Lichtman v. Siemens Industry Inc. ( 2017 )


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  • Filed 11/2/17
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION FIVE
    JOANNE LICHTMAN et al.,               B265373
    Plaintiffs and Appellants,     (Los Angeles County
    Super. Ct. No. BC492694)
    v.
    SIEMENS INDUSTRY INC.,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Los
    Angeles County, John P. Doyle, Judge. Reversed and remanded
    with directions.
    Shernoff Bidart Echeverria Bentley, Gregory L. Bentley,
    Steven Schuetze; Shernoff Bidart Echeverria, Michael J. Bidart,
    Steven Schuetze; The Ehrlich Law Firm, Jeffrey I. Ehrlich, for
    Plaintiffs and Appellants Joanne Lichtman, Douglas Evans, and
    Samuel Evans.
    Haight Brown & Bonesteel, William O. Martin, Jr., Vangi
    M. Johnson, Whitney L. Stefko, for Defendant and Respondent.
    INTRODUCTION
    On the night of plaintiffs’ accident, there were no batteries
    in a traffic signal’s battery backup unit. During a power outage,
    plaintiffs’ vehicle entered the dark intersection and was struck by
    another car. Plaintiffs sued the entity responsible for
    maintaining the battery backup system, alleging its negligence
    proximately caused their injuries. The trial court granted
    defendant’s motion for summary judgment on the basis defendant
    owed no duty of care to plaintiffs as a matter of law. We reverse.
    FACTUAL AND PROCEDURAL BACKGROUND
    In 2004, the City of Glendale (the City) installed battery
    backup units for traffic signals at various intersections to
    promote community safety by providing power in the event of a
    power outage.1 Four years later, the City contracted with
    Siemens Industry Inc., doing business as Republic ITS
    (defendant), to perform preventive and extraordinary
    maintenance, service, and repairs on electrical traffic-related
    devices at intersections in the City, including the battery backup
    system.
    According to the City’s traffic engineer, Khang Vu, the City
    expected defendant to provide notification when there was a
    problem with a traffic signal, including whether a backup system
    battery required replacement at a particular location. Defendant
    needed authorization from the City’s traffic engineer to replace a
    battery.
    1    Notwithstanding deposition testimony by its own
    personnel, defendant disputes that traffic signals and a battery
    backup system are in place to promote public safety rather than
    merely maintain traffic flow.
    2
    On January 12, 2011, the battery backup unit for the traffic
    signal at the Glendale Avenue/Broadway intersection indicated
    “low voltage.” Batteries at this and other locations were failing to
    hold their charges, and defendant removed a number of units for
    testing. In August 2011, a unit with new batteries and a new
    battery temperature sensor was installed at one intersection to
    see if the problem had been resolved. Defendant reinstalled a
    battery backup unit in the Glendale Avenue/Broadway traffic
    signal at the same time, but did not insert any batteries. The
    unit remained inoperable until batteries were inserted 11 months
    later, in July 2012.
    On September 4, 2011, a power outage caused the traffic
    signal at the Glendale Avenue/Broadway intersection to go dark.
    Because there were no batteries in the backup unit for that
    intersection, the traffic signal did not function in any direction.
    At approximately 11:00 p.m., the vehicle driven by Joanne
    Lichtman, with her spouse Douglas Evans and son Samuel Evans
    (plaintiffs) as passengers, entered the intersection. Plaintiffs’ car
    was broadsided on the driver’s side by another vehicle, careened
    sideways, and hit a pole. All plaintiffs were injured, Lichtman
    severely.
    Plaintiffs sued several entities to recover damages for their
    personal injuries.2 Against defendant, plaintiffs asserted three
    causes of action based on negligence theories. They resolved
    their suit against all parties except defendant.
    Defendant moved for summary judgment, contending it
    owed no duty of care to plaintiffs and its actions were not a
    2    The other defendants were the seller of the battery backup
    system and the entity that serviced and maintained the City’s
    power grid. The City was not a party.
    3
    proximate cause of plaintiffs’ injuries. The trial court ruled as a
    matter of law defendant did not owe plaintiffs a duty of care, but
    also concluded plaintiffs raised a triable issue of material fact as
    to proximate cause. The first ruling was dispositive, however,
    and judgment was entered in defendant’s favor.
