Bonds v. County of Ventura

Filed 1/18/07  Bonds v. County of Ventura CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

                        This appeal arises out of the tragic death of a 14-year-old girl who was struck by an automobile along a road owned and maintained by the County of Ventura (" County" ).  Her parents and estate sued the County alleging a dangerous condition of public property.  The trial court granted the County's motion for nonsuit prior to the opening statement.  (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 284-285.)  We affirm the ensuing judgment.

FACTS

                        Because this appeal arises from a judgment pursuant to the defendant's motion for nonsuit, we recite the facts in a light most favorable to the plaintiffs.  (See Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229-1234.)

                        On December 11, 2001, fourteen-year-old Jennifer Lynn Bonds went jogging with her father.  They left their home at approximately 4:00 p.m.  Their route took them along Santa Rosa Road in an unincorporated area of Ventura County.  They intended to cross Santa Rosa Road at the Yucca Drive intersection before continuing their jog on the other side of Santa Rosa.  Jennifer's father, however, believed the intersection was too dangerous to cross due to heavy traffic.  Instead, they continued down the shoulder of Santa Rosa for approximately 300 or 400 feet, looking for a safer place to cross.  They stopped on the asphalt portion of the shoulder approximately four feet from the white fog line.  Jennifer was standing four to six feet from her father.  They were waiting for a break in the traffic when a car driven at about 55 miles per hour by Pedro Acosta Valenzuela suddenly left the traffic lane, and entered the shoulder area.  The car struck Jennifer.  She died at the hospital later that evening.

                        The paved shoulder along Santa Rosa Road is approximately eight feet wide from the fog line to where the pavement meets the dirt.  A graded and compacted dirt shoulder extends approximately nine feet from the edge of the paved shoulder.  The speed limit in the area in which Jennifer was struck is 55 miles per hour.  Bonds claims the wider-than-average paved shoulder attracts heavy pedestrian and bicycle usage.  Bonds claims the County had notice of three prior accidents on Santa Rosa Road in which pedestrians were struck.

Procedure

                        Jennifer's parents, Paul and Dorothy Bonds and her estate (collectively " Bonds" ) sued the County and Valenzuela for negligent wrongful death and infliction of emotional distress.  The County moved for summary judgment, but the trial court denied the motion.

                        Nevertheless, the County made a motion for nonsuit prior to trial.  The motion was based on our opinion in Lucas v. County of Los Angeles, supra, 47 Cal.App.4th at pages 284-285.  In Lucas, we held the trial court has the inherent power to grant a pretrial motion for nonsuit where the court believes that even if plaintiff's allegations are true, they would not establish a cause of action.

                        Bonds filed a written opposition to the motion, and the County filed a written reply.  After a hearing, the trial court granted the motion.

DISCUSSION

I

                        Bonds contends the trial court had no authority to grant the County's motion for nonsuit prior to the opening statement.

                        Bonds relies on Code of Civil Procedure section 581c, subdivision (a).  That subdivision provides in part:  " Only after, and not before, the plaintiff has completed his or her opening statement . . . the defendant . . . may move for a judgment of nonsuit."   Bonds points out that the words " [o]nly, and not before" were added to the section in 1998 (stats. 1998, ch. 200, §  1), after we decided Lucas.  Bonds concludes that Lucas has been superseded by the amendment.

                        Even assuming Lucas has been superseded by the amendment,^[1] Bonds did not object on that basis in the trial court.  Ordinarily, we will not consider procedural defects or erroneous rulings where an objection could have been, but was not, presented in the trial court.  (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §  394, p. 444.)  The reason for the rule is that it is unfair to the trial court and the adverse party to take advantage of an error on appeal when it could easily have been corrected at trial.  (Id. at p. 445.)

                        It is true we have discretion to consider a pure question of law that was not raised below.  (Bihun v. AT & T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 998-999.)  But in this case, the trial court and the County put substantial time and effort into the motion.  It would have been helpful had Bonds simply pointed to Code of Civil Procedure section  581c, subdivision (a).  But even had he done so, the result would be no different.

                        Bonds does not suggest what he would have said in his opening statement that would have changed the result.  (See Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114 [granting nonsuit before opening statement not reversible error where it is clear plaintiff could not have prevailed had he made his opening statement].)  The trial court revisited the summary judgment motion.  But it did far more than that.  It gave Bonds every opportunity to show how he could establish a cause of action.

II

                        Bonds contends there is sufficient evidence to support a jury's finding of liability against the County.

                        Government Code section 835 provides that a public entity may be liable for an injury caused by a dangerous condition of its property if the injury was proximately caused by the dangerous condition, the dangerous condition created a foreseeable risk of the type of injury suffered, and the public entity had actual or constructive knowledge of the dangerous condition in sufficient time to protect against it.^[2]  Section 830, subdivision (a), defines a dangerous condition as " a condition of property that creates a substantial . . . risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonable foreseeable that it will be used."

