In City of Pasadena v. Superior Court (Mercury Casualty Co.), published August 14, 2014, the Second District Court of Appeal, Division 3, declined to grant a writ of mandate setting aside a trial court order denying summary adjudication of causes of action for inverse condemnation and nuisance. The case arose out of a city tree falling on a house and causing damage. The homeowner's insurer paid for the damage, and then sued the city for the damage caused by the tree. The city argued that it could not be held liable for inverse condemnation because undisputed facts established that the tree was not a public improvement. The appellate court held that the evidence the city presented did not demonstrate that there was no triable issue of fact as to whether the tree was part of a public improvement. The evidence showed that the tree was part of a public program to enhance residents' and visitors' quality of life by cataloging and maintaining street trees. Although inverse condemnation must be based on damage caused by a public improvement as deliberately designed and constructed, that is a causation issue; and the city did not seek summary adjudication of the causation element of inverse condemnation.
The city also argued that it was entitled to summary adjudication of the insurer's nuisance cause of action, because the insurer did not raise an issue of fact on whether the city was negligent. The court held the city correct that where nuisance arises from the owner's omission to abate a nuisance rather than create it, negligence must be shown. But the city failed to present sufficient evidence of lack of negligence to shift the burden to the plaintiff to raise a triable issue of fact on negligence. Although the city presented evidence that it regularly maintained the trees, and that it was one of numerous trees that blew over in the same storm, the city failed to present evidence of the kind of maintainence it was required to perform on the tree to prevent the damage caused. It had to show the nature and extent of its duty of care to show that it was not negligent.
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