Judge Joel L. Lofton, Case Number: 22STCV26333, Date: 2024-05-01 Tentative Ruling

Judge: Joel L. Lofton, Case: 22STCV26333, Date: 2024-05-01 Tentative Ruling

Case Number: 22STCV26333 Hearing Date: May 1, 2024 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: May 1, 2024 TRIAL DATE: None set

CASE: LATESE CHERIE WHITEHEAD vs CITY OF BURBANK, A PUBLIC ENTITY, et al.

CASE NO.: 22STCV26333

RELATED CASES: NICHOLE RICHARDSON, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO THE ESTATE OF JAIDEN JOHNSON, DECEASED vs COUNTY OF LOS ANGELES, A GOVERNMENTAL ENTITY, et al. (22STCV26429);

CALVIN JOHNSON vs CITY OF BURBANK, A GOVERNMENTAL ENTITY, et al. (22STCV30371); S

HANA ROHANI vs CITY OF BURBANK, et al. (23BBCV00569);

CLAUDIA MOGHADDAM, AS SUCCESSOR-IN-INTEREST TO THE ESTATE OF NATALEE ASAL MOGHADDAM, DECEASED, et al. vs THE CITY OF BURBANK, A GOVERNMENTAL ENTITY, et al. (22STCV32125)

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant City of Burbank (the “City”)

RESPONDING PARTY: Latese Cherie Whitehead, Claudia Moghaddam, Shana Rohani, Nicole Richardson, Calvin Johnson

SERVICE: Filed October 27, 2023

RELIEF REQUESTED

City moves for summary judgment.

BACKGROUND

On August 15, 2022, Plaintiff Latese Cherie Whitehead (“Lead Case Plaintiff”), individually and as successor-in-interest to The Estate of Jaiden Johnson, deceased, filed this action against the following Defendants:

1. City of Burbank, a public entity;

2. County of Los Angeles, a public entity;

3. State of California, a public entity;

4. California Department of Transportation, a public entity;

5. Hamlet Aghajanyan, an individual;

6. Arsen Aghajanyan, an individual;

7. Gor Melkonian, an individual;

8. Gagik Melkonian, an individual;

9. Shana Rohani, an individual;

10. Maryam Darakhshidarmian, an individual;

11. Anthony Baker, an individual and a nominal defendant; and

12. Does 1-100, inclusive.

The Complaint asserts the following causes of action: (1) negligence – motor vehicle, (2) negligence per se, (3) negligent entrustment, (4) dangerous condition of public property, (5) public employee and agent liability, (6) continuation of decedent’s causes of action (survival action), (7) wrongful death, and (8) declaratory relief.

The Complaint alleges the following. On or about August 3, 2021, Anthony Raekwon Baker (“Decedent”), was a backseat passenger in a vehicle operated by Defendant Shana Rohani (“Rohani”) and traveling eastbound on Glenoaks Blvd., in Burbank, California. Three vehicles were engaging in a high-speed street race traveling westbound on Glenoaks Blvd. Defendant Rohani was turning left onto northbound Andover when the three vehicles negligently and recklessly sped through the intersection, crashing into Defendant Rohani’s vehicle. The impact caused Rohani’s vehicle to split in half, burst into flames, and eject some of its passengers, including Decedent. As a tragic result of the fiery impact, Decedent and passengers, Jaiden Johnson and Natalee Asal Moghaddam, were all pronounced dead at the scene.

On July 20, 2023, the Court ordered this case and previously related cases, 22STCV32125, 22STCV26429, 23BBCV00569, and 22STCV30371, consolidated and assigned to Department 32 in Spring Street Courthouse for all purposes. The Court designated this case (22STCV26333) as the lead case.

TENTATIVE RULING

The City’s motion for summary judgment is DENIED.

LEGAL STANDARD

“The purpose of the law of 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. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment shall be granted 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 a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)

“A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

DISCUSSION

The City moves for summary judgment against Plaintiffs Nichole Richardson, individually and as successor-in interest to the Estate of Jaiden Johnson, deceased; Latese Whitehead, individually and as successor-in-interest to the Estate of Cerain Baker, deceased; Calvin Johnson, individually and as successor-in-interest to the Estate of Jaiden Johnson, deceased; Claudia Moghaddam, individually and as successor-in-interest to the Estate of Natalee Moghaddam, deceased; Pirouz Moghaddam; Keeyan Moghaddam; Neekou Moghaddam; and Shana Rohani (collectively, “Plaintiffs”).

The City asserts that there is no triable issue of material fact on Plaintiffs’ claims against the City. Alternatively, the City moves for summary adjudication on the following:

Issue 1: There is no triable issue of fact as to whether the traffic signal timing strategy of the City’s traffic signals at the intersection of Glenoaks Boulevard and Andover Drive was in a dangerous condition at the time of the incident.

Issue 2: There is no triable issue of fact as to whether the alleged dangerous condition had a causal relationship to the third-party conduct that injured Plaintiffs.

Issue 3: There is no triable issue of material fact concerning whether Plaintiffs complied with the requirements of the Government Claims Act (California Government Code § 810, et seq.) concerning the pre-lawsuit claims submitted on Plaintiffs’ behalf to the City.