    DISCUSSION
    The elements for negligence causes of action are the
    existence of a duty of care, breach of that duty, and an injury
    proximately caused by the breach. (Ladd v. County of San Mateo
    (1996) 
    12 Cal. 4th 913
    , 917.) The defendant in a negligence action
    is entitled to summary judgment if it demonstrates “one or more
    elements of the cause of action, even if not separately pleaded,
    cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).)
    The trial court found as a matter of law plaintiffs could not
    establish a duty of care and granted summary judgment in
    defendant’s favor. That ruling presents a question of law for our
    de novo review. (Cabral v. Ralphs Grocery Co. (2011) 
    51 Cal. 4th 764
    , 770-771 (Cabral).)
    For the reasons that follow, we reverse. Because the trial
    court was not presented with cross-motions for summary
    judgment, we do not find defendant owed plaintiffs a duty of care
    as a matter of law. Rather, we hold defendant failed to establish
    it was entitled to judgment as a matter of law. (Laabs v.
    Southern California Edison Co. (2009) 
    175 Cal. App. 4th 1260
    ,
    1269 (Laabs).)
    I.     Duty — Overview
    The “fundamental element” for every negligence cause of
    action is “the existence of a legal duty of care running from the
    4
    defendant to the plaintiff.” (Taylor v. Elliott Turbomachinery Co.,
    Inc. (2009) 
    171 Cal. App. 4th 564
    , 593.) “A duty may arise through
    statute, contract, or the relationship of the parties.”3 (National
    Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated
    Services Group, Inc. (2009) 
    171 Cal. App. 4th 35
    , 45 (National
    Union); see also J’Aire 
    Corp., supra
    , 24 Cal.3d at p. 803.)
    California also recognizes a common law duty in certain
    circumstances based on the theory of negligent undertaking.
    (Artiglio v. Corning, Inc. (1998) 
    18 Cal. 4th 604
    , 612 (Artiglio);
    Rest.2d Torts, § 324A (section 324A).)
    When the duty question concerns “the management of [a
    defendant’s] person or property,” courts look to Civil Code section
    1714. (See 
    Cabral, supra
    , 51 Cal.4th at p. 768.) Per Civil Code
    section 1714, everyone owes everyone else a duty to exercise
    ordinary care “in the management of his or her person or
    property.” Accordingly, the existence of a duty is the rule.
    Unless there is a statutory exception to the general rule of
    duty, courts fashion one only “where ‘clearly supported by public
    policy.’” (
    Cabral, supra
    , 51 Cal.4th at p. 771.) Almost 50 years
    ago, in Rowland v. Christian (1968) 
    69 Cal. 2d 108
    (Rowland), our
    Supreme Court identified the public policy considerations that
    may result in a court’s conclusion that no duty exists: “[T]he
    foreseeability of harm to the plaintiff, the degree of certainty that
    the plaintiff suffered injury, the closeness of the connection
    between the defendant’s conduct and the injury suffered, the
    3     The “special-relationship-based duty” typically applies to
    hold a defendant liable for the criminal acts of third persons.
    (Delgado v. Trax Bar & Grill (2005) 
    36 Cal. 4th 224
    , 235
    (Delgado).) It also applies in pure economic loss cases. (J’Aire
    Corp. v. Gregory (1979) 
    24 Cal. 3d 799
    , 804 (J’Aire).)
    5
    moral blame attached to the defendant’s conduct, the policy of
    preventing future harm, the extent of the burden to the
    defendant and consequences to the community of imposing a duty
    to exercise care with resulting liability for breach, and the
    availability, cost, and prevalence of insurance for the risk
    involved.” (Id. at p. 113.)
    A duty running from a defendant to a plaintiff may arise
    from contract, even though the plaintiff and the defendant are
    not in privity. (Biakanja v. Irving (1958) 
    49 Cal. 2d 647
    (Biakanja)4; Bily v. Arthur Young & Co. (1992) 
    3 Cal. 4th 370
    .)
    Under these circumstances, the existence of a duty is not the
    general rule, but may be found based on public policy
    considerations.
