Judge: Cynthia A Freeland, Case: 37-2022-00009411-CU-PA-NC, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 26, 2023

10/27/2023  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Auto Summary Judgment / Summary Adjudication (Civil) 37-2022-00009411-CU-PA-NC SHINING ELK VS OROZCO PALLETS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/15/2023

Defendant State of California by and through the Department of Transportation ('Defendant' or 'Caltrans')'s motion for summary judgment is granted.

Plaintiffs Patrick Shining Elk and Leah Shining Elk (collectively, 'Plaintiffs')'s objection to the March 7, 2021 Traffic Collision Report (the 'TCR') attached as Exhibit 2 to Defendant's Compendium of Exhibits is sustained. To the extent Plaintiffs have asserted evidentiary objections as part of their opposition to Defendant's Separate Statement of Undisputed Material Facts ('UMF'), those objections are overruled as procedurally improper. Written objections must be served and filed separately from papers supporting or opposing a motion for summary judgment. See Cal. R. Ct. 3.1354(b); Hojdat v. State Farm Mut. Auto Ins. Co. (2012) 211 Cal. App. 4th 1, 8-9 (court did not abuse its discretion in refusing to consider objections not filed separately as required by rule). While the separate statement may refer to specific evidentiary objections by objection number, the objection may not be restated/reargued in the separate statement. See Hojdat, 211 Cal. App. 4th at 8. In this case, given that Plaintiffs did not submit separate evidentiary objections (except as to the TCR), the court need not consider those objections interspersed throughout Plaintiffs' UMF.

The court also overrules Defendant's evidentiary objections as procedurally deficient. California Rules of Court ('CRC'), Rule 3.1354(b) provides that '[o]bjections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.' Cal. R. Ct. 3.1354(b). Each written objection must be numbered consecutively and: (1) Identify the name of the document in which the specific material objected to is located; (2) State the exhibit, title, page, and line number of the material objected to; (3) Quote or set forth the objectionable statement or material; and (4) State the grounds for each objection to that statement or material.

Ibid. CRC, Rule 3.1354(b) then prescribes two permissible formats for evidentiary objections.

In this case, while Defendant may have properly referred to its objections in its reply to Plaintiffs' UMF, the objections themselves do not comply with CRC, Rule 3.1354(b). Consequently, the court will not consider those objections.

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2985920 CASE NUMBER: CASE TITLE:  SHINING ELK VS OROZCO PALLETS INC [IMAGED]  37-2022-00009411-CU-PA-NC Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of 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. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment as to the third cause of action for dangerous condition of public property is granted. California Government Code ('CGC') § 815(a) provides that '[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.' Cal. Gov't Code § 815(a). CGC § 815 'abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable.' Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409 (emphasis in original). CGC § 835 provides the sole statutory basis for an action alleging a dangerous condition of public property against a public entity. See Brown v. Poway Unified School Dist. (1993) 4 Cal. 4th 820, 829; Brenner v. City of El Cajon (2003) 113 Cal. App. 4th 434, 438.

CGC § 835 provides that: 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 that 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.

Cal. Gov't Code § 835. The plaintiff bears the burden of establishing CGC § 835's requirements. See Drummond v. City of Redondo Beach (1967) 255 Cal. App. 2d 715, 719.

A 'dangerous condition' is defined as '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.' Cal. Gov't Code § 830(a).

Determining what constitutes a dangerous or defective condition depends upon a case's particular facts and circumstances and requires an analysis of an amalgam of factors. See Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal. App. 4th 1466, 1476. 'A dangerous condition of public property may arise from its damaged or deteriorated condition, from 'the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.'' Salas v. Calendar No.: Event ID:  TENTATIVE RULINGS

2985920 CASE NUMBER: CASE TITLE:  SHINING ELK VS OROZCO PALLETS INC [IMAGED]  37-2022-00009411-CU-PA-NC Department of Transportation (2011) 198 Cal. App. 4th 1058, 1069 (quoting Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal. 4th 139, 149). A dangerous condition of public property requires 'a physical deficiency in the property itself.' Cerna v. City of Oakland (2008) 161 Cal. App. 4th 1340, 1347 (emphasis in original). In determining the existence of a dangerous condition, courts may properly consider evidence that no or few similar accidents have occurred at a given location despite a high traffic volume. See Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal. App. 4th 124, 131 (quoting Cerna, 161 Cal. App. 4th at 1346). The court may also consider evidence of an absence of complaints about a roadway. See Callahan v. City and County of San Francisco (1971) 15 Cal. App. 3d 374, 378; McKray v. State of California (1977) 74 Cal. App. 3d 59, 62. 'The existence of a dangerous condition is ordinarily a question of fact but 'can be decided as a matter of law if reasonable minds can come to only one conclusion.'' Mixon, 207 Cal. App. 4th at 131 (quoting Cerna, 161 Cal. App. 4th at 1346).

