Moreno v. City of Imperial Beach

Filed 5/1/08 Moreno v. City of Imperial Beach CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William S. Cannon, Judge. Affirmed.

In this personal injury action, plaintiffs Jose Moreno, Gerardus Reed, Paulina Osorio and Michelle Perez, through her guardian ad litem Maria Osorio, contend the trial court abused its discretion by denying them a jury trial after they failed to post jury fees. They also challenge the sufficiency of the evidence to support the court's verdict in favor of the defendant, the City of Imperial Beach (the City), on the ground they did not establish the City created or had notice of a dangerous condition of its property. We affirm the judgment.

BACKGROUND

On October 13, 2002, the plaintiffs, who are family members, were attending a birthday party at the City's Veterans Park. Without warning, a 20-foot tree crashed onto and seriously injured them.

In March 2004 the plaintiffs sued the City for dangerous condition of its property. In September 2004 case management statements, both sides demanded a jury trial. Trial was originally scheduled for May 8, 2006, but it was continued to November 6, 2006. The parties submitted a joint trial readiness conference report with proposed jury instructions and a special verdict form, and motions in limine. Further, the plaintiffs submitted voir dire questions.

As a public agency, the City was not required to post jury fees (see Gov. Code,  6301). The plaintiffs were required to post jury fees before trial (Code Civ. Proc.,  631), but they did not do so. When the court called the case for trial, the City waived a jury, and the court found the plaintiffs had also waived a jury trial by not posting fees. The plaintiffs' counsel, John McAvoy, stated he relied on the City's demand for a jury trial. He asked for time to confer with his clients, who were not present, "to make sure that they would be willing to waive." He advised the court he had a check and was willing to post jury fees if the plaintiffs preferred a jury trial.

The court stated that because the plaintiffs did not post jury fees before trial it would proceed by bench trial. McAvoy responded, "I would like to just point out for the record, your honor, that this is a complete surprise, and it demonstrates a total lack of courtesy by the defense in this matter. [] But I am prepared to go forward and I will expedite the trial accordingly."

The parties put on evidence concerning the condition of the tree, which we discuss below. The court ruled in favor of the City, finding root rot caused the tree to fall, and because the condition was underground the City had no notice of it. The court rejected the plaintiffs' argument that the City caused a dangerous condition by, for instance, severely pruning the tree's roots, which made it unstable and promoted the growth of root rot. The court also found the City's tree inspections and maintenance were reasonable.

The plaintiffs moved for a new trial on the grounds the court abused its discretion by denying them a jury trial and insufficiency of the evidence. The court denied the motion, and on January 2, 2007, it entered judgment for the City.

DISCUSSION

I

Jury Fees

Code of Civil Procedure section 631, subdivision (b) provides that "[e]ach party demanding a jury trial shall deposit advance jury fees with the clerk or judge. . . . The deposit shall be made at least 25 calendar days before the date initially set for trial." (Italics added.) Subdivision (a) of the statute provides the "right to a jury trial, as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (d)." Subdivision (d)(5) provides that a party may waive a jury trial by "failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b)."

After a party waives the right to a jury trial, the court has "discretion upon just terms" to allow a jury trial. (Code Civ. Proc.,  631, subd. (e).) "And, it is well established in cases involving the failure to make a request or post fees that there must be prejudice to the party opposing jury trial." (Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810.) " 'Where the right to jury trial is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citations.] A trial court abuses its discretion as a matter of law when ". . . relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]" ' " (Id. at p. 811.) "The mere fact that trial will be by jury is not prejudice per se." (Ibid.)

The plaintiffs contend there was no prejudice to the City or the court because the parties had already prepared for a jury trial. We conclude, however, that the plaintiffs did not preserve any objection to proceeding without a jury. "A party must preserve his record. Thus, it is well established that '. . . a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury. [Citation.]' [Citations.] As stated in the recent Tyler[v. Norton (1973) 34 Cal.App.3d 717, 722], wherein defendants proceeded to try the case before a judge without objecting to the absence of a jury, 'Defendants cannot play "Heads I win. Tails you lose" with the trial court.' " (Taylor v. Union Pac. R. Corp. (1976) 16 Cal.3d 893, 900 (Taylor).) In Taylor, the court noted "that plaintiffs at no time informed the trial court that they believed they still retained a right to jury trial. Rather they acquiesced in the court's interpretation of events. The bare request by plaintiffs' counsel to confer with clients . . . did not constitute either a demand for jury trial or an objection to the trial court's ruling." (Id. at p. 900.)

