In Bean v. City of Thousand Oaks, published September 29, 2025, the Second District Court of Appeal, Division 6, affirmed summary judgment for the city’s co-defendant. The plaintiff tripped and fell on a raised portion of city sidewalk in front of a private property owner’s residence. The plaintiff sued the city and the property owners for negligence, premises liability, and dangerous condition of public property. The city’s answer included an affirmative defense based on sole or partial negligence of third parties. The plaintiff then amended the complaint to add the owner of the house next door, alleging that the sidewalk damage was caused by the roots of the tree in the next-door neighbor’s parkway. The tree appeared to have been planted by the developer of the tract in the late 1960s. The next-door neighbor moved for summary judgment, contending she neither created the dangerous condition nor owned or controlled the sidewalk. The plaintiff did not oppose the motion. The city filed an opposition. The neighbor replied that the city did not have standing to oppose the motion because it had not filed a cross-complaint against her. The same day as the summary judgment hearing, the city filed a cross-complaint. The clerk rejected the filing. The trial court ruled the city lacked standing to oppose the motion, and declined to consider the opposition. It granted the neighbor summary judgment against the plaintiff. The city appealed.
The appellate court held that the trial court erred in failing to consider the opposition. Although Code of Civil Procedure section 437c(p)(2) discusses the respective burdens of defendants or cross-defendants and plaintiffs or cross-complainants on summary judgment, the court determined that this language refers only to the parties’ burdens, and not who can oppose a summary judgment. Instead, any adverse party can oppose a party’s summary judgment motion. Because the city’s answer included an affirmative defense of third-party fault, the city was adverse to the neighbor. Further, the city had filed a cross-complaint. The court clerk incorrectly rejected the cross-complaint on the ground that the city had not sought leave before filing it. But a defendant need not seek leave to cross-complain against a co-defendant before the court has set a date for trial. That date had not been set. The city did not have to file the cross-complaint before filing its opposition to summary judgment. Despite ruling that the trial court should have considered the opposition, the appellate court concluded that the trial court had properly granted summary judgment. Under common law, a landowner does not have any duty to repair abutting sidewalks along a public street and does not owe a duty to pedestrians injured by a defect in the sidewalk. Streets and Highways Code section 5610 imposes a duty of repair on the abutting property owners for sidewalk defects, but does not itself create tort liability or a duty to indemnify municipalities where the owner did not create the defect or exercise dominion or control over the sidewalk. Section 5610 did not impose liability on the neighbor, because her property was not fronting on the the portion of the sidewalk where the plaintiff fell, and there was no evidence she exercised dominion or control over the portion of sidewalk where the plaintiff tripped. Because the city had trimmed and inspected the tree, and no evidence the neighbor did, the city exercised dominion and control over the tree and the sidewalk.
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