Ramsey v. City of Lake Elsinore

220 Cal. App. 3d 1530, 270 Cal. Rptr. 198, 1990 Cal. App. LEXIS 598

• Court: California Court of Appeal
• Decided: June 4, 1990
• Docket: E005878
• Status: Published

Opinions

Opinion

DABNEY, J.

Plaintiff Joseph Ramsey has appealed from a judgment and an award of costs and attorney’s fees in favor of defendant City of Lake Elsinore (City) following the granting of the City’s motion for summary judgment. The City’s motion was granted on the ground that there was no triable issue of fact as to the City’s ownership and control of the property on which Ramsey had been injured.

Factual and Procedural Background

While crossing Riverside Drive in the City, Ramsey, a pedestrian, was struck by an automobile driven by Randall Gray. Ramsey brought an action against Gray for damages for personal injuries caused by Gray’s negligence. Ramsey also sued the City, the County of Riverside (County) and the State of California (State). Ramsey alleged that each public entity owned, maintained or controlled the property where the accident occurred, in a dangerous condition, thus causing Ramsey’s injuries. Gray filed a cross-complaint against the City, the County and the State for indemnity, contribution and declaratory relief.

The City moved for summary judgment.¹ The City contended that it was undisputed that Ramsey’s injuries occurred as he was crossing Riverside Drive near Joy Street, the site alleged to be in a dangerous condition, and that the City did not own or control Riverside Drive at or near that intersection. To support its motion, the City attached the declaration of Ron Kirchner, the City’s engineer and director of public services. Kirchner stated that he was responsible for the design, construction and inspection of all public works projects and for maintenance of public works, including streets, and for signing, marking and lighting streets. Kirchner asserted that from his examination of City records, his experience and his knowledge of matters within his responsibility, he could state that the City did not own or maintain Riverside Drive at its intersection with Joy Street and did not own or maintain the street lighting there. Kirchner declared that Riverside Drive, also known as State Route 74, is exclusively under the jurisdiction of the State.

The City also requested sanctions, alleging that Ramsey’s action against the City was not brought with reasonable cause or in good faith. To support its request for sanctions, the City attached a copy of a letter from the City’s claims administrators advising Ramsey’s former attorneys that the City rejected Ramsey’s claim because the State, not the City, owned and maintained State Highway 74 at the intersection of Joy Street. The letter warned Ramsey’s attorneys that if they chose to pursue litigation against the City, the City would seek sanctions under Code of Civil Procedure section 1038.².³The City also attached a second letter addressed to Gray’s attorney, with Ramsey’s present attorney shown as the recipient of a copy. That letter stated that the City did not own or control the roadway on which the accident occurred and that the roadway was exclusively within the jurisdiction of the State.

Soon after the City served its motion, Gray dismissed his cross-complaint against the City. Ramsey and the City stipulated to continue the hearing on the City’s motion to allow discovery. Ramsey then brought his own motion for summary adjudication of issues against the State. Ramsey alleged that it was undisputed that the State owned Riverside Drive at its intersection with Joy Street and that the State’s ownership extended a certain distance beyond the paved roadway. To establish that these issues were undisputed, Ramsey referred the City’s and County’s motions for summary judgment and the declarations and exhibits attached to those motions. Ramsey set this motion to be heard at the same time as the City’s motion for summary judgment.

In opposition to the City’s motion, Ramsey filed a statement of disputed facts. Ramsey disputed the City’s statements that it did not own or control the subject property. Ramsey objected to Kirchner’s declaration on the grounds that the basis for Kirchner’s knowledge could not be ascertained, and that Kirchner had made inconsistent statements in his deposition. Ramsey also filed the declaration of Robert Crommelin, a licensed civil and traffic engineer, whom Ramsey had retained as an expert. Crommelin stated that based on his experience and on the documents he had reviewed in this case, he felt “that there is a reasonable likelihood that the intersection in question constituted a dangerous condition of public property at the time of the accident. However, until I have completed my investigation,... I must reserve my final judgment on this subject.” Crommelin also stated that the State generally enters into maintenance agreements with local cities for State highways which pass through the cities. Crommelin was “surprised” to read in the City’s response to Ramsey’s request for production of documents that the City had no such agreement. Finally, Crommelin stated that he could not render an opinion as to whether the State or the City controls the subject intersection.

