Judge Audra Mori, Case BC670775 2022-09-22 Tentative Ruling

Plaintiff Jose Luis Martinez Zarate (“Plaintiff”) filed this action against Defendant City of Whittier (“Defendant”) for damages Plaintiff sustained when he was riding his bicycle and encountered an alleged dangerous condition of public property. The complaint alleges that on September 15, 2016, Plaintiff was riding his bicycle “on the city street headed westbound with the flow of traffic on westbound Beverly Boulevard, at or near Mesagrove Avenue, City of Whittier, County of Los Angeles,” and that the subject location “had in it dangerous and unreasonably large gaps, expansion gaps, drainage gaps, fissures, cracks, openings, separations and/or breaks in the Subject Street that ran parallel along the Subject Street (hereafter referred herein as "Subject Fissures/Gaps/Cracks")…” (Compl. ¶ 8.) Plaintiff alleges that “as Plaintiff was riding his bicycle on the Subject Street, at the Subject Location, the tire(s) of the Plaintiff's bicycle fell into, got caught by, got stuck in, was affected by and/or became wedged in the Subject Fissures/Gaps/Cracks, causing Plaintiff to fly off of his bicycle and land onto the ground, thereby causing Plaintiff to suffer severe and permanent injuries and damages.” (Ibid.)

Defendant now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.[1]

Defendant argues it is entitled to summary judgment under Government Code § 830.6, which Defendant contends provides public entities with design immunity for public property. In particular, Defendant contends that it is entitled to design immunity as to the road and bicycle path and the concrete joints or cold joints on them, and Defendant asserts there have been no changed conditions that would negate the applicability of the immunity

Plaintiff argues that his claims are not based solely on Defendant’s design of the subject location, but on Defendant’s negligent failure to inspect or perform maintenance on its streets. Plaintiff avers that the concrete slabs Plaintiff encountered were a dangerous condition of public property, and that Defendant had constructive knowledge of the dangerous condition. Further, Plaintiff contends that due to the increase in population since 1927, when the street was constructed, and the change in use as a street foreseeably used by cyclists, design immunity is inapplicable.

Plaintiff submits three objections to Defendant’s evidence submitted with the motion. Objections 1-3 are overruled.

Defendant, in its reply, submits 25 objections to the declaration of Plaintiff’s expert, Brad Avrit (“Avrit”). Objections 1, 8-9, and 24 are sustained. Objections 2-7, 10-23, and 25 are not relevant to the disposition of the motion, and thus, the Court declines to rule on them at this time. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor…

Government Code § 830.6 design immunity is asserted as an affirmative defense in actions arising out of an alleged dangerous condition of public property. On summary judgment, the court decides whether there is sufficient evidence to support the affirmative defense of design immunity. (Higgins v. State of California (1997) 54 Cal.App.4th 177, 184; Cornette v. Dept. Of Transportation (2001) 26 Cal.4th 63, 68-69.) The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. (Cornette, 26 Cal.4th at 69.) “If there is any substantial evidence supporting the reasonableness of the approved design, design immunity applies. This is true even though the plaintiffs present evidence of a design defect: ‘That a paid expert witness for plaintiff, in hindsight, found [ ] the design was defective, does not mean, ipso factor, that the design was unreasonably approved.’ [Citation.]” (Higgins, 54 Cal.App.4th at 185.) “[A]s long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity.” (Id.)

A public entity must establish three elements that constitute the design immunity affirmative defense: “(1) a causal relationship between the project design and the accident; (2) discretionary approval of the design prior to construction; and (3) substantial evidence supporting the reasonableness of the design.” (Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1113.) “The first two elements, causation and discretionary approval, may only be resolved as issues of law if the facts are undisputed. The third element, substantial evidence of reasonableness, requires only substantial evidence, that is, evidence of solid value which reasonably inspires confidence.” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940, citations omitted.) Immunity, thus, is available “when there is substantial evidence of reasonableness, even if contradicted.” (Id., citations and footnote omitted.)

Once the public entity has proven the design immunity defense, the plaintiff has the burden to prove loss of design immunity. (Weinstein v. California Department of Transportation (2006) 139 Cal.App.4th 52, 60.)

