Filed 5/24/17 Avila v. City of San Jose CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT


ILIDIO AVILA et al.,

Plaintiffs and Appellants,

v.

CITY OF SAN JOSE,

Defendant and Respondent.
H042304
(Santa Clara County
Super. Ct. No. CV245894)


Plaintiffs Ilidio Avila, Angelina Avila, Sonny Avila, Dominic Avila, and Jovina Avila brought an action against defendant City of San Jose (City) for, among other things, dangerous condition of public property after Ilidio was injured in a traffic accident. The trial court granted the City’s motion for summary judgment and entered judgment in favor of the City. On appeal, plaintiffs contend that there were triable issues of material fact regarding whether the intersection where the accident occurred constituted a dangerous condition of public property. We affirm the judgment.

I. Procedural and Factual Background
A. Complaint
In October 2013, plaintiffs filed their first amended complaint against Oscar Horacio Chacon, Mayra Ortega, Blanca Martinez, and the City. Four causes of action were alleged against the City: negligence; negligent infliction of emotional distress; dangerous condition of public property; and loss of consortium. Only the dangerous condition of public property cause of action is at issue in this appeal.
Plaintiffs alleged the following facts. In November 2012, Chacon was driving on 15th Street. He made a brief stop at Julian Street, failed to observe oncoming traffic, accelerated to turn left, lost control of his vehicle, veered off the roadway, and hit a light pole, a building, and Ilidio. Chacon “operated his motor vehicle negligently and carelessly,” thus causing the injuries to Ilidio. Chacon could not see the vehicle traveling on Julian Street due to “obstructions to visibility, which obstructions were caused and created by the negligent design of the roadway” by the City. The residents of this area had previously petitioned the City to put stop signs at this intersection, because there had been “multiple prior accidents at this and similar surrounding intersections, numerous complaints and many close calls in situations similar to the present accident, due to lack of visibility and the lack of proper controls, all of which the City . . . was on notice of.” The “intersection constituted an unreasonably dangerous condition of public property and that condition legally caused” the accident and Ilidio’s injuries. The City denied the request “to install appropriate signage, signals, or controls at the intersection, and refused to take any actions to warn of or ameliorate the unreasonable risk of danger . . . .”

B. Summary Judgment Motion
In December 2014, the City brought a motion for summary judgment or, alternatively, summary adjudication. The City argued that there was no evidence of a dangerous condition, the City did not have notice of a dangerous condition, the sole cause of the accident was Chacon’s failure to exercise due care, and the City was immune from liability, and thus it was entitled to judgment as a matter of law.
To support its summary judgment motion, the City submitted the deposition testimony of Chacon and Joseph Aguirre, Ilidio’s responses to the City’s interrogatories, and the declarations of its counsel and James Bittner to support the following facts.
Julian Street, near the intersection of 15th Street, is a two-lane roadway running east and west while 15th Street, near the intersection of Julian Street, is also a two-lane roadway. There are stop signs at the intersection for northbound and southbound traffic on 15th Street. Vehicles traveling eastbound and westbound on Julian Street do not have any traffic controls or stop signs at the intersection. The speed limit for both streets near this intersection is 25 miles per hour.
Chacon, who was 19 years old, had driven with a license for about three weeks before the accident. Shortly before 3:00 p.m. on November 3, 2012, Chacon was driving southbound on 15th Street and came to a stop at the stop sign at Julian Street for seven or eight seconds. According to Chacon, “it’s one of those intersections where you kind of have to, you know, tilt forward and see if there’s any cars coming.” More than two cars traveled through the intersection. As Chacon was looking to the left, his vision was obscured by a “truck type of car.” This vehicle was parked in the red zone on the northeast corner of Julian Street. Chacon started to creep into the intersection to see if it was clear. His car was almost halfway to the middle of the intersection when he saw a car approaching. This vehicle was driven by Aguirre. Aguirre had a clear view of Chacon’s vehicle from about 30 to 50 feet from the intersection. Aguirre was traveling at under the speed limit of 25 miles per hour. When Aguirre’s vehicle was about a car and a half away, Chacon was afraid it would hit him. Chacon “stepped too hard on the accelerator trying to get out of the way,” lost control of his vehicle, hit a light pole, a building, and Ilidio. Ilidio was standing on the sidewalk near the southeast corner of Julian Street at the time of impact.
Bittner, a senior civil engineer for the City in the Department of Transportation (DOT), had discretionary authority to approve the design, construction, or improvement of public property, including street markings and signage. In 2008, the DOT installed 21 feet of red curb on the northeast corner of Julian Street to improve sight distance for southbound traffic on 15th Street. Bittner stated that the use of the red curb was “reasonable, proper, and in accordance with accepted traffic engineering standards and practices to improve visibility . . . .”
Bittner conducted research of applicable records for the five years preceding the accident involving Chacon and found four traffic collision reports involving southbound vehicles on 15th Street and westbound vehicles on Julian Street. None of these collision reports indicated visible obstructions as a contributing factor to the collision. In 2012, the City completed the conversion of Julian Street from a one-way to a two-way street from 4th Street to 17th Street. The red curb on the northeast corner of Julian Street and the stop signs for southbound and northbound traffic remained unchanged. No stop signs were installed for eastbound or westbound traffic.

