Filed 7/24/14 Barnett v. City of Desert Hot Springs CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHELIA BARNETT,
Plaintiff and Appellant, E054982
v. (Super.Ct.No. RIC511421)
CITY OF DESERT HOT SPRINGS, OPINION
Defendant and Respondent.
BERTHRAM BERRY NWENE,
Plaintiff and Appellant, (Super.Ct.No. INC081790)
v.
CITY OF DESERT HOT SPRINGS,
APPEAL from the Superior Court of Riverside County. John G. Evans, Judge.
Reversed.
1 Law Offices of Armen M. Tashjian, Armen M. Tashjian and Daniel Setareh for
Plaintiffs and Appellants.
Meyers, Nave, Riback, Silver & Wilson, Rachel Wagner, Kevin E. Gilbert; Graves
& King and Harvey W. Wimer III for Defendant and Respondent.1
I. INTRODUCTION
Plaintiffs and appellants, Berthram Berry Nwene and Shelia Barnett, appeal from
the trial court’s granting of the motion for summary judgment of defendant and
respondent, City of Desert Hot Springs (the City).
The record on appeal can be characterized as “meager,” at best. From plaintiffs’
pleadings it would appear that plaintiffs’ daughter, age 13, was struck and killed by a hit-
and-run motorist as she was walking to school on the dirt shoulder of Palm Drive.2
Plaintiffs’ complaint appears to focus on the basic contention that Palm Drive was
dangerous at the time of the accident, because there was no improved pedestrian sidewalk
running parallel to and adjacent to the northbound lanes of Palm Drive.
At the motion for summary judgment, the City submitted a traffic collision report,
a declaration by a sergeant of the City’s police department, authenticating 11 photographs
1 The law firm of Graves & King and Harvey W. Wimer III substituted into this case for the purpose of oral argument only.
2 From the evidence submitted on the City’s motion for summary judgment, it is unclear as to whether plaintiffs’ decedent was walking on the paved portion of the roadway, the dirt shoulder, or in an area well removed from the roadway. By way of the undisputed facts, however, plaintiffs’ decedent was walking on the dirt shoulder of the roadway.
2 of the roadway and adjacent dirt shoulder and generally describing the roadway and
weather conditions at the time of the accident, a declaration of the commander of the
police department describing average traffic volume and accident history for Palm Drive
in the years preceding the accident, and the declaration of Timothy Wassil in which he
attempts to lay the foundation for the application of the design immunity3 relative to a
1999 plan and design of the roadway. In opposition, plaintiffs submitted the declaration
of Alex Bias, a former mayor of the City. The declaration, in essence, sets forth that on
numerous occasions he expressed concerns about the dangerousness of Palm Drive
because of the failure of the City to provide sidewalks for the protection of pedestrians.
Each side objected to the other’s evidence. As for the City’s evidence, the trial
court sustained plaintiffs’ objections to the traffic collision report and the declaration of
Wassil with the attached plan and design. The City’s objections to the declaration of
Alex Bias were sustained.
As a result of the court’s evidentiary rulings, the City’s evidence consisted of 11
photographs of the roadway and adjacent dirt shoulder with a general description of the
roadway and an accident history of the roadway showing no similar accidents. Plaintiffs
were left with no opposing evidence. The court granted the City’s motion, finding no
triable issue of material fact as to the dangerousness of the roadway.
3 Government Code section 830.6. All further statutory references are to the Government Code unless otherwise indicated.
3 On appeal, plaintiffs make three arguments: (1) the City failed to meet its initial
burden of production so as to shift the burden to plaintiffs to demonstrate the existence of
a triable issue of material fact; (2) plaintiffs’ evidence created a triable issue of material
fact;4 and (3) the court erred in not granting a continuance of the hearing pursuant to
Code of Civil Procedure section 437c, subdivision (h).
We agree with plaintiffs that the City failed in its initial burden of production; as a
result, the burden never shifted to plaintiffs.5
II. ANALYSIS
A. Dangerous Condition of Public Property
A governmental entity is liable for an injury caused by its property if at the time of
the injury: (1) the property was in a dangerous condition; (2) the injury was proximately
caused by the dangerous condition; (3) the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred; and (4) the dangerous condition
was negligently or wrongfully created by an employee of the entity, or the entity had
4 Within this, plaintiffs argue that the court erred in sustaining the City’s objections to the declaration of Bias. We do not address this argument because plaintiffs have failed to properly seek review of these rulings. “It is appellant’s ‘burden on appeal to affirmatively challenge the trial court’s evidentiary ruling, and demonstrate the court’s error.’ [Citation.] While plaintiffs on appeal explicitly state that the trial court erred in sustaining the objections to the . . . declaration, they fail ‘to identify the court’s evidentiary ruling as a distinct assignment of error, and there is no separate argument heading or analysis of the issue.’ [Citations.]” (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074.)
5 Because we agree with plaintiffs on their initial argument we do not address whether the court erred in not granting plaintiffs a continuance under Code of Civil Procedure section 437c, subdivision (h).