Here, Plaintiff alleges that “he was riding his bicycle along Beverly Boulevard near Mesagrove Avenue when “Plaintiff’s bicycle fell into, got caught by, got stuck in, was affected by and/or became wedged in the subject Fissures/Gaps/Cracks causing Plaintiff to fly off of his bicycle . . .” and be injured. (Mot. UMF 2.) Defendant is a municipal corporation, and Defendant owned and maintained the property where Plaintiff alleges the incident occurred. (Id. UMF 3-4.) The conditions that Plaintiff claims caused him to fall off his bicycle are “. . . large gaps, expansion gaps, drainage gaps, fissures, cracks, openings separations and/or breaks in . . .” in the roadway on Beverly Boulevard, near Mesagrove Avenue, that ran parallel to Beverly Boulevard. (Id. UMF 5.) Beverly Boulevard where Plaintiff claims the incident occurred is a concrete roadway. (Id. UMF 6.)

The roadway at issue was originally constructed in 1927. (Id. UMF 7.) On July 5, 1927, the Whittier City Council passed Resolution 1359 directing the then Whittier City Engineer, N.R. Bowen (“Bowen”), to acquire and improve the roadway on Beverly Boulevard, and on September 6, 1927, a detailed deed with an explanation of the roadway on Beverly Boulevard near Mesagrove Avenue, in the City of Whittier, was approved by the City Council to be dedicated for public use. (Id. UMF 9.) The City Council then voted to approve the specifications for Beverly Boulevard presented by Bowen, and the then City Council passed a Resolution to accept construction of Beverly Boulevard. (Id. UMF 11-12.) Plans to widen the roadway to 80 feet, including the concrete joints and cold joints, on Beverly Boulevard near Mesagrove Avenue, were then designed by the Engineering firm G.E.R. in March of 1964, and In December 1964, the roadway, including the concrete and cold joints, was widened to 80 feet. (Id. UMF 14-15.) The relevant plans were approved by the then City Engineer Vergil C. Haight, and the then City Council approved the specifications and plans for construction. (Id. UMF 16.) Defendant was aware of the concrete joints and cold joints in the roadway on Beverly Boulevard, which Defendant asserts was standard practice in the City and State between 1927 and 1964. (Id. UMF 19-20.)

Defendant avers that the alleged condition that caused Plaintiff to fall were the concrete joints and cold joints on Beverly Boulevard that were part of the construction in 1927 and 1964. (Id. UMF 21.) Defendant asserts that no modifications or alternations have been made to the roadway on Beverly Boulevard, and that no repairs have been made in the roadway, in the ten years prior to Plaintiff’s incident. (Id. UMF 22-23.) There have been no other reported complaints involving the subject roadway since the road was originally approved by the City Council, including no other complaints of personal injury or bicycle accidents. (Id. UMF 24-26.)

As stated above, for design immunity to apply, Defendant must establish that (1) a causal relationship between the project design and the accident, (2) discretionary approval of the design prior to construction, and (3) substantial evidence supporting the reasonableness of the design. (Fuller, 89 Cal.App.4th at 1113.)

As to the first element, a causal relationship between the plan and the accident requires proof that the alleged design defect was responsible for the accident, as opposed to some other cause. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 940.) Design immunity does not immunize decisions that were not made. (Cameron v. State of California (1972) 7 Cal.3d 318, 326.) Thus, for design immunity to apply, the injury-producing feature must have been a part of the plan approved by the governmental entity. (Higgins, 54 Cal.App.4th at 185.)

Plaintiff’s contention that the design was not the cause of the accident is unavailing as Plaintiff alleges that as he was riding his bicycle on Beverly Boulevard when he “fell into, got caught by, got stuck in, was affected by and/or became wedged in the subject Fissures/Gaps/Cracks causing Plaintiff to fly off of his bicycle…” (Mot. UMF 2.) The complaint, thus, alleges that the condition that caused the incident were the concrete joints and cold joints on the roadway. Admittedly, Defendant may rely on the allegations of the complaint to establish causation. (Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550.) Defendant further asserts that the concrete joints and cold joints that Plaintiff alleges caused the incident were part of the 1964 construction. (Mot. UMF 14-19.) Notably, Plaintiff does not dispute that the cold joints were included in the relevant plans approved in 1964. (Opp. UMF 15-16.) Therefore, the first element is met.

As to the second element, discretionary approval of the design prior to construction, Defendant’s evidence shows that plans to widen Beverly Boulevard, including the concrete joints and cold joints, were approved by the then Whittier City Engineer, Virgil Haight, on April 20, 1964. (Id. UMF 16.) The then Whittier City Council approved specifications and plans for construction on Beverly Boulevard on August 11, 1964. (Id. UMF 17.) The plans themselves show they were signed and approved by Whittier City Engineer, Virgil Haight, (Mot. Compendium of Evid. Boranian Decl. Exh. D), and as such his signature is presumed genuine and “[s]uch evidence satisfies the City’s evidentiary burden for the second prong.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1263.)

