Rodriguez v. Colorado CA2/7 ( 2023 )

Filed 7/3/23 Rodriguez v. Colorado CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOHN RODRIGUEZ, B318828
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC665690)
v.
EMILIO COLORADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Peter A. Hernandez, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Tracy D.
Forbath and Philip N. Blanco for Defendant and Appellant.
Law Offices of Mauro Fiore, Jr., Mauro Fiore, Jr.,
Krystale L. Rosal; Law Offices of Lisa J. Jackson and Lisa J.
Jackson for Plaintiff and Respondent.
____________________________
John Rodriguez sued Emilio Colorado for the injuries
Rodriguez suffered when Colorado’s vehicle collided with
Rodriguez’s motorcycle. The jury found Colorado responsible for
100 percent of Rodriguez’s damages.
On appeal from the judgment in favor of Rodriguez,
Colorado contends the trial court erred in refusing to instruct the
jury concerning the liability of the public entities responsible for
the dangerous condition of the public property on which the
accident occurred. He also contends the trial court erred by
omitting the cities from the special verdict form, which precluded
the jury from determining the cities’ proportionate fault for
Rodriguez’s injuries. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Rodriguez’s Complaints, the Defendants’ Cross-
complaints and the Settlements
On June 20, 2017 Rodriguez filed a complaint (Los Angeles
Superior Court Case No. BC665690) against the City of
Irwindale, the California Department of Transportation
(Caltrans), the County of Los Angeles, Tony Lai and Doe
defendants.1 He alleged he was riding his motorcycle south on
Azusa Canyon Road and approaching the intersection with
Nubia Street when he was struck by a vehicle driven by Colorado,
who was turning from eastbound Nubia Street onto
Azusa Canyon Road. Rodriguez asserted the governmental
entities were liable for the dangerous condition of public
1 Rodriguez subsequently filed requests for dismissal of
Caltrans and the County of Los Angeles. We augment the record
on our own motion to include Rodriguez’s December 14, 2017
request for dismissal of Caltrans. (Cal. Rules of Court,
rule 8.155(a)(1)(A).)
2
property, the intersection. He specifically alleged the public
entities improperly failed to cut or trim the trees, shrubbery and
other vegetation to allow visibility; failed to restrict public
parking along the curbs at the intersection to allow for better
visibility for motorists entering the intersection; and failed to
provide adequate and proper warnings and signs (traffic signals,
flashing lights) about the intersection’s condition. He further
alleged that the entities knew motorists pulling out from
Nubia Street at the intersection with Azusa Canyon Road could
not see or judge the speed, distance or existence of traffic on
Azusa Canyon Road and that the dangerous conditions were
unknown to motorists using the roadway, creating a trap at the
intersection. As for Lai, Rodriguez alleged he was negligent in
maintaining his property, a lot on Nubia Street at the
intersection, and allowed vegetation in his yard to become so
overgrown that it obscured the vision of motorists, including
Colorado.
In November 2017 Rodriguez amended his June 2017
complaint by substituting the City of Baldwin Park for a Doe
defendant. In December 2017 Baldwin Park filed a cross-
complaint against Lai for contribution, equitable comparative
indemnity, total equitable indemnity and other causes of action.
Irwindale subsequently filed a cross-complaint alleging causes of
action that included contribution, partial equitable indemnity
and total equitable indemnity against Colorado and Lai; and Lai
filed a cross-complaint alleging causes of action that included
contribution and equitable indemnity against Irwindale, Baldwin
Park and Colorado.
In February 2018, in a separate action (Los Angeles
Superior Court Case No. BC693398), Rodriguez filed a complaint
3
against Colorado for negligence. Rodriguez alleged Colorado
negligently operated his vehicle, causing it to collide with
Rodriguez’s motorcycle. In July 2018 the trial court ordered
Rodriguez’s two cases consolidated. In August 2018 Colorado
filed a cross-complaint against Irwindale, Baldwin Park and Lai
for indemnity and contribution, alleging Rodriguez sustained
injuries as a result of the three cross-defendants’ negligence.
