Case Name:   Carolina Camacho v. The City of San Jose, et al.

Case No.:       1-12-CV-237410

Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Issues by Defendant City of San Jose

As a preliminary matter, the Court notes that Plaintiff’s memorandum of points and authorities is in excess of the page limitations allowed by California Rules of Court, rule 3.1113, subdivision (d).  Plaintiff is hereby placed on notice that any future failure to comply with the California Rules of Court may result in the court’s refusal to consider the party’s papers.  (See California Rules of Court, rules 3.1113, subd. (g) and 3.1300, subd. (d).)

Defendant City of San Jose’s motion for summary judgment of Plaintiff Carolina Camacho’s complaint is GRANTED.  “In general, ‘whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact and may only be resolved as a question of law if reasonable minds can come to but one conclusion.’” (Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 810.)  “[A]lthough the question of whether a dangerous condition exists is often one of fact, the issue may be resolved as a question of law when reasonable minds can only draw one conclusion from the facts.” (Dina v. People ex rel. Dept. of Transportation (2007) 151 Cal.App.4th 1029, 1054.)  After full consideration of the evidence, the separate statements submitted by each party, the authorities submitted by each party, the Court finds that Defendant City of San Jose has met its initial burden of showing that the property is not in a dangerous condition as a matter of law.

“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.”  (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.)  It is clear from a plain reading of the complaint that the primary factual basis for Plaintiff’s claim for dangerous condition of public property is the lack or insufficiency of street lighting.  Secondarily, Plaintiff’s claim for dangerous condition of public property is an alleged failure to provide regulatory traffic controls, signage, or roadway markings.  Defendant City of San Jose cites persuasive authority that liability for dangerous condition of public property cannot be based upon the lack or insufficiency of street lighting. (See Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477; Plattner v. City of Riverside (1999) 69 Cal.App.4th 1441; and Mixon v. State (2012) 207 Cal.App.4th 124.)  Defendant City of San Jose also provides persuasive authority that liability for dangerous condition of public property cannot be based on a failure to provide regulatory traffic controls, signage, or roadway markings.  (See Gov. Code, §830.4.)

In opposition, Plaintiff abandons a significant portion of her own allegations. “LET THE RECORD BE CLEAR, plaintiff’s argument is NOT BASED on the city’s failure to provide and maintain operable street lighting along Branham Lane for the safety of pedestrians and the general public … crossing said roadway; and or to have maintained regulatory traffic controls, signage, i.e., stop signs, yield right-of-way signs, speed restriction signs, or roadway markings such as pedestrian activated flashing lights, or pedestrian crossing warnings signs on Branham Lane.” (Plaintiff’s Memo of Points and Authorities, p. 23, lines 6 – 12; emphasis original.)

Instead, Plaintiff declares, “The City’s failure is in its failure to provide sufficient pedestrian safety measures which includes the City of San Jose’s failure to take reasonable safety measures to ensure traffic and pedestrian safety measures existed on Branham Lane commencing at Glenmont Drive and Branham Lane to Branham Lane and Pearl Avenue by failing to install a center median barrier fence which would have prevented pedestrians from crossing here.”  (Plaintiff’s Memo of Points and Authorities, p. 23, lines 13 – 21; emphasis original.)  In other words, the alleged dangerous condition is the lack of a center median barrier fence.  This allegation is found in the complaint, albeit buried among the other allegations pertaining to insufficient lighting.  (See Complaint, Att. A and C, ¶10.)

However, the court in Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 442 – 443 (Brenner) rejected the same theory.

Brenner’s third factor for asserting Chase Avenue was a dangerous condition—that City did not install traffic regulation or safety devices to reduce the dangers to pedestrians posed by crossing Chase Avenue—has been legislatively excluded as a basis for finding a dangerous condition.  (§ 830.4.)  Brenner apparently seeks to avoid the impact of section 830.4 by citing Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707 [159 Cal. Rptr. 835, 602 P.2d 755] and Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466 [20 Cal. Rptr. 2d 734] to argue a governmental entity can be liable when it has notice of a dangerous condition and does not install safeguards to protect the public against the danger. She asserts City, which had notice of the dangers presented by Chase Avenue, should have installed safeguards such as a median in the middle of the road or chains along the sidewalks to prevent pedestrians from crossing Chase Avenue and to channel them to safer crossing locations. However, neither Ducey nor Constantinescu supports Brenner’s claim.  In Ducey, the court held that when the state has actual or constructive knowledge of a dangerous condition it can be held liable for failing to take reasonable steps to protect against the danger.  (Ducey, at pp. 715–717.)  However, Ducey’s holding was predicated on the foundational determination that a dangerous condition existed. [Footnote 5.] That foundational showing is absent here.

The same foundational defect exists here.  It is significant to note that the Brenner court decided this issue as a matter of law at the pleading stage.  Similarly, it is proper here for the Court to decide the issue as a matter of law.