Nubani v. County of Los Angeles CA2/2

Filed 6/5/14 Nubani v. County of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO
BECKER H. NUBANI, Individually and as B246929
Successor in Interest, etc. et al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. Nos. MC022349 &
MC022360)
v.
COUNTY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County. Brian C.
Yep, Judge. Affirmed.
Steven B. Stevens and Joseph Martin Barrett, for Plaintiff and Appellants.
Collins Collins Muir & Stewart, Samuel J. Muir, Melinda W. Ebelhar, Christie
Bodnar Swiss, Kevin J. Engelien, Erin I. Reed and David B. Shapiro, for Defendant and
Respondent.
******
The trial court granted summary judgment in favor of defendant and respondent
the County of Los Angeles (County) on the complaints filed by plaintiffs and appellants
Becker H. and Basimah Nubani, individually and as successor in interest to Stephen
Nubani; Jose de Jesus and Angie Alvarez, individually and as successor in interest to
Araceli Alvarez; Michael Jernigan and Bettina Wong, individually and as successor in
interest to Rylan Jernigan; Julio Cesar and Sylvia Chunga, individually and as successor
in interest to Cesar Chunga; and Kirk Eugene Pitts. The complaint stemmed from a
traffic accident that occurred when Stephen Nubani failed to stop at a stop sign and
collided with another vehicle. Appellants alleged that the County should be held liable
because the intersection was a dangerous condition of public property. The trial court
ruled the undisputed evidence established the intersection was not a dangerous condition
as a matter of law.
We affirm. The County met its burden to show appellants could not establish the
intersection was a dangerous condition of public property at the time of the collision.
FACTUAL AND PROCEDURAL BACKGROUND
The Accident.
70th Street East and Avenue N are straight, two-lane, undivided roadways that
intersect in Palmdale (intersection). Since 1962, a two-way stop sign has required
vehicles traveling on 70th Street East to stop at the intersection; there is no stop sign for
vehicles traveling on Avenue N. There is an overhead streetlight at the northwest corner
of the intersection and, approximately 700 feet south of the intersection, a “stop ahead”
sign and corresponding “stop ahead” roadway marking notify motorists on 70th Street
East as they approach the intersection and stop sign. Though the limit line and “stop”
painted on the pavement at the intersection were visible and in “acceptable condition,”
they were faint and their retroreflective qualities had dissipated by September 2009. In
2005, the County added a “cross traffic does not stop” sign on the same pole as the stop
sign, but it was missing in photographs of the intersection taken in September 2009.
2
On September 26, 2009, at approximately 10:15 p.m., Stephen Nubani was driving
northbound on 70th Street East with three passengers in his vehicle. After he failed to
stop at the stop sign at the intersection, his vehicle collided with the vehicle driven by
appellant Kirk Pitts, who had been traveling eastbound on Avenue N (accident). Nubani
and all passengers suffered fatal injuries, and Pitts suffered physical injuries. That night,
the weather was clear, the stop sign and the “stop ahead” sign were unobstructed, and the
streetlight at the intersection was functioning.
There were no skid marks on 70th Street East or any other indication that Nubani
had attempted to stop at the intersection The driver of a vehicle following Nubani did not
see brake lights on Nubani’s vehicle until it was in the middle of the intersection, at about
the moment of the accident. Officers concluded that Nubani’s failure to stop at the stop
sign was the cause of the accident.
It is the County’s policy and practice to refresh pavement markings every 18
months. County records showed that, in accordance with this policy, the limit line and
stop markings on the pavement at the intersection were repainted approximately one year
prior to September 2009. The County’s road maintenance division was also responsible
for conducting monthly street inspections, which included checking for pavement
markings, damaged or missing critical signs and vegetative overgrowth causing sight-line
impairment. No report of any damaged or missing sign, and no report of any pavement
marking needing attention or overgrown vegetation were made during the County’s
September or October 2009 inspection of the intersection. More specifically, the
County’s road maintenance division performed an inspection of the intersection on
September 18, 2009, and the inspection yielded no report indicating that the intersection
was in a deficient condition. Pursuant to a prior June 2009 work order, the intersection
was repaved in October 2009 and new pavement markings were drawn at that time.