    In Biakanja, decided a decade before Rowland, our
    Supreme Court identified the factors that may result in a court’s
    conclusion a duty exists: “The determination whether in a
    specific case the defendant will be held liable to a third person
    not in privity is a matter of policy and involves the balancing of
    various factors, among which are the extent to which the
    transaction was intended to affect the plaintiff, the foreseeability
    of harm to him, the degree of certainty that the plaintiff suffered
    4     Biakanja involved economic losses only, but the evolution
    in legal reasoning that allowed the Biakanja court to permit a
    plaintiff with only economic losses to recover for negligent
    performance of a contract where the plaintiff and defendant are
    not in privity was based on case law that permitted a personal
    injury plaintiff not in privity with the defendant to recover.
    
    (Biakanja, supra
    , 49 Cal.2d at p. 649; see also Beacon Residential
    Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 
    59 Cal. 4th 568
    , 574 [“the significance of privity has been greatly
    eroded over the past century”].)
    6
    injury, the closeness of the connection between the defendant’s
    conduct and the injury suffered, the moral blame attached to the
    defendant’s conduct, and the policy of preventing future harm.”
    
    (Biakanja, supra
    , 49 Cal.2d at p. 650.)
    It is no coincidence many of the factors courts consider to
    recognize an exception to the general duty rule in Civil Code
    section 1714 mimic those courts consider to impose a duty to a
    third person when the issue is the negligent breach of contractual
    obligations. Also, in the Biakanja context, the consideration
    concerning “the extent to which the transaction was intended to
    affect the plaintiff” serves as a bridge between the absence of
    privity and liability, particularly in situations where the only
    claimed losses are economic. 
    (Biakanja, supra
    , 49 Cal.2d at p.
    650.)
    Not surprisingly, when one turns to common law, the
    considerations are again similar. Section 324A articulates what
    is typically referred to as the Good Samaritan rule or the
    negligent undertaking theory of liability.5 (Paz v. State of
    California (2000) 
    22 Cal. 4th 550
    , 559 (Paz).) Section 324A is
    applied to determine the “duty element” in a negligence action
    where the defendant has “‘specifically . . . undertaken to perform
    5      Section 324A provides, “One who undertakes, gratuitously
    or for consideration, to render services to another which he
    should recognize as necessary for the protection of a third person
    or his things, is subject to liability to the third person for physical
    harm resulting from his failure to exercise reasonable care to
    protect his undertaking, if [¶] (a) his failure to exercise
    reasonable care increases the risk of such harm, or [¶] (b) he has
    undertaken to perform a duty owed by the other to the third
    person, or [¶] (c) the harm is suffered because of reliance of the
    other or the third person upon the undertaking.”
    7
    the task that he is charged with having performed negligently,
    for without the actual assumption of the undertaking there can
    be no correlative duty to perform that undertaking carefully.’”
    
    (Artiglio, supra
    , 18 Cal.4th at pp. 614-615.) The negligent
    undertaking theory of liability applies to personal injury and
    property damage claims (Mukthar v. Latin American Security
    Service (2006) 
    139 Cal. App. 4th 284
    , 290 (Mukthar); FNS
    Mortgage Service Corp. v. Pacific General Group, Inc. (1994) 
    24 Cal. App. 4th 1564
    , 1572), but not to claims seeking only economic
    loss (State Ready Mix, Inc. v. Moffatt & Nichol (2015) 
    232 Cal. App. 4th 1227
    , 1235). Our Supreme Court has described the
    negligent undertaking and special relationship doctrines as
    “related but separate.” 
    (Delgado, supra
    , 36 Cal.4th at pp. 248-
    249.)
    A finding of liability to third persons under the negligent
    undertaking theory “requires evidence that: (1) the actor
    undertook, gratuitously or for consideration, to render services to
    another; (2) the services rendered were of a kind the actor should
    have recognized as necessary for the protection of third persons;
    (3) the actor failed to exercise reasonable care in the performance
    of the undertaking; (4) the actor’s failure to exercise reasonable
    care resulted in physical harm to the third persons; and (5) either
    (a) the actor’s carelessness increased the risk of such harm, or (b)
    the actor undertook to perform a duty that the other owed to the
    third persons, or (c) the harm was suffered because either the
    other or the third persons relied on the actor’s undertaking.”