Here, McAvoy asked to confer with his clients, but he did not demand a jury trial or object to the court's ruling that it would proceed without a jury. He did not ask the court to exercise its discretion to relieve the plaintiffs of their waiver of a jury trial. He merely stated he was surprised by the City's waiver of a jury, but "I am prepared to go forward." It would be unfair to the court and the City to take advantage of an alleged abuse of discretion the court could have easily corrected given a sufficient objection. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, pp. 186-187, fn. 1.)

In any event, even without waiver we find the plaintiffs' position unpersuasive. In support of the plaintiffs' motion for a new trial, McAvoy submitted a declaration that stated he "presumed [the City] had or would post jury fees, as I have observed this to be the case in the overwhelming majority of civil cases where public entities are defending in tort." The declaration further stated, "during 27 years of practice, it has been my observation that while public entity defendants frequently are late in posting jury fees, trial courts always allow the fees to be late-posted. . . . I was therefore caught completely by surprise when [the City] waived [its] right to jury on the day trial was to commence."

At the hearing, the court explained the City was not required to post jury fees. It also explained that the Friday before trial began "we canceled the jury" because "we've waited as long as we can wait" for the plaintiffs to post jury fees. The court reminded McAvoy that its clerk had called his office "on more than one occasion in order to say 'post jury fees.' " McAvoy acknowledged the court had contacted him about the fees. The court stated, "I don't know what else we could have done to warn you that jury fees hadn't been posted." The court's ruling stated "[t]hat plaintiffs consciously decided not to post the fees is further evidenced by the fact that after the October 27 [2006] Trial Readiness Conference the court clerk reminded plaintiffs' counsel of the deadline to post jury fees." When the court did all it could to ensure the plaintiffs preserved their right to a jury trial, and they failed to heed the court's warnings, we cannot say it abused its discretion by proceeding without a jury. "Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered." (Denham v.Superior Court (1970) 2 Cal.3d 557, 566.)

Further, the court explained it was prejudiced by the plaintiffs' failure to post jury fees, because "[a]cting under the assumption that neither side was proceeding with a jury trial, the court did not make arrangements to ensure there were enough potential jurors available on the day of trial." In denying relief from waiver of a jury trial, the court may consider delay in rescheduling trial and the timeliness of the request. "A court does not abuse its discretion where any reasonable factors supporting denial of relief can be found even if a reviewing court, as a question of first impression, might take a different view." (Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704.) Given the plaintiffs' failure to post fees despite the court's warnings, the court rightfully took its calendar into consideration in proceeding without a jury.

Moreover, a petition for writ of mandate is the preferred method of challenging the court's denial of relief from the waiver of a jury trial. (Gann v. Williams Brothers Realty, Inc., supra, 231 Cal.App.3d at p. 1704; Winston v. Superior Court (1987) 196 Cal.App.3d 600, 603; McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 364; Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654; Turlock Golf and Country Club v. Superior Court for Stanislaus County (1966) 240 Cal.App.2d 693, 695.) If the challenge is brought after judgment, as here, the appellant must show actual prejudice, and "prejudice will not be presumed from the fact that the trial was to the court rather than to the jury. [Citations.] Rather, it is presumed that the party had the benefit of a fair and impartial trial." (Gann v. Williams Brothers Realty, Inc., supra, at p. 1704; McIntosh v. Bowman, supra, at p. 363.) "After a trial to the court it may be difficult for the petitioner to establish that he was prejudiced by the denial of a jury trial." (Byram v. Superior Court, supra, at p. 654.) The plaintiffs do not address their burden of showing actual prejudice, and thus the trial court's ruling must stand.