4 actual or constructive knowledge of the dangerous condition a sufficient time ahead of
the injury so as to take measures to protect against the dangerous condition. (§ 835.)
For the property to be considered in a “dangerous condition,” it must create “a
substantial (as distinguished from a minor, trivial or insignificant) risk of injury when
such property . . . is used with due care in a manner in which it is reasonably foreseeable
that it will be used.” (§ 830, subd. (a).)
“The qualification that the property is dangerous only when used with due care
does not require the plaintiff to prove due care on the part of the third party . . . involved
in the plaintiff’s injury. Rather, the statute means that the condition is dangerous if it
creates a substantial risk of harm when used with due care by the public generally, as
distinguished from the particular person charged as concurrent tortfeasor.” (Murrell v.
State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 267.) “[I]f the
condition of the property was such that it created a substantial risk of injury to a person
using the property with due care, an injured plaintiff is not required to prove that the
driver of the third party vehicle . . . was exercising due care at the time of the injury.
That is, the third party’s negligent use does not negate the existence of a dangerous
condition. . . . What we must determine therefore is whether in the abstract the factual
situation in the case at bench could be found by the finder of fact to have created a
dangerous condition without regard to the specific conduct of [the third party driver] or
the plaintiff on this particular occasion.” (Mathews v. State of California ex rel. Dept. of
Transportation (1978) 82 Cal.App.3d 116, 121; see Ducey v. Argo Sales Co. (1979) 25
5 Cal.3d 707, 718-719 [lack of median barrier created a substantial risk of injury even in
the absence of negligent conduct].)
‘“Whether property is in a dangerous condition often presents a question of fact,
but summary judgment is appropriate if the trial or appellate court, viewing the evidence
most favorably to the plaintiff, determines that no reasonable person would conclude the
condition created a substantial risk of injury when such property is used with due care in
a manner which is reasonably foreseeable that it would be used. [Citations.]’ [Citation.]”
(Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)
B. Summary Judgment
A trial court properly grants summary judgment when there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their dispute.
[Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
A moving party defendant is entitled to summary judgment if it establishes a
complete defense to the plaintiff’s causes of action, or shows that one or more elements
of each cause of action cannot be established. (Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 849.) A moving party defendant bears the initial burden of production to
make a prima facie showing that no triable issue of material fact exists. Once the initial
burden of production is met, the burden shifts to the responding party plaintiff to
6 demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) From
commencement to conclusion, the moving party defendant bears the burden of persuasion
that there is no triable issue of material fact and that the defendant is entitled to judgment
as a matter of law. (Id. at p. 850.)
On appeal following the grant of summary judgment, we review the record de
novo, considering all of the evidence except that to which objections were made and
sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) “We liberally
construe the evidence in support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.” (Ibid.)
“Our review of the summary judgment motion requires that we apply the same
three-step process required of the trial court. [Citation.] ‘First, we identify the issues
framed by the pleadings since it is these allegations to which the motion must respond by
establishing a complete defense or otherwise showing there is no factual basis for relief
on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶]
Secondly, we determine whether the moving party’s showing has established facts which
negate the opponent’s claim and justify a judgment in movant’s favor. [Citations.] . . .
[¶] . . . [T]he third and final step is to determine whether the opposition demonstrates the
existence of a triable, material factual issue. [Citation.]’ [Citation.]” (Todd v. Dow
(1993) 19 Cal.App.4th 253, 258.)
“‘The purpose of a summary judgment proceeding is to permit a party to show that
material factual claims arising from the pleadings need not be tried because they are not
7 in dispute.’ [Citation.] Materiality depends on the issues in the case, and what matters
are at issue is determined by the pleadings, the rules of pleadings, and the substantive
law. [Citation.] ‘The complaint measures the materiality of the facts tendered in a
defendant’s challenge to the plaintiff’s cause of action.’ [Citation.]” (Teselle v.
McLoughlin (2009) 173 Cal.App.4th 156, 172, italics added.)
Looking to plaintiffs’ complaint, the following is alleged:
“9. Defendant CITY OF DESERT HOT SPRINGS . . . owned, operated,
designed, planned, engineered, maintained, inspected, repaired, and controlled the streets,
roadways and sidewalks of the City of Desert Hot Springs, including but not limited to
the area of and/or immediately adjacent to Palm Drive at or near the intersection [of]
Camino Campesino, Desert Hot Springs, California . . . . [¶] . . . [¶]
“15. On November 16, 2007, at approximately 7:00 a.m., while walking along the
dirt shoulder of northbound Palm Drive near the intersection with Camino Campesino,
Decedent was struck by a hit-and-run driver and was left on the side of the roadway to
die. . . .
