Judge Jill Feeney, Case 19STCV14410 2022-08-19 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

On April 25, 2019, Plaintiff Sparkayla Coleman filed her complaint against the City of Los Angeles (“City”) alleging causes of action for premises liability and general negligence. This action arises from a vehicle collision which Plaintiff alleges occurred because City failed to maintain the premises at or near 8501 S. Figueroa St., Los Angeles, CA 90003.

City argues that summary judgment should be granted because (1) City is immune from liability for failure to post signs pursuant to Government Code Sections 830.4 and 830.8 and (2) City is not liable for Plaintiff’s injuries because the design, construction, or maintenance of the roadway did not contribute to the subject accident and there is no evidence of notice of a dangerous condition at the subject roadway.

Plaintiff argues that City’s motion should be denied because City fails to state facts that shift the burden to Plaintiff, the lack of signage was not the only reason why the area at issue was dangerous, the area was indeed in a dangerous condition, City is not entitled to design immunity, and alleged driver negligence does not eliminate state liability.

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(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.)

“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.” (Code Civ. Proc., § 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.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“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 inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

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:

City argues that it cannot be liable for failing to provide marked set back designations from exits and/or curbs, barricades, warnings, traffic control signals, stop signs, yield right-of-way signs, speed restriction signs, or other distinctive roadway markings because there is no statute imposing liability and it is immune from liability under Government Code Sections 830.4. and 830.8.

The term “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, subd. (a).) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.”¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn. 5.) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.”¿(Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.)

While a concealed dangerous condition that constitutes a trap may require the posting of warning signs, the absence of warning signs itself is not a dangerous condition. (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 131.) Rather, a dangerous condition must first exist independent of the absence of the warning. (Ibid.) Further, “[a] condition is not a dangerous condition . . . merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs . . . or distinctive roadway markings . . .” (Gov. Code, section 830.4.) The statute “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.)

Plaintiff’s complaint focuses on (1) City’s failure to create a setback or no parking area on either side of the driveway so as to create a clear line of sight for drivers exiting the driveway that is unobstructed by parked vehicles (including oversized vehicles) to the side of the driveway and (2) City’s failure to barricade the area or warn of the dangerous condition created by the obstructed view. (Complaint Page MC-025, Page PLD-PI-001(a)).

Government Code Section 830.4 specifically mentions that 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” does not create a dangerous condition.

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, 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 is 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.

In Kessler v. State of California (1988) 206 Cal.App. 3d 317, 323, the Court of Appeal held that Section 830.8 applies to all warning signs and devices conforming to the uniform standards promulgated by the California Department of Transportation and that Section 830.8 immunity applies to the absence of a “Road Work Ahead” sign notwithstanding that such a sign is not specifically described in the Vehicle Code.

However, the Court now must examine the factual question as to whether the exception to the immunity provided by Section 830.8 applies here, whether a signal, sign, marking or device (other than one described is 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. This situation is referred to as the existence of a “trap.”

“[A] public entity may be liable where a dangerous condition ‘exists for reasons other than or in addition to the mere failure to provide such controls or markings.’” (Mixon v Pacific Gas & Electronic Co. (2012) 207 Cal.App.4th 124, 135.) “In other words, a concealed dangerous condition that is a trap to motorists or pedestrians may require the posting of a warning sign but the absence of a warning sign itself is not a dangerous condition.” (Id. at 135-36)

It is undisputed that on July 7, 2018 Plaintiff exited a parking lot on West 85th Street. It is also undisputed that while entering 85th Street from the parking lot another vehicle traveling east on West 85th Street struck Plaintiff’s vehicle. It is also undisputed that on that day a RV was parked against the curb to one the side of driveway from which Plaintiff exited onto West 85th Street.

City provides the declaration of Brian Sam, Chief Investigatory for the City of Los Angeles. (Exhibit 7). This declaration establishes that a search of City’s Claims Database covering reported incidents from July 7, 2008 through the date of the accident revealed that no other claims for personal injury or wrongful death have been presented to the City with respect to the driveway/street location of the accident here.

