Case Name: Ilidio Avila, et al. v. Oscar Chacon, et al.

Case No.: 1-13-CV-245894

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

On November 3, 2012, defendant Oscar Chacon drove southbound on N. 15th Street in San Jose approaching E. Julian Street. (First Amended Complaint (“FAC”), ¶GN-1.) Chacon turned left onto E. Julian Street, but could not see a vehicle traveling westbound on E. Julian Street due to existing obstructions to visibility created by the negligent design of the roadway by defendant City of San Jose (“City”). (Id.) Chacon accelerated to avoid an oncoming vehicle, but lost control of his own vehicle, veered off the roadway, and hit a light pole, building, and plaintiff Ilidio Avila. (Id.) Residents of the area had previously petitioned City to put stop signs at the intersection, but City denied the requests and refused to take any actions to warn of or ameliorate the danger presented by this intersection. (Id.)

On May 7, 2013, plaintiff Ilidio Avila, his wife Angelina Avila, and children Sonny Avila, Dominic Avila, and Jovina Avila filed a Judicial Council form complaint against defendants Chacon, Mayra Ortega and Blanca Martinez, asserting causes of action for: (1) Motor Vehicle; (2) General Negligence; (3) Negligent Infliction of Emotional Distress; and (4) Loss of Consortium.

On October 3, 2013, the plaintiffs filed a first amended complaint (“FAC”) adding City as a defendant and now asserting claims for: (1) Motor Vehicle [versus Chacon, Ortega, and Martinez]; (2) General Negligence; (3) General Negligence [Negligent Infliction of Emotional Distress by plaintiffs Angelina Avila, Sonny Avila, Dominic Avila, and Jovina Avila]; (4) Premises Liability [versus City]; and (5) General Negligence [Loss of Consortium by plaintiff Angelina Avila].

On December 18, 2013, City filed an answer to the FAC and cross-complained against Chacon. On February 19, 2014, Chacon answered the City’s cross-complaint.

On May 27, 2014, plaintiffs dismissed with prejudice defendants Chacon, Ortega, and Martinez.

On September 5, 2014, City dismissed its cross-complaint without prejudice.

On September 26, 014, City filed the motion now before the court: a motion for summary judgment/ adjudication of the claims asserted in plaintiffs’ FAC. Plaintiffs oppose.

Procedural violation

As a preliminary matter, plaintiffs’ and defendant City’s memorandum of points and authorities is in excess of the page limitations allowed by California Rules of Court, rule 3.1113, subdivision (d). Neither plaintiffs nor defendant City sought leave for a page extension as permitted by California Rules of Court, rule 3.113, subdivision (e). Plaintiffs and defendant City are 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).)

Request for judicial notice

In support of its motion, defendant City requests the court take judicial notice of (1) sections of the San Jose City Charter; (2) San Jose Municipal Code section 1.04.080 and 11.36.070. Defendant City’s request for judicial notice in support of motion for summary judgment and summary adjudication is GRANTED. (See Evid. Code, §451, subd. (a).)

Defendant City’s motion for summary judgment is DENIED.

A. Defendant City’s alternative motion for summary adjudication of the second and third causes of action is GRANTED.

The second cause of action in plaintiffs’ FAC asserts a claim for general negligence against City. The third cause of action appears to assert a claim for negligent infliction of emotional distress by plaintiffs Angelina Avila, Sonny Avila, Dominic Avila, and Jovina Avila.

Government Code section 815, subdivision (a) states, “Except as 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.” “Government Code section 815, subdivision (a) abolishes public entity liability except when a statute provides for it. Thus, the entity is not liable for its breach of a common-law duty.” (Van Alstyne, California Government Tort Liability Practice (4th ed. 2007) §1.6, p. 6.) (5 Witkin, Summary of California Law (10th ed. 2005) Torts, §223, p. 372 citing Gov. Code, §815, subd. (a).) The aforementioned provision comes from the Tort Claims Act and “abolishes all common law or judicially declared forms of liability.” (Id. at p. 373.) Instead, liability must be based on statute.

The second and third causes of action in plaintiffs’ complaint appear to assert claims for general negligence and negligent infliction of emotional distress. As City points out, “We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 490.)

In the absence of any statutory basis for liability and in the absence of any opposition on this point, defendant City’s alternative motion for summary adjudication of the second and third causes of action in plaintiffs’ FAC is GRANTED. (See Gov. Code, §815, subd. (a).)

B. Defendant City’s alternative motion for summary adjudication of the fourth cause of action for dangerous condition of public property is DENIED.

