AMANDA LAABS, a Minor, etc., Plaintiff and Appellant, v. CITY OF VICTORVILLE, Defendant and Appellant.
No. E040778
Fourth Dist., Div. Two
June 12, 2008
163 Cal. App. 4th 1242
Lascher & Lascher, Wendy Lascher, Aris Karakalos; Richard Harris Law Firm and Richard Harris for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Christopher J. Workman and Lisa W. Cooney for Defendant and Appellant.
KING, J.—
I. INTRODUCTION
Plaintiff Amanda Laabs was injured in an automobile collision. She sued various parties, including the County of San Bernardino (the County) and the City of Victorville (the City). As against these governmental entities, she alleged that her injuries were caused by a dangerous condition of public property for purposes of
We affirm both the trial court‘s grant of summary judgment as well as its denial of the City‘s motion for defense costs and expenses.
II. STATEMENT OF FACTS
The following facts are, in essence, uncontroverted and taken from the evidence submitted by the parties in support of, and in opposition to, the motion for summary judgment.2
Ridgecrest Road (Ridgecrest) is a four-lane north/south roadway with a posted speed limit of 55 miles per hour. It intersects with Pebble Beach Drive
Pebble Beach, which has no centerline delineation, passes through a portion of the Spring Valley Lake residential area. Ridgecrest runs along the west side of the Spring Valley Lake development. There is a block wall along the east side of Ridgecrest, just to the south of Pebble Beach. The block wall is about 10 feet east of the curb and runs parallel with Ridgecrest; at its north end, it turns easterly to run along a small portion of the south side of Pebble Beach.
The subject automobile accident occurred when a northbound vehicle on Ridgecrest collided with a westbound vehicle turning left from Pebble Beach onto southbound Ridgecrest. The northbound vehicle, a Porsche Carrera, was driven by James Dimeo. The left-turning vehicle, a Mitsubishi, was driven by Dorothy Specter. The impact occurred within the northbound lanes of Ridgecrest.
In 1996, Ridgecrest was widened to the west. Added were the southbound lanes of Ridgecrest consisting of two 12-foot lanes and a 12-foot-wide two-way left turn lane. The County retained ownership, control, and responsibility for the northbound lanes of Ridgecrest; the City annexed the west side and acquired control and maintenance responsibility for the southbound lanes. The as-built plans show the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.
At its intersection with Ridgecrest, Pebble Beach has a 6 to 8 percent uphill grade in a westerly direction and a 5 percent downgrade to the north. South of its intersection with Pebble Beach, Ridgecrest is an undulating roadway with a 280-foot vertical curve just to the south of the intersection.
At the time of the accident, the driver of the northbound Porsche, James Dimeo, was accompanied by Jason Moffett and plaintiff. Just before the accident, they planned to go to In-N-Out Burger. Initially, Dimeo proceeded southbound on Ridgecrest towards Bear Valley Highway. His vehicle at times reached a speed of 100 miles per hour. At some point near a church parking lot, Dimeo made a U-turn and began proceeding northbound on Ridgecrest.
Witness Kevin Vidana-Barda testified that as he was proceeding northbound on Ridgecrest, south of the accident site, the Porsche passed him, traveling anywhere from 100 to 120 miles per hour.3
Dorothy Specter, the driver of the Mitsubishi, indicated that she stopped at the stop sign, looked both ways and saw nothing coming. She eased forward and again looked both ways and saw nothing coming. She pulled into the intersection to make a left-hand turn to go south on Ridgecrest. Suddenly, a vehicle struck the front of her vehicle. She never saw the other car coming. In a statement to the investigating officer, Specter gave no indication that her line of sight was obstructed.
Dimeo said that he had driven this part of Ridgecrest “every day,” and “hundreds of times.” He normally drives an elevated truck and never had difficulty seeing cars at the Pebble Beach intersection. In the lower Porsche, however, he said he could not see the westbound car at the intersection.
Keith Friedman, an expert, opined that based on his preliminary analysis, the Porsche was going 74 miles per hour at impact. After this initial impact, the Porsche spun around 270 degrees moving in a northwesterly direction. The Porsche partially jumped the western curb of Ridgecrest and slid northerly along the curb, striking and knocking over a light pole; the pole was located on the sidewalk adjacent to the southbound lanes. It had been installed within the City right-of-way, approximately one foot west of the western curb face of Ridgecrest.
Other evidence submitted by way of lay witnesses and expert declarations will be discussed within the context of our analysis.
III. PROCEDURAL BACKGROUND
In her first amended complaint, plaintiff asserts a cause of action for “premises liability” based on the theory, among others, that her injuries were caused by a dangerous condition of public property for purposes of
The City moved for summary judgment on the following grounds: The City did not own or control northbound Ridgecrest, the Ridgecrest-Pebble Beach intersection was not in a dangerous condition as a matter of law, the City is entitled to design immunity under
In addition to opposing the City‘s asserted grounds for summary judgment, plaintiff argued that the placement of the light pole, or luminaire, on the west side of Ridgecrest constituted a dangerous condition that contributed to the severity of plaintiff‘s injuries.
Following a hearing, the court granted the motion for summary judgment. Subsequently, the court denied the City‘s motion for defense costs and expenses.
IV. ANALYSIS
A. Standard of Review
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff‘s cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493].) The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) “In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted.... [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action,
On appeal, “our review is de novo, and we independently review the record before the trial court.” (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652 [92 Cal.Rptr.2d 29].) “The trial court‘s stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878 [116 Cal.Rptr.2d 158].)
B. General Overview
A governmental entity is liable for an 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 that was incurred; and (4) the dangerous condition was negligently or wrongfully created by an employee of the entity, or the entity had actual and/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. (
For the property to be considered in a “dangerous condition,” it must create “a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property... is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (
A “design immunity” defense is provided under
Initially, we consider whether the alleged dangerousness of the luminaire‘s location, raised for the first time in opposition to defendant‘s motion for summary judgment, can be considered as a basis for denying the summary judgment motion. As discussed below, we conclude that it cannot.