City also provides the declaration of Brian Gallagher, the Principal Transportation Engineer for the District Operations Bureau of the City of Los Angeles’ Department of Transportation. (Exhibit 8.) Mr. Gallagher authenticates and qualifies as business records Exhibits 3 through Exhibit 6 that are presented by City. Mr. Gallagher’s review of records demonstrates that there were no requests for traffic signs or no parking designations for the area in question here, although there were requests for other changes in the vicinity, such as a marked cross walk.

Finally, City provides the declaration of Rock Miller, a traffic engineering expert retained by City. (Exhibit 9.) Mr. Miller reviewed the collision site and reviewed historical pictures of the area. (Exh. 9, Para. 7.) Mr. Miller examined the sight distance for vehicles exiting the driveway and for vehicles approaching the driveway intersection on the street. (Exh. 9, Para. 11.) Based on his review of the location, he concluded that the sight distance available was adequate for a motorist using reasonable due care. (Exh. 9, Para 13.) He further opined that sight distance would not be the most important factor in evaluating safety of the area. Mr. Miller notes that due to a speed hump and an approaching stop sign a motorist traveling on West 85th Street would have sufficient time to readily stop to avoid a collision with another vehicle exiting the driveway. (Exh. 9, Para. 14.) Mr. Miller further concludes that the City of Los Angeles Department of Transportation Manual of Polices and Procedures Section 342, which addresses guidelines for red curbing, indicates that red curbing is optional for private driveways and may be considered as needed for specific or unusual conditions. (Exh. 9, Para. 15.) Mr. Miller reviewed the collision history of the area and concludes that given the volume of traffic on the street, there have been few collisions and none that involve the circumstances at issue here. (Exh. 9, Paras. 16-20.) Based on all the circumstances, Mr. Miller concludes that the driveway/West 85th Street was safe and did not present any hidden danger or trap for users exercising reasonable care. (Exh. 9, Paras 22-28.)

In response, Plaintiff provides the declaration of its expert, Brad Avrit. (Exhibit 1.) However, the declaration of Mr. Avrit does not establish a genuine issue of material fact regarding the existence of a dangerous condition separate and apart from the absence of signs or a no parking zone, much less a concealed dangerous condition constituting a trap.

Common sense dictates the conclusion that any driver exiting from a driveway into the street where vehicles (oversized or not) are parked on either side of the driveway knows that their vision may be obstructed by such vehicles. This is certainly a situation that would be apparent to any driver. The pictures of the subject driveway and street including in Mr. Avrit’s report support this point.

Moreover, Mr. Avrit does not show that there was a dangerous or hazardous condition separate and apart from the lack of signage or red curbing. Indeed, Mr. Avrit suggested fix for the problem is a “No Parking sign and painted red curb.” (Exh. 1, Para. 14.) The danger/hazardous condition identified by Mr. Avrit is the lack of signs prohibiting oversized vehicle parking or parking in general and the lack of a red curb prohibiting parking. It is the absence of these items that created the danger he identifies. (Exh. 1, Para. 13, 15.)

Because the decision is reached based on the immunity issue, the Court need not reach the other issues raised, including the notice issue. That said, the Court notes that Plaintiff did not establish that City had actual notice of the alleged dangerous condition. Plaintiff testified at deposition that a number of reports were made to City about RVs parked at this location. (Exh. 2.). However, Plaintiff testified that Plaintiff did not make any such reports but instead knew of reports made by others. Thus, this evidence constitutes hearsay. But putting the hearsay issue aside, there is no evidence that City was informed of any traffic hazard resulting from the parking of the RVs on the street. Rather, Plaintiff’s testimony established that the complaints made related to trash and other quality of life issues surrounding the presence of the RVs. (Exh. 2.)