                        Here Bonds argues that a combination of a high speed roadway and a wide shoulder attractive to pedestrians created a dangerous condition.

                        In Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 440-441, the court rejected the theory that the volume and speed of vehicular traffic in combination with heavy pedestrian use created a dangerous condition.  In affirming the trial court's sustaining of the city's demurrer, the court noted Brenner made no allegation that some " physical characteristics" of the street such as " blind corners, obscured sightlines, elevation variances, or any other unusual condition that made the road unsafe when used by motorists and pedestrians exercising due care [citations], and Brenner cites no authority that a dangerous condition exists absent such factors."   (Id. at pp. 440-441.)  Brenner quoted Mittenhuber v. City of Redondo Beach(1983) 142 Cal.App.3d 1.  Mittenhuber stated:  " Many of the streets and highways of this state are heavily used by motorists and bicyclists alike.  However, the heavy use of any given paved road alone does not invoke the application of Government Code section  835."   (Id. at p. 7.)

                        Bonds argues that Brenner is distinguishable.  There a pedestrian was injured crossing the street, not standing on the side, and that here a wide paved shoulder attractive to pedestrians satisfies the requirement of a physical condition that makes the public property dangerous.  We do not see why standing on the shoulder of a street is more dangerous than crossing it.  If anything, it would seem that crossing the street is more dangerous.  Nor do we see how a wide paved shoulder creates a danger to pedestrians when both motorists and pedestrians are using the area with due care.

                        Bonds claims it is reasonably foreseeable that a motorist might drift off the road into pedestrians on the shoulder even while exercising due care.  Bonds does not explain how a motorist exercising due care would simply drift off the road, especially when pedestrians are standing in plain sight on the shoulder.  Nor does Bonds point to a physical condition of the roadway that would cause a driver exercising due care to drift off onto the shoulder.

                        Bonds' reliance on Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, is misplaced.  There a pedestrian was struck by a car while crossing an intersection to get to a bus stop.  The court held that the transit authority could be liable for placing a bus stop where it encouraged patrons to cross at a dangerous intersection.  The court stated that a public entity might be held liable for third party conduct " only when a feature of the public property has 'increased or intensified' the danger to users from third party conduct."   (Id. at p. 155.)

                        A wide shoulder, however, does not increase or intensify the risk to pedestrians.  In fact, it decreases the risk by allowing pedestrians to walk at a distance from passing traffic.  A wide shoulder might invite heavy pedestrian use.  But nothing about heavy pedestrian use increased or intensified the danger to Jennifer as she stood at the side of the road.  The combination of high speed traffic and heavy pedestrian use alone simply does not lead to public entity liability.  (Brenner v. City of El Cajon, supra, 113 Cal.App.4th at pp. 440-441.)

III

                        Bonds contends the County is liable for failure to warn motorists of heavy pedestrian traffic, a known danger.

                        Bonds acknowledges section 830.4.  That section provides in part:  " A condition is not a dangerous condition within the meaning of this chapter merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, . . . or distinctive roadway markings . . . ."

                        Bonds claims that section 830.4 does not apply here for two reasons:  First, when a dangerous condition exists which would not be reasonably apparent to, or anticipated by, a person exercising due care, and a sign is necessary to warn of the condition, a public entity may be liable for failure to warn.  (Bunker v. City of Glendale (1980) 111 Cal.App.3d 325, 328.)  Second, if a roadway is dangerous because of a failure to provide warning signs and also because of a conjunction of other factors, section 830.4 is no bar to liability.  (Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1538-1539.)

                        But, as we have stated, there is no dangerous condition to warn against.  Moreover, even if the combination of high speed traffic and heavy pedestrian use were a dangerous condition, such a condition would be readily apparent to anyone.  Finally, if as Bonds asserts, vehicles leave the roadway even when the driver is exercising due care, a warning to motorists would seem to have little effect.

                        The judgment is affirmed.  Costs on appeal are awarded to respondent.

                        NOT TO BE PUBLISHED.

                                                                        GILBERT, P.J.

We concur:

                        COFFEE, J.

                        PERREN, J.

William Q. Liebmann, Judge

Superior Court County of Ventura

______________________________

                        Mancini & Associates, Marcus A. Mancini and Adam J. Reisner, Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiffs and Appellants.

                        Law Offices of Alan E. Wisotsky, Alan E. Wisotsky and Jeffrey Held for Defendant and Respondent.

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            ^[1] We need not decide here whether the Legislature has the constitutional authority to restrict the trial court's inherent power to grant a judgment of nonsuit.

            ^[2] All statutory references are to the Government Code unless otherwise stated.