II

Liability for Dangerous Condition

The California Tort Claims Act bars liability against public entities except as otherwise provided by statute. (Gov. Code,  815, subd. (a).) "Generally speaking, under [Government Code] section 835 a public entity is liable for an injury if the plaintiff establishes: (1) 'that the property was in a dangerous condition at the time of the injury'; (2) 'that the injury was proximately caused by the dangerous condition'; (3) 'that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred'; and (4) either (a) that a public employee negligently or wrongfully 'created the dangerous condition' or (b) that '[t]he public entity has actual or constructive notice of the dangerous condition under [Government Code] section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.' " (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 715-716, fns. omitted; Gov. Code,  835.)

The plaintiffs contend the evidence does not support the court's findings against them. "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, original italics.)

A

Creation of Dangerous Condition/Causation

The tree that struck the plaintiffs was one of numerous mature ornamental pear trees growing in five-foot square planter areas in a concrete walkway at Veterans Park. Between 1997 or 1998 and 2002, the City replaced some of the concrete because tree roots had raised and cracked it. As part of the project, the roots of the trees were pruned to a depth of 12 inches around the perimeter of the planting areas and barriers were installed to that depth to discourage root growth near the surface that could harm the new concrete.

It is undisputed that the tree failed at its stem and buttress roots, meaning the broadened base of the trunk. The plaintiffs' theory was that the City created a dangerous condition by severely pruning the roots of the ornamental pear trees, because it made them unstable and exposed the injured roots to root rot. The plaintiffs assert that contrary to the court's finding, the evidence shows root rot was not the sole cause of the accident, and was rather "just one of multiple, interrelated factors which created the true dangerous condition."

The plaintiffs presented three expert witnesses and the City presented one expert witness. The court stated it found the City's expert, James Thompson, the most qualified and credible witness. Thompson was a registered consulting arborist with the American Society of Consulting Arborists and a certified arborist with the International Society of Arboriculture. He testified that from his review of pictures of the fallen tree it showed no evidence of any failure of its "root plate," which he defined as "the system of roots that stabilize a tree." He also explained the "broadest root system can be what we refer to as drip line distances out. The drip line is from the trunk to the edge of the canopy crown." He agreed that had root pruning caused the root plate to fail, one "would expect to see the roots [root plate] up in the air" when the tree fell.

Thompson testified the tree suffered from "some degradation of the structural buttress root system," "a rot of some type." Multiple forms of rot may affect a tree, and the particular type cannot be determined without laboratory testing. Since no testing was done he could not say whether the condition was root rot, which is "a particular fungus. . . usually [caused by] excessive soil moisture." When asked if he could discern whether the tree pruning caused or contributed to the rot, he responded, "I don't have any laboratory analysis to suggest to me that root pruning was the cause of rot." Further, Thompson testified there was no evidence that any buttress root of the tree had been cut. Rather, he said the buttress root appearing in pictures of the tree "appears to have sheared off and not due to a cut in that area, and if it had been cut, I would expect to see some callousing around that area of the root and I don't see any."

The plaintiffs' principal expert, John Sevier, is a certified arborist who visited Veterans Park the day after the accident. He testified that the type of root pruning the City subjected the ornamental pear trees to "weakens the trees" and creates a hazardous condition. As to the fallen tree, Sevier testified there was "one buttress root [that had been] cut on the root plate[,]" but he could not determine how far the root plate extended from the tree trunk because "the root plate was terribly rotted" and thus "didn't tip up" when the tree fell. He explained "the one terminal end of the one root was cut and the rest of them were rotted and still in the ground or little short pieces of them were attached to the bottom side of the trunk." He testified there was "significant weakening root rot[,]" and most of the roots were "just white mush."

Sevier also testified that root pruning contributed to or accelerated the rotting of the roots. He said the "severing of the roots creates what we call a wound [and] because it is under the ground . . . then that is susceptible to rot." He conceded, however, that he is not an expert on root rot or root fungus and he generally refers those issues to other experts.

Another of the plaintiffs' experts, Bailey Hudson, owned a forestry consulting business and specialized in "urban tree[s.]" He agreed the tree's roots had rotted.

The plaintiffs also designated Susan Anderson Landers, the owner of a tree care service and a certified arborist at the time of trial. She testified that in late summer 2002, before she was certified, the City asked her to give an estimate on pruning the roots of coral trees at Veterans Park. During a meeting with someone from the City whose name she could not recall, Landers advised him she saw one or two ornamental pear trees that "had their roots pruned very closely to the buttress of the tree and . . . those were the anchoring roots . . . and . . . pruning that close to a buttress would affect the structural integrity, and also the health of the tree[s] as well." Landers testified she emphasized the trees were unsafe because of the root pruning.

