Judge Kerry Bensinger, Case Number: 20STCV08208, Date: 2023-09-19 Tentative Ruling

This action arises from a pedestrian versus motor vehicle collision at the intersection of Dimondale Drive and S. Central Avenue (the “Intersection”) in Carson, California. The Intersection, located on a heavily trafficked portion of S. Central Avenue, includes a pedestrian crosswalk and signal which, when pressed, activates lights embedded in the crosswalk and flashing beacons. The Intersection does not have traffic signals.

On January 24, 2019, at approximately 5:20 p.m., Plaintiffs, Jordan Smith and Felisha Jordan, minors at the time of the incident, decided to walk to Mills Memorial Park. To get there, Plaintiffs had to cross at the Intersection. Plaintiffs pressed the pedestrian signal, which activated the embedded lights and flashing beacons, and walked east across Central Avenue and into the Intersection. At the same time, Edward James Payton (“Payton”) drove south on Central Avenue and into the Intersection. Payton’s vehicle collided with the Plaintiffs. Plaintiffs suffered serious injuries.

On March 2, 2020, Plaintiffs[1] initiated this action against Payton and the City of Carson. Payton settled his case with Plaintiffs and was dismissed.

On March 28, 2022, Plaintiffs filed the operative Second Amended Complaint (“SAC”) against the City of Carson (“City”).[2] The SAC asserts a single cause of action for dangerous condition of public property.

On July 6, 2023, the City filed this motion for summary judgment, or in the alternative, summary adjudication. Plaintiffs oppose and the City replies.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860.) (Internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

In their Response to the City’s Separate Statement of Material Facts, Plaintiffs interpose evidentiary objections. Plaintiffs did not file their evidentiary objections separately. “All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” (Cal. Rules of Court, rule 3.1354(b).) Based on this defect, the Court declines to rule on Plaintiffs’ evidentiary objections. (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7-9.)

The City submits fifteen (15) objections to Plaintiffs’ Additional Material Facts in Dispute and to the Declaration of Plaintiffs’ expert Shakir Shatnawi. Plaintiffs’ Additional Material Facts in Dispute (“AMFD”) has not been filed with the Court. Nor does the City sufficiently identify the document at issue. Worse yet, the City blends objections to Plaintiffs expert and the alleged AMFD without identifying or separating the target of the objection. The City appears to be raising evidentiary objections to the foundation for Plaintiff’s objections to various AMFDs. Given the lack of clarity, the Court cannot rule on the City’s objections. Ultimately, the City’s objections are not material to the Court’s ruling. (Code Civ. Proc., § 437c, subd. (q).)

On January 24, 2019, at approximately 5:20 p.m., Payton’s automobile collided into Plaintiffs in the marked crosswalk at the intersection of Dimondale Drive and S. Central Avenue (the “Intersection”) in Carson, California. (City’s Separate Statement of Undisputed Material Facts (“UMF”) 1, 13.) At the time of the accident, there was a yellow “Slow School Xing” decal marked on the pavement on southbound side of S. Central Avenue approaching Dimondale Drive, in addition to a pedestrian ahead sign, a radar speed monitor, and a “Yield Here to Pedestrian” sign. (UMF 3.) There was a yellow pedestrian crossing sign with dual yellow flashing beacons in the vicinity of the marked crosswalk. (UMF 4.)

The accident took place in the evening after school. (UMF 14.) Payton’s vehicle was already in the Intersection past the first set of two yellow flashing beacons when Plaintiffs began crossing the S. Central Avenue. Payton saw the far side/second set of beacons activated when he collided with Plaintiffs. (UMF 15.) Payton testified that “I was already in the intersection, and they [Plaintiffs] walked off the curb. I was on the south side of the intersection when they walked off the curb. They didn’t – they were looking southbound instead of looking northbound, so they didn’t see that I was already in the intersection when they walked off the curb.” (City’s Ex. 7, Payton Depo., p. 41:17-24) Payton was asked at his deposition, “How much distance, Mr. Payton, would you estimate there was between the two plaintiffs stepping off the curb and when they collided with your car, if you can estimate?” He responded, “I’d say around maybe five -- maybe five – maybe five feet. Anywhere from five to seven feet. (Id. at p. 44:14-17.) Payton was asked, “You did see the crosswalk lights get triggered though, is that correct?” He responded, “Yeah. I saw the one in front of me was triggered. I didn’t see the one behind me because I was already in the intersection when the lights came on.” (Id. at p. 46:20-24.) There was no physical obstruction or other existing condition that prevented Plaintiffs or Payton from seeing each other at the Intersection. (UMF 24.)

