Judge: Lisa R. Jaskol, Case: 21STCV05218, Date: 2024-04-15 Tentative Ruling
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Case Number: 21STCV05218 Hearing Date: April 15, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On February 9, 2021, Plaintiff Robert Sutton (“Plaintiff”) filed this action against Defendants City of Culver City (“City”), Westfield Culver City (“Westfield Culver City”), and Does 1-20 for premises liability.
On March 25, 2021, Plaintiff amended the complaint to include Defendant State of California Department of Transportation (“State”) as Doe 1.
On March 29, 2021, the Court dismissed the City without prejudice at Plaintiff’s request.
On June 9, 2021, Plaintiff amended the complaint to include Defendant Culver City Mall LLC (“Mall”) as Doe 2.
On July 2, 2021, the Court dismissed Westfield Culver City without prejudice at Plaintiff’s request.
On August 12, 2021, Plaintiff filed a first amended complaint against the State, the Mall, and Does 1-20 for premises liability.
On September 15, 2021, the Mall filed an answer and a cross-complaint against Cross-Defendants the State and Roes 1-10 for implied indemnity, contribution and apportionment, and declaratory relief. On November 10, 2021, the State filed an answer.
On November 10, 2021, the State filed a cross-complaint against Cross-Defendants the Mall and Roes 1-50 for equitable indemnity, contractual/express indemnity, and declaratory relief. On November 16, 2021, the Mall filed an answer.
On December 30, 2021, Plaintiff filed a second amended complaint against the State, the Mall, and Does 3-20 for premises liability.
On February 14, 2022, the State filed an answer to the second amended complaint.
On December 19, 2022, Plaintiff amended the second amended complaint to include Defendant Westfield Property Management, LLC (“Westfield”) as Doe 3.
On March 22, 2023, the State filed a motion for summary judgment to be heard on June 5, 2023. At Plaintiff’s request, the Court continued the hearing to April 8, 2024. On March 25, 2024, Plaintiff and the Mall filed oppositions. On April 3, 2024, the State filed a reply. On August 8, 2024, the Court continued the hearing to August 15, 2024.
Trial is currently scheduled for June 12, 2024.
PARTIES’ REQUESTS
The State asks the Court to grant summary judgment on Plaintiff’s second amended complaint and the Mall’s cross-complaint.
Plaintiff and the Mall oppose the motion.
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Public entity liability for dangerous condition of public property
Government Code section 835 provides:
“Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either:
“(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”
(Gov. Code, § 835.)
EVIDENTIARY OBJECTIONS:
Plaintiff’s evidentiary
objections:
Overruled: 3, 5-10, 12-27, 31-41
Sustained: 1, 2, 4, 11, 28-30
State’s evidentiary
objections:
Overruled: 2, 3, 4, 5, 6, 7
Sustained: 1
DISCUSSION
I. The State’s motion for summary judgment on Plaintiff’s complaint
A. The second amended complaint
The second amended complaint alleges the following:
On February 15, 2020, Plaintiff was driving a trash collection truck for the City of Culver City. He was making a stop to empty trash bins in the Mall’s parking lot, which the Mall operates. The 90 Freeway, which the State maintains, bisects this parking lot. The parking lot contains marked and unmarked points where vehicles must cross under concrete overpasses to traverse the parking lot.
Plaintiff entered the parking lot at a point that was accurately marked for clearance, then came upon an unmarked portion. Plaintiff, in reliance on the previous clearance and not seeing anything indicating a dangerously low clearance, entered under the concrete overpass but then his truck struck the underside or soffit of the 91 Freeway as it was approximately halfway through. The Mall and the State knew or should have known to accurately warn foreseeable motorists, especially those with higher profile vehicles such as Plaintiff, of low clearances at all reasonably foreseeable points in the parking lot where a vehicle must cross under concrete. Plaintiff encountered a dangerous condition on both private property (the mall parking lot) and public property (the 91 Freeway overpass that bisects the parking lot). Both Defendants had a duty to warn of this unmarked low clearance that followed a marked slightly higher clearance. Defendants failed to warn motorists or otherwise safeguard motorists, leading to Plaintiff's injuries.