Following a hearing, the trial court granted the City’s motion for summary judgment. The trial court also granted Ramsey’s motion for summary adjudication of issues against the State.

Discussion

Contentions on Appeal. Ramsey now concedes that the State owns Riverside Drive.⁴ He contends, nonetheless, that there were triable issues of fact as to whether the City controlled Riverside Drive at the intersection of Joy Street, whether the intersection was in a dangerous condition which the City could have prevented through its ownership and control of Joy Street, and whether the City had the power to prevent, remedy or guard against the dangerous condition of its own property or that of the State. Ramsey also contends that the action was brought in good faith, and that even if the summary judgment is upheld, the award of sanctions should be reversed.

Standard of Review. Summary judgment is proper if the supporting papers are sufficient to sustain the judgment in favor of the moving party as a matter of law, and the opposing party presents no evidence which gives rise to a triable issue as to any material fact. (§ 437c.) When reviewing a grant of summary judgment, we independently analyze the construction and effect of the supporting and opposing papers. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064 [225 Cal.Rptr. 203].) A defendant who moves for summary judgment must either disprove at least one essential element of every cause of action or prove an affirmative defense that would bar every cause of action in the complaint. (Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 637-639 [177 Cal.Rptr. 445].) A defendant may properly rely on the plaintiff’s pleadings to supply essential factual elements. (Id., at p. 638.) “If any triable issue of fact exists, it is error for the trial court to grant a party’s motion for summary judgment.” (Schrimsher v. Bryson (1976) 58 Cal.App.3d 660, 663 [130 Cal.Rptr. 125].) To defeat a motion for summary judgment, the plaintiff must point to some evidence which supports his claims. (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, 406 [182 Cal.Rptr. 443].) What facts are material depends upon the allegations of the complaint. (IT Corp. v. Superior Court (1978) 83 Cal.App.3d 443, 451-452 [147 Cal.Rptr. 828].) Because of the drastic nature of the procedure, “. . . all doubts should be resolved in favor of the party opposing the motion.” (Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 362 [212 Cal.Rptr. 395].)

Liability of a Public Entity for a Dangerous Condition of Public Property. Public liability for personal injuries is defined and limited by statute. Government Code section 835 states: “[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. . . .” Public property includes “. . . real or personal property owned or controlled by the public entity. . . .” (Gov. Code, § 830, subd. (c).)

Under the Tort Claims Act (Gov. Code, § 810 et seq.), to establish the liability of a public entity for a dangerous condition of public property a plaintiff must prove that: the property was in a dangerous condition when the injury occurred; the dangerous condition was a proximate cause of the injury; the dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and the public entity had sufficient prior notice of the dangerous condition to enable it to have undertaken measures to protect against such condition. (County of Ventura v. City of Camarillo (1978) 80 Cal.App.3d 1019, 1024-1025 [144 Cal.Rptr. 296].) Even though an injury occurs on one piece of property, one who owns or controls an adjacent property may be liable if a dangerous condition on the adjacent property caused the accident. (Ibid.)

The Issues Framed by the Complaint. Ramsey’s first amended complaint alleges that Ramsey was walking across Riverside Drive near its intersection with Joy Street when the accident occurred, that Gray was driving “along and upon” Riverside Drive when he collided with Ramsey, and that the City and other public entities “designed, owned, possessed, maintained, occupied, controlled, leased and cared for . . . Riverside Drive near the intersection with Joy Street.” Finally, Ramsey alleged that Riverside Drive near the intersection with Joy Street was in a dangerous condition which the public entities, including the City, were negligent in failing to correct.