On April 17, 2012, the City published a Staff Report of the Intersection. In creating the Staff Report, the City conducted a technical study of the Intersection including taking “pedestrian counts ... at the beginning and ending of a typical school day to quantify the number of school-age pedestrians that cross Central Avenue at this location. The observations indicate that 43 students cross Central Avenue during the morning peak hour (7:00 a.m. - 8:00 a.m.) and 52 students cross the street during the afternoon peak hour (3:00 p.m. - 4:00 p.m.).” (UMF 5.)

As part of the 2012 Staff Report, the City considered pedestrian enhancements including assigning crossing guards, installing in-pavement warning lights, overhead yellow flashing beacons, and installing a traffic signal. (UMF 6.) Based on the technical study, the City determined that crossing guards, in-pavement warnings lights and overhead flashing yellow beacons, and a traffic signal were all unwarranted at the Intersection based on industry standards. (UMF 7.) Although not warranted, the City proceeded to install yellow flashing beacons above the pedestrian crossing warning signs, and a radar-activated vehicle speed feedback sign as an effort to further enhance pedestrian safety at the Intersection. (UMF 8.) According to the Manual on Uniform Traffic Control Devices (“MUTCD”), which specifies warrant checks to be evaluated in determining if a traffic signal is justified at an intersection based on traffic volumes and accident statistics, Warrant 7 assesses the severity and frequency of crashes. (UMF 11.) The criteria require five or more reported crashes resulting in property damage or personal injury within a 12 month period, which did not occur at the Intersection from 2011-2023. (UMF 12.)

The Statewide Integrated Traffic Records System (“SWITR”) report for crashes occurring around the Intersection between years 2011 and 2023 shows there were no more than four (4) accidents reported at the Intersection in any given year, and no more than one (1) auto vs. pedestrian collision in any given year. (UMF 27.) A total of three (3) automobile vs. pedestrian collisions occurred at the Intersection between the years 2011 and 2023 (during the years 2012, 2017, and 2019). (UMF 28.) The report also indicates the majority of collisions around Intersection were rearend, broadside, or sideswipe accidents. (UMF 29.)

To establish a claim of dangerous condition on public property, a plaintiff must prove: (1) that the defendant owned or controlled the property; (2) that the property was in a dangerous condition at the time of the injury; (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) that defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) that plaintiff was harmed; and (6) that the dangerous condition was a substantial factor in causing plaintiff’s harm.¿ (Gov. Code, § 835; CACI No. 1100.)

A “dangerous condition” is a condition of public property that creates a substantial (as distinguished from a minor, trivial, or significant) risk of injury to members of the general public when the property [or adjacent property] is used with reasonable care and in a reasonably foreseeable manner. (Gov. Code, § 830; CACI No. 1102.)

As framed by the SAC, the Intersection constituted a dangerous and defective condition because the City failed to install a traffic signal despite knowing about collisions and incidents at the Intersection. (See SAC, ¶¶ 20, 22, 23, 28, and 13-19 of the First Cause of Action.) As such, the sole issue to be decided is whether the failure to install a traffic signal at the Intersection constituted a dangerous condition on public property.

The City makes two primary arguments: (1) the intersection was not a dangerous condition and (2) the City is entitled to immunity. The Court need not address the first argument because the City is entitled to immunity.

“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, § 830.4.)

