Filed 12/11/18 Smith v. City of Richmond CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. INTRODUCTION

Barbara Smith appeals from a final judgment following a motion for summary judgment granted by the trial court in favor of respondent City of Richmond (City). (Code Civ. Proc.,[1] § 437c.) Her complaint alleged that overgrown roots from a City-owned tree on her property had damaged her home’s sewer lines. The City denied the tree was City-owned and filed a motion for summary judgment claiming there was no genuine dispute as to its alleged ownership, and Smith had no evidence to prove the tree belonged to the City. On appeal, Smith argues the City did not meet its burden to provide evidence negating its ownership of the tree. Smith further contends the circumstantial evidence she provided, which she says the trial court improperly disregarded as hearsay, established there was a triable issue of fact as to whether the City owned the tree. Finally, she suggests the City’s trimming of the tree on one occasion for safety reasons showed its ownership by exercise of control over the tree. Seeing no merit in these claims, we affirm the judgment.

II. FACTS

Smith has owned the home at 1220 Parkway Court, Richmond, California since 1976. Shortly after she purchased and moved onto the property, a tree was planted in her front yard without her prior knowledge, request, or express permission. The tree was planted at about the same time a light pole was erected nearby by the City.

For the next 30 or more years the tree did not present any issues to Smith’s property. Then, in 2011, Smith contacted the City about the tree, apparently because it was blocking her view of the street. Following Smith’s inquiry, a City gardener searched the City’s Geographic Information System (GIS) database to determine whether the tree was a public tree. The GIS indicated the tree was on private property rather than public land.

Soon after, the City gardener performed a visual inspection of the tree and confirmed it was on private property. At the same time, the City gardener determined the tree was overgrown and obstructed the street light standard, sidewalk, and street. Upon this determination, the City deemed it a safety hazard and trimmed it. The gardener told Smith the tree did not belong to the City. Smith does not dispute that she was informed by the City in June or July 2011 that the tree was on her private property, and she does not dispute that the tree in fact is on her property.

Over one year later, Smith contacted the City again, this time to report a problem with her sewer system. She followed up to inform the City the sewage problem was caused by the tree’s roots. Once again, the City told Smith the tree was on private property.

In January 2014, Smith filed a complaint against the City in Contra Costa County Superior Court. She sought damages and alleged the City-owned tree caused damage to her property through five causes of action: inverse condemnation, private nuisance, public nuisance, dangerous condition of property, and trespass.

Some 16 months after filing its answer, the City moved for summary judgment. Ownership of, or responsibility for, the tree was the sole issue relevant to the summary judgment. Because the court granted several requests by Smith for continuances, the submission of evidence on the summary judgment motion proceeded in waves. The trial court ultimately granted the City’s motion for summary judgment, reasoning that the City “met its burden of showing the absence of evidence as to who owns the subject tree.” The trial court issued a final judgment for the City, from which Smith now appeals.

III. DISCUSSION

1. Standard of Review.

We review a grant of summary judgment de novo. (Turley v. Familian Corp. (2017) 18 Cal.App.5th 969, 977 (Turley); Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.) A party may move for summary judgment when it contends the action has no merit. (§ 437c, subd. (a)(1).) The moving party is entitled to summary judgment only when there is no triable issue of material fact and that party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We view the parties’ submissions in a light most favorable to the party opposing the summary judgment motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “[A]ny doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.” (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535 (Reid).)

Although our Supreme Court has not settled the question (see Reid, supra, 50 Cal.4th at p. 535; Turley, supra, 18 Cal.App.5th at p. 978; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852), the weight of authority suggests evidentiary issues arising in the context of a summary judgment motion are reviewed for abuse of discretion (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226), except evidentiary rulings turning on questions of law, such as hearsay rulings, which are reviewed de novo (ibid.).

2. The City Met Its Burden of Showing Its Ownership of the Tree Cannot Be Established.

Smith argues the trial court erred in granting summary judgment for the City because the City did not provide evidence negating its ownership of the tree. (See Rincon v. Burbank Unified School Dist. (1986) 178 Cal.App.3d 949, 954–956.) We disagree.

If the party moving for summary judgment is the defendant, that party has met the “burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (§ 437c, subd. (p)(2); Vieira Enterprises, Inc. v. City of East Palo Alto (2012) 208 Cal.App.4th 584, 594.) The movant must support the motion with evidence, including declarations, admissions, answers to interrogatories, and depositions. (See Aguilar, supra, 25 Cal.4th at pp. 850, 854–855, citing § 437c, subd. (b).)