C. The Plaintiff Cannot Raise the Alleged Dangerousness of the Luminaire for the First Time in Opposition to the Motion for Summary Judgment
The City argues that because plaintiff made no allegations in her complaint that the physical location of the luminaire was a basis for dangerous condition liability, we cannot consider the issue in determining the propriety of the trial court‘s grant of summary judgment. In her reply brief, plaintiff argues that the placement of the luminaire, while not specifically referenced, is “closely tied to the City‘s dangerous condition liability which was clearly alleged in plaintiff‘s complaint.” She further submits that the complaint is only one of the “pleadings” that define the issues to be addressed at the motion for summary judgment.
Plaintiff‘s first amended complaint alleges: “Plaintiff was a passenger in a vehicle northbound on Ridgecrest Road driven by James Dimeo, Jr., in the vicinity of its intersection with Pebble Beach Road in Victorville, unincorporated County of San Bernardino. Another vehicle driven by Dorothy Jean Specter was westbound on Pebble Beach Road stopped at a stop sign before attempting a left turn to go south on Ridgecrest Road. There was inadequate sight distance so that Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle. Based upon information and belief, the [City] is responsible for the design, construction, maintenance and conrol [sic] of the southbound lanes of Ridgecrest Road. Based upon information and belief, [County] is responsible for the northbound lanes of Ridgecrest Road. Defendants [City] and [County] were negligent in designing, constructing, maintaining, controlling and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals. The dangerous conditions created an unreasonable risk of injury to persons using the roads and such dangerous conditions were a foreseeable cause of Plaintiff‘s injuries.” There is no specific mention of the luminaire or any similar object. The “dangerousness”
“The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]” (Turner v. State of California (1991) 232 Cal.App.3d 883, 891 [284 Cal.Rptr. 349] (Turner).) Thus, a “defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4 [93 Cal.Rptr.2d 820].) “To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party‘s evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [102 Cal.Rptr.2d 813].) “[T]he pleadings ‘delimit the scope of the issues’ to be determined and ‘[t]he complaint measures the materiality of the facts tendered in a defendant‘s challenge to the plaintiff‘s cause of action.’ [Citation.] [Plaintiff‘s] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201–1202, fn. 5 [37 Cal.Rptr.3d 863] (Lackner).)
Here, plaintiff did not seek leave to amend her complaint prior to the hearing on the motion for summary judgment. The issue therefore presented is whether her amended complaint can be construed to encompass the issue of the dangerous placement or location of the luminaire.
In Lackner, the plaintiff received personal injuries when skiing at Mammoth Mountain. At the time of the injury, she was standing in a deserted area at the base of an advanced ski run. Cassidy North, a high school snowboarder, was training for the California Nevada Ski and Snowboard Federation State High School Championships. He sped down the run at a high rate of speed and struck the plaintiff. The plaintiff sued Mammoth, among others. She alleged that Mammoth had increased the risk of injury inherent in skiing by failing to enforce and supervise the race participants’ use of ordinary ski runs and by failing to warn its patrons that race participants were permitted to
In Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621 [32 Cal.Rptr.3d 266] (Oakland Raiders), the plaintiff sued the National Football League on various theories, including breach of fiduciary duty. In response to the defendant‘s motion for summary adjudication, the plaintiff submitted three new or additional arguments as to how the defendant breached its fiduciary duty.4 Although the merits of the three additional arguments were considered by both the trial and appellate courts, the appellate court stated, “the pleadings set the boundaries of the issues to be resolved at summary judgment. [Citations.] A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citations.] A summary judgment or summary adjudication motion that is otherwise sufficient ‘cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings.’ [Citation.] Thus, a plaintiff wishing ‘to rely upon unpleaded theories to defeat summary judgment’ must move to amend the complaint before the hearing. [Citations.]” (Id. at p. 648.)
In Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 [253 Cal.Rptr. 587] (Fall River), the plaintiff was a student at Fall River Junior-Senior High School. He received injuries when a steel door of a building struck his head. In his governmental claim he asserted that the door was “in a dangerous and defective condition” for several reasons, one of which was that it closed with excessive force. After the filing of the original complaint, the plaintiff filed an amended complaint alleging that school district personnel negligently failed to supervise students who were engaged in horseplay, and that he was injured as a result. The defendant moved for judgment on the pleadings based on the proposition that the cause of action for negligent supervision was not contained within the claim. The trial court denied the motion. The appellate court reversed. In doing so, the court stated that the “cause of action patently attempts to premise liability on an entirely different factual basis than what was set forth in the tort claim.” (Id. at p. 435.)
In Donohue v. State of California (1986) 178 Cal.App.3d 795 [224 Cal.Rptr. 57] (Donohue), the plaintiff alleged in his claim that the State of California was negligent in allowing an uninsured motorist to take the driving test. In his complaint, he contended that the state was negligent by failing to instruct, direct, and control the driver in operating the vehicle. In affirming the trial court‘s grant of the motion for judgment on the pleadings, the court stated, “[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.” (Id. at p. 804.)
In Blair v. Superior Court (1990) 218 Cal.App.3d 221 [267 Cal.Rptr. 13] (Blair), the plaintiff was a passenger in a vehicle that struck a tree after leaving the roadway. In his claim, the plaintiff contended that the car went out of control because of ice on the roadway and that the state negligently maintained and constructed the highway. The plaintiff‘s claim further indicated that the state failed to sand and care for the highway. In his complaint,
In Turner, the alleged discrepancy was not between the claim and the complaint, but rather between the claim and the facts submitted in opposition to the motion for summary judgment. There, the plaintiff was shot in the parking lot of Cal Expo in Sacramento. He alleged in his claim that the defendants knew or should have known that gang-related violence and shootings had occurred on the premises, and that the defendants “failed to provide adequate warnings and/or security to members of the general public....” (Turner, supra, 232 Cal.App.3d at p. 889, fn. 2.) In their motion for summary judgment, the defendants argued that they were not liable on a theory of negligence or dangerous condition of public property based on their failure to provide adequate security. In response, the plaintiff submitted evidence of inadequate lighting in the area where the shooting occurred. The trial court granted summary judgment, concluding that the claim of inadequate lighting was barred because no such allegation was included in the claim. In affirming, the appellate court indicated, “Nowhere [in the claim] is there any mention of inadequate lighting as a basis for the dangerous condition of property....” (Id. at p. 889.) The Turner court distinguished Blair, stating, “In... Blair the allegations in the claim were broad enough to
While providing no bright line, these cases provide some guidance. Initially, if a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment.6 Second, new factual issues presented in opposition to a motion for summary judgment should be considered if the controlling pleading, construed broadly, encompasses them. In making this determination, courts look to whether the new factual issues present different theories of recovery or rest on a fundamentally different factual basis.