Issue 4: There is no triable issue of material fact concerning Plaintiff Rohani’s sole cause of action against the City for negligence. Under the California Government Claims Act, common law tort liability (such as negligence claims) of public entities like the City has been abolished.

Issue 5: There is no triable issue of material fact concerning whether Plaintiff Shana Rohani timely filed her complaint in this action after the City rejected her pre-lawsuit claim.

Plaintiffs join in other Plaintiffs’ opposition briefs.

Evidentiary Objections

Latese’s Evidentiary Objections to“ EXHIBIT G” and “DECLARATION OF LT. JOHN PFROMMER” Exhibit “G” - Memorandum from Laura Lanza to Sharon Kufa, dated September 15, 2022 Declaration of Lt. John Pfrommer:

OVERRULED: 1-3

SUSTAINED: None

Latese’s Evidentiary Objections to EXHIBIT Q – City of Burbank Public Works Staff Report regarding Analysis of Traffic Safety on Glenoaks Boulevard and Adjacent Roadways from Ken Berkman to Justin Hess, dated December 7, 2021, with attachments purportedly included:

OVERRULED: 1

SUSTAINED: None

Latese’s Evidentiary Objections to EXHIBITS R, S - Traffic camera footage of Glenoaks Boulevard & Harvard/Glenoaks Boulevard & Andover:

OVERRULED: 1-3

SUSTAINED: None

Nicole’s Evidentiary Objections to DECLARATION OF LT. JOHN PFROMMER DATED OCTOBER 24, 2023:

OVERRULED: None

SUSTAINED: 1

The City’s Evidentiary Objections to Joellen Gill’s Declaration:

OVERRULED: 1-5

SUSTAINED: None

Issue 1: Dangerous Condition

The City contends that it is not liable for Plaintiffs’ injuries as the intersection in question does not meet the legal definition of a dangerous condition of public property, and the injuries were instead caused by the criminal actions of Aghajanyan and Melkonian. The City argues that the intersection’s physical layout and traffic signals, which are managed according to standard protocols, did not pose a substantial risk of injury when used appropriately and in a foreseeable manner. The City also states that Plaintiffs fail to allege any defects regarding the physical characteristics of the property. Additionally, the City asserts that there is no causal link between the intersection’s condition and the incident as the direct cause of third party conduct, not any hazardous condition of the public property. The City emphasizes that its responsibility is limited to maintaining property in a reasonably safe condition, not ensuring absolute safety against all third-party actions. The City cites to City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 29, which states: there must be a “coupling of third party conduct and [the] defective condition … [such that] the property itself exists in a dangerous condition, and that condition increases or intensifies the risk of injury to the public.”

In opposition, Plaintiff Latese argues that there are triable issues of fact concerning the existence of a dangerous condition at the intersection and the City’s notice of such a condition. Latese asserts that the City’s traffic signal strategy, particularly during off-peak hours which allowed successive green lights, constituted a dangerous condition as defined by the Government Code. Latese states that the City fails to cite any case law or statutory authority for its conclusory statement that Plaintiffs’ allegations concerning traffic signal sequencing on Glenoaks are deficient because Plaintiffs do not allege a physical characteristic of the public property. Latese points out the deficiencies in the City’s evidence, particularly the lack of authentication concerning the data on prior accidents and street racing at the location. Latese argues that the City was aware of the dangers, as evidenced by prior complaints and internal communications acknowledging issues with the traffic signal infrastructure, which was “outdated and old.” Moreover, Latese highlights the City’s own initiatives, like the Glenoaks Boulevard Signal Improvement Project, which acknowledged the need for updates yet were not implemented in time to prevent the incident. Furthermore, Latese contends that the City’s own declarations and public statements, including public service announcements and traffic reports, acknowledged issues with speed and street racing on Glenoaks Boulevard. This, according to Latese, constitutes constructive notice of the dangerous condition, contradicting the City’s claim of lack of notice.

Also in opposition, Plaintiff Shana argues that vehicles racing on public property can create a dangerous condition. (See Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 804 [“The third party’s negligence, however, does not negate the existence of a ‘dangerous condition.‘ In fact, if the third party's negligence or criminal conduct is foreseeable, such third party conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property, viz., the lack of a fence or barrier…”].) Shana asserts the City was aware of the dangerous condition due to repeated instances and reports of street racing, particularly on Glenoaks Boulevard, which was documented through numerous public complaints and police enforcement activities targeting this behavior, but the City failed to modify the traffic signal timings that facilitated the racing, particularly by creating an “all green visual” that resembled a drag strip, thereby exacerbating the danger late at night.