In the five years preceding the accident, there had been a total of 11 collisions at
the intersection—one involving a fatality and six involving injuries. Five of those
collisions involved vehicles traveling northbound on 70th Street East and eastbound on
Avenue N. On the basis of records from the California Department of Transportation
3
concerning traffic levels, the 11 collisions represent a collision rate of 1.05 per million;
the statewide average collision rate at rural intersections governed by a two-way stop is
0.33 per million.
Pleadings and Summary Judgment.
Appellants filed two separate complaints against the County, with Pitts filing his
own complaint and the parents of Nubani and his passengers filing another, and the
actions were consolidated.1 The complaints generally alleged that the intersection
presented a dangerous condition of public property because it “lacked proper signage,
warnings, lighting, limit lines and sight lines,” and motorists were unable to see each
other approaching due to overgrown vegetation. More specifically, appellants alleged a
dangerous condition was created by the failure to install a four-way stop at the
intersection, an inadequate “stop ahead” sign, faded and worn limit lines, and obstructive
vegetative overgrowth. They further alleged that the County knew or should have known
of the dangerous condition and that such condition was the proximate cause of the
accident. The County answered, generally denying the allegations and asserting multiple
affirmative defenses.
The County moved for summary judgment under alternative theories, asserting
that the undisputed evidence established there was no dangerous condition within the
meaning of Government Code2 section 835; even if there were a triable issue as to
dangerous condition, the County further asserted it was entitled to immunity as a matter
of law under sections 830.2, 830.4, 830.6 and/or 830.8, and that any dangerous condition
was not the proximate cause of the accident. In support of the motion it submitted
declarations from a County road maintenance engineer, an expert civil and traffic
engineer, County Department of Public Works engineers; reports from those engineers;
multiple deposition excerpts; and an accident report.
1 Appellants also named the City of Los Angeles as a defendant but there is no
indication in the record that it has ever appeared in the action.
2 Unless otherwise indicated, all further statutory references are to the Government
Code.
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Appellants opposed the motion. They argued there were triable issues of fact
concerning the existence of a dangerous condition and regarding the application of
statutory immunity. More specifically, they argued the intersection’s traffic control
devices were inadequate; the limit line and “stop” markings on the pavement preceding
the stop sign had significantly degraded; and a “cross traffic does not stop” sign was
missing from the intersection. In view of these deficiencies, they asserted that the
proximate cause of the accident was a question of fact. They further argued that these
deficiencies resulted from the County’s inadequate inspection and maintenance. They
also offered evidence designed to show the intersection had a higher traffic collision rate
than similar intersections. Appellants submitted deposition excerpts; accident reports;
declarations from a forensic consultant, a forensic engineer and a civil engineer; and a
copy of the California Manual on Uniform Traffic Control Devices (CMUTCD). In
addition, they filed evidentiary objections to portions of the declarations offered by the
County.
The County replied, asserting that appellants’ evidence failed to raise a triable
issue regarding dangerous condition, immunity or causation. It emphasized that the
pavement markings and sign appellants contended were missing and/or inadequate were
supplemental rather than mandatory, and thus their omission failed to create a dangerous
condition or overcome immunity. It also submitted portions of the CMUTCD and
additional deposition excerpts. The County filed evidentiary objections and responded to
appellants’ objections.
Following an August 2012 hearing, the trial court took the matter under
submission and subsequently issued a minute order granting the motion. Specifying the
evidence in the County’s separate statement of undisputed facts, it ruled there was no
triable issue of fact concerning the dangerous condition allegations. It did not rule on the
evidentiary objections. Judgment was entered in favor of the County and this appeal
followed.
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DISUCSSION
Appellants maintain there were triable issues of fact as to whether the intersection
constituted a dangerous condition, whether the County was entitled to statutory immunity
and whether the condition of the intersection was a substantial factor in causing the
accident. We conclude the County met its burden to show it was entitled to judgment as
a matter of law.
I. Summary Judgment Principles and Standard of Review.
A defendant moving for summary judgment “bears the burden of persuasion that
there is no triable issue of material fact and that [it] is entitled to judgment as a matter of
law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) To meet this
burden, the defendant must show one or more elements of the cause of action cannot be
established, or that there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850; Ochoa v. Pacific
Gas & Electric Co. (1998) 61 Cal. App. 4th 1480, 1485.) Once the moving party’s burden
is met, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of
material fact. (Silva v. Lucky Stores, Inc. (1998) 65 Cal. App. 4th 256, 261; Sanchez v.