For example, in Lackner, the plaintiff‘s initial theory was the defendant‘s alleged failure to control or supervise race participants and warn other patrons of the presence of race participants. In her complaint, the plaintiff attempted to add a subtly different theory—that the defendant failed to post warning signs telling downhill skiers to slow down because they were coming up on a flat portion of slope where other skiers often stopped. In Oakland Raiders, the plaintiff attempted to add entirely new factual bases to support a theory already alleged in the complaint. In Fall River, the plaintiff initially asserted a dangerous condition of public property based on alleged defects in the steel door. He later attempted to add not only new facts of children horseplaying, but also a new theory of negligent supervision. In Turner, the plaintiff initially pled theories of liability based upon the failure to provide adequate security, and later attempted to add an issue of a dangerous condition based on inadequate lighting.
In the present matter, plaintiff‘s supplemental statement of undisputed facts states: “The City created another dangerous condition by the installation of light fixtures too close to the roadway.” (Italics added.) Unlike Lackner and Fall River, no new legal theory is alleged. Both the amended complaint and
The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258 [23 Cal.Rptr.2d 490].) Upon a motion for summary judgment, amendments to the pleadings are readily allowed. (Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at p. 1069, fn. 7.) If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. (Ibid.) To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.7
In the trial court and on appeal, plaintiff asserted that triable issues of fact exist as to whether the intersection constituted a dangerous condition based upon the inadequacy of the stopping sight distance for northbound motorists. On appeal, the City does not dispute this contention. Instead, the City argues that it cannot be liable for the dangerousness of the intersection because the northbound lanes were owned, controlled, and maintained by the County, not the City. In support of its motion for summary judgment on this issue, the City submitted “undisputed” facts negating such ownership, control, and maintenance. In support thereof, the City submitted the declarations of engineers John McGlade and Edward Ruzak. McGlade declared that the County owned, maintained, controlled, and had responsibility for the north bound lanes; the City had control and responsibility for the southbound lanes; and the City did not construct, maintain, own, or control the northbound lanes. Ruzak indicated that the as-built plans delineate the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.
Plaintiff, in her response, did not dispute these facts, other than as they relate to the intersection as a whole. However, plaintiff argues that the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent property because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. Thus, the issue is whether the City‘s liability may be premised on Specter‘s attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes). As we explain, there are sufficient facts in the record to create a triable issue relative to the imposition of liability on the City even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.
In Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [132 Cal.Rptr.2d 341, 65 P.3d 807] (Bonanno), the plaintiff was struck by a vehicle while crossing a county-owned roadway to get to a bus stop established by the defendant (CCCTA). Following a plaintiff‘s verdict, CCCTA appealed. In affirming the judgment, the Court of Appeal held that
parties must be acting on a known or set stage. As stated in Turner, supra, 232 Cal.App.3d at page 891, footnote 3, “[p]laintiff contends any defect in the claim served on the State Board of Control is not a proper basis to disregard inadequate lighting evidence because defendants did not raise this in their initial memorandum in support of summary judgment. However, this merely underscores the lack of any lighting contention in both the claim and the complaint. Defendants had no reason to challenge such contention when they had no notice plaintiff was relying on it. The complaint circumscribes the claims and theories the defendants must meet on a motion for summary judgment. [Citation.]”
Bonanno was followed in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [1 Cal.Rptr.3d 712] (Joyce). In Joyce, the plaintiff was
In both Bonanno and Joyce, the plaintiffs were injured while on property adjacent to the defendants’ property. Both the plaintiffs were exposed to a risk of injury because they were attempting to use the defendants’ property (the bus stop or school grounds). As here, plaintiff was injured while on adjacent property (the northbound lanes). She was exposed to a risk of injury because at the time of the accident Specter was attempting to use and access defendant‘s southbound lanes.9
In both Bonanno and Joyce, the defendant entity had some ability to protect against the injury. In Bonanno, the transit district could have moved the bus stop; in Joyce, the school district could have removed the opening in the fence. Here, the evidence of the City‘s ability to control, or protect against the risk of injury, is far less obvious; yet triable issues nonetheless remain. While there is no evidence in the record of any contract or agreement
Thus, liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.
E. The Evidence Established the Applicability of the Design Immunity As a Matter of Law
Under
“The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.] ” ‘[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.’ ” [Citation.]’ [Citation.]” (Cornette, supra, 26 Cal.4th at p. 69.)
As to the causal relationship between the plans and the accident, there is a clear nexus between the vertical curvature of Ridgecrest south of its intersection with Pebble Beach as shown in the plans and the adequacy or inadequacy of stopping sight distance. Thus the first prong is met.10
As to the second prong, the discretionary approval of the plans prior to construction, the 1996 plans depict the vertical curve on Ridgecrest just south of the intersection with Pebble Beach and the widening of the road. In his declaration, John McGlade, a City engineer, declared that these plans were reviewed and approved by Jon Roberts, an engineer employed by the City. Ruzak also declared that the plans were approved by Roberts and the San Bernardino County Road Department in April 1996. The plans themselves show that they were signed and approved by Roberts in his capacity as the City Engineer. As such, his signature is presumed genuine. (See
Relative to the third element of design immunity, the City must “present substantial evidence of the reasonableness of the approved design. [Citation.]” (Higgins v. State of California (1997) 54 Cal.App.4th 177, 186 [62 Cal.Rptr.2d 459] (Higgins), disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74.) “[T]he third element of design immunity, the existence of substantial evidence supporting the reasonableness of the adoption of the plan or design, [is] a matter for the court, not the jury. ‘[T]he trial
Relative to this issue, the City submitted one “undisputed” fact: “The westside (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of Highcrest and Ridgecrest Road. The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, professional engineer, employed by the [City], on April 16, 1996. The County approved the plans on April 29, 1996.” In support of this fact, the City provided the declarations of Ed Ruzak, a registered civil and traffic engineer, and John McGlade, a civil engineer employed by the City. Ruzak declared that he reviewed the as-built plans. His declaration thereafter addresses only the southbound lanes and their interface with Highcrest. There is nothing in his declaration to support the fact that the plans and design for the intersection of Ridgecrest and Pebble Beach and the northbound lanes south of the intersection were reasonably approved.
