Judge: John C. Gastelum, Case: 20-01170026, Date: 2022-10-11 Tentative Ruling
Motion for Summary Judgment and/or SAI
Tentative Ruling: Defendants CITY OF ORANGE and JOSEPH LOSCH ("City"), move for summary judgment or in the alternative, summary adjudication in their favor, indicating:
1. The City is immune from liability based upon design immunity set forth in Government Code Sections 830.6. 2. The City is immune from liability based upon sign immunity set forth in Government Code Sections 830.4 and 830.8.
3. Plaintiffs cannot establish the elements of a dangerous condition of public property.
4. Plaintiffs cannot establish the elements to support their negligence claim.
5. Plaintiffs cannot establish the elements to support a violation of the California Public Records Act (Government Code Section 6250, et seq.)
Motion is DENIED in its entirety.
Initially, the Court notes a staggering amount of documents were filed as to this motion. (3,450 pages). Each Plaintiff (Bardales and Kneeshaw) has filed their own opposition, which accounts for the bulk of the documents; Defendants’ motion and reply documents are also voluminous, at 975 pages total.
Additionally, in their separate statement of facts, Defendants set forth 192 facts, of which only about 10 facts are undisputed by Plaintiffs. Plus, Plaintiff Kneeshaw submits additional facts 1-579. Plaintiff Bardales submits additional facts 1-193. Given the sheer volume of evidence and contested facts, it appears triable issues of material fact exist.
Also, although close, the notice of motion and separate statement are not verbatim. (CRC, Rule 3.1350(b).) Failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court's discretion. (Code Civ. Proc., § 437c(b)(1).) However, in this instance, the Court opts to proceed to the merits.
Issue 1: The City is immune from liability based upon design immunity set forth in Government Code section 830.6.
Plaintiffs plead all the problems with the subject road(s) at Complaint¶19.A.-H.
Pursuant to Government Code section 835(b), “a public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 68.)
Defendants argue the affirmative defense of design immunity. That is, under Government Code section 830.6, the public entity may escape such liability by raising the affirmative defense of “design immunity.” A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69.)
As to the first element, it appears Defendant may rely on the pleadings. (Fuller v. Department of Transp. (2001) 89 Cal.App.4th 1109, 1114 - Defendant “relied on plaintiffs' pleadings to establish the necessary assertion of causation.”) However, in arguing that Defendant may rely on the pleadings, Defendant fails to address the actual alleged dangerous condition decedent encountered on the day of the accident. Rather, Defendant skips ahead to the 2nd element.
As to the 2nd element, Defendant sets forth at UMF No. 4 that at the time of the incident, the Prospect/Collins curve and the intersection of East Collins and Roberto Street was designed and constructed consistent with plans prepared and approved by a licensed civil engineer authorized on behalf of the City of Orange in 1991, except for a modification to provide additional warning signs for the curve and the Roberto intersection.
However, both Plaintiffs partially dispute fact No. 4.
Plaintiff Kneeshaw argues the City has completely omitted anything about the actual 25 mph posted advisory speed as testified by Sun, Fascenelli and Learmouth, and instead mistakenly assumes 30 mph was the posted advisory speed on June 5, 2019. (PAMF 570.) It assumes an intersection sign was posted below a flashing light when the evidence by Sun, Learmouth and Fascenelli shows that said warning sign was missing for years. (PAMF 574, 575.)
As such, it is not abundantly clear Defendant has sustained its burden to establish the first two elements as it is unclear if it has explained the dangerous condition and approved signage, posting, etc. on the date of the accident. Even if Defendant did adequately sustain its burden of establishing the first two elements of the affirmative defense, the first two elements are questions for the jury. (See Hernandez v. Department of Trans. (2003) 114 Cal.App.4th 376, 383 [first two of three elements of design immunity are questions of fact for jury; only last element, concerning reasonableness of design, is question of law for court]; 30 Lincoln L. Rev. 25 [design immunity in median barrier case].)
Further, Plaintiff Kneeshaw argues a failure to warn of a trap can constitute independent negligence, regardless of design immunity. In Cameron v. State of California (1972) 7 Cal.3d 318, 328, the Court held passive negligence is independent of the negligent design. The Court relied on Flournoy, which held design immunity is not a defense if the injuries are caused, at least in part, by negligent acts or omissions of the public entity that are independent of the plan or design. (Flournoy v. California (1969) 275 Cal.App.2d 806, 814.)
