Judge: Carolyn M. Caietti, Case: 37-2022-00001260-CU-PA-CTL, Date: 2024-03-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024  01:30:00 PM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Auto Summary Judgment / Summary Adjudication (Civil) 37-2022-00001260-CU-PA-CTL PALAFOX VS EL CORRE CAMINOS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/10/2023

Defendant City of San Diego's Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED.

Preliminary Matters This motion first came on calendar on February 2, 2024. The Court asked clarifying questions to the parties, received responses and continued this motion to February 23, 2024.

Plaintiffs' Complaint alleges, on October 15, 2021, at approximately 6:40 p.m., Eliseo Salgado Mamahua crossed the street at or near the 500 block of East San Ysidro Boulevard at or near the corner of Virginia Avenue in San Diego, CA 92173. Mr. Mamahua crossed the roadway in order to reach a bus stop on the other side of the street. The location did not have a protected crosswalk within any reasonable walking distance of the location. As Mr. Mamahua crossed the street, he was tragically struck by a charter bus and killed. Plaintiffs' Complaint alleges a cause of action for dangerous condition of public property and identifies various dangerous conditions. (E.g., Complaint, at ¶ 18(a)-(e).) Plaintiffs' opposition objections are overruled.

City's reply objections are overruled.

Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Defects with City's Notice of Motion and Separate Statement Calendar No.: Event ID:  TENTATIVE RULINGS

3086591  50 CASE NUMBER: CASE TITLE:  PALAFOX VS EL CORRE CAMINOS INC [IMAGED]  37-2022-00001260-CU-PA-CTL To start, the way the City framed the issues stated in the notice of motion makes ruling on the motion unmanageable. A defendant meets its burden of showing a cause of action lacks merit if the party shows one or more elements of the cause of action cannot be established or there is a complete defense to the cause of action. (C.C.P., § 437c(p)(2).) If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, etc., 'must be stated specifically in the notice of motion...' (Cal. Rules of Court, rule (CRC) 3.1350(b).) At first, Defendant states the motion 'is based on grounds that the City has design immunity under Government Code section 830.6...is also immune from claims for failure to install traffic control devices, including a marked crosswalk or signals or warning signs.' (ROA 88 – Notice of Motion, at p. 2:5-8.) But then, Defendant goes on to state it 'moves for summary judgment...as follows under [C.C.P.] section 437c:' and states each issue for adjudication. The issues are not limited to one element or one defense of the first cause of action. Rather, for each issue, the topic sentence states why Plaintiffs cannot prove the first cause of action. The notice then continues to explain, include and compound other issues including causation, damages, immunities and four affirmative defenses. (Ex. ROA 88 – Notice of Motion, at p. 2:16-27 cf. ROA 89 – Separate Statement, at p. 2:4-5; see also, C.C.P., § 437f(1) ['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 of damages, or one or more issues of duty....' (emphasis added)].) The separate statement also does not assist the Court to understand the scope of the issues. CRC 3.1350(b) requires the issue 'be repeated, verbatim, in the separate statement.' Here, City did not do that. Rather, only part of the issue from the notice is stated in the separate statement. (And as discussed below, Issue 4 is not included at all.) Similarly, the moving memorandum does not elucidate the scope of the issues. City devotes significant discussion to design immunity, but none of the issues framed in the separate statement concern design immunity. The words 'design immunity' and other words related to this issue like 'causal relationship,' 'discretionary approval' and 'reasonableness of the design' and are not found in City's Separate Statement. In addition, City discusses whether Mr. Mamahua used the property with due care and notice to the City, but due care and notice are not included in City's Notice. Because summary judgment is such a drastic remedy, it is important 'that all of the procedural requirements for the granting of such a motion be satisfied...' (Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 262.

Even if the Court accepts the issues as framed by the first sentence in the notice, which is what is stated in the separate statement, the Court is precluded from adjudicating the issues and entering judgment.

Issue 1 – Dangerous Condition On Issue 1, disputed facts exist on whether 'the roadway constituted a dangerous condition of public property pursuant to Government Code section 835.' (Notice of Motion - Adjudication 1.) As City acknowledges, the existence of a dangerous condition is ordinarily a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion. (Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1070.) 'Dangerous condition' means 'a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.' (Gov. Code, § 830(a).) A dangerous condition can come in several forms and may be based on an 'amalgam of factors.' (Salas, supra, at 1069.) When a third party's conduct is the immediate cause of a plaintiff's harm, the question becomes whether the dangerous condition 'increased or intensified' the risk of injury from the third party's conduct. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1137.)

