Judge: Anne Hwang, Case: 22STCV02004, Date: 2024-07-05 Tentative Ruling

Case Number: 22STCV02004    Hearing Date: July 5, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.     Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts[1]

3.     Declaration of Nicole G. Ortega  

4.     Appendix of Evidence in Support

OPPOSITION PAPERS

1.     Plaintiff’s Opposition

2.     Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, and Plaintiff’s Additional Material Facts

3.     Plaintiff’s Evidentiary Objections

4.     Plaintiff’s Request for Judicial Notice

5.     Plaintiff’s Evidence in Opposition

6.     Plaintiff’s Notice of Lodging in Support

7.     Plaintiff’s Notice of Errata

REPLY PAPERS

1.     Defendant’s Reply

2.     Reply to Plaintiff’s Response to Separate Statement of Undisputed Material Facts

3.     Defendant’s Objections to Evidence

BACKGROUND

On January 18, 2022, Plaintiff Nina Renee Richardson (“Plaintiff”) filed a complaint against County of Los Angeles, City of Whittier, State of California, Jesus Lozoya, and Does 1 to 20. Plaintiff alleges she was hit by a vehicle driven by Jesus Lozoya (“Lozoya”) while she was crossing a crosswalk at Colima Road and Dunton Drive. (Complaint ¶ 10.)

Against Moving Defendant County of Los Angeles (“Defendant”), Plaintiff asserts two causes of action: (1) dangerous condition of public property under Government Code section 835, and (2) act or omission of employee of public entity under Government Code section 815.2.

Plaintiff alleges that the intersection where the incident took place “was so negligently owned, possessed, controlled, designed, repaired, maintained, built, and inspected so as to allow a dangerous condition to exist for motorists and pedestrians using the roadway, due to factors including excessive speed allowed for conditions, lack of adequate controls and warnings, inadequate markings, significant accident history, visibility obstructions, the failure to provide street lighting necessary to make the streets safe for travel due to the presence of the above described peculiar conditions, and others.” (Complaint ¶ 20.)

Defendant now moves for summary judgment, or alternatively, summary adjudication, arguing that it owed no duty of care, no dangerous condition existed, and there is no evidence of a wrongful or negligent act by Defendant’s employee. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)  

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

 “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)       

JUDICIAL NOTICE

Pursuant to Plaintiff’s request, the Court takes judicial notice of the complaint and cross-complaint in this case. (Evid. Code. § 452(d).)

EVIDENTIARY OBJECTIONS

The Court declines to rule on Defendant’s evidentiary objections as they have no effect on the ruling herein, except for Defendant’s objections to the declaration of Todd Roescher. The Court overrules the objections except to the extent that Roescher’s opinions state legal conclusions. “…[E]xpert opinions on whether a condition constitutes a dangerous condition of public property are not determinative. ‘[T]he fact that a witness can be found to opine that such a condition constitutes a significant risk and a dangerous condition does not eliminate this court’s statutory task, pursuant to Government Code section 830.2, of independently evaluating the circumstances.’” (Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189 [citations omitted].)

The Court declines to rule on Plaintiff’s evidentiary objections as they have no effect on the ruling herein.

DISCUSSION

Government Code section 835 states:¿“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:¿¿ 

¿ 

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

¿ 

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”¿¿¿

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)

“ ‘[A] claim alleging a dangerous condition may not rely on generalized allegations [citation] but must specify in what manner the condition constituted a dangerous condition.’ [Citation.] A plaintiff's allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. [Citations.] A dangerous condition exists when public property ‘is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347–48.)

“A public entity may be liable for a dangerous condition of public property even where the immediate cause of plaintiff's injury is a third party's negligent or illegal act . . . if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. [Citation.] But it is insufficient to show only harmful third party conduct, like the conduct of a motorist. ‘[T]hird party conduct, by itself, unrelated to the condition of the property, does not constitute a “dangerous condition” for which a public entity may be held liable.’ [Citation.] 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.’” (Cerna, supra, 161 Cal.App.4th at 1348.) “When it comes to public roadways, ‘a public entity is only required to provide roads that are safe for reasonably foreseeable careful use.’ [Citation.]” (Huerta v. City of Santa Ana (2019) 39 Cal.App.5th 41, 48 [holding that city owed no duty to light a crosswalk].)

Generally, a municipality has no duty to light its streets and will not be liable in damages to someone injured solely as a result of the lack of lighting. (Huerta, supra, 39 Cal.App.5th at 48.) However, a duty to light may arise if there is “some peculiar condition rendering lighting necessary in order to make the streets safe for travel.” (Id. at 49 [internal quotations omitted].)

“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.” (Gov. Code § 830.4.) “Cases interpreting this statute have held that it provides a shield against liability only in those situations where the alleged dangerous condition exists solely as a result of the public entity’s failure to provide a regulatory traffic device or street marking.” (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1534.)

“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition which endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care.” (Gov. Code § 830.8.)

Here, the following is undisputed. Plaintiff testified that on the night of the incident, she left her house after 9:30 p.m. to go to the minimart. She was walking back home when the incident took place. (UMF 8.) Plaintiff testified that after looking both ways at the subject crosswalk, she kept walking through the intersection because she anticipated that she would be able to cross in time. (UMF 10.) Plaintiff also testified that she anticipated that Mr. Lozoya would stop. (UMF 13.) At the time of the collision, Mr. Lozoya testified that he had his headlights on. (UMF 18.) Mr. Lozoya testified that he believes that if there had been enough light, he would have seen the Plaintiff ahead of time and would have stopped on time. (UMF 20.) The crosswalk was marked, painted white, and large enough to fit multiple people at the same time. (UMF 23.) Plaintiff testified it was a clear night, the roads were not wet, the roadway was dry, and there were no unusual conditions. (UMF 24.) Mr. Lozoya further testified that at the time of the accident, he was not texting, talking on his cell phone, and that there was nothing distracting him. (UMF 26.)

Defendant offers the following additional facts:

-        Plaintiff testified that she believed Mr. Lozoya would see her because she was on the crosswalk and there are posted signs. (UMF 12.)

-        Mr. Lozoya also testified that he saw the Plaintiff when his headlights illuminated her prior to the impact. (UMF 19.)

Defendant contends that Plaintiff’s allegations, including the excessive speed allowed for conditions, lack of adequate controls and warnings, inadequate markings, significant accident history, and visibility obstructions center around the lack of lighting at the intersection. As Defendant notes in its motion and Plaintiff concedes, there is generally no duty by a municipality to light a street. (Huerta, supra, 39 Cal.App.5th at 48.) Defendant has met its initial burden to show there was no dangerous condition of public property. The burden shifts to Plaintiff.

In opposition, Plaintiff provides the following relevant facts:

-        There is a change in elevation on Colima Avenue. Between the intersection of Danbrook Drive and Dunton Drive, Colima is close to level. Between the intersections of Dunton Drive and Hawes Street, Colima is increasing in slope…. (PUMF 50.)

Here, Plaintiff sets forth evidence to create a triable issue of fact that the physical characteristics of the street created a substantial risk that a driver using due care while traveling would be unable to see a pedestrian using due care while crossing.[2] Accordingly, Government Code section 830.4 does not apply to this allegation.[3]

Considering all evidence and reasonable inferences in the light most favorable to Plaintiff, the Court denies Defendant’s motion for summary judgment.[4]

CONCLUSION AND ORDER

Accordingly, Defendant County of Los Angeles’s Motion for Summary Judgment is DENIED.

            Defendant shall provide notice of this ruling and file a proof of service of such.