We conclude the court's findings are supported by substantial evidence. Perhaps the tree pruning was imprudent, but that conduct is not actionable without a showing of causation. "It is axiomatic that a defendant cannot be held liable in tort for an injury he or she did not cause." (Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677.) The court reasonably found root pruning did not cause the tree to fall because of instability, since the tree snapped at the stem and the root plate was not attached to it. As the court determined, "if it was root cuts that caused the tree to have fallen over" that would have "torn up the roots." Rather, the tree failed because some type of rot destroyed the roots.

Further, there was no evidence the root pruning caused the rot. As the court noted, "the cause of the root rot was not shown in any way whatsoever." Sevier's testimony about the causes of the rot was speculative, as no testing was done to establish a nexus between the pruning and the fungus. "Expert testimony cannot constitute 'substantial evidence' when it is based on conclusions or assumptions not supported by evidence in the record." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007)  8:55.1, p. 8-24). "An expert's opinion testimony 'cannot rise to the dignity of substantial evidence' where the expert bases his or her conclusion on speculative, remote or conjectural factors." (Id., at 8:55.2, p. 8-24.)

The plaintiffs also assert the court's ruling lacks evidentiary support because the "City allowed girdling roots to pinch the root buttresses at the base of tree trunks that weakened the structural integrity of the point of attachment between the tree trunk and supporting root plate." Sevier testified the fallen tree had a "stem girdling root" that wrapped around a portion of the tree trunk at ground level and had a "strangl[ing]" affect on it. The girdling root was not present when Sevier inspected the tree, but he believed it had been beneath a bulge referred to as an "elephant's foot" at the base of the trunk. Sevier, however, could not say the girdling root caused or accelerated the rotting of the tree's roots.

Thompson testified the tree did not appear to have a girdling root, and we must resolve all conflicts in favor of the City.

Additionally, the plaintiffs assert the City created a dangerous condition by overwatering the ornamental pear trees "to the point of propagating mushrooms at the base of the trees." The plaintiffs cite the testimony of Landers that "fruiting bodies," "fruiting . . . mushrooms," or "conks," the "reproductive part of the fungus," may denote the presence of rot on tree roots. She was unaware, however, of whether the fallen tree had any fruiting bodies.

The plaintiffs also cite the testimony of Sevier that when the concrete was replaced around the ornamental pear trees trenching was required to make room for the wooden forms for the concrete work, and the trenches "act[] as a retainer for whatever moisture does come, either in the rainy season or with irrigation . . ., and it just holds the moisture and the soil never really dries out." Sevier's testimony, however, was undermined by evidence that no trenching was involved in placing the forms or pouring the new concrete. Also, Sevier conceded he knew nothing about the irrigation schedule for the ornamental pear trees. His only evidence of moisture was a photograph of fruiting bodies growing on the ground among mulch, presumably in a planter area, which he took 33 days after the accident.

Thompson, however, disagreed that mushrooms growing in mulch indicated the tree was suffering from some type of fungus, because "the mushroom spores could just be thriving on the mulch itself." Further, Hudson conceded that the mere presence of mushrooms at the base of a tree is not dispositive on whether root rot is present. He was also unaware of the watering cycle at Veterans Park when the accident occurred.

The plaintiffs also claim the City's "inadequate tree pruning promoted overgrown tree canopies whose sail area and weight stressed these older trees." They cite Sevier's testimony that "[w]hen a tree goes into some form of decline and stress, then its way of saving itself is to put out profuse growth in the canopy. . . . [A] tree can even have that kind of reaction from trauma, from pests, from all kinds of things to just put out a dense canopy." Sevier criticized the way the fallen tree's canopy had been pruned. He testified that at some time it was severely "topped," and then it was "allowed to grow out with a very tall, very dense canopy" that contributed to the tree's failure.

