Watts v. City of L.A. CA2/4 ( 2021 )

Filed 12/15/21 Watts v. City of L.A. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ROBERT JEFFREY WATTS, B296338
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC583821)
v.
CITY OF LOS ANGELES,
Defendant and Appellant.
APPEALS from a judgment and order of the Superior
Court of Los Angeles County, Mark A. Borenstein, Judge.
Affirmed in part and dismissed in part.
Abir Cohen Treyzon Salo, Boris Treyzon and Cynthia
Goodman; Esner, Chang & Boyer, Holly N. Boyer, Shea S.
Murphy and Kevin K. Nguyen for Plaintiff and Appellant
Robert Jeffrey Watts.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Deputy City Attorney, Scott Marcus, Blithe S. Bock
and Jonathan H. Eisenman, Deputy City Attorneys for
Defendant and Appellant City of Los Angeles.
________________________________________________
INTRODUCTION
In 2014, appellant Robert Jeffrey Watts was cycling on
the shoulder of Pacific Coast Highway (PCH), within the
jurisdiction of respondent the City of Los Angeles (the City).
When he reached a point at which the shoulder was blocked
by landslide material, Watts entered the adjacent driving
lane, was struck by a vehicle, and suffered severe injuries.
Watts sued the State (which owned PCH and later settled
with him) and the City, asserting dangerous condition of
public property under Government Code sections 830 and
835.1 He did not sue the driver who struck him.
At trial, to establish the City’s control of the road, as
required under sections 830 and 835, Watts relied on a
maintenance agreement between the City and the
Department of Transportation (Caltrans), which required
the City to sweep litter and debris off the relevant portion of
1 Undesignated statutory references are to the Government
Code.
2
the road. The parties later submitted a written stipulation
to the court that the shoulder of the road was covered by the
“toe of the landslide” at the time of the incident.2 After some
modifications, the stipulation was read to the jury: the
“ground immediately under the toe of the [landslide] was
covered by the toe at the time of the incident.” Following
trial, a jury found for Watts and determined that he suffered
over $9 million in damages, assigning the City 60 percent of
the fault, and none to the driver.
The City then moved in the alternative for (1)
judgment notwithstanding the verdict (JNOV), arguing it
had no control over the road as a matter of law, and (2) a
new trial, arguing the evidence did not support the jury’s
failure to assign fault to the driver. The trial court denied
the City’s motion for a new trial, but granted JNOV, finding
that the City had no control over the road. The court
reasoned that (1) under the parties’ stipulation, the toe of
the landslide covered the shoulder, (2) the City was required
only to sweep the road, and (3) sweeping could not have
cleared the toe of the landslide.
Watts appealed the trial court’s grant of JNOV. On
appeal, he argues, inter alia, that the court misconstrued the
stipulation between the parties, that the evidence supports a
finding that the shoulder was blocked by sweepable debris,
and that even if the toe of the landslide blocked the shoulder,
2 As described below, the “toe of the landslide” was defined at
trial as “where the landslide encounters the ground surface.”
3
the City had control of the road. The City filed a protective
cross-appeal, challenging the trial court’s denial of its
alternative motion for a new trial.
We agree with the trial court’s analysis and conclusion
that the City did not control the road as a matter of law, and
thus cannot be held liable for its dangerous condition.
Accordingly, we affirm the trial court’s judgment. Given this
disposition, we dismiss the City’s protective cross-appeal as
moot.
BACKGROUND
A. The Accident and Watts’s Complaint
In July 2014, Watts was cycling on the northbound
right shoulder of PCH in Los Angeles, between Sunset
Boulevard and Porto Marina Way. Just south of Porto
Marina Way, the shoulder was blocked by a landslide from
the adjacent hillside, known as the Tramonto Landslide.3
Upon reaching the blocked area, Watts entered the adjacent
driving lane, where he was immediately struck by a vehicle
driven by Matt Dymond, causing him to fall and sustain
significant injuries, including permanent brain damage.