To that end, Plaintiff Kneeshaw submits the declaration of expert Edward Ruzak who opines, “These factors of speed, curvature, and line of sight created a trap not reasonably apparent to motorists driving westbound on Collins Ave. (like the subject driver) and motorists making a left-hand turn from Roberto onto Collins Ave.” (Ruzak Decl.¶12). (PAMF 565) Also, Plaintiff Bardales submits the evidence of private citizen William Grauten’s correspondence to City in August of 2016, where he not only complained about the dangerousness of the curve, but he also noted the concrete barrier and guardrail gave the impression of a mini racetrack.” He believed the situation served as a trap for people to go faster. (PMF 46, Ex.25; Ex.19 (Grauten deposition) at 42:8-21)
Also, there are triable issues of material fact regarding the reasonableness of the plan as Plaintiff Bardales’ expert traffic engineer Allen Bourgeois opined that from a professional civil and traffic engineering standard, City did not provide a reasonably designed and approved plan set. (PMF 20)
Finally, there are triable issues of material fact as to whether or not, to the extent design immunity ever existed, it was lost. In Cornette v. Department of Transp. (2001) 26 Cal.4th 63 the Supreme Court held that where triable issues of material fact are presented, plaintiff has right to jury trial as to issue of whether public entity has lost its design immunity from liability for injury proximately caused by dangerous condition of its property. Here, Plaintiff Bardales presents evidence that the traffic on the road has increased significantly since 1991 (PMF 76, 77; Ex.16 (OR02323); Ex.35 (OR2348-2349; Ex.26 (Cameron deposition) at 10:18-11:1; Ex.57 (Learmouth deposition) at 20:2-14; 22:8-16))and the Defendant was aware of the dangerous condition for which it sought federal funding (PMF 59, 60; Ex.34 (HSIP application, OR02356-02400) at OR02370, 02400; Ex.3 (Sun deposition) at 14:21- 15:12; Ex.5 (Allenbach deposition) at 17:24-18:7; Ex.34 (HSIP application) at OR02357, 2358, 2359.).
As such, motion is denied as to Issue 1.
Issue 2: The City is immune from liability based upon sign immunity set forth in Government Code sections 830.4 and 830.8.
Gov. Code, § 830.4
A condition is not a dangerous condition
within the meaning of this chapter merely because of 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.
Gov. Code, § 830.8
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, signs, 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 in 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.
However, as Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, explains:
Section 830.4 exempts from the definition of “dangerous condition” found in section 830, subdivision (a)4 a condition resulting “merely” from failure to provide regulatory traffic controls or definitive roadway markings. It implicitly confers a limited immunity from injury liability on a public entity if that failure is the only basis for fixing such liability. Where, however, the dangerous condition of public property exists for reasons other than or in addition to the “mere[]” failure to provide such controls or markings, the public entity is liable for injury therefrom if the conditions of its liability under section 835 are otherwise met.5
Section 830.8 was intended to prevent “the imposition of [public entity] liability based on the failure to provide traffic regulatory or warning signals or devices [other than as described] in Section 830.4, but liability may exist for failure to provide such a signal or device where the condition constitutes a trap to a person using the street or highway with due care.” (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (1980 ed.) § 830.8, p. 289; Deering's Ann. Gov. Code (1982) § 830.8, p. 245 italics added; see Black v. County of Los Angeles (1976) 55 Cal.App.3d 920, 932-933 [127 Cal.Rptr. 916];6 Dahlquist v. State of California (1966) 243 Cal.App.2d 208, 213 [52 Cal.Rptr. 324].)
A public entity, thus, loses its limited immunity under section 830.8 and is liable for injury where its failure to provide traffic regulatory or warning signals, of a type other than those described in section 830.4, constitutes a concealed trap for those exercising due care, assuming the conditions of its liability under section 835 are otherwise met. (Kessler v. State of California (1988) 206 Cal.App.3d 317, 321-322 [253 Cal.Rptr. 537].)
(Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1535–1537.)
Here, traffic controls and marking are not the only basis for Plaintiff’s arguments for liability. (See Complaint¶19. ) Also, as set forth above, Plaintiffs have provided expert testimony that conditions on the road created a “trap”. As such, there are triable issues of material fact as to whether this immunity applies.
Motion is denied as to Issue 2.
Issue 3: Plaintiffs cannot establish the elements of a dangerous condition of public property.
Here, Defendants essentially argue that had decedent not been speeding, the road would not have been dangerous. However, the issue of speed seems to be part of the dangerous condition itself. Furthermore, simply because Decedent may have also been negligent in speeding, does not necessarily negate Defendants’ negligence. (See Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 977 where the city was liable for the dangerous condition on its property even though the danger would not have existed but for the privately owned trapdoor mechanism that had been temporarily installed in the city-owned stage.)
Defendants also note a lack of similar accidents at the location of the subject incident does not support a finding of a dangerous condition of roadway or notice of such a dangerous condition, if it existed. (UMF 106-113)
Yet, the Defendant’s own facts establish that combined reports indicate there were 47 collisions from October 1, 2000 to the subject collision. (See UMF 106.) Interestingly, Defendants do not cite back to 1991 when the City apparently obtained design approval for the road. Also, the subject collision reports do not include all the neighbor complaints, which also put the Defendant on notice. Whether there was sufficient notice should go to the jury.
Motion is denied as to Issue 3.
Issue 4: Plaintiffs cannot establish the elements to support their negligence claim.