Thompson, however, testified that as to the fallen tree "lacing has been satisfactory[,]" and "it appears that there has been quite a bit of opening in these laterals . . . to allow the force of wind to move through." Further, a City employee testified that pursuant to the advice of one of the plaintiffs' percipient witnesses, Robert Bichowsky, a horticulturist and consulting certified arborist, the City reduced the canopies of the ornamental pear trees when it replaced the concrete walkway, proportional to the pruned roots, and after that the City pruned the canopies biannually.

The plaintiffs also assert the evidence showed the ornamental pear trees were leaning and thus were unstable. They cite an October 2, 1997 letter from Bichowsky to the City regarding his inspection of turf grasses at Veterans Park at the City's request. The letter also stated Bichowsky believed the park's coral trees were dangerous because of their large surface roots, and some unspecified trees in the park "need pruning badly because they are leaning heavily or are filled with deadwood." The letter does not indicate the tree in question was leaning. Further, in his testimony, Bichowsky conceded he did not recall paying any attention to the ornamental pear trees during his site visit.

The evidence conflicted on many issues contrary to the plaintiffs' position the evidence in their favor was uncontradicted. "[I]f the entire record demonstrates substantial evidence in support of the appealed judgment or order, the appellate court must affirm notwithstanding that the record also reveals 'substantial' contrary evidence." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra,  8:49, p. 8-22.) The plaintiffs actually ask us to reweigh the evidence and reassess the credibility of the witnesses, but that is not our role. The evidence amply supports the trial court's ruling. Moreover, the testimony of one witness may constitute substantial evidence (Marriage of Mix (1975) 14 Cal.3d 604, 614), and Thompson's testimony alone was sufficient evidence to support the court's finding the tree failed because of some type of rot on its roots, and the City did not create the condition through its root pruning or other conduct.

B

Notice

1

"A public entity had actual notice of a dangerous condition . . . if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." (Gov. Code,  835.2, subd. (a).) The plaintiffs assert "[r]otting roots were visualized during their excavation and cutting under City park management supervision during the years 1998 through 2002." The plaintiffs cite the testimony of their expert Landers concerning the pruning of the roots, and the testimony of Henry Levien, the City's Director of Public Works, regarding why the concrete walkway was replaced. None of the testimony concerned notice. The plaintiffs' other citation is to a comment by the trial court that also does not concern notice.

Later in their briefing the plaintiffs similarly assert the City "had actual notice of root rot by virtue of its ongoing concrete replacement project whereby these same roots were being dug up and pruned. The white and mushy soft . . . surfaces of the infected roots . . . must have been readily apparent to supervising City employees when the City pruned these same roots during the 1998, 2000 and 2002 phases of concrete replacement." (Italics added.) They cite the testimony of Timothy Taylor, a maintenance worker with the City, that shortly after the accident his supervisor directed him to "probe the rest of the trees and see if I could determine whether some of the other trees had the same condition that had now become apparent with that tree that fell." Taylor used a shovel to remove soil to expose the base of the root system and then used a long screwdriver to probe the roots. He said he found five more trees "that had a lot of soft wood." The additional evidence the plaintiffs cite concerns the replacement of the concrete and trimming of the tree canopies, but not notice.

None of the plaintiffs' citations show the City had actual notice the fallen tree had a root fungus. Rather, their assertion appears to be entirely speculative. Moreover, City employees who were involved in the concrete replacementLevien and Steven Kerr, the City's Public Works Superintendenttestified they were unaware of root rot until the tree failed. The court's finding that the City lacked actual notice of a dangerous condition is supported by substantial evidence.

2

Alternatively, the plaintiffs contend the evidence showed the City had constructive notice of the condition of the tree roots. "A public entity had constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character." (Gov. Code,  835.2, subd. (b), italics added.) On the issue of the defendant's due care, admissible evidence includes: "Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe" for its intended use, and whether "the public entity maintained and operated such an inspection system with due care and did not discover the condition." (Ibid.)

The plaintiffs claim the court's finding that the City's inspection and maintenance of the park were reasonable lacks evidentiary support, but they ignore evidence that the City had implemented a regular inspection program. Levien testified he performed an annual inspection of the City's parks, during which he made specific written findings about the status of trees. He would note, for instance, whether a tree was overwatered or had "canopy dieback[,]" which indicates the tree may be under stress. Further, he followed up on the annual findings through monthly inspections and communications with his field supervisors. Levien provided a sample of a supervisor's monthly planning records.