Also in opposition, Plaintiff Nicole argues that the City failed to meet its burden of demonstrating the lack of a dangerous condition at the intersection of Glenoaks and Andover. Nicole points out that the determination of whether a property is in a dangerous condition is often a factual question, as supported by Sambrano v. City of San Diego (2001) 94 Cal.App. 4th 225. Nicole criticizes the City’s primary evidence which purports that Glenoaks Boulevard was not dangerous based on the number of accidents reported at that intersection. (The City’s Separate Statement of Undisputed Facts “SUMF” no. 12.) She argues that this is inadequate because it fails to compare these incidents against a broader statistical context that would establish a norm for such intersections. Furthermore, she asserts that this evidence lacks foundational support because the data has not been properly authenticated, and even the City’s witness, Lieutenant Pfrommer, could not confirm its accuracy or origin during his deposition. Nicole also contends that the City’s synchronization of traffic lights to display continuous green signals during off-peak hours materially increased the risk of high-speed and criminal behaviors, likening the situation to creating a “sea of green” that encourages speeding. Nicole argues that the City’s failure to address the known and documented dangers related to the specific configuration of Glenoaks Boulevard, especially after significant increases in reckless driving behavior noted during the COVID-19 pandemic, points to a clear failure in duty and a breach of public safety obligations.

In reply, the City argues that it met its burden to demonstrate that its property was not in a dangerous condition at the time of the incident and that Plaintiffs have overlooked substantial evidence presented by the City, which focuses on the physical characteristics of Glenoaks Boulevard, including the street being straight and flat and the traffic signals remaining green unless triggered by pedestrians or cross traffic during certain hours. The City mentions that the number of traffic accidents reported, as detailed in Exhibit G, supports its position. It rebuffs Plaintiffs’ criticism regarding the foundation of this evidence by noting that reported incidents are the only data the City could reasonably be expected to have. Furthermore, the City refers to City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, to reinforce its argument, noting that similar to that case, there was a long history of street racing known to the city, yet the roadway was still not deemed a dangerous condition. Additionally, the City disputes any parallels drawn by Plaintiffs to cases like Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799 and Slapin v. Los Angeles Int’l Airport (1976) 198 Cal.App.4th 1058, arguing that those cases involved physical conditions that directly facilitated third-party misconduct, unlike the current situation where traffic signal timing is at issue. Thus, the City argues that Plaintiffs have not demonstrated that the specific characteristics of Glenoaks Boulevard contributed to making it a dangerous condition. It stresses that the presence of green traffic signals does not inherently encourage illegal behavior and that changing these signals to red more frequently would not equate to a physical barrier that could prevent criminal behavior.

Government Code section 835 sets the legal framework for when a public entity can be held liable for injuries caused by a dangerous condition on its property. It specifies that liability arises if the plaintiff can prove that the property was in a dangerous condition at the time of the injury, the injury was directly caused by this condition, and the condition presented a foreseeable risk of the kind of injury that occurred. (Gov. Code § 835.) A “dangerous condition” is defined under section 830, subdivision (a), as a “condition of property that poses 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 which it is reasonably foreseeable that it will be used.” (Gov. Code § 830.) The determination of whether a dangerous condition exists is typically a factual question. However, this can be decided as a matter of law if there is a consensus among reasonable minds about the condition. (See City of San Diego, supra 137 Cal.App.4th at 28.) For a condition to be considered dangerous in cases involving third-party actions, there must be a link between the condition of the property and the conduct of the third party that caused the injury. “ ‘[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a “dangerous condition” for which a public entity may be held liable.’” (City of San Diego, supra 137 Cal.App.4th at 29.) This involves evaluating whether the property was in a state that foreseeably could enhance the risk of injury from third-party actions. (Id.)

The City of San Diego court discussed Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, where the court clarified that third-party conduct alone, without any connection to a condition of the property, does not establish a dangerous condition. (City of San Diego, supra 137 Cal.App.4th at 29.) The property must contribute to the risk of injury through its physical state, such as being damaged, deteriorated, or otherwise defective. (Id.) Examples of recognized dangerous conditions include malfunctioning traffic signals, obscured traffic signs due to plantings, or inadequate lighting in areas where there is a history of criminal activity. Conversely, conditions like unlit beaches at night or the absence of barriers preventing weapons at schools are not typically considered inherently dangerous. (Id.) “In addition to the existence of a defective condition of property, Zelig instructs us the defect in the physical condition of the property must also have some causal relationship to the third party conduct that actually injures the plaintiff.” (Id. at 30.) For example, inadequate lighting might make a parking lot a more likely setting for criminal assaults, thereby establishing a link between the property condition and the injury incurred. (Id.)

In City of San Diego, the court concluded that the elements required under the Zelig analysis to establish government entity liability in cases involving third-party conduct were absent. (City of San Diego, supra 137 Cal.App.4th at 30.) Specifically, it found that the roadway was not inherently defective at the time of the accident; the road was described as straight, level, with few intersections and no sight line obstructions, conditions which, while potentially encouraging speeding, do not in themselves constitute a dangerous physical condition under section 835 of the Government Code. (Id. at 30-31.) Similarly here, the parties do not dispute that the “Between E Harvard Road and Andover Drive, Glenoaks Boulevard is a relatively straight and flat roadway.” (SUMF no. 9.)

In City of San Diego, the plaintiffs argued that the physical condition of the property should have been altered by the City to make it safer, specifically through the installation of lighting which would have allowed individuals to better see and gauge the speed of approaching street racers. (City of San Diego, supra 137 Cal.App.4th at 31.) However, the court questioned whether the absence of lighting constitutes a physical defect of the property. Given the lack of previous accidents specifically attributed to poor lighting, the court considered the request for more lighting to be a preventative safety measure rather than a remedy for a defective condition. (Id.) Second, even if it were determined that the lack of lighting could be considered a defect, the court stated that there was no evidence to suggest that the behavior of the racers was influenced by the absence of street lights. (Id.)