C. Summary Judgment Opposition
Plaintiffs filed opposition to the motion for summary judgment. They argued that the Julian Street and 15th Street intersection was a dangerous condition of public property and the City had not properly pleaded design immunity. More specifically, they argued that the City did not conduct the appropriate site study and failed to meet applicable standards for line of sight.
Plaintiffs submitted the declarations of their counsel and Gay Lawrence Pang, the City’s responses to interrogatories, the deposition testimony of Chacon and Bittner, excerpts from accident data provided by the DOT for the years 2008 through 2012, and excerpts from e-mails between City residents and City employees from 2008 through 2014.
Plaintiffs asserted the following facts. Chacon stopped at the limit line, which was located 12 to 13 feet north of the Julian Street curb. Chacon’s view of traffic on Julian Street was not obstructed only by the vehicle parked in the marked red zone. Defense exhibits J, K, and L show that there was also a fence, shrubbery, trees, an electrical pole, signage, and a truck parked legally across the street. A video, which depicts part of the accident and was taken from the liquor store, also “seems to show a truck parked on the northeast side of Julian was no[t] in the red zone.”
Pang, a licensed civil and traffic engineer, reviewed all documents provided by the City in discovery. The City did not perform a comprehensive corner sight distance evaluation at the intersection of 15th Street and Julian Street before Julian Street was changed from a one-way to a two-way street. A comprehensive corner sight distance evaluation includes an evaluation of the speed of vehicles traveling on Julian Street, line of sight or visibility, accident history, and pedestrian data. Pang used California Department of Transportation (CalTrans) and American Association of State Highway and Transportation Officials (AASHTO) design criteria for evaluating the sight distance at the intersection. The CalTrans standard was a corner sight distance of 330 feet while the AASHTO standard was 335 feet, and these standards would require “250 feet or so” of red curbing that “would cover almost the entire block between 15th and 16th street.” The corner sight distance at 15th and Julian Streets was about 110 feet with the 21 feet of red curbing in place. Pang concluded that the intersection was “inadequate and deficient, d[i]d not satisfy the CalTrans and AASHTO requirements for corner sight distance at an intersection,” and was “dangerous and unsafe as visibility of drivers traveling SB on 15th street looking East [was] severely compromised.” Pang concluded that the City could have easily improved the corner sight distance by relocating the STOP bar and the STOP word more southerly on 15th Street.
Pang stated that there were seven reported accidents, including one with a fatality, in 2008 at the 15th Street and Julian Street intersection while there were five reported accidents at this intersection in 2009. Thus, the City was on notice that it should have performed a traffic signal warrant analysis in late 2009 or early 2010, but did not do so.
Pang noted that the DOT performed several “ALL-WAY STOP” analyses to satisfy residents’ concerns. These analyses indicated that Julian Street was designated as nonresidential. Based on this designation, the analysis indicated that there were 24 points allocated, but that the minimum threshold of 28 points was not satisfied. However, the Downtown Access and Circulation Study indicated that the goal for Julian Street was for it to be operating as a residential street. If the residential street designation was used, then the 24 points would exceed the 20 point threshold for a residential street. Pang also suggested several ways in which the intersection could have been improved.