    
    (Paz, supra
    , 22 Cal.4th at p. 559.) Unless all three predicate
    alternatives in the fifth factor are negated, a defendant may be
    found to owe a duty to third persons under the negligent
    undertaking theory.
    8
    II.   Analysis
    A.     Civil Code Section 1714
    This case does not involve defendant’s management of its
    own property. Accordingly, our inquiry does not involve a
    determination as to whether public policy supports an exception
    to the general duty rule. (
    Cabral, supra
    , 51 Cal.4th at p. 771;
    
    Rowland, supra
    , 69 Cal.2d at p. 112.) Nonetheless, appellate
    decisions analyzing the Cabral/Rowland factors are useful for
    our purposes because of the considerable overlap with the
    Biakanja factors. (Formet v. Lloyd Termite Control Co. (2010)
    
    185 Cal. App. 4th 595
    , 604.)
    In this context, we briefly digress to examine White v.
    Southern Cal. Edison Co. (1994) 
    25 Cal. App. 4th 442
    (White), a
    decision relied upon by defendant and the trial court. In White,
    the plaintiff’s moped collided at night with a left-turning van in
    an intersection. The nearest streetlight, which was more than
    130 feet away, was not functioning at the time of the accident and
    the plaintiff contended the lack of illumination proximately
    caused his injuries. The plaintiff sued the public utility that
    owned and maintained the streetlight. The trial court granted
    the public utility’s motion for summary judgment and this court
    affirmed.
    White was decided after Rowland. This Division
    acknowledged Civil Code section 1714’s general duty rule applied
    to public entities, which on occasion are found liable to injured
    plaintiffs. 
    (White, supra
    , 25 Cal.App.4th at pp. 447-448.) We also
    recognized public policy considerations on occasion justify a
    departure from the general duty rule and result in the conclusion
    that a public utility owed no duty. (Id. at pp. 448-449.)
    9
    We framed the issue in White as follows: “Does an electric
    utility company owe a duty to motorists injured in motor vehicle
    collisions caused in part by an inoperative streetlight which the
    utility [owns and] has contracted to maintain?” 
    (White, supra
    , 25
    Cal.App.4th at p. 447.) Our court then engaged in a Rowland
    analysis and concluded an exception to the general rule of duty
    was appropriate.
    White is distinguishable from this case in two principal
    respects. First, White involved the general duty rule in Civil
    Code section 1714. Second, the defendant was a public utility.
    Nothing in the White decision suggests a private entity like
    defendant shares the same policy considerations as a public
    utility.
    B.    
    Biakanja, supra
    , 
    49 Cal. 2d 647
          Biakanja guides us in cases involving contracts between a
    defendant and a person other than the plaintiff. As already
    mentioned, the absence of privity presents no hurdle. Rather, we
    examine the Biakanja factors to determine whether defendant
    established as a matter of law that it owed no duty to plaintiffs.
    1.    Biakanja Factors and Analysis
    a.     The Extent to Which the Transaction
    Was Intended to Affect Plaintiffs
    Whether one views a battery backup system as promoting
    public safety or merely regulating traffic flow, the units help
    drivers and pedestrians safely traverse traffic intersections
    during power outages. The contract between defendant and the
    City was clearly intended to, and does, affect plaintiffs. This
    10
    factor fails to support the conclusion that defendant owed no duty
    as a matter of law.
    b.    Foreseeability of Harm
    Drivers approaching a signalized intersection in the dark
    when the traffic signals are not working are supposed to treat the
    intersection as a four-way stop and proceed only when it is safe.
    (Veh. Code, § 21800, subd. (d)(1).) As in many aspects of daily
    life, however, “common experience shows they do not always do
    so.” (
    Cabral, supra
    , 51 Cal.4th at p. 775.) It is foreseeable
    motorists and pedestrians entering an intersection when the
    traffic signals are not operating due to a power outage,
    particularly at night, may become confused and suffer harm if the
    battery backup unit is not operational. The foreseeability factor
    does not support an absence of duty as a matter of law.