“16. Defendants . . . failed to require installation of sidewalks . . . and failed to
control the streets, roadways and sidewalks . . . and . . . failed to provide proper
pedestrian walkways . . . and failed to provide any signs and/or warnings of the
narrowing road creating a trap . . . along Palm Drive at or near the intersection with
Camino Campesino . . . thereby, creating dangerous conditions . . . exposing . . .
pedestrians to vehicle traffic. These dangerous conditions . . . proximately caused the
8 death of Decedent when she was struck by a vehicle operated by the hit-and-run motorist
. . . . [¶] . . . [¶]
“18. . . . Defendants, and each of them, knew or should have known the subject
roadway leading to the Dessert [sic] Middle School was unsafe for pedestrian traffic and
despite such knowledge failed to take proper precautions for the safety of the pedestrians
and students including Plaintiff’s Decedent.
“[19]. Additionally, signs, warnings, safety crossing guards or other devices were
necessary to warn of these dangerous conditions which endangered the safe movement of
pedestrians, students . . . which would not be reasonably apparent to, and would not have
been anticipated by, a person exercising due care.”
As framed by the above pleadings, plaintiffs are, in essence, contending that Palm
Drive was dangerous because the City failed to provide sidewalks or safe pedestrian
walkways, failed to provide signs and/or warnings of a narrowing roadway, and that these
conditions created a trap to pedestrians causing the decedent’s death.
The City is entitled to summary judgment if by way of its undisputed facts and
supporting evidence it establishes a complete defense to the above allegations or shows
that plaintiffs cannot prove one or more elements of their cause of action. (Eriksson v.
Nunnink (2011) 191 Cal.App.4th 826, 848 [Fourth Dist., Div. Two].)
Stated otherwise, the City is entitled to summary judgment if it establishes that the
roadway and adjacent shoulder were not in a dangerous condition or a cause of the
9 plaintiffs’ injury or, alternatively, that plaintiffs could not show that the roadway was in a
dangerous condition or a cause of the injury.
“The defendant must demonstrate that under no hypothesis is there a material
factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the
motion must be denied. Only if the defendant meets this burden does ‘the burden shift[]
to plaintiff to show an issue of fact . . . .’ [Citation.]” (Anderson v. Metaclad Insulation
Corp. (1999) 72 Cal.App.4th 284, 289-290.) Here, the City did not meet its initial
burden.
1. The City’s Undisputed Facts and Supporting Evidence Did Not Establish a
Complete Defense to the Allegations of a Dangerous Condition of Public Property
First, the City did not, by way of its undisputed facts and supporting evidence,
affirmatively establish that the roadway and adjacent shoulder were not in a dangerous
condition. The undisputed facts and evidence upon which the motion was granted were:
“1. In the morning of November 16, 2007, before 8:25 a.m., a fatal hit and run
accident occurred on Palm Drive in Desert Hot Springs. The collision occurred between
Camino Campesino and Avenue Aventura streets.”
“2. The area of Palm Drive where the accident occurred is straight, level and
paved, with an unobstructed view in all directions.”
“3. The area of Palm Drive where the accident occurred is a four-lane roadway,
with two lanes of travel in each direction. There was a solid white line marking the edge
of the roadway on the east side of Palm Drive, also known as a ‘fog line.’”
10 “4. Conditions the morning of the accident were clear, sunny and dry.”
“5. The accident occurred on the east side of Palm Drive, when a northbound
driver hit a pedestrian as she was walking in the dirt area adjacent to the road.”
“6. From May 2002 until November 16, 2007, there were no auto-pedestrian
accidents in this area of Palm Drive.”
“7. From May 2002 until November 16, 2007, there were nine auto accidents (not
involving pedestrians) in this area of Palm Drive, with varying causes.”
As support for these undisputed facts, the City submitted 11 photographs of the
roadway which were attached to the declaration of Radames Gil, various traffic volume
counts taken over a space of years in conjunction with traffic collision reports, and a
spread sheet depicting the number of accidents in the area.
Based on these undisputed facts and the evidence, the trial court granted summary
judgment. As set forth in its statement of decision: “The court finds that [the City’s]
Undisputed Facts numbers 1-4 are undisputed. . . . The photographs of the scene . . .
demonstrate that there are no vision obstructions which would prevent a motorist from
seeing a pedestrian, the roadway was flat, straight and level, the roadway markings were
in good condition, the fog line was clearly marked, and the roadway surface was in good
condition and free of any defects. . . . Based upon the court’s review of the photographs,
and . . . [undisputed facts] nos. 1 through 4, the court finds that [the City] has presented
sufficient evidence that ‘no reasonable person could find that Palm Drive in [the] area of
the incident constituted a dangerous condition’ so as to shift the burden to plaintiffs to
11 demonstrate that one or more triable issues of fact exist as to whether a dangerous
condition existed.” We believe this analysis oversimplifies the issue.
Under our facts the issue as to whether there exists a dangerous condition of the
roadway and adjacent dirt shoulder is, to a large extent, the subject of expert testimony.