McGlade‘s declaration was also focused on the southbound lanes. His declaration is two and one-half pages in length. Approximately one page is dedicated to the issue that the County owned, controlled, and maintained the northbound lanes and the City owned, controlled and maintained the southbound lanes. Within this context, he declares that “[t]he [City] did not design the northbound lanes of Ridgecrest....” He further states that “[t]he sight line looking south onto Ridgecrest Road from Pebble Beach Drive for oncoming northbound traffic is on County owned, maintained and controlled property.” Lastly, he declares that in 1996 Ridgecrest was widened to the west. And that “[t]he west side (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of High Crest and Ridgecrest Road. . . . The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, a professional engineer
In deciding whether there is substantial evidence to support the notion that the plan or design was reasonably approved, we must determine whether there is evidence that “reasonably inspires confidence” and is of “solid value.” No portion of Ruzak‘s declaration supports the conclusion that the plans and designs of the northbound lanes and their intersection with Pebble Beach were reasonably approved. Equally, we do not believe that McGlade‘s declaration is supportive of the reasonableness of the design and approval. While one portion of the declaration could arguably be viewed in isolation as supporting the reasonableness of the plan and design for the entire roadway, when viewed in the context of the entire declaration, the essence of McGlade‘s declaration is that the plans and design for the southbound lanes fell within the range of reasonable engineering guidelines; not that the design of the overall intersection and approaching northbound lanes was designed to comply with reasonable engineering principles. And, as to the portion of the declaration which could arguably be relied upon by the City to support the reasonableness of the design, McGlade limits his opinion to the “road and intersection modification and improvements” of Ridgecrest and Highcrest. Based on the papers it submitted we do not believe that defendant met its initial burden of production as it relates to the third prong of the design immunity.11
To cure the evidentiary omission in the City‘s papers, the City has requested that we take judicial notice of specified “court records” filed by the County in the superior court in this case in connection with the County‘s motion for summary judgment. The City also requests judicial notice of our prior unpublished opinion affirming the grant of summary judgment in favor
The context within which the trial court and this court are dealing with the issue of the design immunity is that of a summary judgment motion. Our sole function “is to determine from the submitted evidence whether there is a ‘triable issue as to any material fact’ . . .” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 [68 Cal.Rptr.2d 571], citation omitted, italics added.) Our decision in the companion County case stands solely for the proposition that, “from the evidence submitted,” there was no triable issue of fact as to the applicability of the design immunity. Such a finding in the County motion has no bearing on the City‘s separate motion, where the supporting evidence relied on is distinct from that proffered in connection with the County‘s motion.
Additionally, to the extent the City seeks to rely upon facts in these records, the evidence of such facts is not referenced in the City‘s separate statement of undisputed facts, as required by
With this said, we believe the trial court‘s grant of summary judgment was nonetheless appropriate. As earlier discussed, the missing link in defendant‘s evidence was the third element of the design immunity—“substantial evidence of the reasonableness of the approved design. [Citation.]” (Higgins, supra, 54 Cal.App.4th at p. 186.) Typically, “any substantial evidence” consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards. (See Fuller v. Department of Transportation, supra, 89 Cal.App.4th at p. 1118; Weinstein v. Department of Transportation, supra, 139 Cal.App.4th at p. 59.) In opposition to the City‘s motion, plaintiff submitted and attached as an exhibit the declaration of David Royer. The original of this declaration was submitted by the County, in support of its motion. In his declaration, Royer opined: “In my expert opinion as a professional Civil and Traffic Engineer, registered as such by the State of California, the design of the roadway at the subject location is not only reasonable but is an excellent design. There was no defect in the design or operation of the roadway at the time of the accident herein. . . .” Implicit in this statement is that the design was reasonably approved.13
As set forth in
F. There Is No Triable Issue of Fact That the County Lost the Design Immunity As a Result of “Changed Circumstances”
“[A]fter a defendant has shown the applicability of the design immunity to the plaintiff‘s claims, the plaintiff bears the burden of establishing each of the three elements of the loss of the immunity. [Citation.] . . . Consistent with their burden at trial of establishing the elements of [defendant‘s] loss of the design immunity, plaintiffs bore the burden of production in opposition to the motion for summary judgment ‘to make a prima facie showing of the existence of a triable issue of material fact’ [citation] with respect to the loss of the design immunity. Since it is necessary to establish all three elements of the loss of the design immunity [citation], plaintiffs needed to make a prima facie showing of the existence of a triable issue of fact with respect to each of those elements to overcome [defendant‘s] motion for summary judgment.” (Mirzada v. Department of Transportation (2003) 111 Cal.App.4th 802, 806-807 [4 Cal.Rptr.3d 205].) The elements that must be addressed by plaintiff are: “(1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings.” (Cornette, supra, 26 Cal.4th at p. 66.)
In addressing the first element that the plan or design has become dangerous because of a change in physical conditions, the court in Weinstein v. Department of Transportation, supra, 139 Cal.App.4th 52, indicated, in addressing a cross-median accident and the absence of a median barrier in a Caltrans (Department of Transportation) plan, that “[p]laintiffs did not meet this burden. Their showing relied on the increase in traffic at the accident location and a corresponding increase in accidents. However, plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway. . . . Plaintiffs produced no evidence that increased traffic volume alone mandated a median barrier under the applicable state standards, and they otherwise
The record contains no traffic counts and little traffic accident history. There is absolutely nothing upon which a court could find a triable issue. The original design of Ridgecrest and Pebble Beach occurred in 1969. The design was subsequently modified in 1996 to widen the intersection. Plaintiff provides no statistical data on the increase of traffic flow at the intersection between 1969 and 1996, and 1996 to the date of the accident. No speed surveys over the relevant time period are provided and there is no attempted correlation between increased traffic flow, increased speeds, and increased accidents. There is nothing in the record to support even an inference that the functioning of the intersection was any different in 1969, 1996, or 2002. Plaintiff has simply failed to address, from an evidentiary point of view, the issue of changed conditions.
