Judge: Gary I. Micon, Case: 20STCV48984, Date: 2024-02-28 Tentative Ruling

Case Number: 20STCV48984    Hearing Date: February 28, 2024    Dept: F43

Dept. F-43

Date: 2-28-24

Case # 20STCV48984, Ahmet Alkanli vs. City of Los Angeles, et al.

Trial Date: 4-2-24

SUMMARY JUDGMENT

MOVING PARTY: Defendant City of Los Angeles

RESPONDING PARTY: Plaintiff Ahmet Alkanli

RELIEF REQUESTED

Motion for Summary Judgment

RULING: The motion is granted.

SUMMARY OF ACTION

Plaintiff Ahmet Alkanli (Plaintiff) claims that on January 16, 2020, he was driving home on a rainy night when his vehicle left the road and crashed into a light pole, which fell on top of his vehicle. He claims that he sustained injuries as a result. He alleges in his complaint that the roadway was dangerous and improperly maintained and the light pole was not properly maintained.

Two of Plaintiff’s causes of action in his First Amended Complaint apply to Defendant City of Los Angeles (Defendant): the First Cause of Action for Public Employee Negligence Pursuant to Gov. § 815.2; and the Third Cause of Action for Dangerous Condition of Public Property Pursuant to Gov. Code § 835.

Defendant filed its motion for summary judgment to the two causes of action on September 6, 2023. Plaintiff filed his opposition on February 14, 2024. Defendant filed its reply on February 22, 2024.

ANALYSIS

Plaintiff’s Evidentiary Objections:

            Sustained: 1, 2, 3, 4

            Overruled: None

Defendant’s Evidentiary Objections:

Declaration of Brad P. Avrit, P.E.

Sustained: 3, 4, 5, 6, 7, 8, 9

            Overruled: 1, 2

            Declaration of Gary M. Gsell

Sustained: 2, 4, 7 (“the conditions on the night of the subject incident” part), 8 (second sentence), 9, 10, 11, 12

            Overruled: 1, 3, 5, 6

            Declaration of Ernest J. Lingenfelter

            Sustained: 1

            Overruled: None

Defendant City of Los Angeles (Defendant) moves for summary judgment on grounds that public employees owe no duty, there is not triable issue of material fact as to Defendant’s liability under Gov. Code § 835, and Defendant and its employees are immune as a matter of law. Defendant also argues that Plaintiff’s First Cause of Action is barred as a matter of law. Finally, Defendant argues that Plaintiff’s dangerous condition of public property cause of action fails because there is no triable issue of material fact that the location was dangerous and because the City is immune as a matter of law.

Plaintiff in opposition argues that Defendant has not met its burden of production, or in the alternative, Plaintiff has met his burden so that Defendant may not prevail. Next, Plaintiff argues that summary judgment may not be granted in Defendant’s favor because it did not address all issues raised in Plaintiff’s complaint. Plaintiff also argues that Defendant’s claims regarding immunity and liability are contradictory. Finally, Plaintiff argues that he had raised issues of triable fact for the causes of action.

Defendant argues in its reply that Plaintiff failed to show a material factual dispute in his opposition. Defendant argues that Plaintiff failed to provide admissible evidence demonstrating that there are disputed issues of fact, and Plaintiff failed to show that the “Wet Skid Test” was performed under substantially similar conditions. Finally, Defendant argues that the declarations’ opinion on the advisory speed signs lacked foundation.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD. v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) “On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (CCP § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; see also CCP § 437c(c).) “An issue of fact can only be created by a conflict in the evidence.  It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

For Plaintiff’s First Cause of Action, Gov. Code § 815.2 states the following:

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.

Public entity liability for property defects is limited to the specific provisions of Gov. Code §§ 830-835.4, not the general rule of vicarious liability for employee negligence under §815.2. (Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 383; Van Kempen v. Hayward Area Park, Recreation and Park District (1972) 23 Cal.App.3d 822.) Gov. Code § 840 provides the basis for liability for public employees: “a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.”

Gov. Code § 815.2(a) codifies the doctrine of respondeat superior as applicable to public entity liability for the acts of public employees. (San Mateo Union High Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 432-433.) Under the doctrine of respondeat superior, if the agent/employee cannot be held liable to a plaintiff, the principal/employer also cannot be liable vicariously for the acts of that agent/employee. (3 Witkin, Summary of Cal. Law, (11th ed. 2022), Agency §177.) When assessing a claim for vicarious liability against a governmental employer based on the acts or omissions of its employee, a court must examine whether the employee who acted or failed to act would have been personally liable for the injury.” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 249 [judgment for county based on vicarious liability reversed when allegedly culpable employees could not be liable to plaintiffs].)

Based on the foregoing, Defendant would be immune from liability under Gov. Code § 815.2 because no public employee would be liable for the condition of the public property under Gov. Code § 840, regardless of whether that condition was a defective streetlight, dangerous roadway, or lack of signage (see discussion below). Because Defendant is immune, there are no triable issues of material fact for the First Cause of Action. The motion is granted for this cause of action.

For the Third Cause of Action regarding a dangerous condition of public property, Gov. Code § 835 states as follows:

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.

To establish §835 liability, Plaintiffs must show each of the following: (1) that the property was in a dangerous condition at the time of injury, (2) his injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) either (a) that a public employee negligently or wrongfully created the dangerous condition, or (b) that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639.)

A “dangerous condition” is “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).) The happening of a collision on public property is not as a matter of law evidence that the property was in a dangerous condition. (Gov. Code § 830.5; Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 831 [“Section 830.5 thus eliminates any inference of dangerousness that arises from the mere ‘happening of the accident.”].) Where a condition creates only a remote possibility of injury, it is not dangerous, as a matter of law, even if the extent of injury that may occur is substantial. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1110.)