Swinerton & Walberg Co. (1996) 47 Cal. App. 4th 1461, 1465.)
“‘In order to avert summary judgment the plaintiff must produce substantial
responsive evidence sufficient to establish the existence of a triable issue of material fact
on the issues raised by the plaintiff’s causes of action.’ [Citation.]” (Leek v. Cooper
(2011) 194 Cal. App. 4th 399, 417.) The plaintiff may not rely upon the mere allegations
or denials of its pleadings to show the existence of a triable issue of fact; rather, “[t]here
is a triable issue of material fact if, and only if, the evidence would allow a reasonable
trier of fact to find the underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof. . . .” (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 850, fn. omitted; see also Code Civ. Proc., § 437c, subd. (o)(2).)
Moreover, “[a] party cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence raising a triable
issue of fact. [Citation.]” (LaChapelle v. Toyota Motor Credit Corp. (2002) 102
6
Cal. App. 4th 977, 981; accord, Sanchez v. Swinerton & Walberg Co., supra, 47
Cal.App.4th at p. 1466 [“An ‘assertion . . . based solely on conjecture and speculation’ is
insufficient to avoid summary judgment”].)
We review a grant of summary judgment de novo, “considering ‘all of the
evidence set forth in the [supporting and opposition] papers, except that to which
objections have been made and sustained by the court, and all [uncontradicted] inferences
reasonably deducible from the evidence.’ [Citation.]” (Artiglio v. Corning, Inc. (1998)
18 Cal. 4th 604, 612.) “In independently reviewing a motion for summary judgment, we
apply the same three-step analysis used by the superior court. We identify the issues
framed by the pleadings, determine whether the moving party has negated the opponent’s
claims, and determine whether the opposition has demonstrated the existence of a triable,
material factual issue.” (Silva v. Lucky Stores, Inc., supra, 65 Cal.App.4th at p. 261.)
“On review of a summary judgment, the appellant has the burden of showing error, even
if he did not bear the burden in the trial court. [Citation.]” (Claudio v. Regents of
University of California (2005) 134 Cal. App. 4th 224, 230.)
“We will affirm an order granting summary judgment . . . if it is correct on any
ground that the parties had an adequate opportunity to address in the trial court,
regardless of the trial court’s stated reasons. [Citations.]” (Securitas Security Services
USA, Inc. v. Superior Court (2011) 197 Cal. App. 4th 115, 120; see also Jackson v. Ryder
Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1836 [“If summary judgment was
properly granted on any ground, we must affirm regardless of whether the court’s
reasoning was correct”].)
II. The Trial Court Properly Granted Summary Judgment.
A. Liability for a Dangerous Condition is Governed by Statute.
A governmental entity is not liable for an injury unless liability is specifically
permitted by a statute. (§ 815.) Section 835 provides that a public entity may be held
liable for a dangerous condition of public property under certain circumstances. (See
Metcalf v. County of San Joaquin (2008) 42 Cal. 4th 1121, 1126; Cornette v. Department
of Transportation (2001) 26 Cal. 4th 63, 68.) To establish such liability, a plaintiff must
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prove 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.” (§ 835.)
“‘Dangerous condition’ is statutorily defined 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.’ (Gov. Code, § 830, subd. (a).) Thus, to
sufficiently prove a ‘dangerous condition’ within the meaning of section 830, a plaintiff
must establish that the condition of the public property created a substantial risk of injury
when ‘used with due care’ in a foreseeable manner.” (Fredette v. City of Long Beach
(1986) 187 Cal. App. 3d 122, 130, italics and fn. omitted.) Stated another way, “[a]ny
property can be dangerous if used in a sufficiently abnormal manner; a public entity is
required only to make its property safe for reasonably foreseeable careful use.
[Citation.]” (Matthews v. City of Cerritos (1992) 2 Cal. App. 4th 1380, 1384.)