In the FAC, plaintiffs allege, in relevant part, “There was a vehicle travelling W/B on E. Julian Street which was in close proximity to [Chacon], but which [Chacon] could not see due to existing obstructions to visibility, which obstructions were caused and created by the negligent design of the roadway by Defendant City of San Jose.” (FAC, ¶GN-1.) “The residents in the aforesaid area had previously petitioned the City of San Jose to put in stop signs at this exact intersection as there have been multiple prior accidents at this and similar surrounding intersections, numerous complaints and many close calls in situations similar to the present accident, due to lack of visibility and the lack of proper controls, all of which the City of San Jose was on notice of.” (FAC, ¶GN-1.)

“A public entity is liable for injury proximately caused by a dangerous condition of its property if the dangerous condition created a reasonably foreseeable risk of the kind of injury sustained, and the public entity had actual or constructive notice of the condition a sufficient time before the injury to have taken preventive measures.” (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66 (Cornette) citing Gov. Code, §835, subd. (b).) Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. To establish liability under Government Code section 835, the following essential elements must be proved:

(1) The public property was in a dangerous condition at the time of the injury;
(2) The injury to the plaintiff was proximately caused by the dangerous condition;
(3) The kind of injury that occurred was reasonably foreseeable as a consequence of the dangerous condition; and
(4) Either:
(a) The dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or
(b) The entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury.

(Gov. Code, §835; emphasis added; see also 2 VanAlstyne, California Government Tort Liability Practice (4th ed. 2006) §12.5, pp. 795 – 796; see also CACI, No. 1100.)

1. Dangerous condition

In seeking summary judgment/adjudication, City begins by challenging plaintiffs’ assertion that the intersection of E. Julian Street and 15th Street amounted to a dangerous condition. Government Code section 830, subdivision (a) defines the term “dangerous condition” to mean “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” “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; see also Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.)

Government Code section 830.2 permits the court to decide the existence of a “dangerous condition” as a matter of law. That section states, “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (See also CACI, No. 1102.)

City acknowledges plaintiffs’ allegation that the intersection is a dangerous condition due, in part, to “existing obstructions to visibility.” City cites Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347 – 1348 where the court wrote:

A plaintiff’s allegations, and ultimately the evidence, must establish a physical deficiency in the property itself. [Citations.] A dangerous condition exists when public property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,” or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users. [Citation.]

A public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff’s injury is a third party’s negligent or illegal act (like Urzua’s grossly negligent driving) if some physical characteristic of the property exposes its users to increased danger from third party negligence or criminality. [Citation.] But it is insufficient to show only harmful third party conduct, like the conduct of a motorist. “ ‘[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a “dangerous condition” for which a public entity may be held liable.’ ” [Citation.] There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff. [Citation.] “[P]ublic liability lies under [Government Code] section 835 only when a feature of the public property has ‘increased or intensified’ the danger to users from third party conduct.” [Citation.]

(Italics original.)

City takes the position that there are no physical defects with the intersection itself and that plaintiffs have not identified any specific obstruction to visibility. City contends that only one thing obstructed Chacon’s visibility on the date of the accident: an illegally parked vehicle in a red zone. (See Separate Statement of Undisputed Facts in Support of Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication (“City’s SSUF”), Fact Nos. 16 and 18.) Yet, City acknowledges evidence of other obstructions to visibility identified by plaintiffs such as trees, shrubbery, street lights, poles, and signage.

In Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841, the Court explained:

Under section 835, a public entity is liable only for a dangerous condition of its own property. However, “its own property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury.” [Citations.] Specifically, a public entity can be held liable for an accident caused by a condition that exists on property adjacent to a public highway if the condition “‘is so connected with or in such proximity to the traveled portion of the highway as to render it unsafe to those traveling thereon.'” [Citations.]

In Bakity, plaintiffs alleged that roadside trees obstructed the view of motorists approaching the intersection of two county highways. The court held that the county was liable for the dangerous condition of its property — the intersection — regardless of who owned the land upon which the trees were located. “While the record is unclear whether the trees were on or off the county right of way, assuming they were growing on adjacent property, the jury could nevertheless have reasonably inferred that by reason of their proximity to the intersection they exposed motorists using the highway to a substantial risk of injury.” [Citation.]

Here, a sign located on property adjacent to a City intersection allegedly obstructed the view and rendered the intersection dangerous. As in Bakity, ownership of the adjacent property and the obstruction located thereon is irrelevant. The City is liable if the sign, “a condition on adjacent property,” exposed those using the intersection to a “substantial risk of injury.” [Citation.]

