Pena v. City of Arroyo Grande CA2/6

Filed 10/5/22 Pena v. City of Arroyo Grande CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SIX
REMIGIO PENA, 2d Civ. No. B306869
(Super. Ct. No. 18CV-0114)
Plaintiff and Appellant, (San Luis Obispo County)
v.
CITY OF ARROYO GRANDE,
Defendant and Respondent.
Remigio Pena was riding his motorcycle southbound on
Halcyon Road near its T-intersection with The Pike in the City of
Arroyo Grande (City). Carl Tucker was driving westbound
toward the intersection along a private driveway. Before
entering the intersection, Tucker drove past the wooden stop sign
on the driveway to a point where he could clearly see the traffic
coming in both directions. He then stopped. After looking left
twice and right once and seeing “zero traffic,” Tucker moved into
the intersection and struck Pena.
Pena sued multiple defendants, including the City. He
contends that visual obstructions to the north of the driveway,
the configuration of the intersection, sight lines in the
intersection and the absence of a stop sign on Halcyon Road
created a dangerous condition of public property which
contributed to the accident. (See Gov. Code, § 835.)1
The City moved for summary judgment on Pena’s first
amended complaint (FAC) arguing that “(1) the property
described in the FAC is not a dangerous condition as a matter of
law under . . . section 830(a); (2) the property was not the
proximate cause of [Pena’s] injuries; and (3) the City is entitled to
immunity under . . . section 830.4.” The trial court found no
triable issues of material fact and granted summary judgment on
all three bases. We affirm.
I. FACTUAL BACKGROUND
The Pike is a two-lane road running east-west, controlled
by a stop sign at its termination with Halcyon Road, creating a T-
intersection. Across from The Pike, the private driveway from
Halcyon Estates Mobile Park (Halcyon Estates) intersects with
the eastern side of Halcyon Road, which has a posted speed limit
of 40 miles per hour. At the time of the collision, Halcyon Road
was a through street, uncontrolled by stop signs at its
intersection with The Pike. The Pike had a stop sign at the
Halcyon Road intersection.
On the north side of the Halcyon Estates exit is a berm
containing trees, a telephone pole, traffic signs and ice plants.
Depending on the location of a vehicle exiting the driveway, the
1All statutory references are to the Government Code
unless otherwise stated.
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driver’s view of Halcyon Road looking north (to the right) is
obscured by the berm’s features.
Near the Halcyon Estates exit is a small wooden stop sign
that is within view of Halcyon Road when entering the
intersection. “It [was] unclear to the [trial court] whether this
small wooden stop sign exists on Halcyon’s private property, or
the City’s property.” The City denies it installed the stop sign.
On August 18, 2017, Tucker, who had lived at Halcyon
Estates for 15 years, drove his car to the end of the private
driveway. As was his custom, Tucker did not stop at the sign.
He explained that the trees and telephone pole on the berm
obscure the view of southbound traffic at that point. Instead,
following his normal routine, Tucker drove the car towards
Halcyon Road until he had a clear view of the oncoming
southbound and northbound traffic.
Seeing “zero traffic” and “no traffic all three ways,” Tucker
slowly entered the intersection, “like an old slowpoke.” Pena’s
motorcycle and Tucker’s vehicle collided in the intersection. Pena
did not see Tucker’s vehicle until it was approximately four to
five feet from his motorcycle. Tucker did not see Pena’s
motorcycle until the moment of impact. Pena, who was thrown
from his motorcycle, suffered a broken leg and other injuries.
Zak Ayala, the City police officer who investigated the
accident, concluded that Tucker caused the accident by violating
Vehicle Code section 21804, subdivision (a), which requires
drivers exiting private property to yield the right-of-way to all
approaching traffic close enough to constitute a hazard. Ayala
determined the berm “does not appear to have been a factor in
the subject collision,” and stated he was “unaware of any other
collisions at the intersection of Halcyon Road and The Pike
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involving drivers entering the intersection from Halcyon
Estates.”
II. PROCEDURAL HISTORY
Pena’s FAC alleges claims for negligence against Tucker
and Halcyon Estates and claims for premises liability against
Halcyon Estates and the City. The City’s alleged liability is
based upon a dangerous condition of public property (§ 835).