Whether a given set of facts and circumstances creates a dangerous condition is
frequently a question of fact, but it may be resolved as a question of law if reasonable
minds can come to but one conclusion. (§ 830.2; Peterson v. San Francisco Community
College Dist. (1984) 36 Cal. 3d 799, 810; Cerna v. City of Oakland (2008) 161
Cal. App. 4th 1340, 1347.) “Section 830.2 . . . sets forth the criteria for a court to conclude
as a matter of law that a condition is not dangerous within the meaning of section 830:
‘A condition is not a dangerous condition within the meaning of this chapter if the trial or
appellate court, viewing the evidence most favorably to the plaintiff, determines as a
matter of law that the risk created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances that no reasonable person
8
would conclude that the condition created a substantial risk of injury when such property
or adjacent property was used with due care in a manner in which it was reasonably
foreseeable that it would be used.’” (Peterson v. San Francisco Community College
Dist., supra, 36 Cal.3d at p. 810, fn. 6.) “‘[I]t is for the court to determine whether, as a
matter of law, a given defect is not dangerous. This is to guarantee that cities do not
become insurers against the injuries arising from trivial defects.’ [Citation.]” (Davis v.
City of Pasadena (1996) 42 Cal. App. 4th 701, 704.)
B. The Undisputed Evidence Established the Intersection Did Not Create a
Substantial Risk of Injury When Used with Due Care.
“‘[A] claim alleging a dangerous condition may not rely on generalized allegations
[citation] but must specify in what manner the condition constituted a dangerous
condition.’ [Citation.] A plaintiff’s allegations, and ultimately the evidence, must
establish a physical deficiency in the property itself. [Citations.] A dangerous condition
exists when public property ‘is physically damaged, deteriorated, or defective in such a
way as to foreseeably endanger those using the property itself,’ or possesses physical
characteristics in its design, location, features or relationship to its surroundings that
endanger users. [Citation.]” (Cerna v. City of Oakland, supra, 161 Cal.App.4th at pp.
1347-1348.)
Here, appellants alleged the intersection was a dangerous condition because it
lacked proper safety measures and warnings. They alleged the absence of a four-way
stop sign and fully reflective stop and limit line pavement markings, an inadequate “stop
ahead” sign, a missing “cross traffic does not stop” sign and vegetative overgrowth
contributed to the intersection’s dangerousness.
In support of its summary judgment motion, the County offered undisputed
evidence establishing the intersection was controlled by a stop sign, a “stop ahead” sign
and accompanying “stop ahead” roadway marking were approximately 700 feet south of
the intersection, a functioning streetlight illuminated the intersection, there were no
obstructions to the stop sign’s visibility at the time of the accident, and drivers stopped at
the stop sign had clear sight lines to oncoming traffic. The evidence further established
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that the pavement markings had been repainted approximately one year before the
accident, and a County inspection eight days before the accident did not generate a report
indicating that any aspect of the intersection was deficient. The evidence showed that
between 2005 and 2010, approximately 5,000,000 cars entered the intersection, and five
similar collisions involving northbound motorists on 70th Street East and eastbound
motorists on Avenue N occurred.
We conclude the County met its threshold burden to negate an essential element
necessary to show the intersection was a dangerous condition as defined by statute—
namely, it established the intersection did not create a substantial risk of injury when used
with due care in a reasonably foreseeable manner. (§ 830, subd. (a); see also § 830.2;
Antenor v. City of Los Angeles (1985) 174 Cal. App. 3d 477, 481 [in order to permit a jury
to find a condition is dangerous, there must be “‘evidence from which a reasonable
person could conclude that a substantial, as opposed to a possible, risk is involved’”].)