Certainly, a court under section 830.2 can as a matter of law determine that a condition of
property does not pose a substantial risk of injury as opposed to a trivial or insignificant
risk. (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 732.)6 This is not our case,
however. We do not believe, in this instance without the aid of expert testimony, that a
layperson can conclude, based on 11 photographs of a roadway, that a dangerous
condition of public property is not present as a matter of law. Carson v. Facilities
Development Co. (1984) 36 Cal.3d 830 (Carson) and Miller v. Los Angeles County Flood
Control Dist. (1973) 8 Cal.3d 689 (Miller) are instructive.
In Carson, the plaintiffs sued the City of San Diego on a theory of a dangerous
condition of public property. The plaintiffs’ decedent, who was driving southbound on
Colusa Street, brought her vehicle to a stop behind the limit line at the intersection of
Colusa Street and Friars Road. It was her intention to turn left and proceed eastbound on
6 Section 830.2 provides: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” As provided in the Law Revision Commission comment to section 830.2, the rule set forth in this code section stems primarily from “cases involving dangerous conditions of sidewalks.”
12 Friars Road. After bringing her vehicle to this initial stop, she proceeded closer to Friars
Road and stopped again. She then began her left turn; at this point, a westbound motorist
on Friars Road was approximately 50 feet from the plaintiffs’ decedent’s vehicle. The
cars collided, causing the death of plaintiffs’ decedent. At the time of the accident there
was an address sign and trees on the northeast corner of Friars Road and Colusa Street.
As framed by the court: “One of the major issues addressed by the testimony was
whether and to what degree the address sign and the trees located along the north side of
Friars Road obstructed the visibility of drivers stopped on Colusa Street at the north side
of the intersection.” (Carson, supra, 36 Cal.3d at p. 838.) A nearby resident “testified
that the driver of a southbound car on Colusa Street did not have a clear view of
oncoming westbound traffic until the front of [the] car had moved past the stop sign limit
line and was protruding slightly into Friars Road past its north curb. This evidence
suggested that the sign and/or shrubbery obstructed decedent’s view at both her stopping
points.” (Ibid.) The plaintiffs did not call an expert to testify on the issue of dangerous
condition of public property.
After presentation of the plaintiffs’ case, the trial court granted a nonsuit. In
reversing the grant of nonsuit, the Supreme Court discussed the city’s argument that the
plaintiffs needed expert testimony to establish the existence of a dangerous condition.
“‘[T]he decisive consideration in determining the admissibility of expert opinion
evidence is whether the subject of inquiry is one of such common knowledge that men of
ordinary education could reach a conclusion as intelligently as the [expert] witness or
13 whether, on the other hand, the matter is sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.’ [Citations.] Expert opinion evidence
is required in some circumstances. ‘If the matter in issue is one within the knowledge of
experts only and not within the common knowledge of laymen, it is necessary for the
plaintiff to introduce expert opinion evidence in order to establish a prima facie case.’
[Citations.]” (Carson, supra, 36 Cal.3d at p. 844; see McCoy v. Gustafson (2009) 180
Cal.App.4th 56, 99.) After discussing various cases, some in which expert testimony was
necessary and some in which it was not, the court in Carson concluded: “‘Evaluated by
these standards, proof of an obstruction at the Colusa Street-Friars Road intersection did
not require expert testimony. No special expertise was required to show that a driver
looking east down Friars Road would have difficulty seeing oncoming westbound traffic.
Accordingly, it was error to grant a nonsuit for the City on this ground.” (Carson, supra,
at p. 845, italics added.)
In accord with the above discussion, the court in Miller, supra, 8 Cal.3d 689 came
to an opposite conclusion as to the necessity for expert opinion on the facts before it.
There, the plaintiffs purchased a home on Country Club Drive. Country Club Drive
served “both as a passageway for vehicular traffic and, in times of heavy rain, as a flood
control channel. . . . [T]he street was designed with 18-inch curbs in order to contain the
rainwater that ran through the canyon to the valley below. [Plaintiffs’] home was situated
at a 90-degree curve in this street, so that it lay in a direct line with the natural water
runoff. At the head of Country Club Drive [was] . . . a flood control structure known as
14 the Upper Debris Basin. The dam-like structure [was] built . . . in 1929 . . . [and] was
designed to collect mud and debris which, in times of flood, might endanger lives and
property in the city below.” (Id. at pp. 692-693.)
One year before the plaintiffs purchased their home and two years after it was
constructed, a house next door had been destroyed by flood waters. Approximately eight
months before the incident in question a fire substantially denuded the hills above the
debris basin. On the day of the incident, “a rainstorm quickly filled the Upper Debris
Basin. A wall of water, mud and debris overflowed, traveling down the canyon to the
curve in the street where the [plaintiffs’] home was located.” (Miller, supra, 8 Cal.3d at
p. 693.) The home was destroyed. One person died in the home and two were injured.
Defendant Noble Manors was sued for negligence in the design and construction of the
home. At trial, the plaintiffs did not call an expert relative to the negligence of the
defendant. Following presentation of the plaintiffs’ case, the trial court granted a nonsuit
on the basis that “the evidence did not establish a prima facie showing of negligence.”