Plaintiff, in opposition, cites to Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, in arguing that when the roadway was built bicycle traffic was not considered. In Arreola, a group of property owners filed an action alleging a cause of action for inverse condemnation and tort causes of action against the State and other public entities after their properties were flooded as a result of Highway 1's obstruction of the path of floodwaters through a floodplain. The State asserted that the standard of liability applicable to the inverse condemnation action against it was the rule of reasonableness rather than strict liability. (99 Cal.App.4th at 751-54.) In relevant part, the State moved for a directed verdict on the basis of design immunity. (Id. at 757.) The Court noted that “[s]ince State's engineers never took flooding into consideration, it is questionable whether the immunity applies at all.” (Id. at 759.) However, the Court presumed that it did and found that the State did not offer substantial evidence of reasonableness. (Id.) Accordingly, the Court did not address whether the State’s engineers not specifically taking flooding into account precluded the State from asserting a design immunity defense. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 614 [“Cases are not authority for propositions not considered therein.”].)

As to third element, substantial evidence supporting the reasonableness of the design, Defendant’s evidence shows that the plans for Beverly Boulevard, which included the relevant concrete and cold joints, were approved by the then City Engineer. (Higgins, 54 Cal.App.4th at 187 [“The fact of approval by competent professionals can, in and of itself, establish the reasonableness element.”].) Further, Defendant submits evidence showing that prior to the incident in 2015, a City Contractor inspected Beverly Boulevard near Mesagrove Avenue and graded the roadway “with a Pavement Condition Index (PCI) number of 75, which is considered a Category 1 rating of ‘Very Good.’ ” (Mot. UMF 27-28.) In addition, Defendant avers that the lack of an accident history supports the conclusion that the designed was reasonable because there have been no other complaints involving the subject roadway on Beverly Boulevard since the roadway was originally approved up until the date of Plaintiff’s incident, including no other personal injury claims or reported bicycle accidents. (See Callahan v. City and County of San Francisco (1971) 15 Cal.App.3d 374, 380 [Noting that “The statistical facts heretofore referred to disclose that in the course of four and one-half years there was only one accident per 685,000 cars fortify the conclusion that reasonable discretion and judgment were exercised by those in authority who approved the plan and design prior to construction.”].)

Although Plaintiff submits a declaration from his own expert, Avrit, who opines that the roadway was in a dangerous condition, this is not sufficient to deny design immunity to Defendant. “If the record contains the requisite substantial evidence, the immunity applies, even if the plaintiff presented evidence that the design was defective.” (Arreola v. City of Monterey (2002) 99 Cal.App.4th 722, 757.) Accordingly, the mere fact that a plaintiff's expert may disagree does not create a triable issue of fact. (Greiner v. City of Irwindale (1997) 57 Cal.App.4th 931, 941.) “As long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity.” (Ramirez v. City of Redondo Beach (1987) 192 Cal.App.3d 515, 525.) Accordingly, the third element is met.

Because the City has met its burden in proving the design immunity defense, the burden shifts to Plaintiff to prove loss of design immunity. (Weinstein, 139 Cal.App.4th at 60.)

“ ‘[T]o demonstrate loss of design immunity a plaintiff must also establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.’ [Citation.]” (Weinstein, 139 Cal.App.4th at 60.)

In this case, Plaintiff contends that the City’s design immunity defense has been lost due to cyclists’ history of use of the roadway. Plaintiff asserts that Defendant admits to having funding approved for asphalt repair, and monies allocated to improving Beverly Boulevard, but failed to do so, despite the change in the character of the road between 1927 and 2016. However, Plaintiff does not submit evidence of substantially increased cycling on the roadway. Moreover, Plaintiff does not submit evidence of any change in the physical conditions of the roadway that has rendered the design plan dangerous- that is, Plaintiff does not identify what changed physical conditions, if any, the roadway has experienced. Further, Plaintiff does not submit evidence that Defendant had actual or constructive notice of such a change in physical conditions of the roadway. Consequently, Plaintiff fails to submit any evidence showing that Defendant’s design immunity has been lost.

Hon. Audra Mori

Judge of the Superior Court

[1] As Defendant points out in its reply, Plaintiff’s opposition was filed one day late. Although the Court has discretion to disregard the late filing, in the absence of any prejudice to Defendant, and because Defendant was able to address Plaintiff’s contentions in its reply, the Court will exercise its discretion to consider the opposition in this matter.