Evidence of appropriate signage and lighting, as well as clear sight lines, was akin to that
offered in other cases finding a public entity met its burden to show there was no
dangerous condition as a matter of law. (E.g., Mixon v. State (2012) 207 Cal. App. 4th
124, 131-132 [intersection where pedestrians were struck that was at the end of state
route and beginning of a street not a dangerous condition as a matter of law, as warning
signs preceded the intersection and there were white crosswalk markings on the
pavement]; Salas v. California Dept. of Transp. (2011) 198 Cal. App. 4th 1058, 1070-1071
[intersection where pedestrian was struck not a dangerous condition as a matter of law,
given evidence showing marking, signage and clear sight lines]; Cerna v. City of
Oakland, supra, 161 Cal.App.4th at pp. 1351-1352 [intersection where pedestrians struck
not a dangerous condition as a matter of law, as the additional features the plaintiffs
claimed the intersection should have contained were of a minor, trivial or insignificant
nature].) The County established that there was no substantial risk of injury when
motorists exercised due care at the intersection in a reasonably foreseeable manner. (§
830, subd. (a).) As we recognized in Chowdhury v. City of Los Angeles (1995) 38
Cal. App. 4th 1187, 1196, “any property can be dangerous if used in a sufficiently
10
improper manner. For this reason, a public entity is only required to provide roads that
are safe for reasonably foreseeable careful use. [Citation.]” We expressly determined in
Chowdhury it is not foreseeable that “a motorist will recklessly disobey traffic laws and
speed through an intersection . . . .” (Id. at p. 1195; accord, Sun v. City of Oakland
(2008) 166 Cal. App. 4th 1177, 1190 [“the only risk of harm was from a motorist who
failed to exercise due care by not obeying the Vehicle Code provisions”]; Fuller v. State
of California (1975) 51 Cal. App. 3d 926, 940 [“‘a public entity should not be liable for
injuries resulting from the use of a highway—safe for use at 65—at 90 miles an hour,
even though it may be foreseeable that persons will drive that fast’”].)3
We agree with the trial court that appellants failed to raise a triable issue of fact as
to whether the intersection created a substantial risk of injury when used with due care in
a foreseeable manner. (See Davis v. City of Pasadena, supra, 42 Cal.App.4th at p. 705
[“the fact that a witness can be found to opine that such a condition constitutes a
significant risk and a dangerous condition does not eliminate this court's statutory task,
3 We find no merit to appellants’ argument that the County improperly relied on
Nubani’s failure to stop at the stop sign as a means of showing the intersection was not
dangerous. We acknowledge that “[s]o long as a plaintiff-user can establish a condition
of the property creates a substantial risk to any foreseeable user of the public property
who uses it with due care, he has successfully alleged the existence of a dangerous
condition regardless of his personal lack of due care.” (Alexander v. State of California
ex rel. Dept. of Transportation (1984) 159 Cal. App. 3d 890, 901.) Nonetheless, Nubani’s
conduct is relevant to emphasize that the County’s liability for a dangerous condition is
limited to those foreseeable users who exercise due care. As explained in Schonfeldt v.
State of California (1998) 61 Cal. App. 4th 1462, 1466: “‘A condition is not dangerous
within the meaning of this chapter unless it creates a hazard to those who foreseeably will
use the property or adjacent property with due care. Thus, even though it is foreseeable
that persons may use public property without due care, a public entity may not be held
liable for failing to take precautions to protect such persons.’ [Citation.] ‘[A]ny property
can be dangerous if used in a sufficiently abnormal manner.’ [Citation.] A public entity
is required only to make its property safe for ‘reasonably foreseeable careful use.’
[Citation.]” Any extension of this principle would result in public entities becoming the
insurers of motorists using public streets. (Mittenhuber v. City of Redondo Beach (1983)
142 Cal. App. 3d 1, 6.)
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pursuant to section 830.2, of independently evaluating the circumstances”].) On
summary judgment, appellants abandoned their allegations that the lack of a four-way
stop and the presence of vegetative overgrowth rendered the intersection dangerous, and
instead focused on evidence that the “cross-traffic does not stop” sign was missing, the
limit line and “stop” pavement markings were faded, and the accident rate was higher
than the statewide average for similar intersections. These features—either alone or in
combination—did not create a triable issue.
First, appellants’ evidence showed that after a 2005 collision, the County installed
a yellow and black “cross-traffic does not stop” sign on the stop sign pole on 70th Street
East—a sign that is not a mandatory traffic control device. Photographs of the
intersection showed that the sign was missing at or about the time of the accident.
Appellants argue that, without this sign, motorists had inadequate information reinforcing
the need to stop at the stop sign. A similar argument was rejected in Cerna v. City of
Oakland, supra, 161 Cal.App.4th at pages 1350 to 1351, where the plaintiffs contended a
crosswalk near a school was dangerous because it was painted white instead of yellow.