Here, the facts are distinguishable. Plaintiffs provide evidence that the traffic signals synchronized to remain green unless a pedestrian or cross-traffic became present was a dangerous condition. Plaintiffs rely on the testimony of City of Burbank Vice Mayor and City Councilmember, Nick Schulz, who stated: “I think that the decision to change the synchronization in 2014 . . . created an environment where there were not sufficient, in my mind, visual cues for a driver to maybe see, ‘Hey, I might need to slow down.’” Additionally, he stated, “I agree that the decision to change the light synchronization in 2014, with the benefit of hindsight, it was in my view not the right decision.” (Plaintiff Latese’s Additional Material Facts “Latese AMF” no. 1.) Plaintiffs also point out that the City approved The Glenoaks Boulevard Signal Improvement Project “to enhance the roadway’s ability to convey traffic safely and efficiently” and in order to address “outdated and old infrastructure,” but the plan was not instituted as of the date of the incident. (Latese AMF no. 3.) Plaintiffs also provide that there was an increase in “reckless driving complaints” in 2020 and 2021. (Latese AMF no. 4-7.) Plaintiffs also provide evidence that the City knew or acknowledged reckless driving and illegal street racing. (Latese AMF no. 8-9.) The other plaintiffs also provide similar evidence that there were many collisions in this intersection and that the City knew of street racing in this area.

In light of Plaintiffs’ evidence, the Court finds that there are triable issues of fact concerning whether the location of the street and its physical characteristics combined to create a dangerous condition, and whether the City had constructive notice of the dangerous condition. Specifically, the physical characteristic is the synchronized traffic lights creating an “all green visual,” which may have induced dangerous behavior such as street racing. Plaintiffs also provide evidence that the City had prior knowledge of recurring street racing incidents and speeding on this specific stretch of road, documented through the Public Service Announcement about street racing. (Shana UMF no. 6), and a significant number of 911 calls relating to racing and speeding in the area (Shana UMF no.3.) Despite this awareness, there is evidence to show that the City failed to take adequate measures to mitigate the known risks. There is also evidence that modifications to reduce the risk, such as changing the timing of traffic lights to disrupt the continuous green signal that encouraged speeding, were technically feasible and could have been implemented relatively quickly and easily. (Shana UMF no.17-21).

Thus, the City’s Motion for Summary Adjudication of Issue 1 is DENIED.

Issue 2: Causation

The City argues that there is no causal relationship between the condition of the public property—specifically, the roadway and traffic signal strategy—and the street racing that resulted in injuries to Plaintiffs. The City maintains that the roadway, Glenoaks Boulevard, was safe when used correctly, and that the reckless behavior of the drivers, Aghajanyan and Melkonian, who were driving significantly over the speed limit and on the wrong side of the road, was a misuse of the roadway. The City argues that their behavior shows a disregard for traffic laws that is independent of any condition of the roadway or traffic signals. The City contends that a green light at an intersection is merely an indication to proceed while complying with all other traffic laws, including speed limits. Thus, the green lights did not invite or encourage illegal street racing or excessive speeding. The City states that there is also no evidence Aghajanyan and Melkonian knew how the traffic signals on Glenoaks operated. But even if they did, it cannot be said that the signals increased or intensified the risk of injury to the public. Even if they did understand the traffic signal strategy, the City argues, knowledge that the presence of pedestrians or cross-traffic could change the lights to red would imply an expectation to stop, which contradicts Plaintiffs’ assertion that the signal strategy encouraged reckless driving.

In opposition, Latese challenges the City’s claim that there was no causal relationship between the public property and the third-party conduct that resulted in the fatalities. Latese cites Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, and other cases to emphasize that a public entity can be liable when a dangerous condition of its property combines with a third party’s negligent actions to cause injury, regardless of whether the dangerous condition was of the entity’s own making. Latese refutes the City’s reliance on the City of San Diego, arguing that it sets an unreasonably restrictive standard for determining causation and third-party conduct as a superseding cause. Further, she claims that that case is distinguishable as: (1) City of San Diego involved an allegation regarding “poor lighting” for which the plaintiff in that case did not present any evidence that the lighting “increased or intensified” the risk of third-party criminal conduct; and (2) in City of San Diego there was no substantial evidence that City of San Diego was aware of the risk of illegal driving. Here, Latese argues that the “sea of green” traffic lights influenced the defendant drivers’ perception that they could speed without concerns for cross-traffic, thereby intensifying the risk of dangerous behavior. Moreover, Latese contends that evidence exists showing that the defendant drivers were indeed influenced by the traffic signals, citing declarations that the presence of green lights led them to believe there was no need to stop. (Latese AMF no. 19.) Latese also points to Shana’s testimony, suggesting that the accident could have been prevented if there had been warnings about street racing on Glenoaks Boulevard or if it had been known that drivers were traveling well above the speed limit. (Latese AMF no. 18.)