In 2020, after Rodriguez settled with Irwindale and Lai,
the trial court granted Irwindale’s and Lai’s motions for
determination of good faith settlement. Rodriguez filed requests
for dismissal with prejudice as to Lai and Irwindale. On August
23, 2021 Rodriguez filed a Judicial Council form notice of
settlement of entire case, with the words “of entire case” crossed
out. The notice stated a request for dismissal would be filed no
later than October 25, 2021 and included the words “Only as to
Defendant, City of Baldwin Park.”2 Baldwin Park moved for a
determination of good faith settlement on August 30, 2021. At
the September 7, 2021 final status conference Colorado’s counsel
said he did not oppose the good faith settlement motion, and the
trial court granted the motion. The court told Baldwin Park’s
counsel, without objection from any of the parties, that Baldwin
Park was no longer in the case and referred to Colorado as the
remaining defendant.3
2 We have omitted, where unnecessary, the capitalization of
letters, underlining, italics and bold font in documents quoted.
3 We augment the record on our own motion to include the
court’s September 7, 2021 order granting Baldwin Park’s motion
for good faith determination of settlement.
4
2. The Jury Trial
The jury trial against Colorado commenced on
September 9, 2021. In his testimony Rodriguez explained that on
June 9, 2016, the date of the accident, he was riding his
motorcycle south on Azusa Canyon Road, which had two lanes in
that direction; wearing a helmet; moving at the 40-mile-per-hour
speed limit; and traveling in the number one lane—the lane
closer to the center of the road—rather than the number two
lane, to avoid any car coming out of a driveway or street. He also
testified there were two large work vans parked on the curb of
Azusa Canyon Road and at the corner of the intersection with
Nubia Street. The parked vans—as well as a big tree with
overhanging branches on Lai’s property on the intersection’s
corner—blocked Rodriguez’s view of the intersection. Asked to
look at the red curb in a picture, he testified the cars had been
parked at that location but not all of the curb had been painted
red at the time of the accident.
Colorado testified he intended to make a left turn from
Nubia Street to travel north on Azusa Canyon Road. When he
reached the stop sign on Nubia Street at the intersection, he
noticed there was no stop sign or traffic light at the intersection
for Azusa Canyon Road. He checked the road for traffic, but
there were cars to the side, parked along the curb line, that
obstructed his view. He pulled forward, but still could only see a
little bit of the southbound traffic on Azusa Canyon Road.
Although he “couldn’t really see” and acknowledged it would have
been better to be certain the road was clear before starting a left
turn across the road’s southbound lanes, he decided to proceed
with the turn because he nevertheless thought it was safe.
5
Rodriguez’s medical expert provided testimony concerning
Rodriguez’s injuries. Rodriguez’s nephew testified regarding the
physical and mental effects of the accident on Rodriguez.
Finally, the parties played clips of the videotaped
deposition testimony of Felix Lee, an expert in accident
reconstruction retained by Rodriguez, and Ed Ruzak, a highway
engineer whom Rodriguez also hired to provide his expert
opinion. No witnesses from Irwindale or Baldwin Park were
called. The parties did not introduce into evidence any
photographs of the accident scene that may have been taken on,
or shortly after, the date of the collision.
a. Lee’s expert testimony
After he was retained by Rodriguez, Lee visited the scene of
the accident4 and took measurements and photographs, including
photographs using a drone, as part of his accident reconstruction
analysis. Lee explained he manipulated the drone photographs
by adding in “vehicles and whatnot” and, to create the general
background for his reconstruction, overlaid an image from Google
Earth from “around the . . . date of [the] incident” on stitched-
together drone photographs.
Lee opined that the presence of vehicles parked along the
northwest curb of Azusa Canyon Road obstructed the sight line
between Rodriguez and Colorado, leading to their collision. In
support of his opinion Lee testified the amount of time required
for a vehicle making a typical left turn to clear all the southbound
4 Lee testified he visited the scene of the June 2016 accident
on February 17th without indicating whether it was February 17,
2017, which would have been before Rodriguez filed his
complaint, or a date closer to the September 2021 trial.