Watts subsequently sued the State, which owned PCH,
and the City, asserting a single cause of action for dangerous
3 According to testimony at trial, the Tramonto Landslide
had been active since at least 1936.
4
condition of public property.4 He did not sue Dymond.
Before the case went to trial, Watts and the State settled.
B. The Trial
1. Watts’s Theory of Liability
As explained below, a public entity can be liable only
for a dangerous condition of its property. (§ 835.) And
property of a public entity is property the entity owns or
controls. (§ 830, subd. (c).)
At trial, Watts sought to establish that the City
controlled the relevant portion of PCH for purposes of his
claim, by presenting a maintenance agreement between the
City and Caltrans, effective in January 2005. The
maintenance agreement delegated to the City the task of
sweeping “litter and debris” on that stretch of PCH. Under
the agreement, the City was to sweep the road with a street
sweeper no less than once a month.5 Watts attempted to
4 Under section 835, a public entity may be liable for injuries
caused by a dangerous condition of its property if either (1) an
employee of the entity created the dangerous condition through a
negligent or wrongful act or omission, or (2) the entity had notice
of the dangerous condition with enough time before the injury to
have taken measures to protect against the dangerous condition.
(§ 835.)
5 Under the maintenance agreement, the City’s sweeping
frequency would increase if pollution discharge standards
required it, but no evidence regarding those standards or
whether they required additional sweeping was presented at
trial.
5
show that despite having notice of the landslide and despite
its duty and authority to sweep the roadway, the City failed
to remedy the dangerous condition by properly sweeping the
shoulder of PCH.6
2. Trial Testimony
Dymond, the driver whose vehicle struck Watts,
described the accident at trial. He recalled telling police that
the collision occurred “right where the shoulder is gone, right
where the mountain meets the lane.” Dymond returned to
the site of the accident within days to take photos. The
photos, which were entered into evidence, appeared to show
the landslide covering the shoulder of PCH. We include one
of these photos for reference:
6 Watts also sought to show that the City failed to take
various actions on the hillside above the highway to stop the
movement of the landslide. However, the trial court ultimately
precluded him from submitting this theory to the jury. Watts
does not challenge this ruling. We thus detail only the evidence
relevant to the issues on appeal.
6
Retired City engineering-geologist Robert Hancock
testified that he evaluated the Tramonto Landslide as part
of his job. Hancock stated that “during periods of heavy
rainfall, the landslide started to move, and it moved down
onto the shoulder of Pacific Coast Highway” and “Caltrans
crews came through, picked up the debris, and moved it off
as the debris came down onto the shoulder.” During the
trial, the parties and multiple witnesses frequently referred
to the “toe of the landslide.” In response to a question by the
City’s counsel, Hancock defined the “toe of the landslide” as
“where the landslide encounters the ground surface.” When
7
asked how a toe could be removed, he explained that clearing
a toe would require “something on the order of like a front-
end loader or a piece of machinery with a large bucket,”
which would then “load it into dump trucks.” A sweeper
could not perform the task.
Caltrans engineering-geologist Gustavo Ortega
testified that “debris” or “material” from the landslide had
encroached onto the roadway. He noted that in 2005,
Caltrans maintenance crews had to “constantly” clean
around the landslide because of the abundant rainfall that
year. He stated that Caltrans crews “spend a lot of time
shaving the toe of the slide.”
Clarence Young and Langston Phillips, two of the
City’s sweeper operators, testified about their work and the
sweepers’ capabilities. Young confirmed that a sweeper can
remove “small portions of rock and sand and debris,” but
testified it could not pick up anything larger than a baseball.