(Id. at p. 694.)
On appeal, the plaintiffs argued that the trial court should have allowed the jury to
determine from their own common experience whether Noble Manors acted reasonably.
(Miller, supra, 8 Cal.3d at p. 702.) In finding that expert testimony was necessary, the
court indicated that “[t]he average layman has neither training nor experience in the
construction industry and ordinarily cannot determine whether a particular building has
15 been built with the requisite skill and in accordance with the standards prescribed by law
or prevailing in the industry.” (Id. at. pp. 702-703, fn. omitted, italics added.)
Applying these concepts to the present case, it is evident that evidence from an
expert was necessary for purposes of the City prima facially establishing that there
existed no triable issue of material fact as to whether the roadway and adjacent shoulder
constituted a dangerous condition of public property. In most cases, the proper and safe
design of public roadways requires special expertise and is done in accordance with
criteria prevailing in the traffic engineering field.7 It is not simply a matter of laying
pavement on top of dirt and painting lines thereon. A prime example of this is the 1999
“Street Improvement Plan Palm Drive,” which was not admitted into evidence on the
present motion.
Here, there is no evidence that the design, construction, and maintenance of the
roadway and adjacent dirt shoulder conformed to accepted highway design criteria or
guidelines, or that the roadway was safe for motorists and pedestrians. For example,
plaintiffs contend that in the area of the accident the roadway narrowed. Here, there is no
evidence of the lane widths and the fact that they conformed with the prevailing and
7 See California Highway Design Manual (July 1, 2008) (“The manual establishes uniform policies and procedures to carry out the highway design functions . . . .”) and American Association of State Highway and Transportation Officials, A Policy on Geometric Design of Highways and Streets. The court takes judicial notice of the existence of these publications relative to their availability and use in the design and construction of roadways, signing of said roadways, and the design and construction of pedestrian and bicycle pathways. (See City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 417, fn 25 [“appropriate to take judicial notice of data ‘not cited by the parties’ . . . .”].)
16 accepted standards relative to the design of roadways. Further, and as exemplified by the
1999 design of the roadway, which was not admitted into evidence, there was no
evidence that the slope of the northbound lanes was in accordance with industry
standards. Lastly, there is no expert declaration relative to the fact that the roadway and
adjacent shoulder were safe as it related to pedestrian traffic. Under the present facts, the
submission of 11 innocuous photographs of a roadway simply does not meet the City’s
burden of affirmatively demonstrating that no triable issue of material fact exists. Just as
a judge could look at photographs and surmise that a dangerous condition is not present,
a similarly situated judge could look at photographs and surmise that the drop-off
between the paved portion of the roadway and the dirt shoulder is unsafe, thereby
contributing to a loss of control by the hit-and-run motorist. As in Miller, design of
roadways is normally beyond the training and expertise of the average layperson. Under
our facts, evidence that the design and construction of the roadway and adjacent shoulder
was within prevailing standards was necessary.
Here, there must be some expert evidence to support the conclusion that no triable
issue of material fact exists as to the dangerousness of the public property. (See Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 [“defendant must present
evidence that would preclude a reasonable trier of fact from finding that it was more
likely than not that the material fact was true”], italics added.) The City failed to produce
such evidence.
17 In arguing that plaintiffs, by way of their opposition, did not demonstrate a triable
issue of material fact, the City cites to the trial court’s statement of decision wherein it
explained: “Plaintiffs proffered no admissible evidence of a dangerous condition of
public property. No expert opinions were submitted attacking the design of the roadway,
signage, excessive speed limit, poor visibility, condition of the roadway surface, lack of
sight distance, lack of maintenance, elevation variances, prior accidents in the area or any
unusual condition. . . .” (Italics added, underlining omitted.) The observation that
plaintiffs submitted no admissible evidence by way of expert opinion misses the point.
On a motion for summary judgment, the initial burden of producing evidence rests with
the moving defendant not the plaintiff. Thus, it was incumbent on the City to initially
submit expert evidence so as to shift the burden to plaintiffs.
Instructive is Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th
1509. There, the defendant law firm moved for summary judgment on the basis that it
was not negligent. The defendant argued that the plaintiff’s failure to produce expert
evidence in opposition to the motion allowed for the trial court’s entry of summary
judgment. “[T]he burden-shifting provisions of [Code of Civil Procedure] section 437c,
subdivision (o)(2) do not operate until the moving party first produces affirmative
evidence negating the duty’s existence, or evidence that [defendants] did not breach the
duty of care. [Citation.] [Defendants] produced no expert testimony negating the duty of
care or breach of duty elements of [plaintiff’s] cause of action, and the motion for
summary judgment should have been denied even though [plaintiff] did not produce
18 expert testimony.” (Id. at pp. 1534-1535.) “[I]f the showing by the defendant does not
support judgment in his favor, the burden does not shift to the plaintiff and the motion
must be denied without regard to plaintiff’s showing.” (Id. at p. 1534.)