6
lanes was five seconds. Taking into account those five seconds
and the 40-mile-per-hour speed limit, Lee calculated a driver at
the intersection would need 300 feet of visibility to make a safe
left-hand turn. Because of the presence of “the Astro van,”
however, Colorado would have had to move up to the number
two lane on Azusa Canyon Road to have visibility of 300 feet:5
Colorado only had 150 feet of visibility due to the parked vehicle.
Lee’s reconstruction, which took into account factors such as the
placement of “those two vans” and the assumed trajectory of a
probable left turn, showed Colorado was first able to see
Rodriguez’s motorcycle in the number one lane at 2.3 seconds
before impact. Given the typical perception-reaction time of
about 1.5 seconds, Lee believed that provided only eight-tenths of
a second to make a maneuver. By then, based on Lee’s
reconstruction, Colorado was only 45 feet from Rodriguez’s
motorcycle, and “you can’t really avoid the incident at that
position.”
The jury was shown Lee’s presentation slides of his sight
line analysis. The slides recreated Colorado’s vantage point, with
visual depictions of the parked vans, at varying seconds before
impact. Lee’s slides, including those recreating Colorado’s
vantage point at 2.3 seconds and 4 seconds before the collision,
showed a line of four vehicles, the first two of which were vans,
parked on a road perpendicular to the one marked Nubia Street.
The vans were shown parked close to the intersection, with a
hydrant on the corner nearest to the parked vans. Red curbing
around the hydrant was depicted extending down the road
5 Lee believed it was reasonable for a motorist attempting
Colorado’s maneuver who could not see enough of the road to inch
forward toward Azusa Canyon Road.
7
toward the vehicles and next to at least the parked vans. Lee’s
analysis did not take into consideration the foliage because,
although there was testimony describing it as hanging over the
curb and he knew the location of the tree, there were no
photographs of the foliage taken at the time of the incident.
Accordingly, he did not have enough information to accurately
represent it.
b. Ruzak’s expert testimony
Ruzak opined that Baldwin Park failed to take reasonable
measures to mitigate the sight line problem for traffic traveling
from Nubia Street onto Azusa Canyon Road. Ruzak explained,
because Nubia was a minor residential street coming onto a
major, wide arterial, it necessitated a sight distance in concert
with Caltrans/AASHTO6 guidelines “if they so choose to use
those.”7 Ruzak explained the sight lines “that were available”
with the cars parked “along the area that would be approximate
to the little bit of red curb I think that was there” were, as best as
he could ascertain, much shorter than recommended in the
guidelines. Using Lee’s opinion that there were only 150 feet of
visibility, a stopping sight distance of 300 feet and a corner sight
distance of 440 feet, Ruzak believed the sight lines were “woefully
6 Although not explained by Ruzak, AASHTO is the
American Association of State Highway and Transportation
Officials. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099,
1104.)
7 Ruzak based his opinion in part on Caltrans’s Highway
Design Manual, which sets forth intersection design standards
relating to sight distance; but he reiterated the standards were
not mandatory.
8
inadequate” and “the potential for a crash with someone coming
out of Nubia would be expected.”
In Ruzak’s opinion Baldwin Park failed to have sufficient
red curb or no parking or no stopping signage to provide adequate
sight distance on Nubia Street. In contrast, Baldwin Park “did
this particular curb no parking situation” at the Sandstone
intersection located just to the north on Azusa Canyon Road.
Sandstone was a small residential street with less activity than
Nubia.
Ruzak also testified Baldwin Park’s employees should have
evaluated the sight lines “at the time that they were supposed to
do a study for a stop sign.”8 As part of his response to a separate
question and in discussing the red curb painting on Azusa
Canyon Road, particularly Baldwin Park’s curb return, Ruzak
stated, “If they went out there and only painted 20 feet, did they
not see that they didn’t have enough sufficient [sight] for
someone coming out of Nubia to make the turn? I have no
information either way on that.”9
In addition, acknowledging he did not take measurements,
Ruzak testified the placement of Nubia Street’s stop limit line
forced a stop at a location that provided a driver looking to the
left with limited sight. He said perhaps moving the limit line up
8 In the excerpt of his deposition played for the jury, Ruzak
provided no context for the “study for a stop sign” that he
testified should have been done.