During Phillips’s testimony, Watts’s counsel showed him the
following photo of the Tramonto Landslide on the shoulder of
PCH in 2010, four years before the accident:
8
Counsel then asked Phillips how far the sweeper’s brushes
would “go through” in the photo. Phillips replied that the
brushes would go “[o]n the outskirts of the toe,” which
counsel then described as “this brown area.” Phillips ,
however, said that whether the sweeper could actually clean
that area “depends on what it is”: “It’s not going to just pick
up just anything. . . . I wouldn’t know unless I was there
personally to know whether it was loose or permanent.”
Edward Ruzak, Watts’s traffic-engineering expert,
opined that the blockage of the shoulder constituted a
dangerous condition. He further opined that assuming there
was “pretty much always” debris on the shoulder of the road,
the City did not adequately sweep it. He testified that the
City’s maintenance “failed to clear the shoulder and keep it
clear for the bicyclists. . . .” In response to questioning,
Ruzak confirmed that “the encroachment on PCH is the toe
of the Tramonto Slide” and that “the toe completely covers
9
the shoulder.”7 He testified that a sweeper could not clean
up the shoulder, and that “something like a bulldozer or a
grader” would be necessary.
3. The Parties’ Stipulations
The evidence at trial established that the City’s
responsibility to sweep the roadway extended to any paved
portion. During the trial, the parties submitted two written
stipulations to the court: (1) “the ground immediately under
the toe of the Tramonto Landslide (‘shoulder’), where the
subject incident occurred[,] was at the time of the incident[]
paved with asphalt . . . ”; and (2) “said shoulder was covered
by the toe at the time of the incident, where the subject
incident occurred.” The parties later read out the first
written stipulation to the jury, stating, “[T]he ground
immediately under the toe of the Tramonto Landslide, the
shoulder where the subject incident occurred, was at the
time of the incident paved with asphalt . . . .”
Toward the end of trial, the court sought to ensure that
the parties agreed on the written stipulations before
delivering them to the jury, together with the jury
instructions. At that time, the City’s counsel objected to the
phrase “where the subject incident occurred,” noting
uncertainty as to the precise point of impact. The court later
7 After the City cited this testimony in its brief, with an
accurate citation to the record, Watts wrongly asserted in his
reply brief that Ruzak never gave this testimony.
10
advised the jury of the following two stipulations: “[1.] [T]he
ground immediately under the toe of the Tramonto
Landslide was, at the time of the incident, paved with
asphalt . . . . [¶] 2. Said ground immediately under the toe of
the Tramonto Slide was covered by the toe at the time of the
incident.”
C. The Jury Instructions and the Verdict
At the close of trial, the court instructed the jury on the
elements of Watts’s claim for a dangerous condition of public
property.8 Among other things, the jury was instructed
under CACI No. 1100, that for Watts to prevail, it had to
find that the City “owned or controlled the property” (though
it was undisputed that the City did not own PCH). The jury
was further instructed under CACI No. 1101, that in
deciding whether the City controlled the property, it was to
consider whether the City “had the power to prevent, fix or
guard against the dangerous condition.”
Following deliberations, the jury returned a verdict for
Watts, including a special verdict finding that the City
“own[ed] or control[led]” the property. The jury determined
that Watts suffered over $9,000,000 in damages, assigning
8 The jury was instructed only on Watts’s theory that the
City had sufficient notice of the dangerous condition before the
injury. The jury was not asked to determine whether a City
employee’s negligent or wrongful conduct created the dangerous
condition. Watts does not challenge the court’s instructions on
appeal.
11
the City 60 percent of the fault for his harm, with the
remaining 40 percent assigned to the State (which had
already settled with Watts), and none to Watts or Dymond.
D. The City’s Post-Judgment Motions
Following the verdict, the City filed alternative
motions for JNOV and a new trial. The City’s new trial
motion challenged the jury’s failure to apportion any fault to
Dymond. The trial court denied this motion.
