Judge: Matthew C. Braner, Case: 37-2020-00015947-CU-CR-CTL, Date: 2024-02-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 15, 2024

02/16/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Civil Rights Summary Judgment / Summary Adjudication (Civil) 37-2020-00015947-CU-CR-CTL FRILLES VS THE CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant City of San Diego's motion for summary adjudication is DENIED as to the third cause of action.

The court will hear from the parties in light of its comments below regarding the sixth cause of action for dangerous condition on public property.

Defendant's request for judicial notice is granted.

Summary adjudication as to one or more causes of action is appropriate if 'the cause of action has no merit' and if adjudication will completely dispose of the cause of action. (Code Civ. Proc., § 437c, subd.

(f)(1).) A defendant who moves for summary adjudication has the initial burden of showing the alleged cause of action is without merit. (Ibid.; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant can meet that burden by showing one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c, subd. (p)(2).) Here, Defendant seeks summary adjudication of Plaintiffs Celerina Frilles and Matt Frilles's third and sixth causes of action, for unlawful interference with admittance to or enjoyment of public facilities (Civil Code §§ 54, 54.1, 54.3) and dangerous condition on public property, respectively. It is not disputed that Mrs. Frilles is a disabled person within the meaning of Civil Code section 54, nor that Plaintiffs were struck by a vehicle on December 24, 2018 as they crossed Churchward St. outside a marked crosswalk on their way to their parked vehicle located directly across the street from St. Rita's Catholic Church.

Plaintiffs allege they were compelled to cross outside the marked crosswalk because it lacked an accessible sloped curb ramp, so they instead crossed at the nearby curb ramp that lacked a marked street crossing.

3rd CoA – Civil Code §§ 54, 54.1, 54.3 Defendant argues Mrs. Frilles was not denied full and equal access to a safe road crossing because a nearby alternative route existed at the intersection of Euclid Ave. and Churchward St., approximately 190 feet west of the non-accessible crosswalk and approximately 150 feet west of the entrance to St.

Rita's Catholic Church, which had a marked cross walk and access ramps. (See Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 263 ['The phrase 'denied equal access' necessarily implies that either the structure of the public facility, or some policy of its operator, precluded equal access. It is undisputed, however, that Longs provided access to its entrance by way of an aisle, Calendar No.: Event ID:  TENTATIVE RULINGS

3053064  17 CASE NUMBER: CASE TITLE:  FRILLES VS THE CITY OF SAN DIEGO [IMAGED]  37-2020-00015947-CU-CR-CTL curb cut, and ramp installed for the particular use of the disabled. Because this means of access was at all times available for plaintiff's use, she cannot demonstrate that she was denied equal access to the store without demonstrating that this route, too, was inadequate.'].) In opposition, Plaintiffs argue that both the distance of the purported alternative route (more than 300 feet in total from the entrance of St. Rita's Church west to the intersection of Euclid and Churchward and then east back to the parking lot directly across from the church) and the difficulty of traversing that route due to multiple instances of lifted and cracked concrete rendered the route inaccessible to Mrs. Frilles due to her mobility issues. Plaintiffs further argue, and present evidence in support, that the access ramps at the alternate route were not ADA-compliant. The court agrees; at a minimum, a dispute of material fact exists as to whether this purported alternative route was also inaccessible to Plaintiff. The Urhausen case is inapposite; there, the plaintiff conceded the adjacent alternative route (a disabled access ramp) was available for her use and that she was capable of using it. (Urhausen, supra, 155 Cal.App.4th at p. 263.) The court rejects Defendant's argument on reply that Plaintiffs' claim concerning the alternate route goes beyond their pleadings. Plaintiffs are not making a new claim founded on purported deficiencies of the Euclid Ave/Churchward St. crossing; rather, they are identifying the deficiencies with the alternate route that arguably made it also inaccessible to her, which was put at issue by Defendant's motion.

Accordingly, Defendant's motion as to the third cause of action is denied.

6th CoA – Dangerous Condition on Public Property (Gov. Code §§ 835 et seq.) In considering the parties' evidence and cited legal authority, the court is unsure whether, or the extent to which, Mrs. Frilles's disability should factor into the analysis. In other words, if the dangerous condition alleged by Plaintiffs (i.e., the lack of access ramps at the marked crosswalk caused them to use the nearby access ramps that lacked a marked crossing, thereby exposing them to danger from inattentive motorists) is only dangerous to persons similarly situated, but not to the public at large, can it still qualify as a dangerous condition within the meaning of the Government Code? (See, e.g., Matthews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384 ['Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff's contributory negligence is a matter of defense.'].) The court is inclined to conclude that at least to some extent, Mrs. Frilles's mobility issue should factor in the analysis; after all, in the circumstances of this case, the class of persons with disabling mobility issues (particularly given the proximity to a church) appear likely to qualify as 'persons who foreseeably would use the property with due care.' (Id.) The court also believes the issue is relevant to Defendant's design immunity defense. Namely, if Defendant's design failed to factor in ADA compliance (in particular, use of the crosswalk by persons with mobility issues, such as children in wheelchairs, or Mrs. Frilles), was the design sufficiently reasonable to trigger design immunity? Calendar No.: Event ID:  TENTATIVE RULINGS

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