In the 2nd COA for Negligence, Plaintiffs plead that “Defendant LOSCH, the Defendant City…so negligently, carelessly and recklessly, owned, operated, maintained and entrusted the aforementioned 2007 Seagrave Marauder II motor vehicle and directly and proximately caused a collision with the motor vehicle operated by Decedent and as a direct and proximate result thereof, Decedent was killed.” (Complaint¶33.)
The essential elements of a cause of action for negligence are: (1) the defendant’s legal duty of care toward the plaintiff, (2) the defendant’s breach of duty- the negligent act or omission; (3) injury to the plaintiff as a result of the breach-proximate or legal cause; and (4) damage to the plaintiff. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141).
Here, it appears Defendants are attacking the element of causation. That is, Defendants appear to argue that because a) Defendant Losch had the right of way, b) the motorcycle was in an extreme lean-to position, and c) decedent was speeding; that the combination of decedent’s conduct caused the collision.
However, there appears to be triable issues of fact as to what actually transpired to the extent that causation should go to a jury. Defendants suggest Defendant Losch was making a left hand turn from East Collins to Roberto street, and “quickly tried to maneuver the fire engine towards the left of the intersection to avoid the collision hoping that the motorcyclist would travel behind the fire engine, but the motorcyclist headed to the right and directly towards them.” (UMF No. 162.)
However, this account (UMF No. 162) is heavily disputed. Plaintiffs dispute fact No. 162, stating “Losch turned the fire engine left from eastbound Collins onto Roberto, clearing all lanes of travel on Collins, and then stopped the fire engine in the southbound (opposing) lane of Roberto where it sat facing the wrong way. The fire engine remained stopped for 1 to 5 minutes, and then Losch reversed it, backing it up onto Collins without any spotter, and continued backing it up until the fire engine was sitting across both the number 2 and number 1 lanes of Collins at a right angle, directly in the path of the motorcyclist. The motorcyclist made an evasive maneuver to the right, but crashed into the passenger side door of the Fire Engine.” This fact is supported by Ex.52 (Pope deposition) at 12:20-13:10; 13:21- 14:3; 14:12-20; 15:1-4; 19:20-24; 63:8-19; 63:24-64:7; 64:14-19; Ex.53 (L. Turner deposition) 30:25-31:18; 33:7-21; 34:15-35:3; 35:13-16; 37:20-38:6; Ex.62; Ex.54 (R. Turner deposition) at 31:13-32:11; 36:1-8; 36:23- 37:20; Ex.63; Ex.55 (Rhoads deposition) at 33:6-9; 33:16-23; 34:19-35:1; 35:15-18; 50:18- 51:5; 128:19-129:2; 130:7-17; 154:13-155:12; Ex.58 (Stein deposition) at 64:8-19; Ex.61 (Peck declaration) at ¶¶12,13, 18 -21).
There being a triable issue of material fact as to what transpired, causation should go to the jury.
Motion is denied as to Issue 4.
Issue 5: Plaintiffs cannot establish the elements to support a violation of the California Public Records Act (Govt. Code, Section 6250, et seq.)
Defendant argues because the CHP was the agency authorized to produce the traffic collision report to Plaintiffs, not the City of Orange Police Department—it cannot be liable for Violation of the California Public Records Act---apparently conceding it did not turn over the document as requested. However, this argument fails to address the entire cause of action, which suggests there were 12 records requests and not all were complied with. (See Complaint¶41.)
Indeed, Plaintiff Bardales includes PAMF No. 115 which states, The City of Orange did not produce documents with citizen complaints and other Traffic Engineering records in response to Plaintiffs’ CPRA requests. Avina Declaration (Ex.1 to Plaintiff Kneeshaw’s Compendium of Exhibits) at ¶¶8, 9; Kneeshaw Compendium at Grauten Depo. Ex.1, Cameron Depo. Ex.3, Allenbach Depo. Ex.2, and Sun Depo Ex. 1).
As Defendant only addressed a part of the cause of action (failure to produce the traffic collision report), and not the failure to produce the other requests, it has not sustained its burden.
Motion is denied as to Issue 5.
EVIDENTIARY OBJECTIONS:
Plaintiff Bardales Evidentiary Objections (ROA 66):
1-3. Sustain; 4. Overrule. 5. Sustain.
Plaintiff Bardales’ Objection to evidence submitted in reply (ROA 92): Sustain
Defendants’ Evidentiary Objections (ROA 84) (71 pages worth of objections, and 104 objections):
1-2. Overrule
2-8. Not material
9-11. Overrule
12.-15. Not material.
16. Overrule
17-18. Not material
19.22. Overrule
23. Sustain
24.30. Overrule
31. Sustain
32-54. Overrule
55. Sustain
56. Overrule
57. Sustain
58.70. Overrule
71. Sustain
72. -78.Overrule
79.-81. Sustain
82.-88. Overrule
89. Sustain
90. Sustain
91. Overrule
92. Not material
93. Overrule
94. Not material
95. -103. Overrule
104. Not material
Plaintiff to give notice.