In its motion for JNOV, the City argued that it lacked
control of PCH’s shoulder as a matter of law. It contended
that its contractual duty to sweep in the area was
insufficient to support the jury’s finding, given that it could
not have swept away the toe of the landslide. Watts opposed
the City’s motion, arguing that it was sweepable
“accumulated debris” that blocked the shoulder of PCH and
constituted the dangerous condition, rather than the toe of
the landslide. In its reply, the City argued that Watts’s
position contravened the parties’ stipulation at trial that it
was the toe of the landslide that covered the shoulder.
At a hearing on the City’s motion, Watts’s counsel
asserted it was sweepable “trash debris” that caused Watts
to enter the traffic lane. The court then asked counsel, “So
what do you do with your stipulation that it was the toe of
the slide?” Counsel replied that the jury had heard “no
definition for the word ‘toe,’” but the court disagreed. In
response to questions by the court regarding the
maintenance agreement, Watts’s counsel conceded that it
12
required the City only to sweep the roadway, and that the
City had no authority, for example, to “put up orange cones
on PCH and block the area of the [landslide] in order to get a
bulldozer in there to remove the debris.”
After the hearing, the trial court issued an order
granting the City’s motion for JNOV, concluding that the
City did not control the shoulder of PCH as a matter of law.
It explained that the parties had stipulated that “the
‘shoulder was covered by the toe’” of the landslide (quoting
the parties’ written stipulation), that the maintenance
agreement required the city only to sweep litter and debris,
and that sweeping could not have cleared the toe of the
landslide.9 Watts timely appealed from the court’s judgment
in favor of the City.10
9 The court determined that the interpretation of the
maintenance agreement was a judicial task, reasoning that
neither party claimed its language was ambiguous or sought to
introduce extrinsic evidence regarding its meaning. Consulting
dictionary definitions of the word “debris,” among other
interpretive aids, the court concluded this term referred to
“‘something discarded such as rubbish . . . ,’” and could not have
referred to the toe of the landslide.
10 As noted, the City filed a protective cross-appeal,
challenging the trial court’s denial of its alternative motion for a
new trial, but our affirmance of the judgment renders the City’s
cross-appeal moot.
13
DISCUSSION
Watts challenges the trial court’s grant of JNOV for
the City, contending the court erred in holding that as a
matter of law, the City did not control the shoulder of PCH
for purposes of Watts’s dangerous condition claim. Among
other things, he claims that the court misconstrued the
parties’ stipulation to find that the toe of the landslide
completely covered the shoulder. He further claims this
finding did not preclude the verdict because the jury could
have found that the City’s failure to sweep properly in the
years before the accident caused the toe to cover the
shoulder.
As explained below, we agree with the trial court’s
analysis and conclusion that the City lacked control over the
roadway as a matter of law. Because control was a
necessary element of Watts’s claim, the jury’s verdict for him
could not stand.
A. Legal Principles
1. JNOV
In reviewing a JNOV, we apply the same standard the
trial court applied in ruling on the motion, “determining
whether it appears from the record, viewed most favorably to
the party securing the verdict, that any substantial evidence
supports the verdict.” (Trujillo v. North County Transit Dist.
(1998) 63 Cal.App.4th 280, 284.) “Substantial evidence is
evidence that is ‘of ponderable legal significance’, ‘reasonable
14
in nature, credible, and of solid value’ . . . .”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.)
Speculation and conjecture do not constitute substantial
evidence. (Roddenberry v. Roddenberry (1996) 44
Cal.App.4th 634, 651.) We review the trial court’s resolution
of legal questions de novo. (McCoy v. Pacific Maritime Assn.
(2013) 216 Cal.App.4th 283, 302.)
2. Stipulations and Contractual
Interpretation
As noted, the trial court’s ruling relied on a stipulation
between the parties. A stipulation to the existence of a fact
conclusively establishes that fact. (See Palmer v. City of
Long Beach (1948) 33 Cal.2d 134, 141-142 (Palmer) [unless
trial court permits party to withdraw from stipulation, “it is
conclusive upon the parties, and the truth of the facts
contained therein cannot be contradicted”]; Bigler-Engler v.
