Filed 10/11/17 City of Fontana v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition for writ of mandate. Donald R. Alvarez, Judge. Petition denied.

Rinos & Martin, Linda B. Martin, A. Michael Sabongui; Greines, Martin, Stein & Richland, Timothy T. Coates and Carolyn Oill for Petitioner.

No appearance for Respondent.

Lowthorp Richards Mcmillan Miller & Templeman, John H. Howard; Ferguson Case Orr Paterson, Wendy C. Lascher and John A. Hribar for Real Parties in Interest. Petitioner, the City of Fontana (City), challenges a trial court order denying its motion for summary judgment and/or adjudication. Real parties in interest, John J. Caceres, Rianna Caceres, and Cynthia Duran (real parties), sued City for dangerous condition of public property and related claims after a fatal traffic collision at an intersection controlled by City. Although our analysis of the issues presented by the petition differ in some respects from the trial court’s, we now explain why denial of City’s motion was proper.

FACTUAL AND PROCEDURAL BACKGROUND

Real parties are the husband and two minor daughters of Adriana Chairez, who died in the accident that is the subject of this lawsuit. Chairez was driving a sedan on March 8, 2014, with her five-year-old daughter in the backseat. As she proceeded south on Production Avenue, through the intersection of Production Avenue and Santa Ana Avenue, real party in interest, Rafael Alvarez Villanueva (Villanueva), who was driving a big rig truck westbound on Santa Ana Avenue, broadsided Chairez’s vehicle. Although the intersection was marked with four-way stop signs, Villanueva failed to stop because he was playing with his radio. Real parties allege the accident killed Chairez and injured her daughter.

Real parties filed suit against Villanueva, his employer, City, and SVF Sierra Fontana Corporation (SVF), which owns property located at the intersection of Production and Santa Ana Avenues. They allege in part[1] that SVF allowed vegetation to grow that “obstructed driver visualization of cross-traffic approaching the intersection, causing a dangerous condition.” The complaint also alleges that “the position of the stop line at the north edge of the intersection for southbound Production Avenue improperly created inadequate lines of site, confusing striping, signage and placement of signage, or the lack thereof from side streets, and the site distance for the side streets violates basic safety standards.”

As against City, the complaint alleges causes of action for dangerous condition of public property, wrongful death based on contractor liability, personal injury, and negligent infliction of emotional distress. City moved for summary judgment or, in the alternative, summary adjudication of each of the causes of action alleged against it. It argued there were no triable issues of material fact regarding the intersection’s dangerousness, and that it was entitled to absolute design immunity. (Gov. Code, § 830.6.)[2]

The motion relied heavily on declarations from two traffic engineers, Eric Lewis and John E. Fisher. They both opined the intersection had been properly designed. In fact, Lewis averred that he had personally approved the design for the intersection that is the subject of this lawsuit. When he did so, he “considered various factors, including the speed limits, placement of the limit lines, stop signs and crosswalk markings at the intersection, as well as accessibility requirements for the handicapped at the intersection.” In Lewis’s opinion, City “Standard Plan 700,” which governs sight distance at intersections, did not apply to the subject intersection because it “was controlled by four way stop signs,” and therefore the speed of all vehicles at the intersection was assumed to be zero. Therefore, the sight distance standard promulgated by the American Association of State Highway and Transportation Officials (AASHTO) should govern, and that standard “is simply that the first stopped vehicle at any approach be visible to the drivers of the first stopped vehicle on each of the other approaches.”

For his part, Fisher confirmed that Lewis had approved the design of the subject intersection and agreed that City Standard Plan 700 did not apply to an intersection controlled by four-way stop signs. He also stated he had visited the subject intersection and “noted during [his] site visits that the shrubbery is behind the sidewalk and outside of the limited use area for this intersection controlled by all way stop signs.” In addition, Fisher opined there was adequate sight distance at the intersection and indicated there was no foliage blocking a driver’s view of the stop sign governing Villanueva’s direction of travel. Reasoning that AASHTO sight distance guidelines should apply for the same reasons Lewis provided, Fisher concluded that City “met sight distance requirements at the subject intersection.”

Real parties filed written opposition to City’s motion. They disputed that the only standards governing the subject intersection are the above-referenced ones recommended by AASHTO for use at intersections controlled by four way stop signs. Like City, real parties relied on an expert declaration from a traffic engineer; their expert’s name is Edward Ruzak. He opined that “AASHTO is not the end all be all for standards”; rather, cities can adopt more stringent standards than those published by AASHTO “on a project-by-project basis.”

One of the other sources on which Ruzak relied is the highway design manual, which the State of California prepares “to assist in the construction of roads in the state.” Ruzak notes the highway design manual recommends minimum sight distances for all intersections because “ ‘unanticipated conflicts can occur’ ” for various reasons, including “violation of signal, right turns on red, malfunction of the signal, or use of flashing red/yellow mode.” Under Ruzak’s interpretation, the highway design manual requires consideration of a vehicle’s stopping distance, or the number of feet it will take to come to a complete rest given the vehicle’s speed, at all corners. A table in the highway design manual recommends a corner sight distance of 495 feet “[a]t signalized intersections . . . whenever possible.”