Also in opposition, Shana argues against the City’s interpretation of causation in cases involving a public entity’s liability under Government Code section 835. She highlights that the City incorrectly believes she must prove that the dangerous condition (the “sea of green” traffic lights on Glenoaks Boulevard) directly caused the third-party misconduct (defendant drivers driving recklessly) which led to her injuries. Shana references the Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099 to clarify that, under section 835, the plaintiff is not required to prove that the dangerous condition caused the third party’s negligence. Instead, she only needs to show that the dangerous condition proximately caused her injuries. (See Cordova, supra 61 Cal.4th at 1107.)

Also in opposition, Nicole contends that the City has not fulfilled its burden to demonstrate a lack of causation. Nicole states that there is no requirement that the plaintiff prove the illegal third-party conduct was caused by the dangerous condition; rather, the relevant question is whether the plaintiffs’ injuries were proximately caused by the dangerous condition. Lane v. City of Sacramento, 183 Cal. App. 4th 1337, 1348 (2010) (“Under the governing statute, the pertinent question is not whether the [dangerous condition] caused [the third-party’s conduct]; rather, the pertinent question is whether plaintiffs’ ‘injury was proximately caused by the dangerous condition.’”.) Nicole points out that the City failed to address or negate the causation element. Furthermore, Nicole provides that there is ample evidence to create a triable issue of fact regarding causation. She references admissions from city officials and the configuration of the traffic lights—specifically the “sea of green” that arguably encourages speeding—asserting that these factors contributed to the conditions that led to the accident. (Nicole AMF nos. 57-60.) Nicole cites Cordova, which corrected the appellate court’s error in applying an overly restrictive causation standard similar to the one advocated by the City. Nicole asserts that this case shows that plaintiffs need only demonstrate that the dangerous condition was a substantial factor in causing their injuries. (Cordova, supra, 61 Cal.4th at 1107 [“Consistent with the text of section 835 and with our holding in Ducey, Courts of Appeal have recognized that plaintiffs injured by a combination of a dangerous condition of property and third party conduct need show only that the condition proximately caused their injury; they need not show that the condition somehow caused the third party's harmful conduct.”].)

In reply, the City asserts that it met its burden to show a lack of causation between the public property’s condition and the incident involving Aghajanyan and Melkonian. The City emphasizes that the sole cause of the incident was the illegal street racing and reckless behavior of these individuals, who were driving at excessively high speeds and on the wrong side of the road at the time of the incident. (SUMF no. 6.) The City argues that under Hayes v. State of California (1974) 11 Cal.3d 469 and Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, a public entity is not liable for the actions of third parties on its property unless the property’s condition itself creates a substantial risk of injury when used with due care. In this case, the City contends that the condition of the roadway—a straight and flat road displaying green traffic signals—does not inherently increase the risk of injury if used responsibly and in accordance with traffic laws. Moreover, the City discusses Zelig and Cordova, clarifying that the focus should be on the causal relationship between the property’s physical condition and the third-party conduct. The City states that unlike in Zelig, where the courthouse’s physical condition facilitated a shooter’s harmful actions, here the roadway’s condition did not facilitate the illegal racing. Finally, the City contends that the undisputed facts show that the reckless actions of Aghajanyan and Melkonian were independent of the traffic light timing or other aspects of the roadway’s design.

In Ducey, the court upheld the jury’s finding that the absence of a median bar in a freeway constituted a dangerous condition. (Ducey, supra, 25 Cal.3d at 720.) The court reasoned “in evaluating the evidence and applying the definition of ‘dangerous condition’ contained in the judge’s instructions, the jurors were free to draw upon their own common driving experiences which might well have suggested to them that many traffic accidents, including cross-median accidents, occur without the negligence of any party.” (Id.) Similarly, here, a jury may find that the continuous green light setup on a major roadway was a dangerous condition that increased the risk of high-speed accidents and illegal street racing. Plaintiffs provide support for this assertion such as Melkonian’s declaration that as he was driving down Glenoaks Boulevard, all he could see was “green stoplights which indicated to [him] that there was no concern of cross-traffic.” Further, “[i]f any of the stoplights on Glenoaks Boulevard [were] red (instead of green), [he] would have obeyed the traffic signal and stopped.” (Latese AMF no. 19.) There is also other evidence to support that the “sea of green” encouraged speeding and contributed to the accident. (Nicole AMF nos. 57-60; Latese AMF nos. 18-19.)

Thus, the City’s Motion for Summary Adjudication of Issue 2 is DENIED.

Issue 3: Government Claims Act

The City argues that Plaintiffs’ claims are governed by the Government Claims Act, which requires them to present a written claim to a public entity before any lawsuit for money or damages can proceed, and Plaintiffs seek monetary damages for Negligence–Dangerous Condition of Public Property, Continuation of Decedent’s Survival Action, General Negligence, and Wrongful Death. The City contends that Plaintiffs’ claims for damages do not accurately identify the factual basis for recovery because the City’s acts or omissions which Plaintiffs allege caused their damages differ from Plaintiffs’ current contentions concerning the City’s alleged liability as disclosed in Plaintiffs’ written discovery response. Specifically, the City points out specific inconsistencies, highlighting that each Plaintiff’s claim for damages varies by alleging different aspects and acts of negligence regarding the condition and maintenance of Glenoaks Boulevard and related infrastructure — ranging from the lack of safety measures and appropriate traffic control, which allegedly invited illegal street racing, to the failure in maintaining and designing the roadway, and a failure to adjust street light sequencing to mitigate risks associated with high-speed racing. They are as follows:

· Richardson claims the City’s road maintenance practices, specifically the lack of safety measures against street racing invited illegal behavior.