As the court aptly noted, “drivers of vehicles are required to yield the right-of-way to
pedestrians in any marked crosswalk, “‘whether they are painted white or yellow.’” (Id.
at p. 1351.) Likewise, a motorist is required to stop at a stop sign, regardless of whether
he or she is aware that cross traffic does not stop. Thus, the omission of a “cross traffic
does not stop” sign “was ‘of such a minor, trivial or insignificant nature in view of the
surrounding circumstances that no person would conclude that the condition created a
substantial risk of injury.’ [Citation.]” (Ibid.; accord, Belcher v. City and County of San
Francisco (1945) 69 Cal. App. 2d 457, 463 [“liability is not to be fastened upon a
municipality merely because it may appear that certain property, in nowise dangerous
either in its construction or intended use, could possibly be made safer by other means”].)
We find no similarity between the lack of a “cross traffic does not stop” sign and
the circumstances in the two cases relied on by appellants. In Morris v. State of
California (1979) 89 Cal. App. 3d 962, 964, the defendant motorist drove through an
unrepaired median barrier and collided with the plaintiffs’ vehicle on the opposite side of
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the freeway. The appellate court held that the plaintiffs alleged a viable dangerous
condition claim, explaining that the unrepaired median barrier was located on a high
speed, high traffic freeway, and “[i]ts obvious function was to protect motorists on the
freeway from the intrusion into their lanes of vehicles crossing the median out of control
whether by reason of mechanical or tire failures or other causes unrelated to negligence
or by reason of the negligence of their drivers and owners.” (Id. at p. 965.) Though
appellants argue the same reasoning applies to a “cross traffic does not stop” sign, they
offered no evidence to show that the presence of such a sign could or would have
physically prevented Nubani from entering the intersection. Given the absence of
evidence regarding why Nubani failed to stop, the statement from appellants’ forensic
consultant Jason Droll, Ph.D., that “the presence of additional signage . . . would have
increased a driver’s likelihood of perceiving and complying with the requirement to stop”
was nothing more than speculation. (See generally McGonnell v. Kaiser Gypsum Co.,
Inc. (2002) 98 Cal. App. 4th 1098, 1106 [“An expert’s speculations do not rise to the status
of contradictory evidence, and a court is not bound by expert opinion that is speculative
or conjectural”]; accord, Thompson v. Sacramento City Unified School Dist. (2003) 107
Cal. App. 4th 1352, 1371 [“an expert’s speculative and conjectural conclusion that
different measures might have prevented an injury cannot be relied upon to establish
causation”].)
In the second case relied on by appellants, Mathews v. State of California ex rel.
Dept. of Transportation (1978) 82 Cal. App. 3d 116, the traffic signals at an intersection
malfunctioned, with one light stuck on green and the other stuck on red, and the plaintiff
was injured when she drove through the green light and collided with another vehicle
being driven through the red light. Declining to find the condition was not dangerous as
a matter of law, the court explained that a motorist approaching the green signal would be
unaware of the malfunction and “deceptively lulled into a sense of freedom from
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interference by cross traffic.” (Id. at p. 121.) Correspondingly, a motorist approaching
the red signal would at some point realize the malfunction, and “from exasperation and
impatience . . . [be] likely to reduce or abandon caution and increase the risks he is
willing to take in entering the intersection against the red light in the face of approaching
traffic on the cross street.” (Id. at p. 122.) Thus, the court concluded the intersection
could pose a substantial risk to motorists exercising due care. Here, on the other hand,
the lack of a “cross traffic does not stop” sign did not pose such a risk, as the
intersection’s existing signs required drivers travelling northbound on 70th Street East to
use due care to stop before proceeding into the intersection.
Appellants also maintained that evidence showing that the limit line and “stop”
pavement markings were degraded raised a triable issue of fact. Photographs showed that
the limit line and “stop” pavement markings had faded by the time of the accident, and
County employee Larry Dunlop testified that while he could still see the pavement
markings it appeared that their retroreflective qualities had dissipated. Dunlop
summarized: “I would describe this condition as a severely distressed intersection with
allegations and stress and thermal cracks that are tight and it’s still a serviceable road, at
this point in time due for replacement.” Appellants further offered their expert traffic
engineer’s opinion that the pavement markings did not comply with the specifications set
forth in the CMUTCD and that such noncompliance rendered the intersection unsafe.
