17-CIV-00046 SHAWN O’NEIL VS. CITY OF SOUTH SAN FRANCISCO, ET AL.

SHAWN O’NEIL CITY OF SOUTH SAN FRANCISCO
ROBERT E. CARTWRIGHT, JR. DAVID S. ROSENBAUM

MOTION FOR SUMMARY JUDGMENT BY CITY OF SOUTH FRANCISCO TENTATIVE RULING:

The Motion for Summary Judgment by Defendant City of South San Francisco is GRANTED. Under the undisputed material facts, Plaintiff’s Complaint lacks merit against Defendant City of South San Francisco.

A. Ruling on Objections.

1. Plaintiff’s Objections. All of Plaintiff’s objections are overruled since the objections are to Undisputed Material Facts instead of evidence. To the extent Plaintiff should have objected to the evidence in support of the material facts, the Court overrules the objections concerning Material Facts 8, 22, 40, 41, 44, 45 and 47.

2. Defendant’s Objections.

a. Declaration of Dunlap. Overruled as to Objection 1 (“declaration in its entirety”). Sustained as to Objectons 2, 3, 4 and 5. Overruled as to remainder.

b. Declaration of Beith. Sustained as to Objections 27, 28, 29, 30 (paragraph 18 only; overruled as to paragraph 19), 32, 33 (third sentence only; overruled as to remainder), 34, 35, 36, 37, 38 (except for first sentence), 39, 40, 41, 42, 43 and 45 (last sentence only). Overruled as to Objections 26, 31 and 44. B. The Condition of the Intersection/Crosswalk, Even if Dangerous, Did Not Cause Plaintiff’s Injury.

1. Defendant Galvan’s Vision Was Not Obstructed.

The undisputed facts demonstrate that nothing obstructed Mr. Galvan’s vision as he proceeded toward and through the intersection when he struck Plaintiff. (UMF 24; Decl. of Kelkar §6(e).)

a. Elevation variances: Plaintiff attempts to dispute that “no elevation variances” existed, citing testimony of Sam Bautista. That testimony reflects only that Mr. Bautista was reading a document that described “vertical curvature” in the road. He does not testify that any “vertical curvature” obscured Mr. Galvan’s line of sight. (Bautista Depo. at 170-172.)

b. Trees, Plants, Shrubbery. Plaintiff attempts to dispute that “there were no trees, plants, or shrubbery that would have concealed the presence of pedestrians in the subject crosswalk,” citing Defendant Galvan’s deposition at pp. 62-66. However, Mr. Galvan testified only that the crosswalk was “covered by trees, garbage cans and recycling things.” However, he also testified that “You could see them if they’re in the crosswalk already . . . .” (Galvan Depo. at 65:18-21.) Although trees were present, Mr. Galvan does not testify that they interfered with seeing persons in the crosswalk. Material Fact 24 is undisputed.

c. Condition of Crosswalk. The condition of the sidewalk was not a cause of the incident. It is undisputed that Defendant Galvan was fully aware that the crosswalk was in front of him, regardless of whether it was visible. (UMF 10, 11, 13 and 15; Galvan Depo. at 12, 21, 20, 24, 25 and 82.)

Material Fact 25 also is undisputed: Trees in the northeast corner would not hide a pedestrian approaching the crosswalk from the north. (UMF 25; Decl. Kelkar ¶6(e).) Plaintiff attempts to dispute this fact by citing pages 62 through 66 of Mr. Galvan’s deposition. Again, Mr. Galvan testified that the trees do not prevent seeing pedestrians in the crosswalk.

Further, visibility of pedestrians on the corner is moot since it is undisputed that “Mr. Galvan was looking straight ahead through the intersection as he entered it.” (UMF 15, Galvan Depo at 30, 82, 82 and 101; see also UMF 20 (“Mr. Galvan was driving in the center of his lane and looking straight ahead through the intersection as he entered it.” (Galvan Depo at 118.) Since Mr. Galvan was looking straight ahead, the foliage on the corner is not an issue. 2. Insufficient Lighting, Signs, Signals Are Not a Dangerous Condition.