B. Undisputed facts: State’s motion for summary judgment on Plaintiff’s second amended complaint
On February 15, 2020 between about 5:30 a.m. to 6:00 a.m., Plaintiff was driving a garbage truck with an estimated height of 13 feet 4.8 inches when he entered a parking lot which the Mall operated in Culver City. The parking lot was located below the eastbound State Route 90 onramp structure, which serves as a concrete overpass above the parking lot.
Plaintiff entered the covered parking lot under a 14’6” clearance marker which showed that the height clearance of the State Route 90 overpass was 14 feet 6 inches at that location. Plaintiff’s garbage truck cleared the initial overpass without issue.
Plaintiff drove to the next trash dumpster. Because the parking lot was empty or nearly empty, Plaintiff did not drive up and down each painted lane in the lot but instead drove across a series of marked parking spaces toward the trash dumpster. The height clearance of the overpass where Plaintiff drove was lower than 14 feet 6 inches. Plaintiff did not see any warnings that the clearance gradually sloped downward.
Plaintiff did not notice that the overpass structures were slanted or angled and were of different heights. Plaintiff assumed the height clearance of all the overpass structures was 14 feet 6 inches. He was not concerned about the height clearance as labeled because he had already cleared the overpass.
Prior to exiting the parking lot, Plaintiff’s vehicle struck the bottom of State Route 90 where the height clearance is 12 feet, six inches. The point where Plaintiff's vehicle struck the underpass was not labeled for Plaintiff to see from his direction of travel. Caltrans and the Mall had not placed signage warning drivers that the clearance at this location was any lower than the clearance where Plaintiff entered the parking lot.
Plaintiff alleges that he suffered injuries as a result of a dangerous condition of public property. He alleges the State is liable under Government Code section 835 et seq. because it did not warn him of the height clearance of the overpass that he struck.
CalTrans owned the parcel of land on which State Route 90 was built, owned the freeway overpass structures, and reserved the right to control the space within three feet in all directions of all structure surfaces. CalTrans determines all vertical clearances on overpasses, reviews all requests for signage for approval, issues permits for signage, and approves all clearance signs.
The portion of State Route 90 involved in the accident was constructed in the 1960s under the jurisdiction of the Division of Highways in California, Department of Public Works (now known as the Department of Transportation or Caltrans). The design plans for Contract No. 07-032824 (“the Contract”), approved on November 28, 1966, show the basic alignment and profile grade which existed on the day of the accident. The plans for the Contract were signed and approved, in advance of construction, by licensed engineers exercising discretionary authority to give such approval. After construction, the plans were stamped “As Built,” which signifies the project was completed in accordance with the plans. The plans for the Contract did not require any vertical clearance markings on any structures prior to the accident on February 15, 2020.
These signed plans, and the information they contained, indicate that State engineers acting within the scope of their authority and discretion approved the design and that Caltrans has satisfied the discretionary approval element of the immunity.
State Route 90 at the accident location was constructed per preapproved design plans. These design plans were approved as reasonable by licensed engineers vested with the discretionary authority to give such approval. The design plans for the accident location conform to the standards at the time of design and construction. The construction was completed in conformity with those plans. The designs were reasonable and there was substantial evidence the designs were reasonable.
The State knew that the portion of the underpass that Plaintiff struck did not have a vertical clearance marking.
C. The State’s motion for summary judgment
1. Dangerous condition
The State argues it is not liable for Plaintiff’s injuries because the accident location was not a dangerous condition as a matter of law under Government Code section 830.2.
“ ‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Gov. Code, § 830, subd. (a), emphasis added.) “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate 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, emphasis added.)
Pointing to Plaintiff’s admission that he assumed the height clearance of the entire parking lot was 14 feet, six inches, the State argues that Plaintiff did not use due care when he drove through the parking lot. (See UMF 3; Plaintiff’s depo. pp. 23-24, 50.) According to the State, Plaintiff’s lack of due care prevents Plaintiff from establishing the existence of a dangerous condition as a matter of law.