· Whitehead highlights the absence of adequate visual cues and traffic controls that could mitigate racing activities.

· Johnson points to the City’s failure to adjust street light sequencing or other preventative measures as a key factor in fostering high-speed racing, suggesting that the City’s infrastructure and maintenance strategies create substantial risks even when used with due care.

· The Moghaddams extend their criticism to the physical layout and features of the road, citing a lack of barriers or proper road design as contributory factors in facilitating dangerous conditions. They accuse the city of longstanding negligence in curbing street racing, suggesting that the city had both actual and constructive knowledge of the risks but failed to act.

· Rohani emphasizes that the city was aware of the illegal racing issue but did not implement adequate measures to warn the public or improve road safety, directly impacting her safety and that of others.

The City argues that these inconsistencies prevented it from conducting a thorough investigation as intended by the claims statutes. Consequently, the City argues that Plaintiffs’ failure to provide a consistent factual basis that reflects the claims initially presented means that they have not met the requirements of the Government Claims Act, potentially barring their lawsuit.

In opposition, Latese argues that contrary to the City’s claim that the description of the dangerous condition was too vague for effective investigation and evaluation, Plaintiffs did not fail to comply with the Government Claims Act requirements because there was no “complete shift allegations.” (See Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222 [holding that the plaintiff failed to comply with the Government Claims Act because his government claim “specifically and solely identified an ‘uplifted sidewalk’ as the dangerous condition that caused his injuries” but later alleged in his complaint that his injuries were caused by “a hole created by an empty tree well.”].) Here, Latese asserts that both the government tort claim and the subsequent complaint consistently describe the dangerous condition in terms of the City’s failure to manage traffic control measures effectively, specifically in relation to preventing street racing. This included issues with signage, street lights, and traffic control devices that were not adequately maintained or implemented to address the known problem of street racing.

Also in opposition, the Moghaddam make similar arguments and also rely on Hernandez, claiming that the situation here is distinguishable given that their government claim and the subsequent lawsuit consistently allege a dangerous condition was created by the City’s failure to manage traffic signals and other roadway features effectively with regards to illegal street racing.

Also in opposition, Shana asserts that there was substantial compliance with the Government Claims Act as she served a timely government claim on the City of Burbank, detailing that the City was aware of illegal street racing on Glenoaks Boulevard and failed to implement necessary safety measures. Shana argues that her complaint and government claim are consistent, both emphasizing the City’s failure to manage traffic signals and warn the public, which contributed to her injuries. Shana also relies on Hernandez.

Also in opposition, Nicole Richardson argues that she has substantially complied with the Government Claims Act and also relies on Hernandez. Nicole contends that her claims in both the government form and the lawsuit share a common foundation—alleging that the City’s failure to implement adequate safety measures and traffic control at the intersection of Glenoaks and Andover enticed illegal street racing, posing significant risks to public safety.

Also in opposition, Calvin argues that the City failed to demonstrate he did not comply with the Government Claims Act, asserting that the Act should be liberally construed to favor adjudication on the merits. Calvin states that the information provided in his Claim Form was sufficient for the City to conduct an investigation, and he notes that the City’s rejection of his claim did not specify any deficiencies or request additional details.

In reply, the City argues that Plaintiffs did not comply with the Government Claims Act because their claims were too vague, preventing the City from conducting an adequate investigation before the lawsuit was initiated. It contends that Plaintiffs’ claims were not specific enough to inform the City that the traffic signal timing was the alleged dangerous condition. Furthermore, the City argues that Blair v. Superior Court (1990) 218 Cal.App.3d 221, supports their position that a government claim must present enough detail to enable a public entity to investigate the merits of the claim and possibly settle it without litigation.

The Court finds that Plaintiffs have substantially complied with the Government Claims Act as their claims provided sufficient information to reasonably enable the public entity to make an adequate investigation of the merits of the claim. Plaintiffs’ alleged that the City’s maintenance of traffic controls and the physical infrastructure of Glenoaks Boulevard contributed to creating a hazardous environment conducive to illegal street racing. These claims consistently highlighted the City’s alleged failure to implement effective traffic signal timing, adequate signage, and other safety measures that could have mitigated known risks associated with high-speed racing. “The claim-filing requirement of the Government Claims Act serves several purposes: (1) to provide the public entity with sufficient information to allow it to make a thorough investigation of the matter; (2) to facilitate settlement of meritorious claims; (3) to enable the public entity to engage in fiscal planning; and (4) to avoid similar liability in the future.” (Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200.) Thus, the Government Claims Act does not require claimants to provide an exhaustive list of specifics but rather sufficient detail to enable the public entity to investigate the claim. Here, Plaintiffs provided descriptions of the dangerous conditions they alleged, such as the lack of appropriate traffic control measures, which were consistent across their government claims and subsequent legal complaints. Further, unlike in Hernandez, Plaintiffs did not completely shift the allegations on facts that fundamentally differed from those specified in the government claim.