9 Although Ruzak indicated the curb, or some of it, on Azusa
Canyon Road was painted red after the accident, Ruzak, as
discussed, acknowledged there had been at least a “little bit of
red curb” at the time of the accident. He explained his opinion
related to “that red curb” not having been “extend[ed].”
9
to the curb line, which was on Baldwin Park’s road, would “assist
a little bit” with the sight line. Ruzak further stated he did not
know whether the intersection was properly designed; he did not
have the design or as-built plans, did not know who designed it
and could not “say anything about that.”
3. Jury Instruction Discussions
After the parties finished presenting their evidence,
Rodriguez’s counsel renewed a prior objection to having Baldwin
Park on the verdict form. The trial court stated it would address
the verdict form after discussions on the jury instructions.
During those discussions the court asked whether it should give
CACI No. 406 (Apportionment of Responsibility).10 Rodriguez’s
counsel argued there was no evidence to establish liability for a
dangerous condition of public property or to overcome qualified
immunity for a dangerous intersection. Colorado’s counsel
contended there was evidence of fault by Baldwin Park,
Irwindale and Lai. Colorado’s attorney pointed out that Ruzak
testified Baldwin Park was responsible for the curb line where
the cars were obstructing the view and also testified both
10 The proposed jury instructions included CACI No. 406, as
well as CACI Nos. 1100-1104, 1120-1124. As proposed, CACI
No. 406 provided in part, “[[Name of defendant] claims that the
[negligence/fault] of [insert name(s) or description(s) of nonparty
tortfeasor(s)] [also] contributed to [name of plaintiff]’s harm.]
[¶] . . . [¶] If you find that the [negligence/fault] of more than one
person including [name of defendant] [and] [[name of plaintiff]/
[and] [name(s) or description(s) of nonparty tortfeasor(s)]] was a
substantial factor in causing [name of plaintiff]’s harm, you must
then decide how much responsibility each has by assigning
percentages of responsibility to each person listed on the verdict
form. The percentages must total 100 percent.”
10
Irwindale and Baldwin Park had responsibility for the
intersection. Although the court believed there was insufficient
evidence of Irwindale’s liability, it stated it would, at a minimum,
provide the instruction as to Lai and would consider whether
Baldwin Park should also be included.
The court later inquired whether, if it was going to instruct
the jury with CACI No. 406 for Baldwin Park, it would have to
give any other instruction. Colorado’s counsel responded the
court would have to give CACI No. 1100 (Dangerous Condition on
Public Property—Essential Factual Elements (Gov. Code,
§ 835)11). Discussing the elements of a claim for dangerous
condition of public property, the court stated it did not believe the
negligent or wrongful conduct of Baldwin Park’s employee
created a dangerous condition. Turning to notice of the
dangerous condition, the court initially asked, “What evidence is
there that they knew or had notice of it for a long time?”
Subsequently, however, the court clarified that “[t]he question is
with regards to that prong, that Baldwin Park had notice of the
dangerous condition for a . . . long enough time to have protected
against it,” and explained it did not see what evidence supported
that prong. After additional argument from counsel,12 the court
stated it was not in a position to include Baldwin Park on CACI
No. 406 but would provide an opportunity to persuade it
11 Statutory references are to this code unless otherwise
stated.
12 During oral argument Colorado’s counsel told the court the
intersection’s curb had been painted both before and after the
accident and that the exhibits showed the curb was painted
before the incident. Colorado’s counsel also earlier acknowledged
there was no evidence regarding the design of the intersection.
11
otherwise the next day. It also stated it was not, at that point,
going to provide the CACI No. 1100 series of jury instructions.
4. Colorado’s Bench Brief and Further Jury Instruction
Discussions
On September 16, 2021 Colorado filed a bench brief in
support of his position that Baldwin Park should be included on
the verdict form. Arguing there was sufficient evidence of
constructive notice to Baldwin Park to allow Colorado to
apportion fault to the city, he summarized the evidence at trial
that he asserted supported a CACI No. 1100 instruction.