“It has long been held that the negligence or lack of due care exhibited by a plaintiff-user of public property does not necessarily defeat his cause of action.” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 798-799.) “The Law Revision Commission's comment to [Government Code] section 830 provides: ‘Although the condition will not be considered dangerous within the meaning of this chapter unless it creates a hazard to those who foreseeably will use the property or adjacent property with due care, this does not require that the injured person prove that he was free from contributory negligence. Contributory negligence is a matter of defense under subdivision (b) of Section 815. The plaintiff is, however, required to establish that the condition was one that created a hazard to a person who foreseeably would use the property or adjacent property with due care.’” (Id. at p. 799, quoting Law Revision Com. com. to § 830, 32 West's Ann. Gov. Code (1980 ed.) p. 266; Deering's Ann. Gov. Code, § 830 (1982 ed.) p. 222.) “The negligence of a plaintiff-user of public property, therefore, is a defense which may be asserted by a public entity; it has no bearing upon the determination of a ‘dangerous condition’ in the first instance.” (Ibid.; accord Alexander v. State of California Ex Rel Dept. of Transportation (1984) 159 Cal.App.3d 890, 899 [“[t]he Tort Claims Act does not require plaintiff to prove that the property was actually being used with due care at the time of the injury, either by himself or by a third party (e.g., driver of automobile in which plaintiff was riding as a passenger)”].)
The State has not carried its initial burden of proof on the issue of dangerous condition because it has not shown that, as a matter of law, the condition did not create a hazard to those who foreseeably will use the property or adjacent property with due care.
2. Actual or constructive notice
Government Code section 835.2 provides:
“(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.
“(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
“(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
“(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.”
(Gov. Code, § 835.2.)
The State argues that Plaintiff cannot establish liability under Government Code section 835 because Plaintiff cannot prove the State had actual or constructive notice of a dangerous condition. The State relies on evidence that (1) it had no actual notice of any similar accidents at this location in the 10 years before the accident and (2) it did not receive any safety-related complaints about the overpass in the 10 years before accident. (See Gov. Code, § 835, subd. (b).)
Plaintiff is not required to prove notice. The Tort Claims Act codified the “ ‘well
established’ rule that a public agency was presumed to have notice of a
dangerous condition of property that was the ‘natural and probable consequence’
of the entity's own work.” (Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 834 (Brown).) “ ‘The creation by the public entity of a
physical facility or condition that is “dangerous” dispenses with the necessity
of notice, for the entity presumably knows already that it has affirmatively
created the condition, and thus has notice that it is dangerous.’ ” (Id.
at p. 835, quoting Van Alstyne, Cal. Government Tort Liability Practice
(Cont.Ed.Bar 1980) § 3.17b, p. 208.)
In addition, it is undisputed that the State knew that the portion of the underpass that Plaintiff struck did not have a vertical clearance marking.
The State has not carried its initial burden of proof on the issue of notice.
3. Sign immunity
The State argues it is immune from liability under Government Code sections 830.4 and 830.8. Government Code section 830.4 provides:
“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.)
Government Code section 830.8 provides:
“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.”
(Gov. Code, § 830.4; see Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 136 [“a concealed dangerous condition that is a trap to motorists or pedestrians may require the posting of a warning sign but the absence of a warning sign itself is not a dangerous condition”].)
The State asserts that the allegedly dangerous condition was not concealed and was a “trap” only for irresponsible drivers.
The Court has reviewed the evidence and concludes that the State has not carried its initial burden of showing that, as a matter of law, a reasonable person exercising due care would have anticipated or perceived the decreasing height clearance in the parking lot in the absence of a warning sign.
4. Design immunity
a. Statutory and case authority
Government Code section 830.6 provides:
“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor. Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.”
(Gov. Code, § 830.6.)
“[Government Code [s]ection 830.6, commonly referred to as ‘design immunity,’ precludes liability for any injury caused by ‘the plan or design of . . . , or an improvement to, public property.’” (Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653 (Tansavatdi), quoting Gov. Code, § 830.6.) “As [the Court] explained in [Cornett v. Dept. of Transportation (2001) 26 Cal.4th 63 (Cornett)], design immunity requires that a public entity 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.’ ” (Ibid., quoting Cornett, supra, 26 Cal.4th at p. 69.) “Resolution of the third element — the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design — is a matter for the courts, not the jury, to decide.” (Ibid., citing Gov. Code, § 830.6 [“[T]he trial or appellate court” is to determine whether “there is any substantial evidence upon the basis of which ... a reasonable public employee could have adopted the plan or design”].)