The City filed a cross-complaint against Tucker and
Halcyon Estates seeking equitable indemnity and declaratory
relief. Tucker was dismissed from the cross-complaint after the
trial court found his settlement with Pena was made in good
faith.
Halcyon Estates and the City filed separate motions for
summary judgment. The trial court denied Halcyon Estates’
motion. In granting the City’s motion, the court concluded Pena
had failed to raise a triable issue of material fact regarding (1)
whether the property at issue is a dangerous condition under
section 830, subdivision (a); (2) whether the property proximately
caused his injuries; (3) whether the City had both actual and
constructive notice of the alleged dangerous condition; and (4) the
City’s immunity under section 830.4.
With respect to causation, the trial court stated: “To
recover for injuries based on a dangerous condition of public
property, the plaintiff must establish that ‘the injury was
proximately caused by the dangerous condition.’ [§ 835.] The
City argues that the undisputed facts prove that the berm and
the other ‘generalized factors [such as] signage and failure to
paint a limit line . . . the absence of a stop sign, an “offset
driveway” [and] “elevation changes” on Halcyon Road’ had
nothing to do with the subject accident, and that it was solely
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Tucker’s negligence that caused this collision. [¶] Tucker
testified that he had an adequate view in both directions on the
date of the accident, and was cited for violating . . . Vehicle Code
section 21804(a). According to the City, even if the berm is a
dangerous condition, it is not the proximate cause of [Pena’s]
injuries. . . . Indeed, arguendo, if creeping forward is a dangerous
condition, it did not proximately cause [Pena’s] injuries because
[he] was not injured in the spot where Tucker crept his vehicle
forward. [Pena] was injured after Tucker maneuvered his vehicle
into the intersection, after he had cleared all potential visual
obstructions. Thus, Tucker’s creeping did not proximately cause
[Pena’s] injuries.” (Fns. and underlining omitted.)
III. DISCUSSION
Pena contends triable issues of material fact exist
regarding whether a dangerous condition of public property
proximately caused his collision with Tucker. He also argues
that statutory immunities do not apply.
A. Standard of Review
A defendant moving for summary judgment or adjudication
may demonstrate that the plaintiff’s cause of action has no merit
and that the defendant is entitled to judgment as a matter of law
by showing that the plaintiff cannot establish one or more
elements of the cause of action. (Code Civ. Proc., § 437c, subds.
(a)(1), (f), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 849, 853 (Aguilar).) The defendant may make such
a showing by affirmatively proving that a specified fact does not
exist or by showing that the plaintiff has no evidence to prove
that fact. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749,
756.) Once the defendant meets its threshold burden, the burden
shifts to the plaintiff to present evidence showing that a triable
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issue of one or more material facts exists as to that cause of
action. (Code Civ. Proc., § 437c, subd. (p)(1), (2); Aguilar, at
p. 850.)
We review an order granting summary judgment de novo,
employing the same analysis as the trial court. (Aguilar, supra,25 Cal.4th at p. 860; Hamburg v. Wal-Mart Stores, Inc. (2004)
116 Cal.App.4th 497, 503.) We view the evidence in a light
favorable to the party opposing summary judgment, liberally
construing that party’s evidence while strictly scrutinizing the
moving party’s showing and resolving all doubts in favor of the
opposing party. (Patterson v. Domino’s Pizza, LLC (2014) 60
Cal.4th 474, 499-500.) We consider all the evidence offered in the
trial court except that which the court properly excluded. (Wilson
v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717.)
B. No Triable Issues of Material Fact Exist
Regarding Causation
The City contends there is sufficient space for Halcyon
Estates’ residents to pull their vehicles forward toward Halcyon
Road to obtain an unobstructed view in both directions and to
safely enter the roadway. Pena disagrees, arguing that to “clear
the visual obstruction from both the berm (hills ground cover,
shrubs, and trees) and the traffic signs and pole at the edge of
Halcyon Road, a vehicle exiting the [mobile home] park must pull
up so far as to actually encroach into the roadway of Halcyon
Road.”