Here, all five causes of action have an element in common: the City’s alleged ownership of, or responsibility for, the tree planted on Smith’s property. The City presented admissions, declarations, and answers to interrogatories as evidence to support its contention that its ownership of the tree cannot be established. The City, for example, provided Smith’s answers to interrogatories as support for the fact that the tree was planted on Smith’s property, which is not disputed by Smith. It is also undisputed that the City twice informed Smith the tree was on private property, with the City gardener’s declaration as supporting evidence. As support for the fact that the GIS database designated the tree in question as being located on private property and not on public land, the City also used the City gardener’s declaration.^[2] Accordingly, the City met its burden by showing that an element common to all causes of action—the City’s purported ownership of, or responsibility for, the tree—cannot be established through the City’s records, and that Smith herself has no additional records to support such a showing. This was sufficient to shift the burden to Smith.

Even if the City could not produce evidence conclusively negating its ownership of the tree, it could nevertheless prevail on a motion for summary judgment by showing “the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”[3] (Aguilar, supra, 25 Cal.4th at p. 855; see id. at pp. 853–854.) The City’s summary judgment showing in this case substantiated its claim that Smith did not possess the evidence needed to establish the City’s ownership of the tree. With its motion, the City put forward as supporting evidence Smith’s answers to interrogatories, her responses and supplemental responses to document requests, and the City gardener’s declaration.

Smith does not dispute that there are no records establishing the City owned the tree; rather, she contends “the City is a better source of possible records than . . . herself.” The parties have already conducted discovery, and Smith makes no showing that any nonprivileged documents have been withheld by the City or are otherwise yet to be discovered. Smith was granted two continuances under section 437c, subdivision (h) to allow her to conduct additional discovery in order to respond to the City’s summary judgment motion. Because she still lacks evidence to refute the GIS evidence that the tree does not belong to the City, Smith’s ability to prove the City’s ownership of the tree is effectively negated. The City presented sufficient evidence to shift the burden of production to Smith.

3. Smith Did Not Meet Her Burden of Showing There Was a Triable Issue of Material Fact.

After the defendant has met its initial burden, the burden shifts to the plaintiff, who must “show that a triable issue of one or more material facts exists as to the cause of action” through the presentation of specific facts. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.)

As things played out here, the burden shifted to Smith to present evidence showing every element of the five causes of action. Given that the case turns on the issue of who owns, or is responsible for, the tree, Smith was required to produce admissible evidence showing there is a triable issue on that question. The City asserts Smith did not meet her burden, and we agree.

1. Evidence that was ruled inadmissible

Smith complains, ambiguously, that “all” of her circumstantial evidence that the City owned the tree was not admitted by the trial court. Without specifying which evidence was improperly excluded, she claims that significant probative circumstantial evidence was ruled inadmissible and was not considered by the judge in ruling on the City’s motion for summary judgment. Her claims are meritless.

Because Smith did not clearly identify specific evidence that she claims was improperly excluded in her opening brief, that brief gives the impression that all her evidence was excluded from consideration in ruling on the motion. In her reply brief, Smith does discuss two pieces of evidence excluded by the trial court. As we read the record, the City objected to Smith’s declaration and her attorney’s declaration in several particulars on grounds that included hearsay, but the trial court only ruled that a few specific pieces of evidence were inadmissible. While the court did say in its order that “any ‘evidence’ Plaintiff has is inadmissible . . . ,” we do not read that statement as a blanket rejection of all of Smith’s evidence. We consider the court’s enumerated evidentiary rulings following that statement to constitute the court’s only evidentiary rulings. We reject Smith’s argument that her evidence was improperly excluded from consideration in ruling on the summary judgment motion.

First, because the tree was purportedly planted at the same time the City installed a lamppost on Smith’s property, Smith suggested it would be reasonable for a jury to infer that the City also planted the tree. This was argument, not evidence. In fact, it was contained in Smith’s briefing, not her declaration. The trial judge properly found this conclusion was speculative. Facts relating to the actual planting of the tree and erection of the lamppost were not excluded by the court. And although both Smith and the trial court suggested that the tree and lamppost appeared simultaneously in Smith’s yard, no evidence was produced on this point.

In her reply brief, Smith contends the speculation about a jury’s reasonable inferences was her own lay opinion and admissible as such. Lay opinion testimony is generally limited to opinions “[r]ationally based on the perception of the witness” (Evid. Code, § 800) and does not extend to a party’s opinion about what a jury could reasonably infer from the evidence presented. The statement about inferences, which was not even offered in proper form as evidence, was inadmissible and properly excluded.