The subject accident occurred on SR-76 about 42 feet west of Sam's Mountain Road, in San Diego County, at or about postmile 31.93. SR-76 is a 2-lane conventional east/west highway that passes through an unincorporated portion of San Diego County (Pauma Valley). It is comprised of asphalt concrete. There are separate 12-foot-wide eastbound and westbound lanes delineated by broken yellow lines/dashes to allow for passing. To the north of SR-76, at or near the area of the accident, Sam's Mountain Road, which is a private driveway/road, intersects SR-27. Sam's Mountain Road is 24 feet wide and intersects SR-76 at approximately a 90-degree angle. The approaching unobstructed view for a driver, from either direction on SR-76, viewing the vicinity of the driveway/road area, is well over 2,000 feet. The speed limit on SR-76 is 55 miles per hour. On March 7, 2021 at approximately 12:40 p.m., Plaintiff was traveling on his motorcycle eastbound on SR-76. Once reaching a designated passing zone, Plaintiff entered the westbound lane. As Plaintiff began passing on the left, a truck being driven by Defendant Raul Orozco began turning left onto Sam's Mountain Road. Plaintiff's motorcycle subsequently collided with Mr. Orozco's truck and crashed into a utility pole. Plaintiff has alleged that Defendant has negligently maintained SR-76 as evidenced by inadequate signage, insufficient warnings of an upcoming intersection, an absence of a left turn lane, and the designation of the area as a passing permitted zone.

The court finds that Defendant has established entitlement to judgment as a matter of law as to the third cause of action because the undisputed evidence establishes that a dangerous condition did not exist near the intersection of SR-76 and Sam's Mountain Road on the date of the incident. California's Traffic Engineers rely on the CA Manual on Uniform Traffic Devices ('CAMUTCD') for traffic engineering guidance. The guidance goes hand-in-hand with legislation established in the California Vehicle Code.

Defendant has submitted a declaration from its consultant/expert Traffic Engineer in this matter, Kim Nystrom, who avers that CAMUTCD does not require signage or warnings on a two-lane conventional highway when it intersects with a private driveway or road. Ms. Nystrom further opines that, for roadways such as the subject area of SR-76, left turn lanes are uncommon and any that are placed are there based upon engineering justification. Moreover, in Ms. Nystrom's view, there are no complaints, patterns of accidents, or evidence of operational concern that warrant the placement of a left turn lane on SR-76 at Sam's Mountain Road. Ms. Nystrom also opines that the passing zones at/near the subject area conformed with the guidance set forth in the CAMUTCD, particularly § 3B.02. Plaintiffs, for their part, do not present any evidence to create a triable issue of material fact. Indeed, for several of the points raised, Plaintiffs merely state that they have no personal information or concede that the information is Ms. Nystrom's opinion. For other points, Plaintiffs, without support, dispute the reliability/accuracy of the systems upon which Defendant has relied.

As to prior or similar incidents on SR-76, Defendant has identified various roadway monitoring and surveillance programs, including Caltrans' Table B Accident Records/Traffic Accident Surveillance and Analysis System – Transportation System Network (TASAS-TSN) data, Table C Monitoring Program, Customer Service Requests Portal, Traffic Investigations Report Tracking System (TIRTS) data, various Traffic Investigation Reports (TIRs), and Traffic Volumes. According to the Annual Average Daily Traffic, about 16,528,500 vehicles passed through the subject area between March 6, 2016 and March 6, 2021.

Over that five-year period, there were 22 accidents; however, none of them occurred at the same location as the subject accident. Indeed, the closest was approximately 40 feet further west of Sam's Calendar No.: Event ID:  TENTATIVE RULINGS

2985920 CASE NUMBER: CASE TITLE:  SHINING ELK VS OROZCO PALLETS INC [IMAGED]  37-2022-00009411-CU-PA-NC Mountain Road and involved a single westbound drowsy driver who veered off the road. There was another accident about 2,000 feet to the east of the subject area that involved a passing maneuver in front of another private driveway. Based upon Ms. Nystrom's analysis of the foregoing, no other similar accidents occurred in the subject area in the five years preceding the subject incident. Moreover, there were five Customer Service Requests submitted between February 11, 2012 and June 27, 2019 for SR-76 PM 31.43 to PM 32.43, none of which concerned the alleged dangerous condition at issue in the present action. In addition, there were six TIRs submitted for SR-76 PM 31.43 to PM 32.43 from 2013 to the present; however, none of the TIRs concerned the subject area of the alleged dangerous conditions at issue in this case. In sum, Defendant has submitted considerable evidence that: (1) no similar accidents have occurred in the subject area of the past five years, and (2) no consumer complaints regarding the subject area have been submitted to Defendant over the past 8 years.

Plaintiffs, for their part, point to Encroachment Permit No. 11-89-6RP0758 as a 'smoking gun.' Plaintiffs' expert, Matthew Manjarrez, P.E., opines that in his 'professional opinion as a civil engineer and a traffic engineer that a no passing zone and intersection warning signs were required at and adjacent to Sam's Mountain Road at the time of the subject collision.' However, the condition that Plaintiffs' expert believes the road should have been in according to the 1990 Permit has no bearing on whether a dangerous condition of public property existed on March 7, 2021. Mr. Manjarrez does not opine that the configuration of the roadway was unreasonable at the time of the accident. Nor does he recognize the 1990 Permit's subsequent roadway changes as set forth in Ms. Nystrom's rebuttal declaration. In fact, Plaintiffs provide no evidence challenging Defendant's evidence regarding the absence of prior similar accidents in the subject area or the reliability of Defendant's monitoring systems. While Plaintiffs point to Officer Johnson's testimony, such testimony did not identify any accidents at Sam's Mountain Road.

Officer Johnson merely indicated that many collisions have occurred at Lazy H Drive and in the general area.

Accordingly, the court grants Defendant's motion for summary judgment as to the third cause of action.

In light of the foregoing, the court grants Defendant's motion for summary judgment. The court directs Defendant to submit a proposed Judgment within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, October 27, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 27, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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