Thus, the City’s Motion for Summary Adjudication of Issue 3 is DENIED.

Issues 4 and 5: Negligence, Timeliness (Plaintiff Shana)

The City argues that Shana’s negligence claim fails because her complaint does not identify any statutory basis for her negligence claim. Additionally, City asserts that even if Shana were permitted to amend her complaint, the complaint was untimely filed, and therefore subject to state of limitations. Shana’s claim for damages was received on January 26, 2022, and was rejected by operation of law on March 18, 2022. Under Government Code Section 945.6(a), a lawsuit against a public entity must be commenced within six months of the delivery or mailing of the written notice of claim rejection, setting Shana’s filing deadline as September 16, 2022. However, Shana filed her complaint on March 13, 2023, nearly six months past the deadline.

In opposition, Shana states that equitable tolling avoids undue forfeiture of her claims. (See Addison v State of California (1978) 21 Cal. 3d 314 [the court permitted equitable tolling where the plaintiff filed a timely complaint in federal court that was dismissed for lack of jurisdiction, and then filed in state court after the statutory deadline, recognizing that timely notice and lack of prejudice to the defendant, along with reasonable and good faith conduct by the plaintiff, justified tolling.].) Rohani contends that similar principles from Addison apply to her case. Here, she states that she filed her complaint based on an understanding of the COVID-19 Pandemic-related Emergency Rule 9, which she believed extended her filing deadline. She asserts that her filing, although delayed under one interpretation of the rule, was made in good faith and did not prejudice the City since the City had been notified of the claims and was able to prepare its defense adequately. Shana further supports her argument by noting that the City was actively investigating the issues arising from the incident, as evidenced by various reports and memoranda prepared by City staff and the extensive 96-page Traffic Collision Report. She argues that her slight delay in filing due to a misinterpretation of the tolling rules should not result in the forfeiture of her claims, emphasizing that the City suffered no undue prejudice from this delay.

“The rule announced in Bollinger is a general equitable one which operates independently of the literal wording of the Code of Civil Procedure. As we observed in that case: ‘(T)his court is not powerless to formulate rules of procedure where justice demands it. Indeed, it has shown itself ready to adapt rules of procedure to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits.’” (Addison v. State of California (1978) 21 Cal.3d 313, 318-319.) “[T]he doctrine of equitable tolling requires timely notice, and lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of the plaintiff. (Id. at 319.)

The Court finds these elements to be present here. Shana shows a lack of prejudice to the City — given the fact that it had already been investigating the incident and had substantial documentation related to the case, reasonable and good faith conduct — due to her reliance on Emergency Rule 9 related to the COVID-19 pandemic, and timely notice — the City received a multiplicity of timely government claims in similar situations, with all four lawsuits alleging negligence, failure to warn, and a dangerous condition. Thus, equitable tolling can be applied here.

Thus, the City’s Motion for Summary Adjudication of Issues 4 and 5 are DENIED.

CONCLUSION

The City’s motion for summary judgment is DENIED.

Moving party to give notice.

Tentative Ruling

Judge Joel L. Lofton,
Department X

HEARING DATE: May
1, 2024 TRIAL DATE: None set

CASE: LATESE CHERIE
WHITEHEAD vs CITY OF BURBANK, A PUBLIC ENTITY, et al.

CASE NO.: 22STCV26333

RELATED CASES: NICHOLE RICHARDSON, INDIVIDUALLY AND AS
SUCCESSOR-IN-INTEREST TO THE ESTATE OF JAIDEN JOHNSON, DECEASED vs COUNTY OF
LOS ANGELES, A GOVERNMENTAL ENTITY, et al. (22STCV26429);

CALVIN JOHNSON vs CITY OF
BURBANK, A GOVERNMENTAL ENTITY, et al. (22STCV30371); S

HANA ROHANI vs CITY OF
BURBANK, et al. (23BBCV00569);

CLAUDIA MOGHADDAM, AS
SUCCESSOR-IN-INTEREST TO THE ESTATE OF NATALEE ASAL MOGHADDAM, DECEASED, et al.
vs THE CITY OF BURBANK, A GOVERNMENTAL ENTITY, et al. (22STCV32125)

DEMURRER
TO ANSWER

MOVING PARTY: Plaintiff Latese Cherie
Whitehead =

RESPONDING PARTY: None

SERVICE: Filed April 10, 2024

RELIEF
REQUESTED

Plaintiff demurrers to
Defendant’s Answer.

BACKGROUND

On August 15, 2022, Plaintiff Latese
Cherie Whitehead (“Lead Case Plaintiff”), individually and as
successor-in-interest to The Estate of Jaiden Johnson, deceased, filed this
action against the following Defendants:

1. City of Burbank, a public entity;

2. County of Los Angeles, a public entity;

3. State of California, a public entity;

4. California Department of Transportation, a public
entity;

5. Hamlet Aghajanyan, an individual;

6. Arsen Aghajanyan, an individual;

7. Gor Melkonian, an individual;

8. Gagik Melkonian, an individual;

9. Shana Rohani, an individual;

10. Maryam Darakhshidarmian, an individual;

11. Anthony Baker, an individual and a nominal
defendant; and

12. Does 1-100, inclusive.

The Complaint asserts the following
causes of action: (1) negligence – motor vehicle, (2) negligence per se, (3)
negligent entrustment, (4) dangerous condition of public property, (5) public
employee and agent liability, (6) continuation of decedent’s causes of action
(survival action), (7) wrongful death, and (8) declaratory relief.