Second, two specific statements were excluded as hearsay. Smith included in her declaration that an unnamed representative of Smith’s Homeowners’ Association (HOA) told Smith the City had planted the tree. The trial court ruled this was inadmissible hearsay. Likewise, the judge ruled inadmissible as hearsay Smith’s further statement in her declaration that a representative of the West County Wastewater District (WCWD) suggested that she call the City about the tree “since it was likely its fault for the root intrusion.”

In her opening brief, Smith presented no cogent theory of admissibility for the evidence excluded by the trial court. She discussed the dying declaration and declaration against interest hearsay exceptions, which clearly play no role in this case. She denigrated the importance of the hearsay rule itself and suggested it should not be strictly enforced here. She argued the concerns underlying the hearsay rule were nonexistent in this case because Smith herself was available for cross-examination, but that misconceives the rationale of the hearsay rule. It is the inability to cross-examine the out-of-court hearsay declarant (in this case, the HOA or WCWD representative) that the hearsay rule is designed to address.

In her reply brief, Smith contends the HOA representative’s statement was a “verbal act” not admitted for its truth. We do not follow this logic. Smith says, “where the very fact in controversy is whether certain things were said or done and not whether the matters stated were true or false, the words are admissible as original evidence and are not hearsay.” True enough, but that is not the situation with the HOA or WCWD declarants. If what those individuals said was not true, then it was utterly irrelevant. The issue is not whether Smith had reasonable grounds to believe the tree belonged to the City; the issue is whether the tree actually belonged to the City. On that issue, the uninformed statements of third parties are irrelevant, and in the form presented here, were inadmissible hearsay. The City’s hearsay objections to these statements, to the extent there were express hearsay rulings, were properly sustained.

To the extent the trial judge did not specifically rule on the City’s objections, the objections are deemed overruled, and we presume the trial court considered the evidence. (Reid, supra, 50 Cal.4th at p. 534.) Specifically, for instance, the City objected on hearsay grounds (among others) to Smith’s recitation of two statements the City’s gardener made to her (i.e., an unfulfilled promise to return her telephone call and an offer to come out and wrap the sewer pipes with polyurethane mesh). The trial court did not expressly rule on those objections, so we presume they were overruled, and the court considered the evidence. Reid held the evidentiary objections in such circumstances are preserved for review, but ordinarily must be raised by the objecting party (i.e., the City). (Ibid.) Smith has no cause for complaint because, except for the above-recited two hearsay statements and the one statement excluded as speculative, her evidence was not excluded.

2. Alleged destruction of City records

Next, Smith asserts the documents relating to the maintenance of the tree in question were destroyed—again without providing admissible evidence. Indeed, she goes so far as to suggest they were destroyed on purpose to “avoid liability for the trees [the City] planted.” In support she offers only her attorney’s declaration that “[o]ur office is informed that an employee of [the City] informed [Smith] that a flood occurred where records are kept and that due to the age of the records, they could have been destroyed.” While the assertions in her briefs are framed as fact, the actual supporting evidence was highly speculative hearsay and inadmissible. There was no express ruling, however, on the City’s objection on multiple grounds, including hearsay. Hence, we treat the evidence as having been considered by the trial court. (Reid, supra, 50 Cal.4th at p. 534.)

Assuming the trial court considered Smith’s evidence of destroyed records, the attenuated and equivocal nature of the information conveyed made the evidence so vague and speculative that it did not create a triable issue on ownership of the tree. Proof that documents were lost to the world does not prove the content of those documents and does not prove who owns the tree. Any suggestion to the contrary is pure speculation.

3. The City’s trimming of the tree as evidence of its control

As a final theory for imposing liability on the City, Smith argues the City exercised control over the tree by trimming it after the City gardener deemed it a safety hazard. She suggests that in exercising such control, the City assumed ongoing responsibility for damages caused by the tree.

The City persuasively resists Smith’s position by demonstrating that Smith’s theory of liability is foreclosed as a matter of law. Under the Richmond Municipal Code, a city official “may inspect any tree . . . standing on any private property which overhangs or projects into any street . . . or public place of the City of Richmond, to determine whether [the tree] . . . constitute[s] a hazard.” (See Richmond Mun. Code, §10.08.110.) If a city official deems the tree hazardous, the official “may cause the [hazardous parts of the tree] . . . to be trimmed or removed so as to remedy such condition.” (Ibid.) In this case, the City was authorized to trim the tree on Smith’s property to remedy the safety hazard it caused. Notably, the Municipal Code states that trimming the tree does not “impose any liability upon the City of Richmond.” (Ibid.) Thus, as a matter of local law, trimming the tree for the purpose of remedying a hazard did not reflect ownership of the tree or liability for future damage caused by it.

IV. DISPOSITION

The judgment is affirmed.

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Streeter, Acting P.J.

We concur:

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Tucher, J.

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Lee, J. *