City’s own evidence undermines its assertion that there was no physical deficiency with the intersection. As plaintiffs point out, Chacon testified he had to creep into the intersection. A reasonable inference arises that Chacon did so due to an inability to view westbound traffic on E. Julian Street. Furthermore, the photos depicting the intersection submitted by City also reveal obstructions to visibility other than an illegally parked vehicle. Based on this conflicting evidence, the court cannot determine as a matter of law that no “dangerous condition” existed.

City addresses whether the lack of stop signs, the absence of a four-way stop, and/or evidence of prior accidents combined with the volume of vehicular/pedestrian traffic amount to a dangerous conditions. However, in light of the ruling above, the court need not decide these issues since they would not dispose of the entire cause of action. (See Code Civ. Proc., §437c, subd. (f)(1)—“ A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”)

As a further basis for summary adjudication, City cites Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187, 1196 (Chowdhury) for the proposition, “If it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not ‘dangerous’ within the meaning of section 830, subdivision (a).” City contends the only risk of harm was from a motorist, Chacon, who failed to exercise due care and accelerated into the intersection despite acknowledgment of the various obstructions to his visibility. However, this evidence only establishes one aspect of the rule stated in Chowdhury. City’s evidence establishes that, in this particular instance, a harm is created when a foreseeable user fails to exercise due care. City has not established that the risk exists only when foreseeable users fail to exercise due care or that the property is safe when used with due care. Moreover, the evidence that City cites in support of the factual assertion that, “There were no other objects or fixtures obstructing Chacon’s view,” does not actually support that factual assertion. City has not sufficiently demonstrated that the risk of harm is created only when foreseeable users fail to exercise due care as opposed to the dangerous condition (obstructed visibility) contributing to the risk of harm.

Finally, City contends that plaintiffs cannot establish the last element to establish liability under Government Code section 835, i.e., that the dangerous condition was created by a public employee’s negligent or wrongful act or omission within the scope of his or her employment, or the entity had actual or constructive notice of the condition a sufficient time before the injury occurred to have taken reasonable measures to protect against the injury. This element is stated in the disjunctive. To prevail on summary adjudication, City must show plaintiffs cannot establish either option. Instead, City focuses only on the latter. This is not sufficient to meet its initial burden on summary adjudication.

2. Design immunity

As a separate argument in support of summary adjudication of the fourth cause of action, City asserts the affirmative defense of design immunity. “[A] public entity may avoid such liability [for a “dangerous condition” on its property] by raising the affirmative defense of design immunity…. 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.” (Cornette, supra, 26 Cal.4th at p. 66.) “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. ‘To 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.’” (Id. at p. 69; citations omitted.)

With regard to the first element, City cites Alvis v. County of Ventura (2009) 178 Cal.App.4th 536, 550 (Alvis) where the court wrote, “The first question is whether there is undisputed evidence that the accident was caused by a design defect, and not some other cause. [Citation.] The County may rely on the allegations of the complaint to establish causation. [Citation.]”

As City acknowledges, the relevant portion of the FAC alleges defendant Chacon “could not see due to existing obstructions to visibility, which obstructions were caused and created by the negligent design of the roadway by Defendant City of San Jose.” (FAC, ¶GN-1; emphasis added.) However, from this broad allegation, City assumes that the negligent design “is limited to the issue of the illegally parked vehicle against the painted red curb and the design or improvement thereof.” (City’s Memo. of Points & Authorities, p. 16, lines 25 – 27.) City then goes on to focus exclusively on whether it is entitled to immunity for its “implementation of a 21 foot red curb to prevent citizens from parking on the northeast corner of the intersection to improve visibility to southbound traffic on 15th Street in 2008.” (See City’s SSUF, Fact Nos. 24 – 27.)

Unlike Alvis, the FAC is not so specific as to limit the cause of the accident to obstructions occurring within the 21-foot red curb located at the northeast corner of the intersection. Moreover, plaintiffs proffer argument and evidence that the negligent design is not limited to the implementation of the red curb. (See Plaintiff’s Statement of Disputed Facts, Fact Nos. 1 – 7, 24 – 25, 32 – 38, 46.) Given the broad allegation, the pleading encompasses more than just the implementation of a 21-foot red curb and includes placement of the stop limit line in a location where a driver’s visibility is obscured. (Cf. Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007.) Since defendant City fails to address this alleged negligent design, defendant City has not satisfied its burden on summary adjudication.

Accordingly, defendant City’s motion for summary judgment is DENIED. Defendant City’s alternative motion for summary adjudication of the fourth cause of action in plaintiffs’ FAC is DENIED.