The City notes that the pleadings relate only to the condition of Riverside Drive and that the City directed its proof toward this issue, as framed by the complaint. Thus, the only relevant evidentiary issue was whether the City had control over Riverside Drive near its intersection with Joy Street.

City's Authority to Control State Highway. Ramsey contends that the City had the power to control Riverside Drive near its intersection with Joy Street because in two instances after Ramsey’s accident occurred, the City altered traffic control devices at other streets within the City which crossed Riverside Drive. This position does not acknowledge the role which statutes play in governing the allocation of responsibility for roadways within this state.

The State, as sovereign, has the original rights to control public streets and highways. This control remains with the Legislature except insofar as it is relinquished to municipalities. (Pipoly v. Benson (1942) 20 Cal.2d 366, 369 [125 P.2d 482, 147 A.L.R. 515].) The delegation of authority to local entities to adopt vehicular traffic ordinances is strictly construed. (City of Lafayette v. County of Contra Costa (1979) 91 Cal.App.3d 749, 756 [154 Cal.Rptr. 374].)

Section 21 of the Vehicle Code states: “Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.'''’ (Italics added.)

Vehicle Code section 21100 provides: “Local authorities may adopt rules and regulations by ordinance or resolution regarding the following matters:

“(d) Regulating traffic by means of official traffic control devices meeting the requirements of Section 21400.” (Italics added.)

Vehicle Code section 21101 allows local authorities to adopt regulations and rules, by resolution or ordinance, “for those highways under their jurisdiction.”

Vehicle Code section 21104 provides: “No ordinance or resolution proposed to be enacted under Section 22101 or subdivision (d) of Section 21100 is effective as to any highway not under the exclusive jurisdiction of the local authority enacting the same, except that an ordinance or resolution which is submitted to the Department of Transportation by a local legislative body in complete draft form for approval prior to the enactment thereof is effective as to any state highway or part thereof specified in the written approval of the department . . . .” (Italics added.)

Local authorities may maintain traffic signs, signals and other control devices upon streets and highways within their local jurisdiction. (Veh. Code, § 21351.) However, state highways are not within the jurisdiction of local authorities to control or maintain under this section. (Gillespie v. City of Los Angeles (1950) 36 Cal.2d 553, 559 [225 P.2d 522],)⁵ Thus, for example, local authorities may not establish crosswalks between intersections on state highways without the approval of the Department of Transportation. (Authority Over Crosswalks, 64 Ops.Cal.Atty.Gen. 335, 338 (1981).) Finally, as the City has noted in its arguments below and on appeal, “No public or private street or road shall become a city street or road until and unless the governing body, by resolution, has caused [said] street or road to be accepted into the city street system; nor shall any city be held liable for failure to maintain any road unless and until it has been accepted into the city street system by resolution of the governing body.” (Sts. & Hy. Code, § 1806.)

We now examine the evidence submitted by the parties in light of this statutory framework to determine if Ramsey has demonstrated a triable issue of material fact.

There Was No Disputed Issue of Material Fact Concerning the City’s Control Over Riverside Drive. Kirchner stated in his declaration that the City did not own or maintain Riverside Drive at its intersection with Joy Street, and did not own or maintain the street lighting there. Kirchner stated in his deposition that he knew the City did not maintain Riverside Drive at that intersection, and that he had seen Cal-Trans performing maintenance there. Ramsey’s attorneys also took the deposition of Ivan Tennant, the Deputy Road Commissioner of the County. Tennant was asked, “Who do you understand to have the responsibility for the maintenance, supervision and repair of Riverside Drive at or about its intersection with Joy Street?” Tennant replied, “That’s a State Highway, so it’s Cal Trans.”