Here, generally, the Complaint alleges the dangerous conditions were that the subject location was: (a) improperly and dangerously planned, designed, constructed; (b) maintained in a poor condition prior to Calendar No.: Event ID:  TENTATIVE RULINGS

3086591  50 CASE NUMBER: CASE TITLE:  PALAFOX VS EL CORRE CAMINOS INC [IMAGED]  37-2022-00001260-CU-PA-CTL and at the time of the incident; (c) failed to have a protected crosswalk within a reasonable walking distance of the incident; (d) improperly maintained, inspected, and/or controlled; (e) lacked, or failed to have any, or had insufficient and/or defective warnings, signs, signals, markings, devices, or other forms of warning necessary to alert members of the public of the dangerous conditions; and (f) negligently maintained, repaired, used, controlled, services, inspected and kept so as to pose a risk of severe and potentially fatal injury to the public. (Complaint, at ¶ 18.) City's motion only focuses on the allegation at paragraphs 18(c) and (e) regarding the lack of crosswalk and preventative measures. The other allegations are not addressed, precluding the Court from adjudicating this issue.

Even then, Plaintiffs provide evidence the lack of traffic controls to warn drivers of the presence of pedestrians placed the pedestrians at risk, creating a triable issue of fact of whether the public property was in a dangerous condition. A trier of fact could determine the following. After its original design in 1993, City installed a bus stop in 1996. (PUF 7, 9.) The addition of the bus stop resulted in increased pedestrian traffic at the intersection. (PUF 10.) According to The City of San Diego's Street Design Manual (revised in 2017), 'intersections must be designed with pedestrian safety and accessibility in mind.' (PUF 11.) Further, 'all streets that are directly served by transit should also be designed or retrofitted to serve pedestrians because there must be adequate facilities to access transit.' (PUF 16; see also, PUF 12-15.) Here, there is evidence City did not follow their own manual and do that. The closest controlled crossing to the bus stop is 900 feet to the north and 1,150 feet to the south; and more than the recognized 600 feet limit. (PUF 14, 15, 17.) In addition, prior to the incident, City evaluated the intersection to determine if the subject location met the warrants for the installation of a marked crosswalk and, based on results from various studies, determined the intersection met the guidelines for a marked crosswalk. (PUF 21-24.) The study further concluded a heightened treatment 'C' was required, meaning, in addition to a marked crosswalk, there was need to be rapid rectangular flashing beacons to notify oncoming traffic that there are pedestrians walking in the crosswalk so vehicles can slow or stop. (PUF 25-26.) On May 1, 2019, an engineer for the City concluded a marked crosswalk with additional safety controls were warranted. (PUF 36.) City still did not install a marked crosswalk before the incident. (PUF 37.) City also did not install other preventative improvements as recommended by the California Manual on Uniform Traffic Control Devices, such as placing pedestrian crossing warning signs or pedestrian crossing graphic symbols. (PUF 41-43.) There were also similar accidents at or near the subject location. (PUF 27.) The SWITRS report of accidents occurring on San Ysidro Boulevard and Virginia Avenue listed 9 accidents in the six years before the incident; six of those (or 67%) involved a vehicle striking a pedestrian. (PUF 29.) The area also has a much higher accident rate than other roadways with the same classification, showing this section of San Ysidro Boulevard experienced accidents at a rate nearly four times greater than that of similar roadways. (PUF 30-33.) The Court acknowledges several cases 'reject the idea that an intersection on a heavily travelled thoroughfare is made dangerous by the type or existence of crosswalk markings, the lighting conditions, or the lack of traffic signals or other devices.' (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 765.) But here, there is an unmarked crosswalk without pedestrian ramped curbs and with a bus stop placed in location contrary to City's own policies and a determination by the City itself the intersection met the guidelines for a marked crosswalk and required heightened treatment C, coupled with similar accidents at or near the location. Taken as a whole, this evidence could convince a trier of fact the placement of the bus stop, which increased pedestrian traffic, without a marked crosswalk or warnings created a substantial risk of injury to pedestrians exercising due care.

Issue 2 – Lack of Marked Crosswalk/Dangerous Condition On Issue 2, disputed facts exist on whether 'the lack of marked crosswalk does not constitute a dangerous condition.' (Notice of Motion - Adjudication 2.) At the first hearing, City confirmed this issue is Calendar No.: Event ID:  TENTATIVE RULINGS

3086591  50 CASE NUMBER: CASE TITLE:  PALAFOX VS EL CORRE CAMINOS INC [IMAGED]  37-2022-00001260-CU-PA-CTL subsumed in Issue 1. As discussed above, the Complaint alleges more than just the lack of a marked crosswalk constituted a dangerous condition and a triable issue of fact exists on whether a dangerous condition existed.