Lastly, plaintiff failed to proffer sufficient evidence that the City had time to obtain funds to carry out remedial work to bring the property into conformity with a reasonable design or that they did not reasonably attempt to provide adequate warnings, or otherwise restrict turning movements onto the southbound lanes. Neither of plaintiff‘s experts addressed the issue of providing warning signs or speed signs, as designated in the traffic manual. The only evidence of suggested remedial work provided by plaintiff was Crommelin‘s declaration that a signal light could have been installed or the elevation of Ridgecrest could have been reduced by “about one (1) foot.” There is no evidence that defendant had a reasonable time to obtain the funds and carry out the suggested remedial work.
G. The City‘s Cross-appeal
The City appealed the denial of its motion for defense costs and expenses. We affirm.
1. Procedural Background
Following the grant of summary judgment and prior to the entry of judgment, the City filed a motion for attorney fees, expert fees, and costs pursuant to
The City‘s motion was heard on October 17, 2005. Following argument, additional briefing was permitted and the matter submitted.
The City then filed a motion for renewal of defendant‘s motion for attorney fees and costs, requesting reconsideration of the December 14, 2005, ruling.15 On January 30, 2006, the court granted this motion and took the matter of the motion for fees under submission. On February 10, 2006, the court issued a minute order denying the City‘s motion for attorney fees with prejudice.16
2. Motion for Defense Costs Under Code of Civil Procedure Section 1038
(a) Timeliness of the Motion for Attorney Fees
We first consider an argument by plaintiff that the City‘s motion was untimely.
Plaintiff argues that, “according to the trial court‘s register of actions, it entered judgment for the City on May 4, 2005,” and refers us to the court‘s order granting the City‘s motion for summary judgment. As the City correctly points out, the May 4, 2005, order is merely the order granting its motion for summary judgment, not the judgment itself. Plaintiff‘s argument is without merit.
(b) Implied Findings
In order to deny a motion for fees under
It is a fundamental principle of appellate review that we presume that a judgment or order is correct. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [57 Cal.Rptr.3d 363]; see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, pp. 394-395.) Moreover, it is the appellant‘s burden of providing a record that establishes error, and where the record is silent, we must indulge all intendments and presumptions to support the challenged ruling. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194 [58 Cal.Rptr.3d 466]; Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [58 Cal.Rptr.3d 225].) From these principles, courts have developed the doctrine of implied findings by which the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227]; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494 [61 Cal.Rptr.3d 754]; Fladeboe, supra, at p. 58; see also County of Orange v. Barratt
Applying this doctrine here, we are required to infer from the court‘s denial of the City‘s motion that it made the determinations necessary to support its order. The City offers no authority or reason that would justify departing from this doctrine here. It does cite to Kobzoff, supra, 19 Cal.4th at page 862, for the proposition that the court is required to make the determinations of good faith and reasonable cause. This requirement, however, is not in dispute; just as the trial court must make the necessary determinations, we must presume that it did so. The issue is whether the court must expressly state its specific findings in the record. Kobzoff did not address this question.
There are instances where the Legislature has mandated that a trial court express its reasons or factual determinations on the record. However, these situations are rare. When granting a motion for a new trial, for example, the trial court “shall specify the ground or grounds upon which [the motion] is granted and the court‘s reason or reasons for granting the new trial upon each ground stated.” (
Finally, the requirement in
Here, the court unequivocally denied the City‘s motion. Although the court did not expressly state its findings regarding the issues involved in the motion, neither the statute nor other authority required it to do so. Thus, based upon the doctrine of implied findings and the fundamental rules of appellate review upon which it is based, we are required to infer any factual determinations necessary to support the order. Accordingly, we infer that the court determined that that action was brought in good faith and with reasonable cause. Next, we address whether these implied findings are erroneous under the applicable standard of review.
(c) The Merits of the Motion for Defense Costs
On appeal, the City does not argue that the action was not brought or maintained in good faith. The City focuses only on the element of objective reasonable cause. “Reasonable cause is to be determined objectively, as a
The City argues that it established each element of design immunity and, therefore, “because [it] is clearly immune from liability, [plaintiff‘s] pursuit of her claims was unreasonable as a matter of law.” However, a “defendant may not recover [
The City further argues that plaintiff did not have reasonable cause because “the undisputed evidence showed that no dangerous condition of property owned or controlled by the City caused or contributed to the accident or plaintiff‘s injuries.” As set forth above, however, the fact that the dangerousness of the intersection was due to obstructions to visibility existing on the adjacent County-owned property did not preclude the City‘s liability. The City‘s entitlement to judgment as a matter of law is not based upon its lack of ownership of the northbound lanes, but upon the defense of design immunity. On this issue, we find that the grant of summary judgment, while proper, was not a foregone conclusion; indeed, our decision ultimately turned on the presence of Royer‘s declaration in the record—a document the City did not even submit in support of its motion. Thus, notwithstanding the eventual grant of summary judgment and our affirmance, we find that an attorney for plaintiff could reasonably have thought the claim tenable.
Because plaintiff‘s claim was objectively reasonable, the City‘s motion for fees under
3. Motion for Expenses Under Code of Civil Procedure Section 2033.420
Prior to trial, the City requested the following nine matters be admitted by plaintiff:
(1) “The point of impact between the DIMEO VEHICLE and the SPECTER VEHICLE was in the northbound lanes of Ridgecrest Road“;
(2) “The point of impact between the DIMEO VEHICLE and the SPECTER VEHICLE was not on public property owned by the City of Victorville“;
(4) “The SUBJECT ACCIDENT was not legally caused by a DANGEROUS CONDITION of property owned by the City of Victorville“;
(5) “The SUBJECT ACCIDENT was not legally caused by a DANGEROUS CONDITION of public property controlled by the City of Victorville“;
(6) “Your injuries sustained in the SUBJECT ACCIDENT were not legally caused by a DANGEROUS CONDITION of any property owned by the City of Victorville“;
(7) “Your injuries sustained in the SUBJECT ACCIDENT were not legally caused by a DANGEROUS CONDITION of any public property controlled by the City of Victorville“;
(8) “The public property where the SUBJECT ACCIDENT occurred is not dangerous if used with due care“; and
(9) “The DIMEO VEHICLE was traveling in the northbound lanes of Ridgecrest Road at all times when it was within 690 feet of the point of impact with the SPECTER VEHICLE.”
Plaintiff denied each of these matters.