Colorado pointed out both Lee and Ruzak testified there were
inadequate sight lines for the intersection. He also emphasized
Ruzak testified Baldwin Park could have improved the sight lines
by painting the curb red. Colorado argued “the condition at the
intersection, by inference, must have existed for at least months
prior to the accident” and a refusal to instruct the jury with CACI
No. 1100 would be to effectively grant a motion for nonsuit as to
his affirmative defense of Baldwin Park’s comparative fault.
That same day the court continued its discussions about
jury instructions with Rodriguez’s and Colorado’s counsel. The
court said it had reviewed Colorado’s bench brief and found
sufficient evidence to show the existence of a dangerous
condition, but no evidence that the notice component had been
satisfied, explaining, “There isn’t any specific time frame that
you’ve established that would provide the requisite notice for
Baldwin Park.” The court also stated, “[T]here isn’t anything in
this record to suggest that prior to the accident there was some
inference or direct knowledge by the City of Baldwin Park that it
knew or had a dangerous condition on its hand.” When
Colorado’s counsel replied, “The test isn’t whether it knew. The
12
test is whether it knew or should have known,” the court
responded, “Right. Inference. That’s what I’m saying. Either
way, you certainly don’t have the direct. But even in the
inferring, I just don’t see it.” After further argument of counsel,
the court stated its intent to adopt its tentative ruling and not to
edit the verdict form to add Baldwin Park or give the CACI
No. 1100 series of jury instructions. It again explained, “My only
concern and where I’m kind of focusing my ruling on is . . . with
regards to this notice provision. There’s nothing in this
particular record to suggest that . . . an obvious danger existed
for an adequate period of time before the accident to have
permitted Baldwin Park in their exercise of due care to discover
and remedy whatever the situation was. In this case, the [sight]
lines.”
5. The Verdict and the Judgment
On September 17, 2021 the jury returned its verdict,
finding Colorado negligent and neither Rodriguez nor Lai
negligent. It determined Rodriguez’s damages totaled $865,000,
of which $750,000 was for noneconomic loss. On January 6, 2022
the court entered a judgment in the amount of $816,000 against
Colorado and in favor of Rodriguez.13
13 The parties do not explain the apparent discrepancy
between the jury’s verdict and the court’s judgment. Rodriguez
neither appealed the court’s judgment nor argued it should be
corrected.
13
DISCUSSION
1. The Court Did Not Err in Rejecting the CACI No. 1100
Series of Jury Instructions
a. Governing law and standard of review
Section 835 provides, unless exempted 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: [¶] (a) 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) 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.”
For purposes of section 835, subdivision (b), a public entity
had constructive notice of a dangerous condition “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.” (§ 835.2, subd. (b);
see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 842
(Carson) [“‘[c]onstructive notice may be imputed if it can be shown
that an obvious danger existed for an adequate period of time
before the accident to have permitted the [public entity], in the
exercise of due care, to discover and remedy the situation’”].)
Subdivision (b) of section 835.2 continues, in part: “On the issue
of due care, admissible evidence includes but is not limited to
14
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 . . . to inform the
public entity whether the property was safe.”
The Legislature has defined “dangerous condition” as “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.” (§ 830,
subd. (a).) “The fact that action was taken after an injury
occurred to protect against a condition of public property is not
evidence that the public property was in a dangerous condition at
the time of the injury.” (§ 830.5.)
A party in a civil case is, upon request, entitled to correct
jury instructions on every theory of the case supported by
substantial evidence. (Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 572; Olive v. General Nutrition Centers, Inc. (2018)
30 Cal.App.5th 804, 813.) We review the record de novo to
determine whether any substantial evidence supported giving a
refused jury instruction. (Evans v. Hood Corp. (2016)
5 Cal.App.5th 1022, 1045; Davis v. Honeywell Internat. Inc. (2016)
245 Cal.App.4th 477, 495.) “A judgment may not be reversed for
instructional error in a civil case ‘unless, after an examination of
the entire cause, including the evidence, the court shall be of the
opinion that the error complained of has resulted in a miscarriage
of justice.’” (Soule, at p. 580.)