    c.     The Degree of Certainty that Plaintiffs
    Suffered Injury
    Unquestionably, these plaintiffs sustained injuries in the
    intersection collision. Examining this factor from a broader
    perspective, the likelihood of injury when vehicles collide in an
    intersection normally controlled by traffic signals is not subject to
    reasonable dispute. (See, e.g., 
    Laabs, supra
    , 175 Cal.App.4th at
    p. 1278.) This factor also does not support an absence of duty as
    a matter of law.
    d.   The Closeness of the Connection Between
    Defendant’s Conduct and the Injury
    Although not in so many words and not in the context of a
    Cabral/Rowland/Biakanja analysis, the trial court addressed
    11
    this factor and found a triable issue of material fact as to whether
    defendant’s conduct was a proximate cause of plaintiffs’ injuries.
    We agree. Defendant cannot rely on this factor to conclude there
    is an absence of duty as a matter of law.
    e.     Moral Blame Attached to Defendant’s
    Conduct
    This factor traditionally requires little discussion.
    “Negligence in the execution of contractual duties is generally
    held to be morally blameworthy conduct.” (National 
    Union, supra
    , 171 Cal.App.4th at p. 47.) The National Union holding
    vis-à-vis moral blame is noteworthy because that case involved
    economic loss only. (See also 
    J’Aire, supra
    , 24 Cal.3d at p. 805
    [another case involving only economic loss, where our Supreme
    Court noted defendant’s “lack of diligence . . . was particularly
    blameworthy since it continued after the probability of damage
    was drawn directly to [the defendant’s] attention”]; Mintz v. Blue
    Cross of California (2009) 
    172 Cal. App. 4th 1594
    , 1612 (Mintz)
    [“‘moral blame’ from an erroneous decision to withhold a medical
    treatment is equally apparent”; case involved personal injury and
    emotional distress damages].) Again, this factor does not justify
    concluding as a matter of law that defendant owed no duty to
    plaintiffs.
    f.   Preventing Future Harm
    
    Cabral, supra
    , 51 Cal.4th at pages 781-782, explained, “The
    overall policy of preventing future harm is ordinarily served, in
    tort law, by imposing the costs of negligent conduct upon those
    responsible. The policy question is whether that consideration is
    outweighed, for a category of negligent conduct, by laws or mores
    12
    indicating approval of the conduct or by the undesirable
    consequences of allowing potential liability.”
    In this case, the analysis is primarily one of common sense.
    A battery backup system exists to keep traffic signals operational
    for a period of time during a power outage. The City paid
    defendant to maintain the battery backup system in working
    condition. Under these circumstances, the public policy to
    prevent future harm outweighs any perceived unfairness in
    imposing liability should the trier of fact determine defendant
    negligently performed its contractual obligation to maintain the
    battery backup system. This factor, too, does not support the
    absence of duty as a matter of law.
    2.  Biakanja Conclusion
    Power outages in a particular geographical area typically
    affect all illumination sources. A power outage late at night
    plunges the entire area surrounding an intersection into
    darkness. Even with headlights, vehicle and vehicle/pedestrian
    accidents and injuries are foreseeable under those conditions.
    Traffic signals that remain operational during a power outage
    because they are backed up by a battery system have the
    potential to prevent accidents and injuries. A public policy
    analysis considering the Biakanja factors does not support the
    conclusion that defendant established the absence of a duty of
    care as a matter of law. (Burch v. Superior Court (2014) 
    223 Cal. App. 4th 1411
    , 1419-1422 [writ issued after trial court
    granted the defendant’s motion for summary adjudication of
    issues on negligence theory]; 
    Mintz, supra
    , 172 Cal.App.4th at pp.
    1610-1613 [reversed judgment on negligence theories after
    13
    demurrer sustained without leave to amend, holding the
    defendant owed a duty of care].)
    C.    Negligent Undertaking—Section 324A
    The first four factors under section 324A do not require in-
    depth analysis. Their role is to set the stage for consideration of
    the fifth factor, which is the principal duty element. The
    evidence relevant to the first four factors demonstrates
    defendant, for consideration, undertook to render services to the
    City. The services—to keep the battery backup system
    operational—“were of a kind the actor should have recognized as
    necessary for the protection of third persons.” 
