Judge: Lee W. Tsao, Case: 21STCV24604, Date: 2023-09-19 Tentative Ruling

Case Number: 21STCV24604    Hearing Date: October 12, 2023    Dept: C

SOLARES v. CITY OF NORWALK

CASE NO.: 21STCV24604

HEARING:  10/12/23

#3

Defendant CITY OF NORWALK’s Motion for Summary Judgment is DENIED. The alternative Motion for Summary Adjudication is DENIED.

Summary Judgment is also DENIED, and the alternative Motion for Summary Adjudication in favor of Joining Parties Defendant SOUTHERN CALIFORNIA EDISON and Defendant/Cross-Complainant HERMAN WEISSKER POWER, INC. are also DENIED.

Opposing Party to give notice.

Defendant SOUTHERN CALIFORNIA EDISON COMPANY (“SCE”) and Defendant/Cross-Complainant HERMAN WEISSKER POWER, INC.’s (“HW Power”) Joinders to Defendant CITY OF NORWALK’s Motion for Summary Judgment , or alternatively Summary Adjudication is GRANTED.

This personal injury action was filed by Plaintiff CARINA SOLARES on July 2, 2021. On July 11, 2022, the subject Second Amended Complaint (“SAC”) was filed.

The SAC alleges the following pertinent facts: “On October 16, 2020… Plaintiff CARINA SOLARES (‘Plaintiff’) was a passenger in a 2016 Hyundai Sonata driven by Adriana Serrano (‘Serrano’) traveling northbound in the number one lane on Pioneer Boulevard ... in the city of Norwalk, county of Los Angeles.”  (SAC ¶1.)  “At that time, Lexis Granados (“Granados”) was operating a 2005 Toyota Corolla on Alondra Boulevard traveling eastbound in the number two lane …” (SAC ¶2.) “At that time, Plaintiff’s vehicle entered the intersection of Alondra Boulevard and Pioneer Boulevard on a green light. At the same time, Granados’ vehicle entered the same intersection also on a green light.” (SAC ¶3.)  “While both Plaintiff’s vehicle and Granados’ vehicle were in the intersection, the traffic signals and street lights at the intersection suddenly turned off, and a collision occurred between Plaintiff’s and Granados’ vehicle.” (SAC ¶4.) “[T]he traffic signals were not blinking red, nor were there any posted signs prior to entering the intersection regarding a power outage. Contrary, there had been a planned power outage at the intersection of Alondra Boulevard and Pioneer Boulevard to occur between 11:00 p.m. and 5:00 a.m. [SAC ¶4] The traffic signals and streetlights came back on around 11:38 p.m.” (SAC ¶5.)

The SAC asserts the following causes of action: (1) Negligence; and (2) Dangerous Condition of Public Property.

Defendant CITY OF NORWALK (“City”)  moves for summary judgment, or alternatively summary adjudication as to the following issues:

(1) No dangerous condition existed;

(2) There was no substantial risk of injury when the subject intersection/roadway was used with due care;

(3) The City was not negligent;

(4) The City did not cause Plaintiff’s collision.

Issues 1 and 2 – Dangerous Condition/Due Care

The City argues that an inoperative traffic signal is not a dangerous condition, and that the intersection was safe when used with due care.

In Opposition, Plaintiff argues that a dangerous condition did exist because the intersection where the Subject Accident occurred was completely dark at the time of incident, and there were no warnings for the traffic signal being inoperative, or warnings for the change in traffic control. Plaintiff further maintains that the intersection was unsafe even when used with due care because both traffic signals were green at the time of the Subject Accident.

“A public entity is liable for injury caused by a dangerous condition of its property if (1) the property was in a dangerous condition at the time of the injury; (2) the dangerous condition caused the injury; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was injured; and (4) that either (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the condition, or (b) the public entity had actual or constructive notice of the dangerous condition in time to have taken measures to protect against the dangerous condition.” (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 123; Govt. Code §835.)