Ruzak uses the following sources of authority prepared by City to support his conclusion that City in fact required more stringent standards than the AASHTO ones on which Lewis and Fisher rely at the subject intersection. First, Ruzak explained that, in 2005, City issued “Revised Conditions of Approval” for the property at the corner of the subject intersection. According to Ruzak, “This document established the following: (1) that the property must not have any landscaping or walls over thirty (30) inches high on its corners where there is any intersections so that motorists have a safe line of sight at the intersections; (2) that the City of Fontana required the property owner to submit a plan to show that the safe sight distance standards will exist at the property; (3) that the City of Fontana is responsible for on site inspections; (4) and that the City of Fontana gave itself the right to enter the property and take corrective action on the property in regards to ensuring that the landscape stay within the specifications, which includes the 30 inch height requirement.” These requirements, as Ruzak interprets the relevant documents regarding the subject intersection, were then incorporated into the CC&R’s (covenants, conditions and restrictions) for the property, which require, “(1) that the property owner is required by the City of Fontana to ensure that landscaping does not block the view from traffic; and (2) that the City has enforcement rights to ensure that the property owner’s landscaping at the corner of its property is not blocking motorists’ sight lines.”

In addition, Ruzak noted City issued a “Report to Planning Commission” in January 2004 that stated, as relevant: “Stopping sight distance shall be provided along all property frontages in accordance with City Standard Plans, taking into consideration horizontal angles, intersection streets, and any vertical differences.” Similarly, Ruzak explained that City of Fontana Ordinance No. 30-304.2 goes beyond the AASHTO recommendations on which Lewis and Fisher relied and instead prevents landscaping taller than 30 inches at “ ‘all intersections.’ ” Ruzak concluded City Plan 700 applies to intersections controlled by four-way stop signs and therefore prevented landscaping taller than 30 inches in the intersection’s “ ‘limited use area,’ which is the corner of the property.” “City Standard 140,” which predated City Standard 700, also prevented landscaping over 30 inches high within an intersection’s “limited use area.”

Finally, Ruzak stated he had inspected “the northeast corner of the subject intersection” and found “an abundance of trees and foliage that is substantially in excess of 30 inches.” In fact, this foliage was more than 10 feet high. It was located “at this corner along the sidewalk.” Ruzak specifically mentions a photograph of the subject intersection that was included in the evidence supporting City’s motion. This photograph appears to show a tree near the intersection’s corner.

Based largely on Ruzak’s declaration, real parties disputed Lewis’ and Fisher’s conclusion that sight distance at the subject intersection was adequate under the AASHTO guidelines. With respect to design immunity, they argued City had failed to establish Lewis had authority to approve the design of the subject intersection because it did not cite any authority, such as the city charter, giving such authority to Lewis. It also argued any design immunity that may have attached when the intersection was approved had disappeared due to changed conditions in the form of landscaping that had grown to exceed 30 inches as originally approved.

On December 27, 2016, after receiving a written reply from City,[3] the trial court, took the matter under submission and issued a written order explaining why it denied City’s motion for summary judgment and/or adjudication. It found triable issues of material fact regarding the dangerousness of the subject intersection. With respect to design immunity, the trial court found the “City did not meet its burden to demonstrate a grant of discretionary authority.” This petition timely followed. (Code Civ. Proc., § 437c, subd. (m)(1) [writ petition challenging summary judgment or adjudication order must be filed “within 20 days after service upon him or her of a written notice of entry of the order,” plus five days for mailing from an address inside California].)

DISCUSSION

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1). “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

If a defendant moving for summary judgment fails to meet its initial burden, “it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers establish a prima facie showing that justifies a judgment in the defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of the existence of a triable material factual issue. In meeting this obligation, the plaintiff may not rely on the mere allegations of its pleadings, but must ‘set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.] ‘There is a triable issue of 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.’ ” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 81-82 (Intrieri).)

We independently review orders granting summary judgment. (Intrieri, supra, 117 Cal.App.4th at p. 81.) This means we “ ‘must “consider all of the evidence” and “all” of the “inferences” reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.’ ” [Citation.] The trial court’s stated reasons for granting summary adjudication are not binding on the reviewing court, which reviews the trial court's ruling, not its rationale.” (Ibid.)

1.The trial court did not err in finding triable issue of material fact regarding the intersection’s dangerousness

A public entity such as City may be “liable for injury caused by a dangerous condition of its property.” (Gov. Code, § 835.) “ ‘Dangerous condition’ means 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).) Landscaping located on private property may create a dangerous condition if “by reason of [its] proximity to the intersection [it] expose[s] motorists using the highway to a substantial risk of injury.” (Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 30.) “Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.” (Ibid.)