In Menges v. Department of Transportation (2020) 59 Cal.App.5th 13, 19, the Court of Appeal explained:
“ ‘ “[T]he normal rules governing a motion for summary judgment, and requiring its denial if any triable issue of fact appears, are not fully applicable [to cases involving design immunity under Government Code section 830.6.] For example, the defendant is not required to prove to the court that the design or plan was in fact a reasonable one. Instead, the defendant is merely required to adduce any ‘substantial evidence’ that a reasonable public employee or legislative body could have approved the plan or design used under [Government Code section] 830.6. Thus, when the defendant files a motion for summary judgment, the existence of a possible conflict of evidence, as shown by the proof submitted on the motion, will not create a triable issue on this aspect of the defense that can defeat a summary judgment ....” ’ [Citation.]” (Wyckoff v. State of California (2001) 90 Cal.App.4th 45, 50-51, 108 Cal.Rptr.2d 198 (Wyckoff).) “We are not concerned with whether the evidence of reasonableness is undisputed; the statute provides immunity when there is substantial evidence of reasonableness, even if contradicted. [Citations.]’ ” (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940, 67 Cal.Rptr.2d 454 (Grenier).) “That a plaintiff's expert may disagree does not create a triable issue of fact.’ ”
(Id. at p. 941.)
b. Analysis
Plaintiff does not dispute the State’s assertion that it has established the first element of design immunity: a causal relationship between the plan or design and the accident.
The State argues that the following undisputed facts establish the second element of design immunity, discretionary approval of the plan or design prior to construction:
· The portion of State Route 90 involved in the accident was constructed in the 1960s under the jurisdiction of the Division of Highways in California, Department of Public Works (now known as the Department of Transportation or Caltrans). The design plans for Contract No. 07-032824 (“the Contract”), approved on November 28, 1966, show the basic alignment and profile grade which existed on the day of the accident. The plans for the Contract were signed and approved, in advance of construction, by licensed engineers exercising discretionary authority to give such approval. After construction, the plans were stamped “As Built” which signifies the project was completed in accordance with the plans. The plans for the Contract did not require any vertical clearance markings on any structures prior to the accident on February 15, 2020.
· These signed plans, and the information they contained, indicate that State engineers acting within the scope of their authority and discretion approved the design and that Caltrans has satisfied the discretionary approval element of the immunity.
· State Route 90 at the accident location was constructed per preapproved design plans. These design plans were approved as reasonable by licensed engineers vested with the discretionary authority to give such approval. The design plans for the accident location conform to the standards at the time of design and construction. The construction was completed in conformity with those plans.
In response, Plaintiff argues that the State has failed to show it considered the risk presented by a sloping overpass that did not warn drivers of its decreasing height clearance after the point of entry.
In Rodriguez v. Department of Transportation (2018) 21 Cal.App.5th 947 (Rodriguez), the plaintiff contended that a public official's approval of a design did not constitute an exercise of discretionary authority under Government section 830.6 if the official admitted that he or she never actually considered whether to utilize the safety feature plaintiff asserted would have prevented his or her injuries. (Rodriguez, supra, 21 Cal.App.5th at pp. 950-951.) The Court of Appeal rejected the plaintiff’s contention and affirmed the trial court’s grant of summary judgment, reasoning:
“[U]nder the language of [Government Code] section 830.6, all that is required to establish the discretionary approval element is evidence that an employee with discretionary authority approved the plan or design. Here, Caltrans presented such evidence. That the project engineer also stated he did not consider the use of [the safety feature that the plaintiff asserted would have prevented his injuries] is irrelevant to the discretionary approval element. It is relevant, however, to the reasonableness element, as it is at that stage the court considers whether it is reasonable that an employee, in approving a design without considering a particular design feature, adopted a design that “ ‘a reasonable ... employee could have approved.’ ” (Id. at p. 958, quoting Gov. Code, § 830.6.)
Accordingly, the State has established the discretionary approval element.
The State has established the third element – the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design – based on the undisputed facts that the designs were reasonable and there was substantial evidence the designs were reasonable.