Here, the City failed to affirmatively produce sufficient evidence to shift the
burden of production to plaintiffs; as such, it did not demonstrate its entitlement to
summary judgment.
2. The City Did Not Establish That Plaintiffs Cannot Prove an Element of Their
Cause of Action
“As an alternative to the difficult task of negating an element, the defendant may
present evidence to ‘show[] that one or more elements of the cause of action . . . cannot
be established’ by the plaintiff. [Citations.] A defendant ‘has shown that the plaintiff
cannot establish at least one element of the cause of action by showing that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence: The defendant must
show that the plaintiff does not possess needed evidence, because otherwise the plaintiff
might be able to establish the elements of the cause of action; the defendant must also
show that the plaintiff cannot reasonably obtain needed evidence, because the plaintiff
must be allowed a reasonable opportunity to oppose the motion . . . .’ [Citations.] A
defendant can satisfy its initial burden to show an absence of evidence through
‘admissions by the plaintiff following extensive discovery to the effect that he has
discovered nothing’ [citation], or through discovery responses that are factually devoid.
[Citations.] [¶] Only after the defendant’s initial burden has been met does the burden
19 shift to the plaintiff to demonstrate, by reference to specific facts, not just allegations in
the pleadings, there is a triable issue of material fact as to the cause of action.” (Chavez
v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301-1302, some italics in original, some
italics added.)
The City suggests at pages 25 and 26 of its brief that plaintiffs have no evidence to
support the contention that any defect in the roadway was a cause of the injury. As
stated: “‘An essential element of a cause of action for damages based on a dangerous
condition of public property is causation.’ [Citations.] Proof of causation is not the
City’s burden: ‘plaintiff must show that the dangerous condition in question was a
substantial factor in causing his or her harm.’ [Citation.]” Within the context of a
summary judgment motion, the City’s argument is misplaced.
Initially, the case relied upon by the City for the proposition that it is plaintiffs’
burden to show that the dangerous condition was a substantial factor in causing the harm
is a case in which the trial court sustained a demurrer without leave to amend. The fact
pattern before that court was a situation in which the plaintiff’s decedent committed
suicide by jumping off the Golden Gate Bridge. The plaintiff contended that in the
absence of a “suicide barrier” the bridge was a dangerous condition. After discussing
well-settled law that the negligence or lack of due care exhibited by the plaintiff-user
does not defeat a cause of action for dangerous condition, the court stated, as to the action
before it: “We conclude reasonable minds will reach but one conclusion as to whether
the lack of a suicide barrier is a dangerous condition. By definition, persons who use the
20 bridge to commit suicide are not using the bridge in a manner used by the general public
exercising ordinary care.” (Milligan v. Golden Gate Bridge Highway & Transportation
Dist. (2004) 120 Cal.App.4th 1, 7.) As to causation, the court concluded: “Here,
appellant does not allege that her daughter accidentally fell from the bridge while
engaged in horseplay, while leaning over the railing to gain a better view, or while posing
for a photograph. Appellant admits that [the decedent] intentionally climbed over the
existing three-and-one-half-foot safety railing and jumped. Whatever defects may or may
not be present in the railing’s current design, they were not, as a matter of law, the cause
of [the decedent’s] tragic death.” (Id. at p. 9.) On its facts, the case has no applicability
to the present matter.
Further, on a motion for summary judgment, it is the defendant’s burden to
demonstrate that the plaintiff cannot prove causation. “[A] defendant cannot simply
‘argue’ that a plaintiff lacks sufficient evidence to establish causation; the defendant must
make an affirmative ‘showing’ that the plaintiff cannot do so. While we acknowledge[]
that circumstantial evidence supporting a summary judgment motion ‘can consist of
“factually devoid” discovery responses from which an absence of evidence can be
inferred,’ we also note[] ‘that the burden should not shift without stringent review of the
direct, circumstantial and inferential evidence.’ [Citation.]” (Andrews v. Foster Wheeler
LLC (2006) 138 Cal.App.4th 96, 103.)
None of the City’s 11 undisputed statements of fact set forth the notion plaintiffs
cannot prove the element of causation. The City submitted no discovery responses to the
21 effect that plaintiffs do not possess facts relative to this element and none of the
supporting declarations or exhibits go to the issue.
As such, we find that the City failed in its burden. The burden never shifted to
plaintiffs. The motion should have been denied.
3. The City’s Cases
In its opposition to the motion and on appeal, the City relies primarily on four
cases for the proposition that in automobile versus pedestrian cases “as a matter of law
that there [is] no substantial risk of [an] accident so long as the driver and pedestrian
exercise[] due care.” As such, “the claim of a dangerous condition can be resolved as a
matter of law ‘if reasonable minds can come to but one conclusion.’”