A public entity need only provide roads that are safe for reasonably foreseeable use; if the property is not used with due care, and a risk of harm arises only when foreseeable users fail to exercise due care, a public entity is not liable under Gov. Code § 835. (Chowdury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196.)

The accident history on a particular roadway is a key factor a court assesses in ruling on a “no dangerous condition” summary judgment motion. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234 [court considers whether “other persons have been injured on this same defect”]; Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477, 482 [inquiry into “dangerousness” involves consideration of whether condition has caused other accidents]; Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346 [absence of similar accidents relevant to determination of whether condition is dangerous].) When another accident has occurred, but was dissimilar, there is no evidence of a dangerous condition. (Mixon v. Pac. Gas & Electric Co. (2012) 207 Cal.App.4th 124.)

In this case, no substantially similar collisions had occurred at the relevant location in the last ten years. (UMF 48.) This is demonstrative that the road may not have been in a dangerous condition, though not dispositive. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.) While Defendant also argues that Plaintiff was moving at an unsafe speed, the Court sustained Plaintiff’s objection to this particular evidence because it was based on hearsay and was inadmissible. Therefore, a triable issue of material fact may exist as to the dangerousness of the location, though Plaintiff must meet the other requirements of Gov. Code § 835.

For a claim under Gov. Code § 835, a plaintiff needs to also demonstrate that there was either a negligent creation of a dangerous condition, or the defendant had actual or constructive notice of the dangerous condition at the location.

To establish liability under Gov. Code § 835(a), “for injury caused by a dangerous condition, a plaintiff must prove that the public entity acted negligently or wrongfully even when the public entity created the dangerous condition.” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1132.) It is undisputed that the design and construction of the location was reasonable and conformed to applicable engineering standards. (UMF 52-63.)

Alternatively, for liability under Gov. Code § 835(b), a plaintiff’s failure to establish either actual or constructive notice under §835(b) is fatal to recovery. (Van Kempen v. Hayward Area Park, Recreation & Park Dist. (1972) 23 Cal.App.3d 822, 827.) To establish actual notice, there must be evidence of the public entity’s actual knowledge of the existence of the condition, and that the entity knew or should have known of its dangerous character. (Gov. Code § 835.2.) For constructive notice to exist, prior accidents are evidence of constructive notice. (Higgins v. State (1997) 54 Cal.App.4th 177, 188, abrogated on other grounds Cornette v. Dept. of Trans. (2002) 26 Cal.4th 63 [plaintiff in dangerous condition roadway case must show that the accident rate was statistically aberrant, otherwise no triable issue on notice exists].)

Here, it is undisputed that there is no evidence that any circumstances concerning a dangerous condition at the location was reported to Defendant prior to the accident. (UMF 45-49.) For that reason, Defendant did not have actual notice of any dangerous condition. Further, Defendant did not have constructive notice of a dangerous condition because no similar accidents occurred at the location in the last 10 years. (UMF 48.)

Defendant also makes arguments regarding the streetlights at the location. However, in Plaintiff’s opposition, Plaintiff argues that the streetlight is not the relevant dangerous condition at this stage; instead, asphalt bleed caused the roadway to be dangerous and made Plaintiff skid off the road. (See Opposition, p. 1.) Plaintiff also argues that the lack of speed advisory signs was an issue. However, Plaintiff has only recently mentioned asphalt bleed and the speed advisory signs as possible issues. Other than alleging that the roadway was dangerous in his First Amended Complaint, Plaintiff makes no mention of asphalt bleed or the speed advisory signs.

During Plaintiff’s deposition in December 2021, Plaintiff stated under oath that he had no information about defective design or construction at the location. (UMF 27.) However, Plaintiff apparently already knew of the supposed asphalt bleed and the signage at that time but did not disclose it. Because these theories were undisclosed prior to Plaintiff’s opposition to the motion, the Court could exclude evidence of these theories on that basis and issue evidence sanctions. (CCP §2033.010(f) [evasive discovery response]; 2023.030(c) [evidence sanction for discovery misuse]; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274 [judicial authority to issue evidence sanction for abuse of discovery].) This is unnecessary, however, as the Court has ruled that the portions of Plaintiff’s expert declarations relevant to these theories are inadmissible. They were inadmissible because the parts about the asphalt bleed were based on hearsay and lacked foundation, as it was other individuals who conducted the actual testing on the road, and they have not provided declarations. The experts also lacked qualifications as to the placement of advisory speed signs. The declarations also misstated the testimony from the City regarding resurfacing of the roadway.

Plaintiff’s evidence in support of his opposition is inadmissible; therefore, he has not met his burden in demonstrating that there was a dangerous condition.

Finally, Defendant also argues that it has immune from liability under Gov. Code § 830.6, which deals with design immunity. Under “design immunity” a public entity is not liable for injuries caused by a dangerous condition of public property when these elements are satisfied: (i) a causal relationship between the plan or design and the accident; (ii) discretionary approval of the plan or design before construction or improvement; and (iii) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Dept. of Transp. (2001) 26 Cal.4th 63, 66.)

Defendant has demonstrated through its evidence that there was discretionary approval of the plan or design before construction or improvement (UMF 51-63) and that there is substantial evidence supporting the reasonable of the plan or design based on the declarations of Defendant’s experts (UMF 56, 59, 62, 74-77).

Based on Defendant’s motion and Plaintiff’s opposition, there is no triable issue of material fact regarding a dangerous condition at the location because Plaintiff has failed to submit admissible evidence rebutting Defendant’s evidence that the location was not dangerous. Accordingly, Defendant’s motion for summary judgment is granted for Plaintiff’s Third Cause of Action.

The motion for summary judgment is granted for Plaintiff’s First and Third Causes of Action.

Moving party to give notice.