15
b. There was insufficient evidence the cities had
constructive notice of a dangerous condition of public
property14
Colorado contends the trial court committed reversible
error by refusing to give the CACI No. 1100 series of jury
instructions on the dangerous condition of public property
doctrine, which is based on section 835 and related statutory
provisions, because substantial evidence supported that theory of
the cities’ liability. Citing Carson, supra, 36 Cal.3d at page 842,
he also contends the trial court, misconstruing what constituted
constructive notice for purposes of the doctrine, erred in requiring
a public entity to have known or be on notice of the dangerous
condition “for a long time” rather than that “‘an obvious danger
existed for an adequate period of time before the accident to have
permitted the [public entity], in the exercise of due care, to
discover and remedy the situation.’”
Although the trial court initially asked the parties’ counsel
what evidence showed the cities knew or had notice of the
dangerous condition for a long time, it is clear the court
ultimately based its ruling on the standard for constructive notice
articulated in Carson, supra, 36 Cal.3d 830. In any event,
Colorado fails to show the court erred in rejecting his request for
the CACI No. 1100 series of jury instructions because he fails to
show there was substantial evidence of the cities’ constructive
notice to establish liability for a dangerous condition of public
14 Colorado does not argue that there was liability under
subdivision (a) of section 835 (public entity employee’s negligent
or wrongful act or omission that created the dangerous condition),
nor does he argue the cities had actual notice of a dangerous
condition.
16
property. In particular, there was insufficient evidence of the
duration of the dangerous condition—the inadequate sight lines
at the intersection of Nubia Street and Azusa Canyon Road due
primarily to the large van(s) parked close to the intersection
corner—prior to the accident to allow a jury to find the cities
could have, with due care, discovered and remedied the
dangerous situation. For example, no evidence established how
long, if ever, before the accident Baldwin Park or Irwindale had
allowed legal parking where the van(s) obstructing the sight lines
were located; nor was there any evidence, if the van(s) were
parked illegally, that either Baldwin Park or Irwindale should
have known of illegal parking in a manner creating inadequate
sight lines at the intersection. (See generally Strongman v. Kern
County (1967) 255 Cal.App.2d 308 [affirming judgment of nonsuit
that was granted on the ground plaintiff failed to establish the
county had notice of the dangerous condition, a missing plank in
a wooden ramp, for any period of time before the accident]; see
also, e.g., Kotronakis v. City & County of San Francisco (1961)
192 Cal.App.2d 624, 629-630 [reversing verdict and judgment
against the City and County of San Francisco because there was
insufficient evidence the city had constructive notice of the
presence of vomit on which plaintiff slipped; “there is a total lack
of evidence that the particular vomit on which respondent slipped
had been there longer than over night”]; Cheyney v. City of Los
Angeles (1953) 119 Cal.App.2d 75, 77 [affirming order granting a
motion for nonsuit in part because there was no evidence as to
how long the alleged dangerous or defective condition of a
stairway at a city-supervised beach had existed].)
Colorado argues there was substantial evidence from which
a jury could reasonably infer constructive notice, pointing to
17
Ruzak’s testimony that Baldwin Park painted a red “no parking”
curb on Azusa Canyon Road where it intersects with Sandstone,
a less busy street than, and located immediately to the north of,
Nubia. He contends the jury could reasonably infer from that
testimony the cities had been patrolling the area and thus were
aware of the traffic patterns and sight lines at the intersections
along that stretch of Azusa Canyon Road. In support Colorado
quotes subdivision (b)(1) of section 835.2, which provides for the
admissibility of evidence as to “[w]hether the existence of the
condition and its dangerous character would have been
discovered by an inspection system.” Ruzak’s testimony,
Colorado asserts, showed the cities could have discovered and
remedied the dangerous condition had they performed a
reasonable inspection of the Nubia intersection.