    (Artiglio, supra
    , 18
    Cal.4th at p. 613.) Should a duty be found to exist, the trier of
    fact will determine whether defendant failed to exercise ordinary
    care and whether that failure proximately caused plaintiffs’
    injuries.
    To establish as a matter of law that defendant does not owe
    plaintiffs a duty under a negligent undertaking theory, defendant
    must negate all three alternative predicates of the fifth factor:
    “(a) the actor’s carelessness increased the risk of such harm, or
    (b) the actor undertook to perform a duty that the other owed to
    the third persons, or (c) the harm was suffered because of the
    reliance of the other or the third persons upon the undertaking.”
    
    (Artiglio, supra
    , 18 Cal.4th at p. 614.)
    The question for us, then, is whether defendant established
    as a matter of law that none of the alternative predicates
    identified as the fifth factor in section 324A could apply.
    Defendant did not.
    Defendant’s evidence in support of the motion for summary
    judgment did not negate as a matter of law element (a), that “the
    14
    actor’s carelessness increased the risk of such harm.” The City
    recognized the risk of harm increases when traffic signals are not
    operational, particularly during a nighttime power outage, and
    acted to reduce the risk by contracting with defendant to
    maintain a battery backup system. If defendant negligently
    failed to install the batteries, a trier of fact could reasonably
    conclude defendant’s conduct increased the risk of harm to
    plaintiffs.
    Nor did defendant negate as a matter of law element (c),
    that “the harm is suffered because of the reliance of the other [in
    this case, the City] or the third persons upon the undertaking.” A
    reasonable inference from the evidence is that the City relied on
    the battery backup system to illuminate traffic signals when
    portions of the electrical grid were dark as the result of a power
    outage. The City was confronted with a known risk—power
    outages will happen and traffic signals will stop operating. The
    City’s response to ameliorate the harmful effects of that risk was
    to install a battery backup system and enter into a contract with
    defendant to maintain it. The City could reasonably expect
    defendant would perform its contractual obligations in a non-
    negligent manner.
    The undisputed facts here present a classic scenario for
    consideration of the negligent undertaking theory. This theory of
    liability is typically applied where the defendant has
    contractually agreed to provide services for the protection of
    others, but has negligently done so. For example, the defendant
    in 
    Mukthar, supra
    , 
    139 Cal. App. 4th 282
    contracted with a
    convenience store owner to provide armed, uniformed security
    guards between 9:00 p.m. and 5:00 a.m. No guard was on duty
    after 9:00 p.m. on the evening the store clerk was assaulted by
    15
    several customers. The injured clerk sued the security company,
    and the trial court granted the defendant’s motion for summary
    judgment.
    The Court of Appeal reversed, noting, “the harm that befell
    [the plaintiff] was precisely the kind of harm that [the defendant]
    was there to prevent, i.e., an assault on a store employee.”
    (
    Mukthar, supra
    , 139 Cal.App.4th at p. 291.) The Court of
    Appeal then explained, “it is a reasonable inference that the
    presence of an armed guard in close proximity to [the clerk]
    would have prevented the assault. Whether the trier of fact will
    actually draw that inference [is left for another day].” (Id. at p.
    292.)
    Mukthar provides a good analytical contrast to the facts in
    Dekens v. Underwriters Laboratories Inc. (2003) 
    107 Cal. App. 4th 1177
    (Dekens). The plaintiffs’ decedent in Dekens repaired small
    appliances. He died of mesothelioma, contracted as a result of
    exposure to asbestos, which was then a not-uncommon
    component in small electrical appliances. His heirs sued
    Underwriters Laboratories (U.L.) on a negligent undertaking
    theory, contending the defendant undertook a certification
    process to safeguard the health of consumers, including those
    individuals who repaired U.L.-certified appliances. (Id. at p.
    1179.)
    The defendant successfully moved for summary judgment,
    and the Court of Appeal affirmed. The appellate panel posed two
    threshold questions: “Did U.L. undertake to provide services [to
    the decedent] and, if so, what was the scope of that undertaking?”
    
    (Dekens, supra
    , 107 Cal.App.4th at p. 1182.) The Court of Appeal
    agreed U.L. tested and certified appliances for safety based on
    electrical shock, heat, and fire, but found the undertaking did not
    16
    include a “guarantee [of] safety from cancer-causing asbestos.”
