CUMMINS FAMILY REVOCABLE TRUST, et al. vs CITY OF ALAMEDA, et al.

The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850; Evid. Code, § 500.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the nonmoving party. (Aguilar, supra, 25 Cal.4th at p. 850.) “A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.)

“The papers are to be construed strictly against the moving party and liberally in favor of the opposing party; any doubts regarding the propriety of summary judgment are to be resolved in favor of the opposing party.” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 112.)

DISCUSSION

As an initial matter, as Defendant points out, Plaintiffs only oppose the Motion as to the Second and Third (Tort of Independent Contractor) causes of action, although the Motion is directed at all three causes of action, including the First (Breach of Mandatory Duty). Summary Adjudication is therefore GRANTED as to the First Cause of Action in light of Plaintiffs’ lack of opposition, suggesting their concession to Defendant’s arguments.

Second Cause of Action: Dangerous Condition of Public Property

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or

(b) The public entity had actual or constructive notice of the dangerous condition under Section

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV040980: CUMMINS FAMILY REVOCABLE TRUST, et al. vs CITY OF ALAMEDA, et al. 05/22/2026 Hearing on Motion for Summary Judgment filed by City of Alameda (Defendant) CRS# A-40980-004 in Department 520 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

(Gov. Code, § 835.)

Relevant to this statute, “[d]angerous condition” means “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a), emphasis added.)

“[I]f it can be shown that the property is safe when used with due care and that the risk of harm is created only when foreseeable users fail to exercise due care, then such property is not ‘dangerous' within the meaning of Section 830, subdivision (a).” (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.) Notably, even if it is foreseeable that persons may use property without due care, “a public entity may not be held liable for failing to take precautions for such persons.” (Id. at 132.)

Here, if a driver uses due care at the subject intersection, i.e., observes and obeys all visible signage, there should be no risk of harm to Plaintiff. Harm could foreseeably occur at the subject intersection if a driver failed to comply with the rules of the road and tried to drive on the wrong side of the road, as alleged here. However, such conduct is the result of a failure to use due care. Because the risk of harm appears to only exist when foreseeable users fail to exercise due care, the subject intersection and its traffic control devices or absence is not a dangerous condition within the meaning of Section 830. (Id. at 131.)

Once Defendant introduces credible evidence that the size and severity of the storm independently caused the flooding damage at issue, the burden is then shifted to Plaintiffs to produce credible, non-speculative evidence showing that it is more probable than not that their property would not have flooded had the pumps been working. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.) Generally, the issue of causation is an issue of fact for the jury. (Lopez v. McDonalds Corp. (1987) 193 Cal. App. 3d 495, 500). “When reasonable minds can differ as to the inferences to be drawn from the evidence, causation must be decided by the jury as an issue of fact.” (Toste v. Calportland Constr., 245 Cal.App.4th 362, 369).

Notwithstanding proof of a dangerous condition or notice thereof, liability will not attach unless Plaintiffs demonstrate the breach was the proximate or legal cause of the injuries suffered. (Saelzer, supra 25 Cal.4th. at pp. 773-774). To demonstrate legal causation, Plaintiffs must establish that the act or omission was a “substantial factor” in bringing about the injury; the evidence must establish that it was more probable than not that, but for the breach, the injuries would not have occurred. (Saelzer, supra 25 Cal.4th. at p. 774).

Defendant fails to meet its initial burden to show that the scale of the 50-to-100- year storm was such that the damage would have occurred regardless of whether the pump

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV040980: CUMMINS FAMILY REVOCABLE TRUST, et al. vs CITY OF ALAMEDA, et al. 05/22/2026 Hearing on Motion for Summary Judgment filed by City of Alameda (Defendant) CRS# A-40980-004 in Department 520 was functioning or not. (Smith Decl., Ex. B.) Thus, it does not matter that Plaintiffs offer no evidence of their own, as the Court sustains their objection to Defendant's evidence attached to the Declaration from their Public Works Director, Erin Smith. Plaintiffs argue that Defendant failed to establish Ms.

Smith's qualifications to espouse said opinion about the storm and the declaration lacks foundation to establish her expertise in meteorology, flood control hydrology, climatology, or statistical analysis. The Court agrees. Further, the data for the Precipitation Frequency Estimates produced by the National Weather System’s rain gauge was obtained from the Oakland Museum, when the property in question was in Alameda.

Accordingly, Defendant’s Motion for Summary Adjudication is DENIED as to the second cause of action.

Third Cause of Action: Tort of Independent Contractor

Plaintiffs allege that Defendant “may have used an independent contractor to assist in maintaining and operating the City pumps to manage excess storm water.” (Complaint, ¶ 29.) In response to Defendant’s Public Works Director’s claim that “the City has never used any independent contractor to assist in maintaining or operating any of its pumps related to the City’s Flood Control System,” Plaintiffs introduce deposition testimony from City Technician Christopher Hillis that “the contractor performing the rehabilitation” installed the temporary control panel. (Plaintiffs’ Separate Statement, UMF 11, citing to Hillis Depo., pp. 22:6-10; 29:16-17.) This is akin to a party admission that is sufficient to raise an issue of triable fact.

Party admissions are given “an unusual deference in summary judgment proceedings. An admission is binding unless there is a credible explanation for the inconsistent positions taken by a party. [Citations.]” (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 396.) When an admission against a party's own interest “becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22.)

Accordingly, summary adjudication is DENIED as to the third cause of action.

OBJECTIONS TO EVIDENCE

The Court did not rely on the items identified in connection with Defendant’s objections to portions of the Cummins, Abea, and Mcmanaway declarations and, therefore, does not reach these objections.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

23CV040980: CUMMINS FAMILY REVOCABLE TRUST, et al. vs CITY OF ALAMEDA, et al. 05/22/2026 Hearing on Motion for Summary Judgment filed by City of Alameda (Defendant) CRS# A-40980-004 in Department 520

Plaintiffs’ objections to portions of the Smith declaration and Defendant’s RJN are sustained; the objections to portions of the Hillis declaration are overruled.

NOTICE: This tentative ruling will automatically become the court’s final order on May 21, 2026 unless, by no later than 5:00 P.M. on May 20, 2026, a party to the action notifies BOTH: 1) the court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or selfrepresented parties (by telephone or email) that the party is contesting this tentative ruling.

The subject line (RE:) of the email must state: “Request for CONTESTED HEARING: [the case name], [number].” When a party emails to contest a tentative ruling, the party must identify the specific holding(s) within the ruling they wish to contest via oral argument.

The court does not provide court reporters for hearings in civil departments. A party who wants a record of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privately retained court reporter must also participate via video conference. Their email must be provided to the court at the time the Notice of Contest is emailed.

ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTE VIDEO unless an in person appearance is required by the court. Invitations to participate in the video proceeding will be sent by the court upon receipt of timely notice of contest. A party may give email notice that they will appear in court in person for the hearing, however all other counsel/parties and the JUDGE MAY APPEAR REMOTELY.