Ramsey’s attorneys filed supplemental papers in opposition to the City’s motion for summary judgment. Among those papers was a letter from the City Council of the City of Lake Elsinore stating that the “City Council, at its regular meeting on September 11, 1984, passed a resolution authorizing stop signs at . . . Riverside Drive at Joy. . . .” Ramsey’s attorneys also filed a report to the City Council and Resolution of September 11, 1984 which states that the City must obtain written approval from the State “before signs can be placed and enforcement initiated.” Ramsey also filed a letter from the Department of Transportation to the City denying the City’s request to install stop signs at the intersection of Riverside Drive and Joy Street.

Kirchner stated in his declaration that Riverside Drive was exclusively within the jurisdiction of the State. Crommelin’s declaration did not create any issue of fact; it merely raised a speculation that further discovery might disclose factual support for Ramsey’s claims.

If the City did have authority to control the property in question, it would be a matter of public record. Such authority must be created by ordinance or resolution. (Veh. Code, §§ 21100, 21101, 21104; Sts. & Hy. Code, § 1806.) Ramsey has not pointed out any such resolution or ordinance. In light of the statutes discussed above, the trial court was entitled to rule as a matter of law that the City did not have control over the site of the accident.

Admissibility of Kirchner Declaration. Ramsey complains that the City’s showing on the motion for summary judgment was based on the declaration of the City’s engineer, Kirchner. Ramsey objected to Kirchner’s declaration in the trial court on the ground that no foundation was shown for Kirchner’s statement that the City did not own or control the intersection. The trial court did not explicitly rule on the admissibility of Kirchner’s declaration; counsel’s failure to secure a ruling on the objection waives the objection. (Haskell v. Carli (1987) 195 Cal.App.3d 124, 129 [240 Cal.Rptr. 439].)

Propriety of Award of Attorney’s Fees and Costs. Section 1038 requires a court to award attorney’s fees and costs to a defendant who obtains a summary judgment in an action under the Tort Claims Act if the court determines that the proceeding was not brought in good faith and with reasonable cause. The requirements of good faith and reasonable cause apply not only to the filing of an action, but also to its continued maintenance. (Curtis v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1252 [218 Cal.Rptr. 772].)

To determine whether a party had reasonable cause to bring or maintain an action, we look to “. . . whether any reasonable attorney would have thought the claim tenable . . . .” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886 [254 Cal.Rptr. 336, 765 P.2d 498].) In Sheldon Appel, the defendant appealed from a judgment awarding the plaintiff damages in a malicious prosecution case in which the trial court had given the issue of probable cause to the jury. The Supreme Court reversed the jury award, holding that the “probable cause” element of the tort of malicious prosecution calls on the court to make an objective determination of the reasonableness of the defendants’ conduct in initiating the lawsuit. Probable cause is measured by an objective standard determining “. . . the defendant’s belief in, or knowledge of, a given state of facts, and not to the defendant’s belief in, or evaluation of, the legal merits of the claim.” (Id., at p. 879, original italics.) This standard recognizes that defendants have an “ ‘interest in freedom from unjustifiable and unreasonable litigation.’ [Citations.]” (Id., at p. 882, original italics.)

At a minimum, the standard of reasonable cause requires that the plaintiff’s attorney have some articulable facts on which he can conclude that a particular person should be named as a defendant. Here, Ramsey failed to raise any legitimate issue of the City’s ownership or control of property where the accident occurred. As noted above, the State’s ownership of Highway 74 is statutory. The City had assured Ramsey’s former attorneys before the complaint was filed that the City had no control over Riverside Drive, alleged to be the site of the accident. The State admitted that it did own that intersection. We find it noteworthy that the State did not file any cross-complaint against the City.

Instead of facts, Ramsey merely states a legal principle that the liability of a public entity may be based either on ownership or control of property where an accident occurs. We agree with this premise; however, Ramsey does not suggest the nature of any such dangerous condition or the basis on which the City may exercise control. Ramsey fails to acknowledge the statutes which allocate responsibility for roadways in this state.