Breg, Inc. (2017) 7 Cal.App.5th 276, 308 (Bigler-Engler) [jury
was not free to disregard parties’ stipulation].) Courts
interpret stipulations under the ordinary rules of contractual
interpretation. (Dowling v. Farmers Ins. Exchange (2012)
208 Cal.App.4th 685, 694.) “‘The fundamental goal of
contractual interpretation is to give effect to the mutual
intention of the parties.’” (State of California v. Continental
Ins. Co. (2012) 55 Cal.4th 186, 195 (Continental).) “‘If
contractual language is clear and explicit, it governs.’”
(Ibid.) “The whole of a contract is to be taken together, so as
to give effect to every part, if reasonably practicable, each
15
clause helping to interpret the other.” (Civ. Code, § 1641.)
Generally, “contract interpretation is an issue of law, which
we review de novo . . . .” (DFS Group, L.P. v. County of San
Mateo (2019) 31 Cal.App.5th 1059, 1079.)
3. Dangerous Condition Liability
Section 835 sets out conditions under which a public
entity will be liable for an injury caused by a dangerous
condition of “its property.”11 (Ibid.) Under section 830,
property of a public entity is property “owned or controlled
by the public entity . . . .” (§ 830, subd. (c).) As relevant to
Watts’s theory at trial, “control exists if the public entity has
the ‘power to prevent, remedy or guard against the
dangerous condition.’” (Goddard v. Department of Fish &
Wildlife (2015) 243 Cal.App.4th 350, 364 (Goddard); accord,
Avey v. County of Santa Clara (1968) 257 Cal.App.2d 708,
712 [“‘a city cannot be liable for a dangerous or defective
condition of a public street or highway unless it has
11 The statutory conditions are: (1) “that the property was in
a dangerous condition at the time of the injury,” (2) “that the
injury was proximately caused by the dangerous condition,”
(3) “that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred,” and
(4) either (a) that “[a] negligent or wrongful act or omission of an
employee of the public entity within the scope of his employment
created the dangerous condition,” or (b) that “[t]he public entity
had actual or constructive notice of the dangerous condition” with
“sufficient time prior to the injury to have taken measures to
protect against the dangerous condition.” (§ 835.)
16
authority to remedy the condition’”], quoting Gillespie v. City
of Los Angeles (1950) 36 Cal.2d 553, 556.)
B. Analysis
Like the trial court, we conclude the City did not
control the shoulder of PCH for purposes of Watts’s claim:
(1) the parties stipulated at trial that the toe of the landslide
covered the shoulder, and it was this blockage of the
shoulder, according to Watts, that constituted a dangerous
condition; and (2) the City could not have remedied this
dangerous condition because sweeping -- the only task the
maintenance agreement authorized the City to perform on
the roadway -- could not have cleared or diminished the toe.
Watts’s alternative theory on appeal -- that the City’s failure
to sweep properly in the years before the accident caused the
toe to cover the shoulder -- is unsupported.
1. The Parties Stipulated That the Toe of the
Landslide Covered the Shoulder, and the
City Could Not Have Cleared the Toe
Through Sweeping
As noted, the jury heard two relevant stipulations by
the parties. First, the parties stipulated that “the ground
immediately under the toe of the Tramonto Landslide, the
shoulder where the subject incident occurred, was at the
time of the incident paved with asphalt . . . .” This
stipulation therefore equated “the ground immediately
under the toe” of the landslide to the relevant portion of the
17
shoulder of PCH. The subsequent iteration of this
stipulation omitted the clause, “the shoulder where the
subject incident occurred,” but the jury was not instructed to
disregard the earlier iteration.12
Second, and more important, the parties stipulated,
“Said ground immediately under the toe of the Tramonto
Slide was covered by the toe at the time of the incident.”