    (Id. at p. 1187.) The appellate panel explained, “U.L. met its
    burden on summary judgment by showing through admissible
    evidence that it never undertook to test small appliances for
    medical safety or to certify the appliances would not cause
    cancer. Plaintiffs failed to show a triable issue of material fact
    regarding the existence and scope of any such undertaking by
    U.L. The trial court properly granted summary judgment.” (Id.
    at p. 1180.)
    Unlike the Dekens circumstances, defendant here did not
    meet its burden on summary judgment to show it never
    undertook to maintain the City’s battery backup system.
    Mukthar is instructive on this point. Plaintiffs’ injuries were
    caused by a nighttime intersection collision during a power
    outage. Defendant was not responsible for the power outage, but
    by contract it undertook to maintain the battery backup unit at
    the intersection to prevent—or at least mitigate—the foreseeable
    and increased risk of intersection collisions when an entire area
    is dark as the result of a power grid failure. A reasonable
    inference from the evidence before the trial court is that an
    operational battery backup unit would have prevented the
    collision. (
    Mukthar, supra
    , 139 Cal.App.4th at p. 292.) Under a
    section 324A analysis, the evidence did not support the trial
    court’s conclusion that no duty existed as a matter of law.
    In this regard, defendant’s reliance on 
    Paz, supra
    , 
    22 Cal. 4th 550
    is misplaced. The plaintiff in Paz was injured in a
    traffic accident in an intersection all parties agreed was in a
    dangerous condition. Sometime before the accident, a developer
    sought approval for a residential project near the intersection.
    The City of Los Angeles conditioned permit approvals for the
    17
    housing project on the developer’s agreement to signalize the
    intersection and improve lane striping. (Id. at pp. 554-555.) The
    developer agreed to those terms, but the accident occurred before
    the developer obtained all the necessary permits for the signal
    and street work.
    The plaintiff sued the developer and its contractors
    (collectively, nongovernmental defendants) under negligence
    theories, asserting they negligently delayed installing the traffic
    signals. The trial court granted summary judgment for the
    nongovernmental defendants and the Court of Appeal majority
    reversed, basing its decision on a Biakanja analysis. 
    (Paz, supra
    ,
    22 Cal.4th at pp. 553-554, 557.)
    The Supreme Court reversed the decision of the Court of
    Appeal and directed that judgment be entered in favor of the
    nongovernmental defendants. The Supreme Court majority
    opinion framed and analyzed the duty issue as follows: “This
    case concerns the duty private contractors owe the general public
    when they undertake work that might affect an allegedly
    dangerous condition of public property. Consequently, we
    consider the negligent undertaking theory of liability articulated
    in Restatement Second of Torts, section 324A (section 324A), and
    its application in this context.” 
    (Paz, supra
    , 22 Cal.4th at p. 553.)
    The Paz majority assumed the first four section 324A
    elements were satisfied. 
    (Paz, supra
    , 22 Cal.4th at p. 559.)
    Turning its attention to the alternate predicates in the fifth
    element, a majority of the justices concluded none of the three
    alternative predicates for the application of section 324A was
    met. Insofar as alternative (a) was concerned, no evidence
    supported an inference the nongovernmental defendants’ conduct
    increased the risk of physical harm to plaintiff beyond that which
    18
    already existed in the dangerous intersection. 
    (Paz, supra
    , 22
    Cal.4th at p. 560.) The nongovernmental defendants did not
    undertake to perform a duty the city owed to the plaintiff,
    eliminating alternative (b). (Id. at p. 561.) And there was no
    evidence the plaintiff or the city relied on the nongovernmental
    defendants to install the traffic signals by any particular date,
    negating application of alternative (c). (Ibid.)
    Here, as in Paz, the first four section 324A factors tend to
    support the conclusion that defendant owed a duty of care to
    plaintiffs, but these factors are not determinative of the duty
    issue. Unlike the situation in Paz, the evidence in this case
    raises inferences that defendant increased the risk of harm
    during a power outage and the City relied on the battery backup
    system to promote public safety. No more is needed to defeat
    summary judgment on the duty issue.