In the alternative to its motion for fees under
Under
Plaintiff opposed the City‘s motion on the ground that the admissions sought were not matters of substantial importance and, if they were, “plaintiff had good reason to deny several of the requests.” In addition, plaintiff asserted that many of the fees and costs sought by the City are not attributable to proving the matters for which admission was requested. The same arguments are made on appeal.
A request for admission has “substantial importance when the matter requested for admission [is] central to disposition of the case.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509 [224 Cal.Rptr. 838] [interpreting
In evaluating whether a “good reason” exists for denying a request to admit, “a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.” (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 511 [interpreting
Here, the first three of the requested admissions concern the location of the point of impact; specifically, at a point in the northbound lanes, which are not owned or controlled by the City. The last requested admission seeks an admission that Dimeo was in the northbound lanes as he approached the point of impact. The trial court could reasonably have concluded that the location of impact and the fact that Dimeo had been driving in the northbound lanes were not central to the disposition of the case. That is, as we discussed above, a central issue was whether the City can be liable for an injury even though the injury occurred on property that is not owned or controlled by the City.
The requested admissions that we have numbered (4) through (7) above seek admissions concerning legal causation for the accident and plaintiff‘s injuries. The eighth requested admission calls for plaintiff to admit that the public property where the accident occurred, i.e., the intersection, is not dangerous if used with due care. The court could have easily concluded that at the time plaintiff refused to admit such matters she reasonably held a good faith belief that she would prevail at trial on these issues. Therefore, the court did not abuse its discretion in denying the City‘s motion with respect to these matters.
Because the court‘s denial of the City‘s alternative motion for fees was not an abuse of discretion, we affirm the court‘s order.
V. DISPOSITION
The judgment is affirmed. The denial of the City‘s motion for defense costs and expenses is affirmed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Miller, J., concurred.
HOLLENHORST, Acting P. J., Concurring and Dissenting.—I concur with the majority opinion affirming the trial court‘s grant of summary judgment in favor of the City of Victorville (City), but am forced to write separately to question the majority‘s discussion of the City‘s liability as an adjacent property owner, the City‘s request for judicial notice, and the City‘s motion for attorney fees.
Amanda Laabs (Plaintiff) sued the City and the County of San Bernardino (County), among other parties, as a result of her injuries incurred in an automobile accident on Ridgecrest Road where it intersects with Pebble Beach Drive. Ridgecrest Road is a four-lane north/south roadway. The northbound lanes are owned and controlled by the County. The southbound lanes are owned and controlled by the City. The accident occurred when the northbound vehicle in which Plaintiff was a passenger collided with a westbound left-turning vehicle driven by Dorothy Specter (Specter). Plaintiff alleged that her injuries were caused by a dangerous condition of public property. Both the City and the County moved for summary judgment. The
In Plaintiff‘s appeal against the County (Laabs v. County of San Bernardino (May 11, 2007, E039694) [nonpub. opn.] (Laabs)), this court affirmed the granting of summary judgment in favor of the County. Although we found that a triable issue of fact exists as to whether the County was on constructive notice of the sight distance limitation at the intersection and of its dangerousness, we concluded that the County was immune from liability based on its approved plan or design for widening Ridgecrest.
I. City‘s Liability for Alleged Dangerous Condition on Adjacent Property
In this appeal, the majority finds that the “present record demonstrates no triable issue of fact as it relates to the applicability of the design immunity.” (Maj. opn., ante, at p. 1268.) Nonetheless, the majority feels compelled to address the issue of whether the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent County-owned property (northbound lanes) because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. More specifically, the majority states that “the issue is whether the City‘s liability may be premised on Specter‘s attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes).” (Id. at p. 1259.) The majority concludes there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.
I disagree.
To begin with, the City is arguing that no dangerous condition existed. At the trial court level, the City argued that the intersection of Ridgecrest and Pebble Beach was not a dangerous condition as a matter of law. Referencing
In its responding brief, the City maintains its liability is premised on whether or not it controlled the northbound lanes. Regarding Plaintiff‘s claim that the expansion of Ridgecrest Road exacerbated the dangerousness of the intersection, the City aptly notes there was no evidence in the record to support such claim. Plaintiff references the declarations of her engineering experts, Howard Anderson and Robert Crommelin, as well as a resident of the area, Michael Chamberlin. Turning to those declarations, I note that neither expert opined that the widening of the road in 1996 exacerbated or caused the dangerous condition of the intersection. Instead, the expert declarations focused on the sight distance, stopping distance and speed limit for the northbound County-controlled lanes.1 Likewise, Chamberlin, who declared he had been in three accidents on Ridgecrest Road, failed to attribute the widening of the road by two lanes as the cause.
Nonetheless, Plaintiff attempts to get around this obstacle by arguing that the City may be held liable for an accident which was caused by a dangerous condition on adjacent property. She cites Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841 [206 Cal.Rptr. 136, 686 P.2d 656] (Carson). In Carson, the husband and surviving children of a decedent filed an action after decedent was killed in a car collision at an intersection owned and controlled by the city. (Id. at pp. 836-837.) The plaintiffs alleged that a sign and trees located along one side of the road obstructed the visibility of drivers and created a reasonably foreseeable risk of the kind of injuries which were incurred. (Id. at p. 837.) The city moved for nonsuit, arguing that, even if the sign created a dangerous condition, the city was not statutorily liable because it did not erect the sign, had no notice of the sign‘s presence, and there was insufficient evidence of a dangerous condition. (Id. at p. 840.) The trial court granted nonsuit; however, the Supreme Court reversed. Our high court held that the ownership and control of the sign was irrelevant to the question of the city‘s liability as the city property at issue was not the sign, but the intersection that was rendered dangerous by erection of the sign. (Id. at
Faced with this flaw in her argument, in her reply brief Plaintiff argues that “the fact that the City does not own the property where the cars collided does not shield it from dangerous condition liability.” She cites, and discusses for the first time, Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [132 Cal.Rptr.2d 341, 65 P.3d 807] (Bonanno). The majority relies on Bonanno, and Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [1 Cal.Rptr.3d 712] (Joyce) in finding that there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.