Section 835 “prescribes the conditions under which a public
entity may be held liable for injuries caused by a dangerous
condition of public property. [Citation.] [It] provides that a
public entity may be held liable for such injuries ‘if the plaintiff
establishes that the property was in a dangerous condition at the
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time of the injury, that the injury was proximately caused by the
dangerous condition, [and] that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was
incurred.’ In addition, the plaintiff must establish 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) ‘[t]he public entity had . . . notice
of the dangerous condition . . . a sufficient time prior to the injury
to have taken measures to protect against the dangerous
condition.’” (Cordova v. City of Los Angeles (2015) 61 Cal.4th
1099, 1105 (Cordova); see Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1131-1132 (Zelig) [a public entity’s liability as a
property owner must be evaluated under section 835 and not
under general negligence principles].)
A dangerous condition is “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).)
With respect to public roadways, “‘a public entity is only required
to provide roads that are safe for reasonably foreseeable careful
use. [Citation.] “If . . . it can be shown that the property is safe
when used with due care [generally] and that a risk of harm is
created only when foreseeable users fail to exercise due care, then
such property is not ‘dangerous’ within the meaning of section
830, subdivision (a).”’” (Thimon v. City of Newark (2020) 44
Cal.App.5th 745, 754-755 (Thimon).)
“[T]hird party conduct by itself, unrelated to the condition
of the property, does not constitute a ‘dangerous condition’ for
which a public entity may be held liable.” (Peterson v. San
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Francisco Community College Dist. (1984) 36 Cal.3d 799, 810;
Zelig, supra, 27 Cal.4th at p. 1134.) Nonetheless, a finding of a
dangerous condition is not precluded even where a third party’s
negligence was a proximate cause of the plaintiff’s injuries.
(Bonanno v. Central Contra Costa Transit Authority (2003) 30
Cal.4th 139, 152-153 & fn. 5.) “When a third party’s conduct is
the immediate cause of a plaintiff’s harm, the question becomes
whether the dangerous condition ‘increased or intensified’ the
risk of injury from the third party’s conduct.” (Thimon, supra, 44
Cal.App.5th at p. 754; Cerna v. City of Oakland (2008) 161
Cal.App.4th 1340, 1348.) When addressing this question, courts
must separate the issue of causation from the issue of dangerous
condition. (Cordova, supra, 61 Cal.4th at p. 1106.) “A condition
of public property may constitute a ‘dangerous condition’ even
though it does not proximately cause [the] injury in a particular
case.” (Ibid.)
Although Pena challenges each aspect of the trial court’s
ruling, we conclude the issue of causation is dispositive. Even
assuming a triable issue exists regarding whether a condition at
or near the accident site on August 18, 2017 created a substantial
risk of injury when used with due care, Pena’s moving papers
failed to raise a triable issue regarding whether such a condition
proximately caused his injuries.
The requisite causal link between a dangerous condition
and the plaintiff’s injuries may be established if the public
entity’s conduct and the conduct of another party concur as
proximate causes of the plaintiff’s injury. (Harland v. State of
California (1977) 75 Cal.App.3d 475, 485.) To establish
causation, therefore, Pena must show that a physical condition of
the City’s property was a “‘substantial factor’” in bringing about
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his harm. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.)
A plaintiff may prove causation through direct and
circumstantial evidence and reasonable inferences drawn from
that evidence. (Ibid.) But we cannot draw inferences “‘from thin
air.’” (Ibid.)
The City met its threshold burden of presenting evidence to
show that Pena’s injuries were caused by Tucker’s actions and
not by a dangerous condition at the accident site. The burden
then shifted to Pena to produce evidence showing a triable issue
of material fact regarding the necessary causal link. (Leyva v.
Garcia (2018) 20 Cal.App.5th 1095, 1105 (Leyva).)
To prove causation, Pena relied primarily upon the
declaration of his human factors expert, Jason A. Droll. Droll
opined that Tucker was distracted from southbound traffic
because (1) he had to be inordinately vigilant to northbound
traffic as he was stuck in the northbound lane; (2) in order to
escape the hazardous situation in the northbound lane, he was
expected to accept smaller gaps in traffic than he might
ordinarily accept; (3) once he made a decision to cross the
intersection, there was inadequate time to correct his initial
decision to cross; and (4) the alignment of The Pike and the
Halcyon Estates’ driveway forced Tucker to veer to the right 19.5
feet closer to southbound traffic to avoid any eastbound driver on
The Pike.