Here, Plaintiffs allege the Intersection had a history of accidents which required the City to install a traffic signal, and the City’s failure to do so created a dangerous condition. (See SAC, ¶¶ 20, 22, 23, 28, and 13-19 of the First Cause of Action.)[3]

Plaintiffs’ argument falls squarely within the four corners of Government Code section 830.4. In Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135, the plaintiff raised a similar argument that the lack of a traffic signal created a dangerous condition. Rejecting that argument, the court of appeal wrote:

“the Legislature has expressly declared that “[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, as described by the Vehicle Code, or distinctive roadway markings [of parallel dividing lines] as described in Section 21460 of the Vehicle Code.” (Gov. Code, § 830.4.) “Thus, the statutory scheme precludes a plaintiff from imposing liability on a public entity for creating a dangerous condition merely because it did not install the described traffic control devices.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [6 Cal.Rptr.3d 316].) In short, “[t]he lack of a traffic signal at the intersection does not constitute proof of a dangerous condition.” (Cerna, supra, 161 Cal.App.4th at p. 1351, 75 Cal.Rptr.3d 168.)” (Ibid.)[4]

Given the foregoing, Plaintiff pivots and argues there is more to the dangerous condition than the lack of a traffic light.[5] Plaintiffs point to evidence of sight obstructions created by an electric box, pole, and tree.[6] Taken together with the lack of traffic signal, Plaintiffs argue the Intersection created a dangerous condition.

Plaintiff is correct that “if an intersection is dangerous because of the failure to provide warning or regulatory signs and also because of the “conjunction of other factors” section 830.4 is no bar to liability. [Citation].” (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1538-39 (emphasis in original).) The Washington Court stated, “[c]ases interpreting [Gov. Code 830.4] have held that it 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. If a traffic intersection is dangerous for reasons other than the failure to provide regulatory signals or street markings, the statute provides no immunity.” (Id. at p. 1534.)

But there are two fundamental flaws to Plaintiffs’ “conjunction” argument. First, the sight obstructions were not pled in the SAC. And second, there is no casual relationship between the sight obstructions and Plaintiffs’ injuries.

To begin, the SAC is devoid of any allegations that the line-of-sight obstructions combined with the lack of a traffic light created a dangerous condition. “The pleadings delimit the scope of the issues on a summary judgment motion. [Citation.] A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings. [Citation.] Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3.) In Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1256, the appellate court stated that “… new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading construed broadly, encompasses them. In making this determination, courts look to whether new factual issues present different theories of recovery or rest on a fundamentally different factual basis.” As in Laab, Plaintiffs raise a fundamentally different factual basis – the line-of-sight obstruction related to an electric box, a pole and a tree. These factual allegations do not appear in the SAC. Moreover, “claims against public entities [must] be specifically pleaded.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) Plaintiffs’ failure to plead their visual obstruction theory is fatal to their argument here and dispositive of this motion.

Nonetheless, even if the Court were to consider Plaintiffs’ line of sight obstruction argument, Plaintiffs fare no better. The thrust of Plaintiffs’ argument as stated in their opposition is that: “[i]In this case, the dangerous condition induced the Cross Defendant Edward James Payton to believe that he had a clear path to drive not only because of the lack of a tri-color traffic signal or other warning device, but because the site obstructions enumerated by Plaintiffs expert in his declaration and report caused a [sic] increase in his response time because the obstructions and the angle of the street as drivers approach the intersection obscured drivers vision until pedestrians were already from four to five feet into the crosswalk. (Declaration of plaintiff’s Expert, Exhibit 4, transcript of Cross Defendant Edward James Payton)!” (Opposition, p. 20:20-21.) But Plaintiffs fail to clarify what is meant by an “increase in [Payton’s] response time because the obstructions” or how “the angle of the street as drivers approach the intersection obscured drivers vision” or how Payton’s vision was obstructed by the electrical box, pole, or tree. Indeed, as described above, Payton was already in the intersection (and the alleged visual impairment created by the electric pole, box, and tree were already behind Payton) when Plaintiffs stepped off the curb. The very case upon which Plaintiffs rely, Washington, states that the court may consider additional factors beyond the traffic signal when those factors “obstructed the vision of the motorist.” (Washington, supra, 219 Cal.App.3d at pp. 1538-39 (emphasis added).) Here, the factors alleged by Plaintiffs did not obstruct Payton’s view. (See Mixon, supra, 207 Cal.App.4th at p. 131 [“there must be a defect in the physical condition of the property and such defect must have a causal relationship to the third party conduct that injures the plaintiff.”].)