D. The City’s Reply
The City argued that plaintiffs had failed: to identify facts to meet the definition of a dangerous condition of public property; and to submit disputed, material facts that overcame its statutory immunity. Noting that plaintiffs’ theory of liability was based on the City’s failure to either perform certain studies related to traffic signals, stop signs, or warning signals or to implement such measures, the City argued that it was immune from such liability.

E. The Trial Court’s Ruling
The trial court issued a tentative ruling in which it denied the City’s motion for summary adjudication of the cause of action for dangerous condition of public property. The City opposed the tentative ruling. On March 5, 2015, a hearing was held. A week later, the trial court issued an order granting the motion for summary judgment. The trial court found that plaintiffs had failed to raise triable issues of fact regarding: (1) the causation element of their dangerous condition of property cause of action; and (2) the City’s design immunity.
II. Discussion
A. Standard of Review
“ ‘ “Appellate review of a ruling on a summary judgment or summary adjudication motion is de novo.” ’ ” (Food Pro Internat., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 993.) “[T]he party moving for summary judgment bears the burden of persuasion that there are no triable issues of material fact and that [the moving party] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “There 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.” (Ibid.) The moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

B. Dangerous Condition of Public Property
Plaintiffs contend that the trial court erred when it determined that there was no triable issue of material fact in finding that only an illegally parked vehicle obstructed Chacon’s view and thus no dangerous condition of public property existed.
“The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. [Citation.]” (Zelig v. County of Los Angeles (2002) 27Cal.4th 1112, 1133.)
A “ ‘[d]angerous condition’ ” is 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).) “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.] [¶] . . . There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.]” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347-1348.)
A public entity is liable for injury caused by its property if at the time of the injury: (1) the property was in a dangerous condition; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual or constructive knowledge of the dangerous condition a sufficient time ahead of the injury so as to take measures to protect against the dangerous condition. (Gov. Code, § 835.)
Plaintiffs contend that “Chacon specifically referred to the design of the intersection as being the cause of his visibility being obstructed,” thereby creating a triable issue of fact on the causation element. They rely on the following testimony by Chacon. “[Cars are] constantly going. So it’s one of those intersections where you kind of have to, you know tilt forward and see if there’s any cars coming.” (Italics added.) Plaintiffs also claim that “[t]he only way that Mr. Chacon could view oncoming traffic was to significantly creep past the limit line, so much so that he was halfway into the intersection.” The record does not support their position.
Chacon had to “tilt forward and see if there’s any cars coming” because, as he later testified, an illegally parked car blocked his view of oncoming traffic. He never referred to the design of the intersection as impairing his ability to safely make the left turn onto Julian Street. He never testified that the parked vehicle “contributed to the limited visibility . . . .” He testified: “Q: (By Mr. Nielsen) At any rate, your wheels are over that [stop] line. You’re south of the line and you’re looking to the left. And you told me that something was obscuring your vision? [¶] A. Correct. [¶] Q. What was it? [¶] A. It was a car. It was like a truck type of car.” Initially, Chacon testified that he did not know how far from the intersection the vehicle was parked. However, he also testified that the illegally parked vehicle “was pretty close” to the intersection. The following exchange then occurred: “Q. Okay. When is it that you’re able to first see those cars with that vehicle there blocking your view? [¶] A. It was blocking the view, and that was my problem. . . . . [¶] . . . [¶] Q. So how far do you creep out in the intersection before you make the decision to go? [¶] A. Maybe it was in front of where that car was. It was that whole width of that car . . . . [¶] Q. Six feet? [¶] A. Yes. [¶] Q. . . . [L]et me rephrase it. Ask you a different way. [¶] When you first see the approaching car, how far is your car into the intersection? [¶] A. It’s about halfway in there. Not half. Maybe approaching to go to the middle of the intersection. [¶] Q. So you’re almost halfway through the intersection before you first see it? [¶] A. Yes. [¶] Q. Okay. And when we say halfway, you mean halfway to the middle of it; right? [¶] A. Yes.” Thus, the only road condition that had any causal relationship to the accident was the illegally parked vehicle.
