Case Name: Geoffrey Cronin v. City of San Jose, et al.

Case No.:  1-12-CV-236436

As an initial matter the Court notes that Plaintiff’s Counsel, in his opposing declaration, does not deny that personal service of the moving papers occurred on May 2, 2014.  Accordingly the Court accepts the declaration accompanying the amended proof of service asserting that personal service occurred on May 2 as true.

“[T]he pleadings determine the scope of relevant issues on a summary judgment motion.”  Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4^th 60, 73.  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 850.  “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.  …  The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.”  Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4^th 66, 72; internal citations omitted.

The Motion for Summary Judgment brought by Defendant City of San Jose (“San Jose”) as to the only two causes of action alleged against it in Plaintiff’s Complaint (the 2^nd and 3^rd causes of action) is GRANTED as follows.

Plaintiff’s 3^rd cause of action for General Negligence fails as a matter of law as alleged against a public entity like the City of San Jose.  “Except as otherwise provided by statute,” a public entity “is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  Gov. Code §815(a).  This provision abolishes all common law or judicially declared forms of liability.  Except as required by the federal or state constitutions liability must be based on a California statute.  5 Witkin, Summary of Cal. Law (10^th ed., 2005) Torts §223.  Government liability in California can only be based on statutes that specifically allow for it, not on common law claims. See, e.g., Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal. 4^th 876, 899; Zelig v. Cnty. of Los Angeles (2002) 27 Cal. 4^th 1112, 1127.

Plaintiff’s 2^nd cause of action alleges a Dangerous Condition of Public Property (Premises Liability) based on allegations of inadequate lighting (including foliage allegedly blocking lighting), inadequate crossing time and lack of a median.  As to all of these alleged conditions San Jose had established through admissible evidence (the North, Roque, and Khattab declarations and their attached exhibits) either the lack of a dangerous condition or the complete defense of design immunity even if a dangerous condition was assumed to exist for purposes of argument.

San Jose is correct that allegedly inadequate street lighting fails to establish a dangerous condition of public property in the first place.  See Mixon v. State (2012) 207 Cal App 4^th 124, 132-134 (public entity cannot be liable for failing to provide consistent level of lighting); Plattner v. City of Riverside (1999) 69 Cal App 4^th 1441, 1445 (darkness is a naturally occurring condition that a city is under no duty to eliminate).  Furthermore the driver of the automobile which struck Plaintiff clearly testified that there was nothing (low lighting or foliage) blocking his line of sight on the night of the accident.  See Ex. B to the North Dec.

As for design immunity, in Weinstein v. Dept. of Transportation (2006) 139 Cal App 4^th 52, the Sixth District discussed the requirements for establishing the defense under Gov. Code §830.6.  “’ [A] public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.’  The existence of the third element is a legal issue for the court to decide rather than a factual issue for a jury to resolve.”  Id. at 58, internal citations omitted.  In upholding summary judgment for the DOT the court also noted that “Design immunity extends to plans that are ‘in conformity with’ the state’s approved standards even when those plans have not been specifically approved.  Since defendant’s showing established that the signage was planned and installed in conformity with the state’s approved standards, defendant was entitled to design immunity.  . . .   ‘[T]o demonstrate loss of design immunity a plaintiff must also establish three elements: (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.’  While defendant bore the burden of establishing each element of its design immunity defense in support of its summary judgment motion, plaintiffs bore the burden of producing substantial evidence of a loss of design immunity.”  Id. at 59-60, emphasis added, internal citations omitted.

Plaintiff’s own complaint satisfies the first element of the defense, as it alleges that the design of the location contributed to the accident.  San Jose’s evidence establishes the second and third elements, that both the length of time permitted for pedestrians to cross the crosswalk before the light changed at the subject location and the determination that a median at the half-way point of the crosswalk was not required were in conformity with approved standards and that the approval of the design of the subject location was reasonable.

When the burden shifts to Plaintiff he is unable to raise any triable issues of material fact. “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable finder of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  Aguilar, supra, at 850.  Vague assertions of other accidents in the vicinity of the accident site are insufficient to raise a triable issue as to loss of design immunity.  See Mirzada v. Dept. of Transp. (2003) 111 Cal App 4^th 802; Weinstein, supra at 60-61 (increased traffic and corresponding increase in accidents insufficient by itself to show loss of design immunity).  Nor does the presence of a senior residence facility near the subject crosswalk establish a dangerous condition or a change in the physical conditions that raises a triable issue as to loss of design immunity.  The focus is on the changed physical condition of the public property itself, not nearby locations.  See Dammann v. Golden Gate Bridge, Highway & Transp. Dist. (2012) 212 Cal App 4^th 335, 349.  Furthermore, San Jose’s evidence (the Roque Declaration) establishes that the crossing time at the location exceeds the State’s non-binding recommendation for crosswalks routinely used by older and/or disabled pedestrians.