In Bonanno, the plaintiff, a bus patron, was struck by a motorist while crossing a dangerous street in a marked crosswalk at an uncontrolled intersection to get to a bus stop. (Bonanno, supra, 30 Cal.4th at p. 145.) The plaintiff sued Contra Costa County and the transit authority, a public entity, alleging that the district‘s bus stop was a dangerous condition of property under
Regarding the applicability of Bonanno, I find the unique facts in that case make it inapplicable in this case. To begin with, the Bonanno court found that it was feasible for the transit authority to move or remove the bus stop. (Bonanno, supra, 30 Cal.4th 139, 152.) Here, it is not feasible to relocate the southbound lanes. Moreover, there is no evidence that the City had any control over the location or design of the Pebble Beach entrance to Ridgecrest Road on the County‘s property.
Here, I do not begin with the assumption that the intersection constituted a dangerous condition. There are millions of intersections throughout the United States that are similar to the one in this case. As the City noted at the trial level, “Property is not ‘dangerous’ within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care.” To assume that this intersection was dangerous given the facts of this case would negate the statutory scheme behind
Moreover, the issue to be decided in this case is the opposite of the issue decided in Bonanno. (Brenner, supra, 113 Cal.App.4th at 442.) Bonanno addressed whether adjacent property (location of a bus stop) was dangerous because of the route (crosswalk on busy road) necessarily traveled by its patrons. In contrast, Plaintiff‘s complaint addresses whether the route (northbound lanes) traveled by patrons was dangerous because of the adjacent
Similarly, I do not find Joyce applicable. In that case, the defendant‘s liability was based on its “failure to provide adequate safeguards against a known dangerous condition.” (Joyce, supra, 110 Cal.App.4th at p. 300, italics added.) In Joyce, a student was seriously injured when she was struck by a car while crossing the street to enter the school grounds through an open school yard gate. Finding the facts similar to those in Bonanno, the Joyce court noted that while defendant “did not control the crosswalk, it did control whether an opening in the fence should be made. The open gate was built next to the crosswalk to encourage students to cross at an uncontrolled intersection. It diverted children from a safer, signal-controlled intersection less than 500 feet away. . . . [A] reasonable trier of fact could find that the open gate was a dangerous condition that could have been remedied by simply closing the fence opening and directing students to cross at the signal. [Citation.]” (Joyce, supra, at p. 299, fn. omitted.) My reasons for finding Bonanno inapplicable equally apply to Joyce. In Joyce, the defendant controlled the opening in the fence, there was no question as to whether the crosswalk constituted a dangerous condition, and the Joyce court did not address the issue raised by Plaintiff.
Given the record before this court, and for the reasons stated above, I disagree with the majority‘s conclusion that “liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.” (Maj. opn., ante, at p. 1262.) The City does not own or control the northbound lanes, nor is there any evidence that the expansion of Ridgecrest Road from a two-lane to a four-lane road made the intersection dangerous, or exacerbated any alleged dangerous condition that may exist on the County-controlled northbound lanes. Again, the issue is whether the intersection created a foreseeable risk of injury to members of the motoring public “using due care.” Here, the individual using the intersection was speeding, i.e., he was traveling in excess of 74 miles per hour.
II. City‘s Request for Judicial Notice
Regarding the majority‘s discussion of the City‘s request for judicial notice, I note that my colleagues correctly recognize the procedures and the law governing what evidence may be considered in support of, or opposition to, a motion for summary judgment. However, in the context in which the
Turning to the record, it is clear to me that the City‘s liability, if any, is tied to the County‘s liability. To that end, I would begin the analysis by considering the City‘s request for judicial notice of certain court records. On October 11, 2007, the City requested this court take judicial notice of (1) certain court documents contained in the appellate record of the County‘s related case decided by this court (Laabs, supra, E039694), including, but not limited to, various declarations and evidence supporting the County‘s motion for summary judgment; (2) the unpublished opinion of this court in Laabs, supra, E039694, issued on May 11, 2007; and (3) a copy of the declarations of McGlade and Ruzak with a minimized copy of exhibit A to those declarations and a minimized copy of exhibit 1 to the notice of lodgment, as submitted to the trial court in support of the City‘s motion for summary judgment. The majority granted the City‘s request pursuant to
The Sosinsky court noted that several cases have cited to, and followed, Jefferson‘s California Evidence Benchbook, which explained the meaning of judicial notice: “‘A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.‘” (Sosinsky, supra, 6 Cal.App.4th at p. 1564, quoting 2 Jefferson‘s Cal. Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982).) However, the Sosinsky court critically analyzed whether a court may take judicial notice of the truth of a finding of fact and concluded that it cannot. (Sosinsky, supra, at pp. 1564-1569.) Relying on the Sosinsky holding, the majority declines to take judicial notice of the trial court‘s order or findings of fact, as well as this court‘s findings and conclusion in our prior opinion in Plaintiff‘s related case against the County.
I disagree. Given the unique facts in this case, I would take judicial notice of the trial court‘s findings and conclusions with respect to the County, as well as our prior opinion affirming those findings and conclusions. (Kilroy v. State of California (2004) 119 Cal.App.4th 140 [14 Cal.Rptr.3d 109] (Kilroy).)
In Kilroy, the plaintiffs sued the state and a California Highway Patrol officer claiming a violation of their civil rights and other related torts on the
Nonetheless, the majority points out, “Our sole function ‘is to determine from the submitted evidence whether there is a “triable issue as to any material fact“. . . .‘” (Maj. opn., ante, at p. 1266.) Additionally, my colleagues emphasize Plaintiff‘s due process right to be informed of the evidence that needs to be disputed in order to defeat the City‘s motion. While the evidence submitted by the County was not included in the paperwork offered by the City, the record before this court shows that Plaintiff‘s due process right was not overlooked, nor was there any request to limit the submitted evidence to only that offered in the City‘s moving papers and Plaintiff‘s opposition thereto.
I find that the majority overlooks the context in which both of these motions for summary judgment were heard. Both motions were brought and argued simultaneously. Neither side demanded, or even expected, the trial court to limit its consideration of all of the evidence presented in support of, and in opposition to, each motion when reaching a decision as to either motion. In fact, the City specifically stated that its motion was based upon everything which it had filed, plus “such oral arguments and evidence which the court permits at its hearing on this motion.” Likewise, the County based its motion on “such further oral and documentary evidence as may be presented at the hearing of this motion.” Even Plaintiff stated that her opposition was based upon what she had filed, plus “the pleadings on file with the Court, declarations, depositions and matters of which the Court may take judicial notice, and such argument as may be made at the hearing on this matter.” To that end, at oral argument each party addressed the issues without segregation. In fact, Plaintiff‘s arguments against both the County and the City are substantially similar. Many times in her appellate briefs, Plaintiff mistakenly referred to the County when she meant the City.