Plaintiffs point out that “Chacon was never asked if any other objects contributed to his obstructed visibility, and thus he never denied that other objects such as the house, fence, shrubs, trees, signage, telephone and electrical poles contributed to his limited line of sight.” However, it was plaintiffs’ burden to make a prima facie showing of the existence of a triable issue of material fact as to whether Chacon identified any other object or objects, which obstructed his view of traffic. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) They did not meet this burden. Thus, plaintiffs’ references to other objects, such as a house, a fence, shrubs, trees, signage, telephone and electrical poles, as potential visual obstructions are irrelevant, because there is nothing in the record indicating that they had any causal relationship to the accident.
Plaintiffs also contend that there was a triable issue of fact as to whether the vehicle that Chacon saw parked on the northeast curb of Julian Street was parked in the red zone. Plaintiffs claim that Chacon assumed or guessed that the illegally parked vehicle was parked in the red zone. Plaintiffs have mischaracterized Chacon’s testimony. The following exchange occurred: “Q. Now, I asked you some questions about the vehicle that was obstructing your view and where it was located on the north side of Julian. And we’re now looking at the red line, and then the truck or car, whatever it is, that’s in the distance at the end of the grassy area. [¶] Can you tell me where in relation to Exhibit D that car was, or vehicle was that obstructed your view? [¶] A. Yes. I would assume it was next to the lawn. . . . [¶] . . . [¶] Q. (By Mr. Nielsen) Okay. So in looking at D, it’s parked adjacent to the lawn; is that right? [¶] A. Yes. [¶] Q. And can you tell me whether or not it’s in the red zone or not? [¶] A. Yes. [¶] Q. It is in the red zone? [¶] A. Yes.” Thus, Chacon unequivocally testified that the vehicle, which blocked his view, was illegally parked.
Plaintiffs claim that the video of the accident shows that the vehicle was parked legally. Our review of the video does not support this claim. The video shows part of Julian Street and then shifts to focus on Chacon turning onto Julian Street, losing control of his vehicle, and hitting the building. However, the video does not show the portion of Julian Street extending east from the corner of the street and including the red zone.
As the court explained in Salas v. Department of Transportation (2011) 198 Cal.App.4th 1958, “ ‘ “ ‘[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.’ ” [Citation.] There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.]’ [Citation.]” (Id. at p. 1070.) Here, the causal relationship to the third party conduct that injured Ilidio was an illegally parked vehicle. Thus, the City cannot be held liable for dangerous condition of public property.
Relying on Pang’s declaration, plaintiffs argue that the City’s failure to install stop signs or traffic signals, combined with other factors, presented a dangerous condition of public property. Had there been a four-way stop sign or traffic signals at this intersection, Chacon would have been able to safely make the left turn despite the illegally parked vehicle.
However, Government Code section 830.4 provides that “[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, as described by the Vehicle Code, or distinctive roadway markings as described in Section 21460 of the Vehicle Code.” (Gov. Code, § 830.4.) “ ‘Thus, the statutory scheme precludes a plaintiff from imposing liability on a public entity for creating a dangerous condition merely because it did not install the described traffic control devices.’ [Citation.] In short, ‘[t]he lack of a traffic signal at the intersection does not constitute proof of a dangerous condition.’ [Citation.] [¶] It is true . . . that a public entity may be liable where a dangerous condition ‘exists for reasons other than or in addition to the “mere[ ]” failure to provide such controls or markings.’ [Citation.]” Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135.) Here, plaintiffs argue that numerous visibility issues created a dangerous condition. But the second element of a dangerous condition of public property cause of action requires that a plaintiff establish that the injury was proximately caused by the dangerous condition (Gov. Code, § 835). Here, as previously discussed, plaintiffs have failed to make a prima facie showing of the existence of a triable issue of material fact as to this element.
In sum, the trial court did not err in granting the City’s motion for summary judgment.

III. Disposition
The judgment is affirmed.




 





_______________________________
Mihara, J.



WE CONCUR:






______________________________
Elia, Acting P. J.






______________________________
Bamattre-Manoukian, J.












Avila v. City of San Jose
H042304