Judge: Robert P. Dahlquist, Case: 37-2020-00044662-CU-PT-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 06, 2023

10/06/2023  02:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

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Civil - Unlimited  Misc Complaints - Other Summary Judgment / Summary Adjudication (Civil) 37-2020-00044662-CU-PT-NC MILLER VS COUNTY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant County of San Diego's motion for summary judgment (ROA # 49) is denied.

The County's evidentiary objections (ROA # 65) are overruled.

On April 22, 2021, plaintiff Kwayde Miller filed a complaint asserting claims of negligence and dangerous condition of public property. The claims arise from injuries sustained by plaintiff when a vehicle driven by defendant Helen Elson struck plaintiff. Plaintiff alleges that he was riding his motorcycle when defendant Elson failed to yield the right-of-way for oncoming traffic and attempted to make a left turn directly in the path of the plaintiff. Plaintiff was injured as a result of the accident. Complaint (ROA # 1).

The County moves for summary judgment of the sole cause of action asserted against it – dangerous condition of public property.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.

In ruling on a summary judgment motion, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

The inclusion of a fact in the moving party's separate statement concedes that the fact is material. Nazir v. United Airlines, Inc. (2009) 178 Cal. App. 4th 243, 252.) As such, if a triable issue is raised as to any facts in the separate statement with respect to an issue, then the motion must be denied. Id.; see also Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal. App. 5th 506, 521.

In order to establish a dangerous condition cause of action against the County, plaintiff must establish that (1) that the property was in a dangerous condition at the time of the incident and (2) that the dangerous condition was a substantial factor in causing plaintiffs' harm. Government Code § 835. The Calendar No.: Event ID:  TENTATIVE RULINGS

3021029 CASE NUMBER: CASE TITLE:  MILLER VS COUNTY OF SAN DIEGO [IMAGED]  37-2020-00044662-CU-PT-NC existence of a dangerous condition is a question for the jury and can be decided as a matter of law only if reasonable minds can reach but one conclusion. Bonanno v. Central Contra Costa Transit Authority (2009) 30 Cal.4th 139, 148.

The court finds that this is not a case where it would be appropriate for the court to grant summary judgment on the issue of whether the road in question was a dangerous condition of public property.

This is a case where reasonable minds could differ on this issue. As such, it is an issue for the trier of fact to decide. There is a triable issue of material fact as to whether the property was in a dangerous condition at the time of the accident. Compare Shaffer Decl. (ROA # 53) with the declarations of Coleen Bosse (ROA # 59), David Bosse (ROA # 60) and Stephen L. Plourd (ROA # 62).

Turning to the issue of design immunity, the court believes that the County has established its design immunity defense but the current motion does not establish that the plaintiff is precluded from establishing liability under a theory of failure to warn of a dangerous condition. A recent decision from the California Supreme Court holds that 'design immunity does not, as a matter of law, preclude liability under a theory of failure to warn of a dangerous condition.' Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 651-652.

The court agrees with plaintiff's argument, on pages 18 -19 of plaintiff's opposition brief (ROA # 55), that the motion must be denied because the County's motion does not address or negate the failure to warn theory of liability.

For these reasons, the motion for summary judgment is denied.

This is the tentative ruling for an appearance hearing (in person or remote) at 2:30 p.m. on Friday, October 6, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of October 6, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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