Read in the context of the first stipulation, this second
stipulation established that “the shoulder” of the roadway
“was covered by the toe at the time of the incident.” The
language of the stipulation was thus clear and express, and
it conclusively established that the toe of the landslide
covered the shoulder of the road. (See Palmer, supra, 33
Cal.2d at 141-142; Bigler-Engler, supra, 7 Cal.App.5th at
308; Continental, supra, 55 Cal.4th at 195.)
The circumstances surrounding the parties’ stipulation
support this straightforward interpretation. The parties’
written stipulations, submitted to the trial court, stated
simply that the “shoulder was covered by the toe at the time
of the incident . . . .” This stipulation was also entirely
consistent with the undisputed evidence presented to the
jury. The photos Dymond took after the accident appeared
to show the shoulder of PCH covered by the landslide itself,
rather than by small and detached debris. Dymond testified
12 As noted, the City’s counsel objected to this clause because
of uncertainty regarding the point of impact. Nothing suggests
counsel objected to equating the “ground immediately under the
toe” with the shoulder.
18
he told police that the collision occurred “where the shoulder
is gone, right where the mountain meets the lane,”
indicating that the mass of the landslide reached all the way
to the driving lane. Watts’s own expert, Ruzak, confirmed in
response to questioning that “the toe completely cover[ed]
the shoulder.”
In discussing the stipulation at the hearing on the
City’s motion for JNOV, Watts’s counsel never disagreed
with the trial court’s reading of the stipulation as
establishing that the toe covered the shoulder; rather,
counsel asserted that no testimony defined the term “toe.”
(See City of Hope National Medical Center v. Genentech, Inc.
(2008) 43 Cal.4th 375, 393 [party’s conduct following
execution of contract may reveal parties’ understanding and
intent].) In fact, the City elicited uncontradicted testimony
by Hancock, a former engineering-geologist with the City,
defining the “toe of the landslide” as “where the landslide
encounters the ground surface,” and explaining that clearing
a toe would require a front-end loader or other heavy
machinery, rather than a sweeper. Ruzak, too, stated that a
sweeper could not clean up the toe, and that something like
a bulldozer or grader would be required for the task.
In his opening brief, Watts fails to address this second
stipulation, notwithstanding that the trial court expressly
relied on it in granting JNOV for the City. Indeed, he fails
to mention it. Instead, he points to the first stipulation,
concerning the paving of the shoulder with asphalt, as if that
were the stipulation on which the trial court relied. Not
19
until his reply brief does Watts acknowledge the second
stipulation and belatedly attempt to argue that it did not
establish that the toe of the landslide covered the shoulder.
By failing to note and discuss the second stipulation in his
opening brief, Watts has forfeited his contentions regarding
its meaning. (Cf. Pizarro v. Reynoso (2017) 10 Cal.App.5th
172, 183 [opening brief’s “disregard for the facts as found by
the trial court . . . results in a forfeiture of arguments on
appeal”].)
Moreover, forfeiture aside, Watts’s contentions are
unpersuasive. First, Watts contends the language of the
stipulation -- that the “ground immediately under the toe of
the Tramonto Slide was covered by the toe” -- is
“inscrutable,” and he suggests we disregard it: “Given the
vast amounts of statements that are made by the parties and
the court during a trial, and specifically a relatively long and
complex trial such as this one, sometimes things that are
said on the record are redundant, mistranscribed, or simply
make no sense.” According to Watts, to the extent the
second stipulation had any purpose, it was to reinforce that
the shoulder of PCH was paved with asphalt and thus within
the scope of the City’s responsibility to sweep under the
maintenance agreement.
But as discussed, the second stipulation had a clear
meaning, supported by both the parties’ written submission
to the trial court and the evidence at trial. It was neither
mistranscribed nor senseless. Watts’s proposed reading of
the second stipulation -- that it established only that the
20
shoulder was paved with asphalt -- would indeed render it
redundant in light of the first stipulation, which stated just
that. Yet interpreting this language as redundant would be
contrary to governing principles of contractual
interpretation. (See Civ. Code, § 1641.) Watts offers no
textual basis for his proposed interpretation, and we find
none.