A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code §830(a).)  “A condition is not a dangerous condition if the trial…court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code §830.2.) Therefore, in order to assert a “dangerous condition” claim within the meaning of Gov. Code §830, a plaintiff must show “that the condition of the public property created a substantial risk when “used with due care” in a foreseeable manner.” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 798.) “[I]f the injury to a plaintiff could have occurred only by some third party’s negligence, then it must be held that the plaintiff has failed to sufficiently allege a dangerous condition because the injury was made possible only by the failure of the third party user to exercise due care. [Citations.]” (Id. at 801.)  A plaintiff can establish that a condition on the property creates a substantial risk to any foreseeable user of the public property who uses it with due care irrespective of his personal lack of due care. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.)

“A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property… with due care. Thus, even though it is foreseeable that the persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Matthews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.)

The City argues that the subject intersection was not a dangerous condition, citing to Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 for the proposition that “any property can be dangerous if used in a sufficiently improper manner… [and therefore] a public entity is only required to provide roads that are safe for reasonably foreseeable careful use.” (Id. at 1196.) In Chowdhury, there was a blackout which caused a power outage affecting several street signals affecting the city. City employees placed temporary stop signs at some intersections, but not every intersection impacted by the outage. The plaintiff’s decedent was driving and was struck by another driver who failed to stop at an intersection and blindsided the decedent’s vehicle. The plaintiff’s expert opined that the intersection was a dangerous condition because it was not controlled to clearly define the right of way for motorists, and that the other driver was trapped into believing that he had the right of way after seeing temporary stop signs along his path but not the subject intersection. (Ibid.) Summary judgment was denied, but the Court of Appeal reversed.

The Chowdhury Court held that a public entity does not create a dangerous condition merely by failing to provide regulatory signals. (Id. at 1194-1195.) If traffic signals are turned off to avoid confusion, liability does not attach, and the same result occurs whether the signals are extinguished by accident. (Id. at 1195.) “Under the circumstances, motorists approaching the intersection were bound not by the City’s inoperative light, but by the provisions of the Vehicle Code, which effectively transform an inoperative signal light into a stop sign.” (Ibid., citing Veh. Code §21800.) Once the signals failed, it was reasonably foreseeable that motorists would obey the provisions of the Vehicle Code to make a full stop at all intersections before proceeding when it is safe to do so. (Id.) Importantly, the Chowdhury Court stated: “The City cannot be charged with foreseeing that a motorist will recklessly disobey traffic laws and speed through an intersection without heed to its inoperative traffic lights any more than it can be charged with foreseeing that irresponsible drivers will race at 100 miles per hour down a highway or drive the wrong way down a one-way street, in violation of the traffic laws.” (Id. at 1195-1196.)  

The City proffers the following evidence in support of its Motion:

·        SCE and its subcontractor HW Power performed work on the electrical system at the intersection of Alondra Boulevard and Pioneer Boulevard in Norwalk, CA on the evening of October 16, 2020, which involved a temporary power outage. (City UMF No. 1.)

·        The City set the traffic signals at the Subject intersection flashing/blinking mode at about 10:30 p.m. and SCE shut off power to the traffic signals at the Subject Intersection between 11:05 to 11:33 p.m. on October 16, 2020. (City UMF No. 2.)

·        Prior to and at the time Defendant Granados entered the Subject Intersection while traveling eastbound on Alondra Boulevard, the traffic signals facing Defendant Granados at the Subject Intersection were inoperative due to the planned power outage and she observed that the traffic signals facing her at the Subject Intersection were off. (City UMF No. 4.)

·        Upon entering the Subject Intersection as she drove eastbound on Alondra Boulevard, Defendant Granados’s vehicle collided with Plaintiff and Defendant Serrano’s vehicle, which was traveling northbound on Pioneer Boulevard. (City UMF No. 6.)