Because the line-of-sight obstruction argument is not viable, Plaintiffs are left with their initial allegation that the failure to install a traffic light created a dangerous condition. But that argument standing alone is precluded by Government Code section 830.4.

The City is entitled to summary judgment. Plaintiffs fail to raise triable issues of material fact.

Defendant City of Carson is ordered to prepare and file a proposed judgment within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. 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.

[1] Minors, by and through their guardian ad litems, Deonsha Ross and Lynn Johnson, respectively.

[2] City Managers of the City of Carson, David C. Biggs, Sharon Landers, and Kenneth Farfsing are also named defendants in the SAC.

[3] Gov. Code section 830.8 deals with injuries caused by the failure to provide traffic or warning signals, signs, markings, or devices other than the ones described in Gov. Code section 830.4. (See Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1536-1537 [stating, “[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 condition of liability under section 835 are otherwise met. [Citation.](emphasis in original.)”].) Plaintiffs do not argue the Intersection was in a dangerous condition because the City failed to provide traffic or warning signals as described in section 830.8.

[4] In addition to section 830.4 immunity, the City may well be entitled to design immunity (Gov. Code section 830.6) as well. There is no dispute the City conducted a study of the Intersection and ultimately concluded a traffic signal was not necessary. The City offers evidence showing that a traffic signal was not warranted at the Intersection. Under the criteria as set forth in the Manual on Uniform Traffic Control Device (“MUTCD”), five or more reported crashes resulting in property damage or personal injury within a 12 month period is required before determining a traffic signal is needed. This criteria was not met for the Intersection from 2011-2023. (City’s Evidence, MUTCD, Section 4C.08 Warrant 7; Lee Decl., ¶¶ 11-19; Statewide Integrated Traffic Records System Report (“SWITRS Report”), Exh. 11.) “As long as reasonable minds can differ concerning whether a design should have been approved, then the governmental entity must be granted immunity.” (Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1158 [cleaned up]; see also Cornette v. Department of Transportation (2001) 26 Cal.4th 63.)

[5] Plaintiffs concede the absence of a traffic light, standing alone, does not establish a dangerous condition. Indeed, Plaintiffs state, “ ... in the present case if there were no evidence of inadequate distance and obscured sightlines, the City would have set forth a prima facie case that the subject crosswalk was not a dangerous condition as a matter of law.” (Opposition, p. 15)

[6] Plaintiffs center their argument on “insufficient sight line distance and obstructions.” (Opposition, pp. 14, 18.) The Opposition fails to specify the factual predicates for these conclusions. Plaintiffs’ expert, Dr. Shakir Shatnawi’s Declaration is of little help. In his declaration, Dr. Shatnawi states the traffic signal was “needed based upon inadequate sight distance.” (Dr. Shatnawi Decl., p. 5, point d.) But Dr. Shatnawi’s declaration is devoid of any factual basis, description, or explanation. The “obstructions” are not identified or discussed in his declaration. The Court need not cull through the 31 page “Draft” Report, dated 8/15/2023 from Dr. Shatnawi (Exhibit 1 to Plaintiffs’ Appendix of Exhibits) to search for a match between Plaintiffs’ allegations and Dr. Shatnawi’s factual support. Shorn of the generalized or irrelevant aspects, as best as can be gleaned from Dr. Shatnawi’s Draft report, the “sight of line was obstructed by a combination of an electric pole, a box, and a tree.” (Draft Report, p. 22.)