Second, Watts notes that the City did not rely on the
second stipulation to argue that it lacked control over the
road until its reply brief in moving for JNOV. However,
regardless of the City’s conduct after the parties’ stipulation,
the language of the stipulation is unambiguous and
therefore controls. (See Continental, supra, 55 Cal.4th at
195.) And as explained, Watts’s own trial counsel did not
challenge the trial court’s reading of the stipulation below.
Third, Watts asserts that an attorney may not impair
the client’s substantial rights through a stipulation without
the client’s specific authorization, and he contends that the
trial court’s reading of the second stipulation essentially
resolved the core factual issue in the case, amounting to an
“impermissible agreement to dismiss [his] claim.” However,
Watts did not argue below -- nor does he expressly contend
in his reply brief on appeal -- that his counsel acted without
authorization in entering the stipulation. His apparent
claim of counsel’s lack of authority to enter the stipulation is
therefore subject to a second layer of forfeiture. (See Dumas
v. Los Angeles County Bd. of Supervisors (2020) 45
Cal.App.5th 348, 357 [argument not raised below is
21
forfeited].) That Watts and his counsel may not have
appreciated the significance of the stipulation does not mean
it was made without authorization.
Fourth, Watts claims that even if read to establish that
the toe of the landslide covered the shoulder, the stipulation
is irrelevant, because it did not establish “the precise
meaning of the term ‘Toe’ . . . , where it ended[,] and where
sweepable debris began.” While acknowledging Hancock’s
definition of the “toe,” Watts asserts this testimony “did not
define where on the roadway the toe ended.” But whatever
gap remained in the evidence as to the full extent of the toe,
the stipulation, as well as the other evidence recounted
above, established that it at least covered the shoulder.
It is undisputed that the maintenance agreement
obligated and empowered the City only to sweep the
roadway; the City was neither required nor authorized to
use heavy machinery, or even, as Watts’s counsel conceded,
to “put up orange cones on PCH and block the area of the
[landslide],” in order to remove or reduce the size of the toe.
It is likewise undisputed that the City could not have swept
away the toe of the landslide, as both Hancock and Ruzak
testified at trial that more than sweeping would have been
required. Indeed, according to Caltrans engineering-
geologist Ortega, it was Caltrans who, over the years,
worked to suppress the toe’s expansion by “shaving” it,
indicating it was Caltrans’s responsibility to confine the toe,
rather than the City’s. Given the parties’ stipulation that
the toe covered the shoulder, given that this covering of the
22
shoulder is what constituted the dangerous condition
according to Watts, and given that the City was powerless to
prevent or remedy this condition at the time of the injury,
the trial court correctly concluded that the City did not
control the shoulder as a matter of law.13 (See Goddard,
supra, 243 Cal.App.4th at 364.) Absent the City’s ownership
or control of the road, the road was not the City’s property
under sections 830 and 835, and the City thus could not be
held liable for its dangerous condition. (See §§ 830, 835.)
2. Watts’s Alternative Theory That the City
Could Have Contained the Landslide in
the Years Before the Accident Is
Unsupported
Pointing to the 2010 photo of PCH, which showed the
toe of the landslide only partially covering the shoulder,
Watts argues the jury could have concluded that the City’s
“repeated failures to sweep the debris in years prior” was
what caused the toe to overtake the shoulder by the time of
his accident, in 2014. He claims the jury could have found
that the City previously had the power to prevent or guard
against the dangerous condition. We disagree, as there was
no evidence at trial that timely removal of any sweepable
13 In light of our conclusions, we need not address Watts’s
additional contentions regarding the meaning of the term
“debris” in the maintenance agreement and whether the
interpretation of the agreement was a task for the court or the
jury.