Clearly, the trial court considered all of the evidence before it without regard as to which party was responsible for submitting such evidence. Given
Furthermore, regarding Plaintiff‘s appeal concerning the County, Plaintiff designated a comprehensive record. In this appeal, she “incorporate[s] that record by reference . . . pursuant to California Rules of Court, [r]ule 10[b].” In Plaintiff‘s reply brief (which was filed after we had filed our opinion in Plaintiff‘s appeal involving the County), Plaintiff notes that this court had “found that the intersection‘s accident history creates a triable fact question as to whether the County was on notice of the intersection‘s condition and dangerousness [Laabs, supra, E039694].” She further notes in a footnote, “This holding is citable under rule 8.1115[b], California Rules of Court, because it is relevant under the doctrine of law of the case.” She then argues that the “same history creates a triable fact question as to notice to the City.” Using Plaintiff‘s legal reasoning, I am convinced that our prior finding of design immunity as to the County applies equally to the City. (Laabs, supra, E039694; Kilroy, supra, 19 Cal.App.4th at p. 148.)
Finally, to the extent the City failed to provide sufficient evidence of the reasonableness of the design as to the northbound lanes, such failure is due to the fact that no party claimed the City owned or controlled the northbound lanes. According to the pleadings, there was no reason for the City to address an issue (design of the northbound lanes) that did not apply to it. I find that issue was (and is) best addressed by the entity (the County) which owned and controlled those lanes, and thus, is charged with its design.
III. City‘s Motion for Attorney Fees
A. Code of Civil Procedure section 1038
After the City won its summary judgment motion, it filed a motion to recover attorney fees and costs under
”
Code of Civil Procedure section 1038 ‘provides public entities with a protective remedy for defending against unmeritorious litigation.“’ [Citation.] The statute permits public entities to recover costs, including attorney fees, from a plaintiff who files a frivolous civil action under the California Tort Claims Act after a defendant prevails on a motion for summary judgment, directed verdict, or nonsuit. [Citations.]“In order to recover fees under
Code of Civil Procedure section 1038 , the court must ‘determine whether or not the plaintiff, . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint.“’ [Citation.] ‘Reasonable cause’ is an objective standard which asks whether any reasonable attorney would have thought the claim tenable. [Citation.] ‘Thus, before denying a [Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action‘s justifiability and with objective reasonable cause.’ [Citation.]“The standard of review of an award of attorney fees under
Code of Civil Procedure section 1038 is both de novo and substantial evidence. The ‘reasonable cause’ prong is reviewed de novo, and the ‘good faith’ prong is reviewed for substantial evidence. [Citation.]” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 887-888 [57 Cal.Rptr.3d 454], italics added.)
Here, as the majority points out, following the October 17, 2005, hearing on the City‘s motion for costs and attorney fees, the trial court took the matter under submission. Thereafter, the trial court issued a minute order denying the motion “without prejudice subject to the outcome of the appeal.” The City renewed its motion, explaining that
On appeal, the City contends the trial court “abdicated its duty under this statute in refusing to make a ruling on the merits of the City‘s motion . . . .” The City argues that the trial court was required “to make a determination of
In support of their claim that the trial court was not required to expressly state its findings regarding the issues involved in the City‘s motion for attorney fees, and that any findings necessary to support the order are implied in the denial, my colleagues cite the doctrine of implied findings “by which the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. [Citations.]” (Maj. opn., ante, at p. 1271.) The cases cited in support of their use of this doctrine are: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132-1133, 1137 [275 Cal.Rptr. 797, 800 P.2d 1227] (discussing
The majority finds the decision in Ensworth to be instructive on interpreting
On appeal, Mullvain claimed, inter alia, that the trial court erred in failing to make the necessary findings under the statute. (Ensworth, supra, 224 Cal.App.3d at p. 1109.) “[Code of Civil Procedure] [s]ection 527.6 provides a procedure by which a person who has suffered harassment may seek an injunction prohibiting the harassment. In subdivision (b), harassment is defined as ‘a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.‘” (Ibid.) Subdivision (d) of
Applying the above, my colleagues conclude that just as the Ensworth court necessarily found harassment, so too did the trial court in this case make the determinations of good faith and reasonable cause. The majority
I disagree. Given the language used in
In 1980, the Legislature enacted
“Statements in Legislative committee reports concerning statutory objects and purposes which are in accord with a reasonable interpretation of the statute serve as legitimate aids in determining Legislative intent. [Citation.] It will be presumed that the Legislature adopted the proposed legislation with the intent and meaning expressed in committee reports. [Citations.]
“The above-quoted statements which appear in the committee reports disclose that the purpose of Assembly Bill No. 3214, which became
“Subdivision (c) of section 1038 provides that any party requesting defense costs under the statute waives any right to seek damages for malicious prosecution and that failure to seek such relief shall not be deemed a waiver of the right to pursue a malicious prosecution action. The waiver provisions in subdivision (c) show a recognition by the Legislature that the relief afforded by section 1038 is so similar to a malicious prosecution cause of action that an aggrieved party can only seek redress by one method or the other, but not both. . . .
“Inasmuch as the Legislature provided in subdivision (c) of section 1038 that a request for relief pursuant to the section operates as a waiver of a malicious prosecution action, we presume the Legislature intended that section
Given the above, a
Until this case, other appellate courts and our state‘s highest court recognized that
Alternatively, the City sought discovery sanctions pursuant to
“(b) The court shall make this order unless it finds any of the following:
“(1) An objection to the request was sustained or a response to it was waived under
“(2) The admission sought was of no substantial importance.
“(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.
“(4) There was other good reason for the failure to admit.”
The trial court denied the City‘s request without making any explicit findings or stating any reasons. The City appeals and my colleagues find that explicit findings were unnecessary.
I disagree.
As the majority notes, we review the court‘s findings for an abuse of discretion. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10 [65 Cal.Rptr.2d 532].) However, because the trial court failed to state its findings, there is nothing for us to review. Accordingly, I would reverse the order and remand for further proceedings with the directions that the trial court comply with the statutory requirements and state its findings on the record.
A petition for a rehearing was denied July 7, 2008, and the opinion was modified to read as printed above.