Therefore, the State has established that it is entitled to design immunity on a cause of action for public entity liability for a dangerous condition of public property. This conclusion does not necessarily mean the Court must grant the State’s motion for summary judgment, however, because Plaintiff has asserted a separate claim for failure to warn.
5. Failure to warn
In Tansavatdi, supra, 14 Cal.5th 639, the Supreme Court held that “design immunity does not categorically preclude failure to warn claims that involve a discretionarily approved element of a roadway.” (Tansavatdi, supra, 14 Cal.5th at p. 647, citing Cameron v. State of California (1972) 7 Cal.3d 318, 329 (Cameron).) Thus, “ ‘[w]here the state is immune from liability for injuries caused by a dangerous condition of its property because the dangerous condition was created as a result of a plan or design which conferred immunity under [Government Code] section 830.6, the state may nevertheless be liable for failure to warn of this dangerous condition.’ ” (Ibid.) As a result, “while section 830.6 shields public entities from liability for injuries resulting from the design of the physical features of a roadway, they nonetheless retain a duty to warn of known dangers that the roadway presents to the public.” (Ibid.)
The Court concluded that a plaintiff pursuing a claim for failure to warn of a dangerous traffic condition that is subject to design immunity must prove the following elements: “(1) the public entity had actual or constructive notice that the approved design resulted in a dangerous condition (see [Gov. Code] §§ 835, subd. (b) & 835.2 [defining ‘notice’ within the meaning of § 835, subd. (b)]); (2) the dangerous condition qualified as a concealed trap, i.e., ‘would not [have been] reasonably apparent to, and would not have been anticipated by, a person exercising due care’ (§ 830.8); and (3) the absence of a warning was a substantial factor in bringing about the injury.” (Tansavatdi, supra, 14 Cal.5th at p. 662.)
On the first element (notice), as discussed above, the Tort Claims Act codified the “ ‘well established’ rule that a public agency was presumed to have notice of a dangerous condition of property that was the ‘natural and probable consequence’ of the entity's own work.” (Brown, supra, 4 Cal.4th at p. 834.) “ ‘The creation by the public entity of a physical facility or condition that is “dangerous” dispenses with the necessity of notice, for the entity presumably knows already that it has affirmatively created the condition, and thus has notice that it is dangerous.’ ” (Id. at p. 835.) In addition, it is undisputed that the State knew that the portion of the underpass that Plaintiff struck did not have a vertical clearance marking.
On the second element (whether the dangerous condition qualified as a concealed trap), the Court has already determined that the State has not carried its initial burden of showing that, as a matter of law, a reasonable person exercising due care would have anticipated or perceived the decreasing height clearance in the parking lot in the absence of a warning sign. (Part I.C.3, ante.)
The State does not directly address the third element (whether the absence of warning was a substantial factor in bringing about the injury) aside from arguing that Plaintiff’s own negligence caused the accident.
The Court finds that the State has not carried its initial burden on summary judgment of showing that Plaintiff cannot present evidence to support his claim for failure to warn based on Tansavatdi and Cameron. The Court therefore denies the State’s motion for summary judgment on Plaintiff’s second amended complaint.
II. The State’s motion for summary judgment on the Mall’s cross-complaint
The State argues: “For the same reasons the State is not liable to plaintiff for a Dangerous Condition of Public Property, the State cannot be liable to Culver City Mall for any of its claims. Moreover, the State is immune from liability for common law tort causes of action, so a finding of Negligence against Culver City Mall cannot be a basis for indemnity, contribution or apportionment against the State.”
The Court takes the State’s motion for summary judgment on the Mall’s cross-complaint off calendar. To the extent that the motion is not based on the same issues raised in the State’s motion for summary judgment on Plaintiff’s second amended complaint, the Court declines to address those issues in the absence of a separately filed motion for summary judgment.
CONCLUSION
The Court DENIES Defendant State of California Department of Transportation’s motion for summary judgment on Plaintiff Robert Sutton’s second amended complaint.
The Court takes off calendar Defendant State of California Department of Transportation’s motion for summary judgment on Defendant and Cross-Complainant Culver City Mall LLC’s cross-complaint.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.