The first of the four cases is Brenner v. City of El Cajon (2003) 113 Cal.App.4th
434. There, the plaintiff was struck by a car as she was walking across Chase Avenue
near its intersection with Estes Street. (Id. at p. 436.) In the plaintiff’s second amended
complaint, she alleged that the intersection was not safe for pedestrians because the city
“‘failed to install traffic [regulatory] devices, traffic safety devices, traffic control
devices, signs or traffic signs, or take any steps to manage, control, or reduce the
automobile traffic flow or speed on Chase Avenue and/or . . . failed to take steps to
prevent increased risk of harm and injury to the pedestrians . . . .’” (Id. at pp. 436, 438.)
In its demurrer, the defendant argued that it was immune from liability under
sections 830.4 and 830.8 for its failure to install traffic (regulatory) devices, traffic safety
devices, traffic control devices, signs or traffic signs. In agreeing with this argument, the
22 appellate court, in affirming the trial court’s granting of the demurrer without leave to
amend, stated: “[T]he Legislature has expressly provided that ‘[a] condition is not a
dangerous condition within the meaning of this chapter merely because of the failure to
provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed
restriction signs, as described by the Vehicle Code, or distinctive roadway markings as
described in Section 21460 of the Vehicle Code.’ (§ 830.4.) Thus, the statutory scheme
precludes a plaintiff from imposing liability on a public entity for creating a dangerous
condition merely because it did not install the described traffic control devices.
[Citations.] [¶] . . . Accordingly, if the facts pleaded by the plaintiff as a matter of law
cannot support the finding of the existence of a dangerous condition within the meaning
of the statutory scheme, a court may properly sustain a demurrer to the complaint.”
(Brenner v. City of El Cajon, supra, 113 Cal.App.4th at pp. 439-440.) The case has little
to no import on the present matter. Certainly, the case did involve an automobile versus
pedestrian accident and the court did hold that as a matter of law the plaintiff had not set
forth a viable cause of action. The reason for the decision however was that based on the
allegations of the plaintiff’s complaint, the governmental entity was immune from
liability under section 830.4.8 This is not the situation that is before us. The allegations
in the present complaint do not plead directly into a statutory immunity.
8 “A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” (§ 830.4.)
23 In Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340 (Cerna), an unlicensed
motorist struck six pedestrians as they walked in a marked crosswalk at an uncontrolled
intersection. The roadway consisted of four lanes, two lanes in each direction, with a
center divider. “Pedestrian crossing” was marked on the roadway. There was no
evidence that the car slowed or swerved. The trial court granted the city’s summary
judgment motion.
After acknowledging that a public entity may be liable for a dangerous condition
of public property where the immediate cause of the plaintiff’s injury is a third party’s
negligent or illegal act, the court went on to analyze whether there were any physical
characteristics of the property at issue that exposed the plaintiff to an increased risk of
injury from the third party’s negligent conduct. (Cerna, supra, 161 Cal.App.4th at p.
1348.)
As described by the court: “Plaintiffs identified seven features that allegedly made
the City intersection dangerous: (1) the crosswalk was painted white, not yellow; (2)
there was no sign painted in the approaching roadway with the words ‘SLOW—
SCHOOL XING’; (3) there was no traffic signal; (4) there were no crossing guards; (5)
signs warning of the presence of student pedestrians were either missing or in an
incorrect position; (6) the crosswalk was not painted with diagonal or longitudinal lines;
and (7) there were no blinking lights in the pavement along the parallel painted lines of
the crosswalk.” (Cerna, supra, 161 Cal.App.4th at p. 1348.)
24 In dispensing with all of the plaintiffs’ contentions, which were dependent on the
crosswalk being contiguous to a school (Veh. Code, § 21368), the court stated:
“[P]laintiffs’ reliance on Vehicle Code section 21368—whether to create a mandatory
duty or to demonstrate a dangerous condition—is misplaced because the statute is
inapplicable. The intersection was not contiguous to school grounds and thus Vehicle
Code [section] 21368 did not require demarcation in yellow paint and additional signage
warning of a school crossing. The location of the crosswalk relative to the School
grounds is not in dispute, and thus the applicability of Vehicle Code section 21368 is a
question of law.” (Cerna, supra, 161 Cal.App.4th at p. 1350.)
Continuing, the court stated: “Plaintiffs’ reliance on other features of the
intersection to prove that it was in a dangerous condition is similarly misplaced. The lack
of a traffic signal at the intersection does not constitute proof of a dangerous condition.
‘A condition is not . . . dangerous . . . merely because of the failure to provide regulatory
traffic control signals . . . .’ (Gov. Code, § 830.4; see Brenner v. City of El Cajon, supra,
113 Cal.App.4th at p. 439.) Nor does the lack of crossing guards prove a dangerous
condition. The presence or absence of crossing guards is not a physical characteristic of
the intersection and thus not actionable as a dangerous condition. A lack of human
supervision and protection is not a deficiency in the physical characteristics of public
property.” (Cerna, supra, 161 Cal.App.4th at pp. 1351-1352.)
