Case Name: Kevin Josue Rodas Carpio v. State of California, et al.
Case No.: 2014-1-CV-267867

Currently before the Court are the following motions: (1) defendant State of California’s (the “State”) motion for summary judgment of the complaint of plaintiff Kevin Josue Rodas Carpio (“Plaintiff”); and (2) defendant/cross-defendant County of Santa Clara’s (the “County”) motion for summary judgment or, in the alternative, summary adjudication of Plaintiff’s complaint and defendants Michael Aubin (“Michael”) and Patrick Aubin’s (“Patrick”) cross-complaint.

I. Factual and Procedural Background

This is an action for negligence. On July 11, 2014, Plaintiff filed his complaint against defendants City of Sunnyvale (the “City”), the State, the County, Michael, and Patrick (collectively, “Defendants”), asserting causes of action for negligence (against Michael and Patrick) and dangerous condition of public property (against the City, the State, and the County).

In the complaint, Plaintiff alleges the following: In the early morning of January 9, 2014, Plaintiff was walking south on the sidewalk adjacent to the intersection of the northbound Lawrence Expressway and the freeway onramp to southbound Interstate Route 101. (Compl., ¶ 2.) While walking through a pedestrian crosswalk at that location, Plaintiff was struck by a motor vehicle driven by Patrick and owned by Michael. (Compl., ¶¶ 4, 15.) As a result, Plaintiff suffered catastrophic injuries. (Compl., ¶ 17.) The State, City, and County owned, operated, designed, constructed, maintained, inspected, repaired, cleaned and controlled the intersection, pedestrian crosswalk and surrounding area at the time of the incident. (Compl., ¶ 23.) This area constituted a dangerous condition of public property because: the presence of a bend in the road and crest of an incline made pedestrians crossing the road difficult to see; the confusing placement of signage, roadway markings, and traffic lights failed to warn drivers of the presence of the crosswalk; the failure to maintain nearby trees and shrubbery obscured the presence of the crosswalk and warning signs; and the failure to maintain the paint on the crosswalk made the crosswalk difficult to see. (Compl., ¶ 27.)

On August 15, 2014, Patrick and Michael filed a cross-complaint against the State, the City, and the County for comparative equitable indemnity, implied indemnity, and declaratory relief.

On December 20, 2015, the State filed its motion for summary judgment of Plaintiff’s complaint. The County filed its motion for summary judgment or, in the alternative, summary adjudication of the complaint and the cross-complaint on January 15, 2016. On April 19, 2016, Plaintiff filed his oppositions to both motions. Patrick and Michael have not filed an opposition to the County’s motion. The County and the State filed their reply briefs on April 28, 2016.

II. The State’s Motion for Summary Judgment

The State moves for summary judgment of Plaintiff’s complaint on the ground that the action has no merit. (See Code Civ. Proc., § 437c, subd. (a)(1).) In the alternative, the State moves for summary adjudication of the second cause of action in the complaint on the ground that the cause of action has no merit. (See Code Civ. Proc., § 437c, subd. (f)(1).)

A. Summary of Evidence Submitted

1. The State’s Evidence

In support of its motion, the State presents the following relevant evidence: The State owned and operated the pedestrian crosswalk at the subject location at the time of and before the incident. (State’s Separate Statement of Undisputed Material Facts (“UMF”) No. 2.) In 1996, the roadway alignments, lane configurations, raised island, crosswalk, and connecting sidewalks were designed. (State’s UMF No. 10.) The design plans were approved by A. Andrade, a civil engineer employed by the State. (State’s UMF No. 11.) According to the State’s expert, the layout and location of the crosswalk is reasonable. (State’s UMF No. 17.) In particular, he avers that the curve radius of the ramp, the design speed, the stopping sight distances are all consistent with the California Department of Transportation Traffic Manual in effect at the time of the construction. (State’s UMF Nos. 18-23.) The State’s expert also calculated that an estimated 120,000 pedestrians have used and 46 million vehicles have driven over the crosswalk in the last 12 years. (State’s UMF Nos. 6-7.) No other pedestrian collisions have been recorded during this time. (State’s UMF No. 8.)