In Opposition, Plaintiff proffers the following evidence:

·        The City traffic technician at the scene was responsible for physically cutting off the power to the traffic signals and “placing them on a backup power, setting them to flash red, or turning them off.” However, the City’s traffic technician negligently set both the northbound and eastbound traffic lights to green. (Opp. UMF No. 1; Plaintiff’s AMF Nos. 4-5.)

·        The traffic signals were not set to flashing/blinking mode at about 10:30 p.m. because they were still on just prior to the Subject Accident and it is unclear what time the power at the Subject Intersection shut off. (Opp. UMF No. 2.)

·        The Subject Intersection was dark at the time of the Subject Incident with no street luminaires nor traffic signals lit. Traffic control at the Subject Intersection did not have warnings for the traffic signal being inoperative, warnings for the change in traffic control, reduced speed limit, stop ahead signs, flaggers to direct/control traffic, stop signs, nor detours/closed intersection. (Opp. UMF No. 3.)

·        Ms. Granados denied being solely responsible for the Subject Incident and admitted that she had a green light at the time of the Subject Accident. Defendant HWP states that “the Subject Incident occurred because the City of Norwalk traffic technician set both the northbound and eastbound traffic lights to green.” (Opp. UMF 4.)

·        When both Defendant Serrano’s and Defendant Granados’ vehicles entered the intersection on a green signal, the traffic lights at the intersection suddenly turned off, and a collision occurred between Defendant Serrano’s and Grandos’ vehicles. (Plaintiff AMF No. 6.)

·        Plaintiff testified that the light was continuously green as her and Defendant Serrano went through the Subject Intersection. (Plaintiff AMF No. 22.)

·        Plaintiff did not know whether Defendant Granados had a red or green light at the time. (Plaintiff AMF No. 23.)

·        The impact occurred at the same time the lights turned off. (Plaintiff AMF No. 25.)

·        Plaintiff’s light was continuously green while approaching and entering the intersection of Pioneer and Alondra. (Plaintiff AMF No. 26.)

·        Defendant Granados testified that she was already in the Subject Intersection when the traffic lights went off, and that she had a green light when she went through the intersection. (Plaintiff AMF Nos 32-34.)

Defendant Serrano testified that her light was green when she approached the intersection, and crossed the intersection. (Plaintiff Ex. B, p. 29:13-30:9.) Plaintiff testified that the light was green for Defendant Serrano before she entered the Subject Intersection. (Plaintiff Ex. C. p. 87:4-20.) Plaintiff testified that the lights did not shut off until after the Subject Accident occurred. (Plaintiff Ex. C. p. 88:7-17.) Defendant Granados testified that she was halfway through the Subject Intersection when the traffic lights went out, and that when she went through the Subject Intersection, she had a green light. (Plaintiff Ex. E. p. 17:7-18; p. 18:4-23.)

In Reply, Defendants argue that no credible evidence has been presented by Plaintiff to prove that Defendant Granados had a green light because Granados’s response to RFA No. 15 “Admit that the light was green when YOU entered the INTERSECTION” is “Deny”. (Defendants’ Response to AMF No. 33; Plaintiff’s Ex. F., RFA No. 14.) Moreover, Defendants contend that Plaintiff’s reliance on HW Power’s response to SI No. 25 is misleading where, HW Power does not contend that the Subject Accident was caused by the City. Rather, HW Power states: “Based on Plaintiff’s Second Amended Complaint, [HW Power’s] understanding is that the SUBJECT INCIDENT occurred because the City of Norwalk traffic technician set both the northbound and eastbound traffic lights to green….” (Plaintiff Ex. H.)

