special 6 Interrogatories, p. 17:8-9.) 7 35. The supplemental responses to Special 8 Interrogatory No. 16 stated, “Plaintiff contends that the City of Chico had 9 actual notice of the dangerous condition prior to the date of the subject incident.” 10 (italics added) 11 (Medellín Dec., Ex. 8, Plaintiffs’ 12 Supplemental Responses to Special Interrogatories, p. 21:13-14.) 13 14 36. Upon inspection of the tree immediately after the incident it was determined by 15 Richard Bamlet, the City’s Urban Forest Manager, that the limb succumbed to a 16 condition referred to alternatively as 17 “sudden limb drop,” “summer limb drop,” or “sudden branch drop” 18 (“SBD”), which is an unpredictable, 19 unexpected occurrence and the cause of which is not entirely known among 20 arborists. 21 (Yniguez Dec., ⁋ 9; Medellín Dec., Ex. 4, Denice Britton Depo. Trans., pp. 11:7-16, 22 18:7-17; Medellín Dec., Ex. 5, Aaron Holt 23 Depo. Trans., p. 47:11-20.) 24 25 26 27 28 12 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 37. Special Interrogatory No. 8 asked Plaintiffs to state the date on which the 2 allegedly dangerous condition was created. In response, Plaintiffs stated, “it 3 is not now possible for Plaintiffs to 4 identify the exact date in which the subject tree became a dangerous 5 condition.” Plaintiffs’ supplemental 6 responses stated, “[t]he dangerous condition existed prior to the date of the 7 subject incident.” 8 (Medellín Dec., Ex. 8, Plaintiffs’ Supplemental Responses to Special 9 Interrogatories, pp. 14:17-25.) 10 11 ISSUE 4: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A DANGEROUS CONDITION OF PUBLIC PROPERTY IS BARRED 12 BECAUSE THE CITY IS IMMUNE FROM LIABILITY PURSUANT TO GOVERNMENT CODE SECTION 831.2 13 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting 14 Supporting Evidence: Evidence: 15 1. Plaintiffs allege in this lawsuit that on 16 June 2, 2017, Ms. McKenzie was jogging along South Park Drive in Lower 17 Bidwell Park as part of her regular exercise routine when a large tree limb 18 broke off a nearby tree and landed on top 19 of her. 20 (Dec. of Sharon Medellín, Ex. A, Complaint, ¶ 8.) 21 22 6. The portion of South Park Drive where this incident occurred provides 23 pedestrian access through Lower Bidwell Park. However, it is closed to public 24 vehicle traffic and only open to City 25 vehicles for maintenance and emergency services. 26 (Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2, 27 Chico Bike Map.) 28 13 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 24. Trees are living organisms and naturally lose branches or fall. 2 (Yniguez Dec., ⁋ 8.) 3 4 28. SBD is characterized as a sudden, unanticipated failure of a tree branch 5 with little or no discernable defect often associated with long, horizontal 6 branches. 7 (Yniguez Dec., ⁋ 9.) 8 36. Upon inspection of the tree immediately 9 after the incident it was determined by 10 Richard Bamlet, the City’s Urban Forest Manager, that the limb succumbed to a 11 condition referred to alternatively as “sudden limb drop,” “summer limb 12 drop,” or “sudden branch drop” 13 (“SBD”), which is an unpredictable, unexpected occurrence and the cause of 14 which is not entirely known among 15 arborists. 16 (Yniguez Dec., ⁋ 9; Medellín Dec., Ex. 4, Denice Britton Depo. Trans., pp. 11:7-16, 17 18:7-17; Medellín Dec., Ex. 5, Aaron Holt Depo. Trans., p. 47:11-20.) 18 38. Bidwell Park is a municipal park located 19 in the City of Chico established in 1905 20 and is comprised of 3,670 acres. 21 (Bamlet Dec., ⁋ 4.) 22 39. It is located within the larger Sacramento 23 River Basin, which provides a natural water source for the trees located in 24 Bidwell Park. 25 (Bamlet Dec., ⁋ 4.) 