The plaintiffs rely exclusively on Bailey's testimony the City breached the standard of care for tree maintenance because it had no written protocols or "inventory of the trees" and any problems associated with them, and during monthly inspections City employees "were just there looking around. There was no documentation, there was not much to it at all. In my mind, it was probably a waste of time." He also criticized the City because the employees maintaining trees had no particular credentials "in arborist tree maintenance." He testified that "ideally" the City should have a certified arborist on its staff to perform tree inspections, and if it could not afford that, it should "go to contract services."

There is evidence, however, that had the City hired an expert to inspect its trees the condition of the tree roots still would have gone undetected until the accident occurred. Hudson conceded he had never dealt with any root rot or other root fungus in connection with ornamental pear trees. He testified that leaning trees and mushrooms may evidence root rot, but the plaintiffs cite no evidence that the fallen tree had either of those conditions. Further, he testified he had been in the tree business for 55 years, he had performed between 300 and 500 "hazardous tree evaluations," and in conjunction with the evaluations he had taken root samples to diagnose rot only about 12 times.

Further, Landers visited Veterans Park a few weeks before the accident and evaluated all the ornamental pear trees, but she made no recommendations for any treatment. She agreed she had experience in determining whether "a tree is suffering from some sort of rot[,]" and she testified that if she had noticed any stressed tree she would have notified the City.

Additionally, the court asked Thompson, "in your review [when] you went out there [to Veteran's Park] and all of the pictures that you have seen, was there anything in the looks of these trees [the remaining ornamental pear trees] that would have triggered inquiry on your part?" Thompson responded, "[a]s a consulting arborist, no, sir, there is not. I have done tree evaluations for Sea World and there are a couple thousand trees I do for them and the problem I tell them at the end of my large report . . . is that to live with a tree is always to live with a hazard. To remove the hazard is to always remove the tree. You can have a perfect tree, great tree and it will fall over two seconds later after you told the client, don't worry about it."^[1]

The court explained that Levien and other City employees responsible for the trees "have some background and experience in this and I don't think it's necessary that a city must make a census of the trees nor have a notification or notes on every tree in every park. . . . [] The issue is whether . . . those trees are looked at on a regular basis, whether they're maintained on a regular basis and whether . . . somebody actually pays attention to what's going on with regard to the trees. In this case, it appears that the City called in people for purposes of asking questions about trees that have shown either distress or problems or roots coming up, and they listened to the person that they brought in and complied with what they were told." The court also stated: "Very important to this case in my mind . . . is that the trees were there for some thirty-plus years without

any trees falling over, without any recorded information [regarding] any problem, and . . . that's extremely important along with the fact that there is no obvious nature of the root rot problems on this particular tree. The canopy was green and healthy-looking and certainly didn't look like a tree that was going to break off right at the ground level due to root rot."

The court also noted that had the City "done any probing or testing prior to the date of this tree falling, maybe we would have found that root rot existed. However, from all of the testimony, from all of the experts, it does not appear that probing or testing for root rot is a normal test that people do. . . . [] . . . [] . . . I can't find that root testing is something that people do on a regular basis or that that is within the standard of the community for working and looking at trees. . . . I think it's a burden that we would place on cities that would be far and away too onerous to require root testing on substantial numbers of trees. . . . [] The City certainly acted on the matter once [it] had knowledge."

The court's assessment is reasonable and its findings are supported by substantial evidence.

DISPOSITION

The judgment is affirmed. The City is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

McINTYRE, J.

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^[1] Without any citation to the appellate record, the plaintiffs assert they objected to this testimony by Thompson because he did not offer that opinion during his deposition. "The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  594, p. 627.) Thus, when a party provides a brief without citation to the record establishing the point was made below, we may treat the issue as waived or meritless. (Troensegaard v.Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.) The testimony appears at page 852 of the reporter's transcript, and the plaintiffs did not object at that point. In its ruling on the plaintiffs' motion for a new trial, the court found Thompson's testimony was admissible because "plaintiffs suspended Thompson's deposition without completing it hence they cannot complain."