Contrary to Colorado’s argument, however, section 835.2,
subdivision (b)(1), provides for the admissibility of evidence
regarding a reasonably adequate inspection system “[o]n the
issue of due care.” That statutory provision does not fill in the
evidentiary gap as to the length of time the dangerous condition
existed. Colorado fails to identify sufficient evidence in the
record that speaks to that essential element of a claim of public
entity liability. (See, e.g., State of California v. Superior Court of
San Mateo County (1968) 263 Cal.App.2d 396, 400 [“In the instant
case, it can be validly argued that there was a triable issue on the
question of inspection, but in determining whether there is
constructive notice, the method of inspection has been held to be
secondary. The primary and indispensable element of
constructive notice is a showing that the obvious condition existed
a sufficient period of time before the accident”]; cf. CACI No. 1011
[“If an inspection was not made within a reasonable time before
18
the accident, this may show that the condition existed long
enough so that [a store/[a/an] [insert other commercial enterprise]]
owner using reasonable care would have discovered it”].)15 As for
Ruzak’s testimony that someone had painted a red curb along the
stretch of road where the accident occurred at some time after the
accident, the testimony not only fails to show how long the
dangerous condition existed before the accident, but also does not
constitute evidence the public property was in a dangerous
condition at the time of Rodriguez’s injury. (See § 830.5.)
Colorado also argues Lee’s sight line analysis and visual
presentation slides “demonstrate the obvious danger,” and that
the dangerous condition of the intersection was also readily
apparent to other witnesses who testified about the intersection.
Colorado, however, must not only establish the dangerous
condition was of “an obvious nature” under section 835.2,
subdivision (b), but also how long the dangerous condition existed
before the accident. As discussed, he failed to do so. (See Heskel
v. City of San Diego (2014) 227 Cal.App.4th 313, 320 [“A claim for
constructive notice has two threshold elements. [Citation.] A
plaintiff must establish that the dangerous condition has existed
for a sufficient period of time and that the dangerous condition
15 Although Ruzak explained his belief Baldwin Park’s
employees should have evaluated the sight lines at the time they
were supposed to do a study for a stop sign, he did not indicate
when a study was, or should have been, performed. He also did
not state when the curb on Azusa Canyon Road at the Sandstone
intersection was painted red. Moreover, as Rodriguez points out,
and Colorado does not dispute, there was no evidence of prior
accidents at the Nubia Street and Azusa Canyon Road
intersection or evidence of complaints made to the cities of a
dangerous condition at that intersection prior to the accident.
19
was obvious”]; State of California v. Superior Court of San Mateo
County, supra, 263 Cal.App.2d at p. 401 [“‘[w]hile both the
notoriety of the condition [citation] and the length of time it must
have existed [citation] are normally questions of fact which are to
be resolved by the jury, if the evidence as to either of these
elements is insufficient as a matter of law the jury’s verdict
cannot stand,’” italics omitted].)
The cases on which Colorado relies do not compel a contrary
conclusion. In each of those cases, there was the evidence that
was missing here—evidence of how long the dangerous condition
existed, which thus permitted a finding of constructive notice.
(See Carson, supra, 36 Cal.3d at pp. 841, 843-844 [City had
constructive knowledge of an intersection’s allegedly dangerous
condition created by a sign obstructing the view; the sign, which
was located next to the intersection for seven months prior to the
accident, “was visible from a public roadway for many months”];
Erfurt v. State of California (1983) 141 Cal.App.3d 837, 844
[“While the particular dangerous condition in this case existed
only 20 some days of the year, it had been in existence for over
10 years, since the construction of the highway in 1966. Under
such circumstances the jury could reasonably find constructive
notice of the dangerous condition”]; Straughter v State of
California (1976) 89 Cal.App.3d 102, 104-110 [icy conditions on
highway’s eastbound lanes on mountain pass causing a series of
multivehicle collisions; the State was required to engage in
continuous inspection, temperature monitoring and application of
abrasives whenever icing appeared imminent, as the evidence
showed was the case; notwithstanding claims by the State’s
witnesses of no ice in the eastbound, as opposed to westbound,
lanes before the 7 a.m. accident, the jury could rely on expert
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testimony concerning the probability of gradual ice formation on
the pass’s eastern face shortly after 3 a.m., before the accident];
Anderson v. City of Thousand Oaks (1976) 65 Cal.App.3d 82, 91-
92 [in a case where a dangerous condition was created by the
absence of a speed zone for a new roadway curve with a design
speed of 45 miles per hour that was designed, constructed and
maintained by the City of Thousand Oaks, it was “undisputed
that the new roadway existed without a speed zone from the time
it was first opened to traffic until the accident occurred
approximately six weeks later”].)