26 27 28 14 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 40. Bidwell Park is divided by Manzanita 1 Avenue, and the area of the park west of 2 Manzanita Avenue is referred to as Lower Bidwell Park. 3 (Bamlet Dec., ⁋ 4.) 4 5 41. Bidwell Park, including Lower Bidwell Park, is a naturally occurring riparian 6 woodland. 7 (Bamlet Dec., ⁋ 4.) 8 42. The species of tree at issue in this case, 9 including its surrounding trees, is the Valley Oak. (quercus lobata). 10 (Bamlet Dec., ⁋ 4.) 11 12 43. It is endemic to California and is indigenous flora to the Sacramento River 13 Basin. 14 (Bamlet Dec., ⁋ 4.) 15 44. The tree itself is naturally occurring and 16 is approximately 130 years old (i.e., 17 predates establishment of the park). 18 (Bamlet Dec., ⁋ 4.) 19 45. No irrigation system or other artificial 20 water source has been installed to provide water to the subject tree. 21 (Bamlet Dec., ⁋ 4.) 22 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 15 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ISSUE 5: PLAINTIFFS’ CLAIM FOR THE ALLEGED EXISTENCE OF A 1 DANGEROUS CONDITION OF PUBLIC PROPERTY IS BARRED BECAUSE THE CITY IS IMMUNE FROM LIABILITY PURSUANT TO 2 GOVERNMENT CODE SECTION 831.4 3 The City’s Undisputed Material Facts and Plaintiff’s Response and Supporting Supporting Evidence: Evidence: 4 3. That allegedly dangerous condition 5 consisted of: “(1) failure to properly 6 maintain the subject tree, including failure to prune and/or trim unsafe branches; (2) 7 failure to properly care for the subject 8 tree, including failure to adequately water and/or chemically treat the subject tree; 9 (3) failure to remove the tree; (4) failure to maintain appropriate advisory signs, 10 warnings, flags, barricades, and/or other 11 safety devices in the vicinity of the incident location; and (5) inadequate 12 construction and/or design of the roadway on which the tree fell, particularly as it 13 relates to the proximity of the roadway 14 with the subject tree.” 15 (Medellín Dec., Ex. 1, Complaint, ¶ 10.) 16 5. South Park Drive at the location of this incident is designated by the City as a 17 Class I bike path. 18 (Bamlet Dec., ⁋ 5.) 19 6. The portion of South Park Drive where 20 this incident occurred provides pedestrian access through Lower Bidwell Park. 21 However, it is closed to public vehicle 22 traffic and only open to City vehicles for maintenance and emergency services. 23 (Bamlet Dec., ⁋ 5; Medellín Dec., Ex. 2, 24 Chico Bike Map.) 25 26 27 28 16 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 8. Ms. McKenzie was jogging at the time of 1 the incident, was not stationary, and 2 therefore was within the area impacted by the tree branch for a mere moment in 3 time. 4 (Medellín Dec., Ex. 1, Complaint, ¶ 8.) 5 25. Not all risk associated with trees can be 6 eliminated. It is impossible to maintain trees free of risk, and some level of risk 7 must be accepted to experience the benefits that trees provide. 8 (Yniguez Dec., ⁋ 7.) 9 10 26. Best management practices do not impose a duty on public entities to ensure 11 that no branches are growing over public 12 roads, streets, sidewalks, or the like. 13 (Yniguez Dec., ⁋ 5.) 14 30. A tree branch can succumb to SBD mere 15 days after trimming has significantly reduced the branch weight. 16 (Medellín Dec., Ex. Aaron Holt Depo. 17 Trans., pp. 46:16-47:8.) 18 19 20 DATED: March 20, 2020 ALVAREZ-GLASMAN & COLVIN 21 /S/ Sharon Medellín 22 Sharon Medellín 23 Attorneys for Defendant CITY OF CHICO 24 25 26 27 28 17 DEFENDANT CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF BUTTE 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 13181 Crossroads Parkway North, 4 Suite 400, City of Industry, CA 91746. 5 On March 20, 2020, I served the foregoing documents described as: DEFENDANT 6 CITY OF CHICO’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SU