    III.   Statutory Immunity Not Applicable
    In presenting the motion for summary judgment, defendant
    did not engage in analyses under Cabral, Rowland, Biakanja or
    section 324A. Instead, defendant asserted the absence of duty
    was established by a statutory presumption applicable to public
    entities (Gov. Code, § 830.4), the holding in Chowdhury v. City of
    Los Angeles (1995) 
    38 Cal. App. 4th 1187
    (Chowdhury), and the
    results in 
    White, supra
    , 
    25 Cal. App. 4th 442
    and 
    Paz, supra
    , 
    22 Cal. 4th 550
    .
    For the reasons we have already discussed, White and Paz
    are distinguishable. Defendant’s reliance on Government Code
    section 830.4 to provide the statutory exception to the general
    duty rule in Civil Code section 1714 is also unavailing.
    19
    Government Code section 830.4 provides in part, “A
    condition is not a dangerous condition within the meaning of this
    chapter merely because of the failure to provide regulatory traffic
    control signals . . . .” This provision is part of the Government
    Claims Act (Gov. Code, § 810 et seq.) and provides immunity to
    government entities under certain circumstances. It does not
    provide a blanket immunity to government entities under all
    circumstances, however. (De La Rosa v. City of San Bernardino
    (1971) 
    16 Cal. App. 3d 739
    , 746 [“although a public entity is not
    liable for failure to install traffic signs or signals . . . , when it
    undertakes to do so and invites public reliance upon them, it may
    be held liable for creating a dangerous condition in so doing”].)
    Moreover, defendant did not cite, nor have we located, any
    authority to extend this statutory immunity to a private entity
    alleged to have been negligent. To the contrary, a defendant that
    “is not a ‘public entity’ . . . is not entitled to claim the immunity
    set forth in the Tort Claims Act.” (Lawson v. Superior Court
    (2010) 
    180 Cal. App. 4th 1372
    , 1397 (Lawson).)
    Defendant’s reliance on 
    Chowdhury, supra
    , 
    38 Cal. App. 4th 1187
    is similarly flawed. Chowdhury involved a vehicle collision
    that occurred in an intersection when traffic signals were not
    functioning due to a power outage. The plaintiffs successfully
    sued the city on the theory it failed to correct a dangerous
    condition of public property. The Court of Appeal reversed.
    The sole defendant in Chowdhury was a public entity. The
    appellate panel first found the public property was not, by
    statute, in a dangerous condition (Gov. Code, § 830) and then
    applied the city’s statutory immunity under the Government
    Claims Act to reverse the judgment in the plaintiffs’ favor.
    (
    Chowdhury, supra
    , 38 Cal.App.4th at p. 1195.)
    20
    Chowdhury provides no assistance to defendant. As noted,
    the statutory immunities available to public entities do not
    extend to private entities that contract with them. 
    (Lawson, supra
    , 180 Cal.App.4th at p. 1397.) More to the point, however,
    Chowdhury was resolved on the basis of statutory immunity, not
    the legal question of duty. As our Supreme Court held in
    Davidson v. City of Westminster (1982) 
    32 Cal. 3d 197
    , “the
    question of the applicability of a statutory immunity does not
    even arise until it is determined that a defendant otherwise owes
    a duty of care to the plaintiff and thus would be liable in the
    absence of such immunity.” (Id. at pp. 201-222.)
    IV.    Conclusion
    “The existence of a duty of care is a question of law decided
    on a case-by-case basis.” (M.W. v. Panama Buena Vista Union
    School Dist. (2003) 
    110 Cal. App. 4th 508
    , 516.) Here, whether the
    duty question is analyzed under either Biakanja or section 324A
    criteria, defendant failed to establish as a matter of law the
    absence of a duty to plaintiffs. Defendant was not entitled to
    summary judgment.
    21
    DISPOSITION
    The judgment is reversed with directions to vacate the
    judgment in favor of defendant and enter a new order denying
    defendant’s motion for summary judgment. Plaintiffs are
    awarded their costs on appeal.
    CERTIFIED FOR PUBLICATION
    DUNNING, J.
    We concur:
    KRIEGLER, Acting P. J.
    BAKER, J.
         Judge of the Orange Superior Court, assigned by the Chief
    Justice pursuant to article VI, section 6 of the California
    Constitution.
    22