City argues summary judgment was proper here, because, although Ruzak stated he found foliage well in excess of 30 inches near the subject intersection, he never stated the foliage was in the “limited use area” as that term is used in the City documents described in the Lewis, Fisher and Ruzak declarations. We disagree. The “limited use area,” as described by Ruzak, “is the corner of the property.” The foliage he found to exceed 30 inches in height was located at “the northeast corner of the subject intersection . . . along the sidewalk.” In addition, the photograph to which he refers shows a tree that we, even without engineering expertise, would describe as at the corner of the property. If the definition of the “limited use area” is simply “the corner,” then Ruzak does state that he found foliage more than 30 inches high in the “limited use area.” Ruzak’s declaration may not be a model of clarity on this point, but he has provided enough information that a jury may be able to find that the foliage to which Ruzak refers was located in the “limited use area” in violation of City standards, especially since we liberally construe evidence in opposition to a summary judgment motion. (Intrieri, supra, 117 Cal.App.4th at p. 81.) Based on the information Ruzak provides about what those standards mean and why they exist, and particularly his opinions that City meant to exceed the AASHTO standard on which Lewis and Fisher rely and that providing proper sight distance at the intersection requires consideration of a vehicle’s stopping distance rather than a bare assumption that all traffic would obey the intersection’s stop signs, a jury could infer that the presence of the foliage Ruzak describes would interfere with the required sight distance of a driver at the subject intersection.

City’s petition asks us to find the foliage was not in the limited use area because the only sight distance required at the subject intersection is that required by the AASHTO standard, which assumes that all vehicles will come to a complete stop at the intersection, and therefore each driver need only be able to see the first driver at each of the other approaches. To use City’s own phrasing: “In other words, when all vehicles are required to stop at the intersection, the sight distance for each driver shrinks to a line within the intersection itself; there is no ‘limited use area’ that falls on property adjacent to the intersection under those circumstances.” City also asks us to agree with Fisher that City Standard Detail 140 and City Standard Drawing 700 do not apply to the subject intersection because it is controlled by four-way stop signs. Ruzak opines that these drawings do govern the subject intersection, and City has offered no reason why his expert opinion on this issue is inadmissible. As indicated above, however, Ruzak’s declaration creates triable issues of material fact regarding whether the AASHTO standard is the one City has adopted, or whether the highway design manual and the City plans and drawings referenced above require a more extensive sight distance to prevent the subject intersection from being dangerous.

In other words, the expert declarations submitted in support of and in opposition to City’s summary judgment motion create triable issues of material fact in this case about which set of rules governs or should govern the subject intersection. The trial court did not err is making such a finding.

2. The trial court did not err in finding that design immunity does not bar liability

A public entity has immunity, called “design immunity,” against “an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.” (Gov. Code, § 830.6.) “A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66; see Hampton v. County of San Diego (2015) 62 Cal.4th 340, 343 [same].)

Here, the trial court found “City did not meet its burden to demonstrate a grant of discretionary authority” to Lewis. In their written opposition to City’s motion, real parties cited Martinez v. County of Ventura (2014) 225 Cal.App.4th 364 (Martinez) and Thomson v. City of Glendale (1976) 61 Cal.App.3d 378 (Thomson) for the proposition that a public “entity has the burden of methodically tracing the path of discretionary authority from the original source, such as a city’s charter, to the employee who actually approves the design.” Each of these cases was an appeal from a judgment. (Martinez, supra, 225 Cal.App.4th at p. 367; Thomson, supra, 61 Cal.App.3d at p. 381.) We need not decide whether these cases govern the nature and extent of the evidence a public entity must submit to meet it initial burden on summary judgment, should it choose to raise design immunity in such a motion.

Instead, we find City’s design immunity claim fails as a matter of law for lack of a causal relation between the design as approved and the defect of which real parties in interest complain. “The rationale behind design immunity ‘is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.’ ” (Cameron v. State of California (1972) 7 Cal.3d 318, 326.) Here, at least in Ruzak’s view, the design approved by City required landscaping to be kept to 30 inches in height. Real parties argue, not that this 30-inch height restriction caused them harm, but that the failure to ensure adherence to this requirement caused the dangerous condition of public property. They are not therefore asking a jury to reweigh the wisdom of capping landscaping height at 30 inches. Thus, design immunity cannot apply. (See Ibid. [“there would be no reexamination of a discretionary decision in contravention of the design immunity policy because there has been no such decision proved.”].)

For the foregoing reasons, the trial court properly rejected City’s claim to design immunity in its motion for summary judgment. As we have already rejected the only other contention City makes in the petition filed in this court, we therefore deny the petition.

DISPOSITION

The petition is denied.

Real parties in interest are to recover their costs on this petition.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.