Based upon these opinions, Pena asserts that “a driver in
. . . Tucker’s situation would be expected to be so distracted by
looming threats to his left and directly across from him, that a
previously undetectable threat to his right may have emerged by
the time it was too late.” It is well established, however, that an
expert’s opinion based on assumptions of fact without evidentiary
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support has no evidentiary value. (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1117.) Proof of causation may be by direct or circumstantial
evidence, but it must be by substantial evidence. Evidence that
leaves the determination of these essential facts in the realm of
mere speculation and conjecture is insufficient. In other words,
“‘[i]f [the expert's] opinion is not based upon facts otherwise
proved, or assumes facts contrary to the only proof, it cannot rise
to the dignity of substantial evidence.’ [Citation.]” (People v.
ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 83; see
Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 484
[expert’s opinion that a broken security gate was a substantial
factor in bringing about a rape could not defeat summary
judgment without any evidence that the rapist entered through
the gate].)
Pena offered no evidence, such as corroborating eyewitness
statements or conflicting testimony by Tucker, that Droll’s
theories reflect reality. (See Bowman, supra, 186 Cal.App.4th at
p. 313.) It is undisputed that, depending on where a vehicle is on
the Halcyon Estates private driveway, the driver’s view of
oncoming southbound traffic on Halcyon Road may be obstructed.
But Tucker had travelled past those obstructions as he
approached Halcyon Road. The undisputed evidence establishes
that before Tucker drove into the intersection and collided with
Pena, Tucker was able to stop in a position where he had a clear
view of oncoming traffic in both directions.
Tucker testified that he probably did not see Pena because
he did not properly look both ways before moving into the
intersection. He stated: “It’s an old-school children’s thing. You
look left, you look right, then you look left and right again. I
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probably just missed looking right again.” Indeed, Tucker was
cited for violating Vehicle Code section 21804, subdivision (a),
which states: “The driver of any vehicle about to enter or cross a
highway from any public or private property, or from an alley,
shall yield the right-of-way to all traffic, as defined in [Vehicle
Code] [s]ection 620, approaching on the highway close enough to
constitute an immediate hazard, and shall continue to yield the
right-of-way to that traffic until he or she can proceed with
reasonable safety.”
There is no evidence that the alleged dangerous conditions
diverted Tucker’s attention or otherwise brought about the
collision. Pena emphasizes Droll’s statement that “[f]urther to
the north, South Halcyon Road has a vertical drop, limiting a
driver’s view on The Pike or the mobile home driveway to see
approaching southbound vehicles.” Droll does not opine that this
was a cause of the accident, and Pena simply speculates that it
could have been a factor.
We also are not persuaded by Pena’s argument that Tucker
caused the accident by “creeping” partway into Halycon Road to
obtain the unobstructed view of the northbound and southbound
lanes. Even assuming that did occur, we agree with the trial
court that the “creeping” onto Halycon Road did not proximately
cause Pena’s injuries. Pena was injured after Tucker left that
spot and drove directly into the intersection.
Moreover, “[t]he practice of stopping at a limit line and
then ‘creeping’ forward to a point of visibility has long been
recognized as ‘practical’ under California Law. (See Smith v.
Pellissier (1955) 134 Cal.App.2d 562, 570).” (Hefner v. County of
Sacramento (1988) 197 Cal.App.3d 1007, 1016, abrogated on
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other grounds by Cornette v. Department of Transportation (2001)
26 Cal.4th 63, 73-74 & fn. 3.)
In sum, there is no basis in the record for a jury to
reasonably find that a dangerous condition was a factor, let alone
a substantial one, in bringing about Pena’s injuries. In the
absence of evidence creating a triable issue of material fact
regarding causation, summary judgment was properly granted.
(See Leyva, supra, 20 Cal.App.5th at p. 1105.) Given our
conclusion, we need not discuss the parties’ other arguments.
IV. DISPOSITION
The judgment is affirmed. The City shall recover its costs
on appeal.
NOT TO BE PUBLISHED.
PERREN, J.*
We concur:
GILBERT, P.J.
YEGAN, J.
* Retired Associate Justice of the Court of Appeal, Second
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Ernst Law Group, Don A. Ernst and Nigel A. Whitehead;
Esner, Chang & Boyer, Andrew N. Chang and Kevin K. Nguyen,
on behalf of Plaintiff and Appellant.
Adamski Moroski Madden Cumberland & Green, Joshua
M. George and Chase W. Martin; Pollak, Vida & Barer, Daniel P.
Barer and Judy L. McKelvey, on behalf of Defendant and
Respondent.
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