As with Brenner, the court in Cerna determined that as a matter of law, the
plaintiffs’ factual allegations were deficient. The court found that the crosswalk was not
25 contiguous to a school, thus the added protections provided for in the Vehicle Code were
legally inapplicable; the court further found that the plaintiffs’ additional allegations
moved directly into the area subsumed by Government Code section 830.4 (entity is
immune for its failure to provide regulatory traffic control signals). The only similarity
Cerna has with the present matter is that it involves an automobile versus pedestrian
accident; its holding is otherwise inapplicable.
Salas v. Department of Transportation, supra, 198 Cal.App.4th 1058 involved a
nighttime accident in which a pedestrian, while walking across State Route 12, was
struck and killed by a vehicle. At the time of the accident, the plaintiff’s decedent had
deviated from the crosswalk to examine a bag in the highway. In support of its motion
for summary judgment, the defendant submitted the declaration of Caltrans expert Ron
Nelson. Nelson declared that the roadway was straight and that there were no sight
obstructions for either the motorist or the pedestrian. He further described the warning
signs adjacent to the roadway which notified motorists of the upcoming crosswalk. (Id.
at pp. 1062-1063.) He declared that the signage met current California design standards
and “that the accident location was not a dangerous condition of public property.” (Id. at
pp. 1064, 1066.)
As for the plaintiff’s evidence, the trial court sustained the defendant’s objections
to all of the police reports of prior accidents in that the prior accidents were not
substantially similar to the one at bar. The court further sustained objections to the
entirety of the plaintiff’s expert’s declaration “except . . . to the innocuous statement that
26 crosswalks warn drivers of potential pedestrians.” (Salas v. Department of
Transportation, supra, 198 Cal.App.4th at pp. 1072-1073, fn. omitted.)
The case is clearly inapposite. There, summary judgment was entered based on
expert testimony that the roadway complied with accepted design criteria and was not in
a dangerous condition at the time of the accident. That is not the case here. We have a
summary judgment granted on the basis of a judge viewing 11 photographs and coming
to the conclusion, without the aid of expert evidence, that the roadway and adjacent
shoulder were not in a dangerous condition.
In Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, the plaintiffs’ decedent
was struck by a vehicle while walking in an unmarked crosswalk on a four-lane roadway
during the daytime. Previously, there had been a marked crosswalk in the area. A car in
the No. 1 lane stopped to allow the decedent to cross in front. A second car traveling in
the No. 1 lane changed to the No. 2 lane and struck the plaintiffs’ decedent as she
emerged from in front of the stopped vehicle. The trial court granted the defendant’s
motion for summary judgment.
On appeal, the plaintiffs argued that the condition was dangerous because of the
unmarked crosswalk. (Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1184.) In
response, the city, in reliance on the Vehicle Code, submitted: “‘[T]he fact that the
crosswalk was not marked . . . is irrelevant, and certainly does not create a dangerous
condition. Under California law, a crosswalk is either marked or unmarked, and the
27 obligations of drivers and pedestrians to exercise caution and to yield the right of way are
largely the same regardless of the markings or lack thereof.’” (Id. at pp. 1184-1185.)
The appellate court agreed. As stated: “There must be a defect in the physical
condition of the property and that defect must have some causal relationship to the third
party conduct that injures the plaintiff. [Citation.] ‘[P]ublic liability lies under
[Government Code] section 835 only when a feature of the public property has
“increased or intensified” the danger to users from third party conduct.’ [Citation.]”
(Sun v. City of Oakland, supra, 166 Cal.App.4th at p. 1187.) As such, the appellate court
affirmed the trial court’s granting of summary judgment.
Much of what was said in Sun could be said here. There is a total lack of evidence
in our record as to whether the public property increased or intensified the danger to
pedestrians from third party drivers. The burden, however, on summary judgment rested
with the City to demonstrate that no triable issue of material fact exists as it relates to this
issue. Without the aid of expert testimony, 11 photographs of the roadway simply do not
meet the City’s initial burden.
Further, at page 23 of its respondent’s brief, the City submits that “the Vehicle
Code long has contemplated that pedestrians will walk along roadways without a
sidewalk. [Plaintiffs] submitted no law of any kind – administrative, judicial or
otherwise – to suggest the installation of a sidewalk is legally mandated, and that its
absence alone renders a public entity liable for a dangerous condition under the
Government Code.” The argument misses the point; simply because no law mandates a
28 pedestrian walkway or some other installation segregating vehicle and pedestrian traffic,
does not mean that the area of roadway is not in a dangerous condition, within the
meaning of the Government Code.9
III. DISPOSITION
The judgment is reversed. Each party shall bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
9 See, as just a few examples, Baldwin v. State of California (1972) 6 Cal.3d 424, (absence of left turn lane at a heavily traversed intersection), Elias v. San Bernardino County Flood Control Dist. (1977) 68 Cal.App.3d 70 [Fourth Dist., Div. Two] (improperly maintained roadway), Warden v. City of Los Angeles (1975) 13 Cal.3d 297 (a submerged pipe near the surface of the Santa Monica Bay). None of the dangerous conditions discussed in these cases were violative of state mandates.