To the extent Plaintiff alleges that the accident was caused by insufficient lighting, the claim lacks merit because a municipality is under no duty to provide lighting on its streets. (Mixon v. Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 133-34.)

To the extent Plaintiff alleges that the accident was caused by a lack of signage or traffic signals, the claim lacks merit because a failure to provide signs, signals or warning devices does not constitute a “dangerous condition” within the meaning of §830. (Gov’t. Code §§830.4 & 830.8; Durham v. City of Los Angeles (1979) 91 Cal.App.3d 567, 577 (“The lack of regulatory traffic control signals does not produce a dangerous condition”).)

3. Conclusion.

Even if the intersection and crosswalk constituted a dangerous condition within the meaning of Government Code §830, they were not a cause of Defendant Galvan’s vehicle striking Plaintiff.

C. Design Immunity.

Under Government Code §830.6, design immunity is a defense against claims of a dangerous condition. A public entity must establish: (1) causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. Whether each element of design immunity exists is a question of law. (Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1114.)

1. Causation.

It is undisputed that Plaintiff contends that a dangerous condition caused the accident. (Complaint ¶¶37-42.)

2. Discretionary Approval The City Council had discretionary authority to approve the plans/design. The design plans for the project were approved by the City Council, the City’s governing body with authority to approve plans under the City’s Municipal Code. (UMF 33, 34 and 35; Decl. of Manjarrez ¶19; Decl. of Bautista ¶¶11(b)-(f), 11(k); Resolution 11-80; Resolution 2-79.)

Plaintiff contends that UMF 34 is disputed, but the cited evidence shows only that various matters relating to the crosswalk were not part of the plans. This, however, does not dispute Fact 34 that the City Engineer was instructed to draw up and submit plans to the City Council. Plaintiff contends that UMF 35 is disputed. Plaintiff’s evidence, however, consists only of testimony that the plans should not have been approved. This opinion does not dispute, however, that the City did, in fact, approve the plans. 3. Substantial Evidence Supported the Reasonableness of the Plans.

Generally, a civil engineer’s opinion regarding reasonableness is substantial evidence sufficient to establish that substantial evidence supported approval of the plans. (Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007, 1015.) Defendant offers evidence that the Improvement Plan, as it pertains to the intersection and crosswalk, were “reasonable and appropriate.” (UMF 40, 41, 44, 45 and 47; Decl. of Manjarrez ¶¶19, 22, 23, 25 and 30.) Plaintiff attempts to oppose these material facts, but the opposing evidence supports only an argument that a different expert disagrees about whether the plans were reasonable and appropriate. (Depositions of Cho and Bautista; Declarations of Dunlap and Beith.)

On summary judgment concerning the issue of design immunity, a disagreement between experts does not create a triable issue of fact since the standard is whether any reasonable basis exists on which a reasonable public official “could have” approved the design. (Compton v. City of Santee (1993) 12 Cal. App. 4th 591, 596.) “As long as there was any substantial basis on which a government official could have decided the design was reasonable, it is irrelevant that a contrary opinion might have been offered.” (Id. at 597). That reasonable minds could differ over the reasonableness of the design “suffices to create design immunity.” (Id.) The Declaration of Manjarrez demonstrates that a reasonable State official could have approved the design. Approval of the plan by competent professionals can, in and of itself, constitute substantial evidence of reasonableness. (Higgins v. State of California (1997) 54 Cal.App.4th 177, 187.) That a plaintiff’s expert may disagree does not create a triable issue of fact. (Id. at 186.)

4. Conclusion.

Under the undisputed material facts, Defendant City of South San Francisco is entitled to the defense of design immunity.

D. Ruling.

The second cause of action, the only count alleged against Defendant City of South San Francisco, lacks merit. The Motion for Summary Judgment is GRANTED in favor of Defendant City of South San Francisco.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.