The case of Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792 [223 Cal.Rptr. 206] establishes that disregard of statutes is fatal to a plaintiff’s claim of public liability. In Searcy, this court affirmed the trial court’s judgment sustaining without leave to amend the demurrer of the Hemet Unified School District (School District) and the California Highway Patrol (CHP). In Searcy, a first grade student was struck by a car as she was walking home from school. The accident occurred in the middle of a block about one-half mile from the school at a site the schoolchildren often used as a short cut. (Id., at p. 796.) The plaintiff sued the driver for her injuries and also named as defendants the School District, CHP and other public entities on the ground that they had caused or failed to remedy a dangerous condition. (Id., at pp. 796-797.) The complaint alleged that the “dangerous condition” was the limited visibility of cars at the site of the accident, the habitual violation of the speed limit by drivers at that site, and the frequent mid-block street crossing by school children using the short cut. (Id., at p. 797, fn. 1.)

The plaintiff also alleged on information and belief that there existed “ ‘other and additional duly adopted enactments’ and other unspecified ‘enactments’ ” (Searcy, supra, 177 Cal.App.3d at p. 801) which created a mandatory duty on the part of the School District to correct dangerous conditions at the accident site. (Ibid.) The court disagreed with the plaintiff’s assertion that her complaint was not uncertain, because the existence of such enactments was presumptively within the knowledge of the School District. The court explained that “ ‘enactments’ are generally a matter of public record, and facts that are ascertainable from public records may not properly be pleaded on information and belief. [Citations.]” (Id., at p. 802.) The court continued, “Secondly, in California all government tort liability is dependent on the existence of an authorizing statute or ‘enactment’ [citations], and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.] Duty cannot be alleged simply by stating ‘defendant had a duty under the law’; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or ‘enactment,’ the statute or ‘enactment’ claimed to establish the duty must at the very least be identified.” (Ibid.)

Here, as in Searcy, Ramsey did not identify any statute, ordinance or resolution on which the City’s liability could be based. We conclude that Ramsey has failed to justify the initial filing of the complaint or the continued maintenance of his action against the City. The award of attorney’s fees and costs was proper.

Disposition

The judgment of the trial court is affirmed. Appellant to bear costs on appeal.

Hollenhorst, Acting P. J., concurred.

1 The County had earlier moved for summary judgment on the ground that it had no responsibility for the design, construction, operation or maintenance of Riverside Drive at the location of the accident. To support its motion, the County attached the declaration of Ivan Tennant, the County’s deputy road commissioner since 1974. Tennant stated that the County had no responsibility or authority for the design, construction, maintenance or operation at that location.

Ramsey opposed the County’s motion on the ground that he had not had time to conduct sufficient discovery, including taking Tennant’s deposition. The court continued the matter to allow such discovery, but warned that it “would seriously consider sanctions under Code of Civil Procedure section 1038 should that be necessary at that time based upon the unwillingness of the plaintiff to accept the Declaration of [Tennant] submitted in support of the Motion for Summary Judgment.” The motion was taken off calendar, and Ramsey later dismissed his action against the County.

2 All statutory references are to the Code of Civil Procedure unless otherwise indicated.

3 Section 1038, subdivision (a) states: “In any civil proceeding under the California Tort Claims Act . . . the court, upon motion of the defendant . . . shall, at the time of the granting of any summary judgment, . . . determine whether or not the plaintiff. . . brought the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint, ... If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party . . . opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. . .

4 This should never have been a matter of dispute; the State’s ownership of Riverside Drive, also known as State Route 74, is statutory. (Sts. & Hy. Code, § 374.)

5 The Gillespie court interpreted Vehicle Code section 465, the predecessor statute to Vehicle Code sections 21350 and 21351. The language of Vehicle Code sections 21350 and 21351 is virtually identical to that of former Vehicle Code section 465.