The Complaint alleges the following. On
or about August 3, 2021, Anthony Raekwon Baker (“Decedent”), was a backseat
passenger in a vehicle operated by Defendant Shana Rohani (“Rohani”) and
traveling eastbound on Glenoaks Blvd., in Burbank, California. Three vehicles
were engaging in a high-speed street race traveling westbound on Glenoaks Blvd.
Defendant Rohani was turning left onto northbound Andover when the three
vehicles negligently and recklessly sped through the intersection, crashing
into Defendant Rohani’s vehicle. The impact caused Rohani’s vehicle to split in
half, burst into flames, and eject some of its passengers, including Decedent.
As a tragic result of the fiery impact, Decedent and passengers, Jaiden Johnson
and Natalee Asal Moghaddam, were all pronounced dead at the scene.

On July 20, 2023, the Court ordered this
case and previously related cases,
22STCV32125, 22STCV26429, 23BBCV00569, and 22STCV30371, consolidated and
assigned to Department 32 in Spring Street Courthouse for all purposes. The
Court designated this case (22STCV26333) as the lead case.

On April 10, 2024, Plaintiff Latese
filed a notice of continued demurrer and demurrer to Defendant Hamlet Arseni
Aghajanyan’s answer to Plaintiff Claudia Moghaddam’s complaint.

TENTATIVE RULING

Plaintiff’s
demurrer to the answer is SUSTAINED WITH LEAVE TO AMEND.

LEGAL STANDARD

A party against whom an answer has
been filed may object, by demurrer as provided in Section 430.30, to the answer
upon any one or more of the following grounds:

(a) The answer does not state facts
sufficient to constitute a defense.

(b) The answer is uncertain. As
used in this subdivision, “uncertain” includes ambiguous and
unintelligible.

(c) Where the answer pleads a
contract, it cannot be ascertained from the answer whether the contract is
written or oral.

(Code Civ. Proc., § 430.20.)

A demurrer is a pleading used to
test the legal sufficiency of other pleadings.¿It raises issues of law, not
fact, regarding the form or content of the opposing party's pleading
(complaint, answer or cross-complaint).¿(Code Civ. Proc., § 422.10; see Donabedian
v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the
function of the demurrer to challenge the truthfulness of the pleading; and for
purposes of ruling on the demurrer, all facts pleaded in the pleading are
assumed to be true.¿(See Id.)¿

A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116
Cal.App.4th at p. 994.)¿No other extrinsic evidence can be considered.¿(Ion
Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to
consider facts asserted in memorandum supporting demurrer]; see also Afuso
v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862
[disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos.
(1988) 46 Cal.3d 287] [error to consider contents of release not part of court
record].)¿

MEET AND CONFER

Per Code of Civil Procedure section 430.41, subdivision (a), the parties
were required to meet and confer in person or by telephone before bringing this
demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds the
meet-and-confer requirement to be satisfied. (Mahram Decl. ¶ 4.)

DISCUSSION

Plaintiff contends that the answer fails to state facts sufficient
to constitute a defense, is uncertain, ambiguous, or unintelligible under
C.C.P. § 430.20(b), and that Defendant’s affirmative defenses are insufficient.

Specifically, Plaintiff states that Defendant’s fourth and sixth
affirmative defense of failure to state facts sufficient to constitute a cause
of action, is at best highly ambiguous, but, most importantly not a legitimate
affirmative defense that may be pled because a demurrer to Complaint may not be
reserved indefinitely. However, even if this were a legitimate affirmative
defense, Plaintiff claims there were no efforts to identify a single fact that
supports this broad and ambiguous contention. Additionally, Plaintiff claims
Defendant’s first affirmative defense of comparative negligence, the second
affirmative defense of assumption of risk, the third affirmative defense of
apportionment, the fourth affirmative defense of failure to state facts
sufficient to constitute a cause of action, the fifth affirmative defense of
failure to mitigate damages, the sixth affirmative defense of failure to state
a cause of action - punitive damages, the seventh affirmative defense of
punitive damages, the eighth affirmative defense of punitive damages – due process
and equal protection, the ninth affirmative defense of punitive damages –
excessive fines, and the tenth affirmative defense of punitive damages – due
process and double jeopardy each state no facts sufficient to constitute a
defense.

Defendant fails to oppose these arguments. The Court finds
Plaintiff’s arguments to have merit. Despite the lack of an opposition, the
Court, in its discretion will give Defendant the opportunity to amend the
answer.

CONCLUSION

Plaintiff’s
demurrer to the answer is SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

Moving Party
to give notice.

Dated: May 1, 2024 ___________________________________

Joel
L. Lofton

Judge
of the Superior Court

Parties who intend to submit on this tentative must send an email to the court
indicating their

intention to submit. alhdeptx@lacourt.org