23
debris would have prevented the toe from overtaking the
shoulder.14
Watts offered no evidence that the landslide advanced
onto the roadway through the gradual accumulation of
sweepable debris, rather than through the movement of soil
and large debris that could not have been swept away. No
expert, nor even a lay witness, supported a link between the
City’s alleged failure to properly sweep removable debris
from the shoulder and the toe’s growth. Speculation and
conjecture that better sweeping would have prevented the
toe from covering the shoulder are insufficient. (See
Roddenberry v. Roddenberry, supra, 44 Cal.App.4th at 651.)
14 We also question whether Watts’s theory is legally sound.
(See Tolan v. State of California ex rel. Dept. of Transportation
(1979) 100 Cal.App.3d 980, 983 [to be liable, “the public entity
must be . . . in control of the property at the time of the injury”
(italics added)]; id. at 982-984 [State was not liable for injury on
street over which it relinquished ownership and control three
years before injury, even though dangerous condition existed at
that time]; Knight v. City of Capitola (1992) 4 Cal.App.4th 918,
924-925, 932-933, disapproved on another ground by Reid v.
Google, Inc. (2010) 50 Cal.4th 512 [claim against county had no
basis in law, where plaintiff suffered injuries at beach the county
did not control at that time, notwithstanding plaintiff’s theory
that county had created dangerous condition by participating in
beach’s reconstruction years earlier]; Goddard, supra, 243
Cal.App.4th at 366 [agency’s actions on dam remnant in 1974,
which arguably led to creation of dangerous condition, did not
support agency’s control of the property at time of decedent’s
drowning in 2009].) We need not decide this issue, however,
given our conclusion that this theory is factually unsupported.
24
Watts points to testimony that the landslide would
periodically deposit debris onto the shoulder of PCH. But
none of this testimony established this was the kind of
debris the City could have swept up. For instance, Hancock
stated that “during periods of heavy rainfall, the landslide
started to move, and it moved down onto the shoulder of
Pacific Coast Highway” and “Caltrans crews came through,
picked up the debris, and moved it off as the debris came
down onto the shoulder.” At no point did Hancock describe
the size or makeup of the debris, and his description of
Caltrans’s clearing of the debris suggested it was not done
through sweeping. Similarly, Ortega, a Caltrans
engineering-geologist, acknowledged that “debris” or
“material” from the landslide had encroached onto the
roadway. But he, too, did not describe the size or makeup of
the debris. Ortega also noted that in 2005, when Caltrans’s
maintenance agreement with the City was already in effect,
Caltrans maintenance crews had to clean “constantly”
around the landslide because of the abundance of rain that
year. He further stated that Caltrans crews “spend a lot of
time shaving the toe of the slide.” Ortega’s testimony that
Caltrans, rather than the City, was laboring to contain the
landslide suggested that it could not be done through
sweeping, which would have been the City’s responsibility
under the maintenance agreement.
Watts also misconstrues the testimony of Phillips, one
of the City’s sweeper operators, claiming that when shown
the 2010 photo, Phillips testified that the sweeper would be
25
able to “sweep to the ‘outskirts of the toe’ and pointed to the
‘brown area’ in the picture.” In fact, Phillips testified that
the sweeper’s brushes could reach the outskirts of the toe,
but explained that he could not say whether the “brown
area” counsel referred to was something the sweeper could
sweep up, without seeing it in person and determining
whether it was loose material. Finally, Watts points to
Ruzak’s opinion testimony that the City “failed to clear the
shoulder and keep it clear for the bicyclists.” Yet this
conclusory testimony by Ruzak, a traffic engineer, neither
explained the progression of the landslide nor linked it to
any action or omission by the City. In short, Watts offered
no evidence that better sweeping by the City would have
prevented the toe of the landslide from blocking the shoulder
of PCH. Accordingly, Watts’s alternative theory fails to
support the City’s control of the shoulder at the time of the
accident.
26
DISPOSITION
The judgment is affirmed. The City’s cross-appeal is
dismissed as moot. The City is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
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