In viewing the entire record in the light most favorable to Plaintiff, the Court concludes that Plaintiff has raised triable issues of fact sufficient to defeat summary adjudication of this issue. Plaintiff and Defendant Serrano testified that the traffic light was green at the time they crossed the intersection, and that the traffic lights did not shut off until after the Subject Accident occurred. “A public entity does not create a dangerous condition on its property merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs…. If, on the other hand, the government installs traffic signals and invites the public to justifiably rely on them, liability will attach if the signals malfunction, confusing or misleading motorists, and causing an accident to occur. The reasoning behind this rule is that the government creates a dangerous condition and a trap when it operates traffic signals that, for example, direct motorists to ‘go’ in all four directions of an intersection simultaneously, with predicable results. [Citations Omitted.].” (emphasis added.) (Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1195.) Plaintiff presents evidence in Opposition to show that the City created a dangerous condition by installing traffic signals that malfunctioned at the time of the Subject Accident by both appearing green at the same time, thus causing the Subject Accident. Taken as true, this fact would make it impossible for either Ms. Granados or Ms. Serrano to proceed through the intersection safely, even when exercising due care because all motorists were directed to “go” at the same time. As the parties are aware, the Court is not tasked with weighing evidence during summary adjudication proceedings.

Summary adjudication is DENIED as to Issues 1 and 2—whether a dangerous condition existed and whether the Subject Intersection was safe when due care was exercised.

Issues 3 and 4 – Whether Defendants were Negligent/Caused the Collision

The City argues that even if there were a dangerous condition on public property, the City is not liable because Plaintiff cannot present evidence to establish that the City was negligent in any manner.

In Opposition, Plaintiff argues that Defendants were negligent because they failed to provide traffic control and signage/warnings of the power outage at the Subject Intersection when such were necessary due to the dangerous condition of the traffic lights. Plaintiff proffers the following evidence in Opposition:

·        The City did not have its own policies or guidelines on how to control intersections during a planned power outage. (Plaintiff AMF No. 89.);

·        The City did not meet its own standards set for in the SCE permit by failing to ensure traffic control per the Traffic Control Plans and Caltrans MUTCD-2014. (Plaintiff AMF No. 90.)

·        There was insufficient signage, illumination, and an alternate route for traffic despite the fact that the City was put on notice on October 6, 2020. (Plaintiff AMF No. 91.)

·        Defendants SCE and HW Power were in control of the Subject Intersection at the time of the Subject Intersection pursuant to the SCE project. (Plaintiff AMF No. 92.)

·        The traffic signal was properly operating prior to SCE’s planned power outage. (Plaintiff AMF No. 93.)

·        SCE failed to ensure proper traffic control was in place at the time of the outage. (Plaintiff AMF No. 97.)

·        There was nothing to slow traffic down, which was necessary to warn of the dangerous condition of the lights at the time of the Subject Incident. (Plaintiff AMF No. 99.)

·        Defendant HW Power could have also easily prevented the Subject Accident by providing signage. (Plaintiff AMF Nos. 104-105.)

“Even if there is a dangerous condition on public property, a public entity is liable for injuries caused by it only if the entity was negligent.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 518.) “A public entity may be negligent—and hence liable for injuries caused by a dangerous condition on its property—in one of two ways. The public entity is negligent if it ‘created the dangerous condition…. The public entity is also negligent if it did not take ‘measures to protect against a dangerous condition (that it did not create) if it had actual or constructive notice of that dangerous condition…. Because a public entity necessarily has notice of dangerous conditions it itself creates, actual or constructive notice is only at issue with the latter type of negligence. [Citations Omitted.]” (Id. at 518-519.)

Summary adjudication of Issues 3 and 4 are also DENIED. Plaintiff submits evidence to show that Defendants had actual knowledge of the planned power outage, and failed to take any measures to protect against the dangerous condition.

The City’s Evidentiary Objections

No. 1. Sustained

No. 2. Sustained

No. 3. Sustained

No. 4. Overruled

No. 5. Sustained

No. 6. Sustained

No. 7. Sustained

No. 8. Sustained

No. 9. Sustained

No. 10. Overruled

No. 11. Sustained

No. 12. Sustained

No 13. Sustained

No. 14. Overruled

No. 15. Sustained

No. 16. Sustained

No. 17. Sustained

No. 18. Sustained

No. 19. Overruled

No. 20. Overruled

No. 21. Sustained

No. 22. Sustained

No. 23. Overruled