To reiterate, here there was insufficient evidence how long
the inadequate sight lines at the Nubia Street and Azusa Canyon
Road intersection had existed prior to the accident. The trial
court did not err in refusing to instruct on Colorado’s theory of
proportionate liability against the cities.
2. The Court Did Not Err in Rejecting Colorado’s Request
To List the Cities on the Special Verdict Form16
Civil Code section 1431.2, subdivision (a), provides the
liability of a defendant for noneconomic damages in a personal
16 “A special verdict is ‘fatally defective’ if it does not allow the
jury to resolve every controverted issue.” (Saxena v. Goffney
(2008) 159 Cal.App.4th 316, 325; accord, Trejo v. Johnson &
Johnson (2017) 13 Cal.App.5th 110, 136; Taylor v. Nabors
Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1240.) “‘We
analyze the special verdict form de novo’” (Rodriguez v. Parivar,
Inc. (2022) 83 Cal.App.5th 739, 751; see also McCoy v. Gustafson
(2009) 180 Cal.App.4th 56, 91 [“a special verdict’s correctness is
analyzed as a matter of law and therefore subject to de novo
review”]) and review the adequacy of the special verdict form for
prejudicial error (Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 872).
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injury action “shall be several only and shall not be joint,” with
each defendant “liable only for the amount of non-economic
damages allocated to that defendant in direct proportion to that
defendant’s percentage of fault” and “a separate judgment . . .
rendered against that defendant for that amount.” As Colorado
points out, the Supreme Court in DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 603 explained “[t]he only reasonable
construction of [Civil Code] section 1431.2 is that a ‘defendant[’s]’
liability for noneconomic damages cannot exceed his or her
proportionate share of fault as compared with all fault
responsible for the plaintiff’s injuries, not merely that of
‘defendant[s]’ present in the lawsuit.” Similarly the court of
appeal in Vollaro v. Lispi (2014) 224 Cal.App.4th 93 explained
“an injured plaintiff bears the entire risk of loss for any unpaid
noneconomic damages attributable to a tortfeasor who has not
been sued or is statutorily immune.” (Id. at p. 100.)
“‘“Nonparties” include the universe of tortfeasors who are not
present at trial, including defendants who settled before trial and
nonjoined alleged tortfeasors.’” (Id. at p. 100, fn. 5.)
Emphasizing that the jury awarded $750,000 in
noneconomic damages solely against him, Colorado argues the
trial court compounded its error in failing to instruct on Baldwin
Park’s and Irwindale’s responsibility for the dangerous condition
of the Nubia Street-Azusa Canyon Road intersection by refusing
to add the cities to the special verdict form, which listed only
Rodriguez, Colorado and Lai for purposes of the jury’s
comparative fault findings. But “in order to apportion liability
for noneconomic damages there must be evidence of fault, not
just causation.” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 368;
see, e.g., Blevin v. Coastal Surgical Institute (2015)
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232 Cal.App.4th 1321, 1329 [“‘[u]nless there is substantial
evidence that an individual is at fault . . . , there can be no
apportionment of damages to that individual’”; “[t]he burden is on
the defendant to prove that a nonparty tortfeasor was at fault”].)
As discussed, there was insufficient evidence of constructive
notice for a jury to have found the cities liable for a dangerous
condition of public property. Colorado does not on appeal explain
how a jury could have found the cities at fault on any other basis.
It was not error to omit the cities from the special verdict form.
DISPOSITION
The judgment is affirmed. Rodriguez is to recover his costs
on appeal.
PERLUSS, P. J.
We concur:
FEUER, J.
ESCALANTE, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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