Issue 3 - Causation Issue 3 states there was 'no physical defect in the roadway that caused or contributed to the accident.' (Notice of Motion - Adjudication 3.) At the first hearing, the Court asked City whether it intended to argue causation, i.e., there was no dangerous condition that was a substantial factor in causing Mr.

Mamahua's harm; or that there was no physical defect in the roadway. City responded it was that there was no physical defect in the roadway. For the reasons stated above, disputed facts exist as to whether dangerous conditions existed at the property.

Issue 4 – Substantial Risk of Injury Issue 4 concerns whether there was 'no substantial risk of injury.' (Notice of Motion - Adjudication 4.) City's Separate Statement does not include facts for Issue 4 (it ends with 'Issue Number 4' at page 46 but the issue is described concerns regulatory signs and warnings immunity which is Issue Number 5).

(C.C.P., § 437c(b)(1) ['The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are disputed...The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.']; CRC 3.1350(d); Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865 [315 Cal.Rptr.3d 842, 852], review filed (Jan. 16, 2024) ['Trial courts [fn] should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement'].) Notwithstanding, disputed facts exist. City confirmed at the first hearing that language regarding 'substantial risk of injury' is part of whether a condition is 'dangerous' which is already addressed in Issue 1. (Gov. Code, § 830(a); see also, Thimon, supra, 44 Cal.App.5th at p. 756, fn. 4 [the 'substantial risk of injury' requirement reflects the legislature's concern an undue burden would be placed on public entities if they were responsible for the repair of all conditions creating any possibility of injury, however remote that possibility might be].) Issue 5 – Immunity for Failing to Install Regulatory Signs or Warnings Issue 5 regards whether the City is immune for 'failing to install regulatory signs or warnings.' (Notice of Motion - Adjudication 5.) At the first hearing, the Court asked City whether 'regulatory signs' refers to the immunity under Government Code section 830.4 and 'warnings referred to Government Code section 830.8. City responded, 'yes.' The Court then asked City whether both immunities apply to this issue to which City also confirmed with a yes. The Court also asked if City did not meet its burden or there were disputed facts on one immunity, whether it required the Court to deny adjudication to the entire issue and City said, 'yes' if there were disputed facts (and maintained there were none).

City has not met its burden on whether immunity under Government Code section 830.4 applies. The section provides a qualification to the definition of a dangerous condition, stating a condition is not dangerous if the property deficiency relied on by the plaintiff consists 'merely...of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs...speed restriction signs...or distinctive roadway markings as described in Section 21460 of the Vehicle Code.' (Gov. Code, § 830.4.) City's moving analysis is limited to one conclusion sentence, citation UMF 1, which states what Plaintiffs allege in the Complaint and lacks analysis. (Memo., at p. 9:27-10:1.) At the first hearing, the Court asked specifically for the undisputed material facts City maintained supported adjudication on this issue and City did not provide citation to any other facts other than what was stated in the memorandum. As the only fact cited in the memorandum regards allegations in Plaintiffs' complaint, City has not persuaded the Court it is entitled to adjudication. (See, CRC 3.1113(b) [The memorandum must contain the law, evidence, arguments relied on and discussion of the law cited in support of the position advanced].) Thus, as acknowledged by City at the first hearing, the Court must deny adjudication as to this issue.

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3086591  50 CASE NUMBER: CASE TITLE:  PALAFOX VS EL CORRE CAMINOS INC [IMAGED]  37-2022-00001260-CU-PA-CTL Notwithstanding, the Court also assessed City's argument regarding immunity under Government Code section 830.8, which provides a public entity is not liable for an injury 'caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code.' However, a public entity is liable for injury when it fails to provide traffic regulatory or warning signals of a type other that those described in section 830.4 that are '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.) But here, as framed by the Complaint, Plaintiffs do not allege it was only a lack of warnings or signs that caused the injury. As Plaintiffs maintain in their opposition, it was the failure to have any signs, etc.

coupled with the placement of the bus stop in a place where – per City's policy – it should not have been without pedestrian ramps that required pedestrians to cross San Ysidro Boulevard, constituting a dangerous condition, for which, as discussed above, disputed facts exist.

Conclusion 'Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party's right to a trial, the moving party must make a strong showing.' (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1038.) Here, taken as a whole, City has not done so.

Notwithstanding the disputed facts that exist, the Court would be required to ignore too many procedural defects to get to the result City asks for.

For these reasons, the motion is DENIED in its entirety.

Concluding Orders If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

The City is ordered to serve written notice of the Court's final ruling on all appearing parties by February 27, 2024.

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