Again, appellants’ position mirrors the plaintiffs’ in Cerna v. City of Oakland,
supra, 161 Cal.App.4th at pages 1348 and 1352, where the court held no triable issue of
fact was created by an expert’s opinion that the omission of multiple features—including
pavement markings delineating a school crosswalk—rendered an intersection a
dangerous condition. Moreover, the evidence regarding the condition of the limit line
and “stop” pavement markings was insufficient to show a substantial risk of injury.
Photographic and testimonial evidence established the markings remained visible.
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Though appellants seek to infer from the evidence that the markings were not repainted
one year before the accident, the evidence shows otherwise. The County’s equipment
history records showed a maintenance entry for September 2008 and a notation that the
markings were repainted in October 2009. Appellants argue this means there was no
repainting in September 2008, but they ignore other evidence showing that the October
2009 entry was not the result of regular maintenance, but rather, documented work
performed pursuant to a June 2009 work order. County employee Robert Scharf testified
that County maintenance records showed the markings were repainted in September
2008.
Further, though appellants contend the pavement markings failed to comply with
the CMUTCD because they were no longer retroreflective, nothing in the CMUTCD
requires such markings to be retroreflective. (See CMUTCD, §§ 3A.02 [requiring
markings that must be visible at night to be retroreflective], 3B.16 [describing required
features of limit lines, omitting any requirement they be visible at night], 3B.19
[describing required features of pavement word and symbol markings, including “stop,”
omitting any requirement they be visible at night].) Thus, particularly given the
undisputed evidence that the stop sign was unobstructed and a functioning streetlight
illuminated the intersection, the absence of the pavement markings’ reflective quality was
minor, trivial or insignificant.
Finally, evidence of the accident rate at the intersection was insufficient to create a
triable issue of fact. The County offered evidence that between 2005 and 2010,
5,000,000 vehicles entered the intersection during peak traffic hours and, during that time
period, five collisions involving vehicles traveling northbound on 70th Street East and
eastbound on Avenue N occurred. That collision rate was lower than the statewide
average of 0.33 collisions per million for similar intersections. In response, appellants
offered evidence that 11 collisions had occurred during that time period at the
intersection. But beyond asserting that ten of the 11 collisions involved “issues related to
right-of-way and/or traffic control compliance,” appellants offered no evidence to show
how the additional collisions were similar to the accident here. Indeed, the evidence
15
showed multiple dissimilarities—including that some collisions resulted from drivers
who made improper turns or drivers who stopped at the stop sign but proceeded into the
intersection thinking they could beat the vehicles traveling on Avenue N. And
importantly, appellants offered no evidence to show whether the condition of the
intersection was the same throughout that five-year period as it was at the time of the
accident.
“‘[I]t is well-settled that before evidence of previous accidents may be admitted to
prove the existence of a dangerous condition, it must first be shown that the conditions
under which the alleged previous accidents occurred were the same or substantially
similar to the one in question.’ [Citation.] Moreover, ‘[w]hile there must be substantial
similarity to offer other accident evidence for any purpose, a stricter degree of substantial
similarity is required when other accident evidence is offered to show a dangerous
condition; “‘the other accident must be connected in some way with that thing.’”’
[Citation.]” (Mixon v. State, supra, 207 Cal.App.4th at p. 138.) Absent evidence of
similarity—let alone substantial similarity—between the 11 collisions at the intersection
and the accident here, the mere occurrence of those collisions failed to create a triable
issue of fact as to whether the intersection created a substantial risk of injury when used
with due care.
Having found the trial court properly granted summary judgment on the ground
that the County negated an essential element of appellants’ claim, we need not address
the other dangerous condition elements or any statutory exceptions or immunities. (See
Smith v. St. Jude Medical, Inc. (2013) 217 Cal. App. 4th 313, 316, fn. 3; Jones v. County of
Los Angeles (2002) 99 Cal. App. 4th 1039, 1044.)
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DISPOSITION
The judgment is affirmed. The County is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J. *
FERNS
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
17