2. Plaintiff’s Evidence

In opposition to the motion, Plaintiff provides the following relevant evidence: The incident occurred before sunrise in the rain and Patrick did not see Plaintiff until moments before impact. (Plaintiff’s UMF Nos. 28-29.) While Patrick had a general awareness of the crosswalk, he did not recall seeing the actual crosswalk. (Plaintiff’s UMF No. 30.) Before the accident, Patrick had never seen a pedestrian cross or the W54A warning sign. (Plaintiff’s UMF Nos. 31, 34.) At the time of the incident, the crosswalk appeared to be worn down and had not been repainted for more than 14 years. (Plaintiff’s UMF Nos. 32-33.) Due to the curve of the lanes merging onto the freeway, the landscaping brush behind the sign, and the crest at the onramp, the crosswalk is not visible to drivers when the W54A sign is visible. (Plaintiff’s UMF No. 37.) Because the W54A sign is located next to an intersection controlled by traffic signals, it is unclear to what area the sign refers. (Plaintiff’s UMF No. 38.) In addition, non-intersection pedestrian crossings, such as the crosswalk at issue, are unexpected by the typical road user. (Plaintiff’s UMF No. 44.)
A year and a half before the incident, the State received a complaint that vegetation covered most of the sidewalk on Lawrence Expressway near the crosswalk. (Plaintiff’s UMF No. 41.) The State did not perform any pruning or maintenance on the landscaping from March 2013 to the time of the crash on January 9, 2014. (Plaintiff’s UMF No. 42.)

B. Evidentiary Objections

Plaintiff asserts 27 objections to the evidence submitted in support of the State’s motion. The objections are not material to the disposition of the motion and, therefore, no ruling is required. (See Code Civ. Proc., § 437c, subd. (q) [stating that “[i]n granting or denying a motion for summary judgment or summary adjudication the court need rule only on those objections to evidence it deems material to its disposition of the motion”].)

The State asserts 7 objections to the evidence submitted in support of Plaintiff’s opposition to the motion. The objections are not material to the disposition of the motion and, therefore, no ruling is required. (See Code Civ. Proc., § 437c, subd. (q).)

C. Analysis

The State moves for summary judgment on three bases. First, the State claims that Plaintiff is unable to establish that the subject property constitutes a dangerous condition of public property. Second, the State asserts that Plaintiff cannot establish that its negligent act or omission created a dangerous condition. Finally, the State argues that it is immune from liability for the design of the roadway pursuant to Government Code section 830.6.

1. Dangerous Condition of Public Property

“The term dangerous condition is statutorily defined as 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…. As to what constitutes a dangerous or defective condition no hard-and-fast rule can be laid down, but each case must depend upon its own facts…. Ordinarily, the existence of a dangerous condition is a question of fact, but whether there is a dangerous condition may be resolved as a question of law if reasonable minds can come to but one conclusion.” (Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1069-1070, internal citations omitted.) To prevail on a motion for summary judgment on the ground that certain property does not constitute a dangerous condition, the moving party must present evidence that would preclude a reasonable trier of fact from finding it more likely than not that the property posed a substantial risk of injury. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337, 1346.)

The State argues that the absence of similar incidents over the last 12 years conclusively establishes that the crosswalk is not a dangerous condition of public property. This argument lacks merit. While the absence of other similar accidents is relevant to the determination of whether a condition is dangerous, there is “no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of nondangerous absent other evidence.” (Lane, supra, 183 Cal.App.4th at p. 1346; see also Salas, supra, 198 Cal.App.4th at p. 1071 [stating that the absence of similar accidents is relevant, but not dispositive on the issue of dangerousness].) Since the State does not argue that any of the other evidence submitted precludes a finding that the crosswalk was dangerous, summary judgment is not warranted on this basis.

2. Creation of Dangerous Condition

To establish liability for a dangerous condition, a plaintiff must prove that either: (1) “[a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition” or (2) “[t]he public entity had actual or constructive notice of the dangerous condition … a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835.)

The State contends that summary judgment should be granted because it did not act wrongfully or negligently in creating the dangerous condition. This argument is not well taken. “In order to recover under Government Code section 835, it is not necessary for plaintiff to prove a negligent act and notice; either negligence or notice will suffice.” (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 693.) Since the State makes no attempt to demonstrate that it did not have actual or constructive notice of the dangerous condition, it fails to meet its initial burden with respect to this issue.

For the first time in its reply brief, the State argues that Plaintiff cannot establish that it had notice of the dangerous condition. As an initial matter, “[p]oints raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Here, the State does not explain why it did not present this argument in its moving papers. As such, the Court need not consider it. In any event, the State merely asserts that Plaintiff cannot establish notice without presenting any supporting evidence. Therefore, it fails to meet its initial burden of production. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [stating that “[s]ummary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence”].) Accordingly, summary judgment is not warranted on this basis.

3. Design Immunity

“[Government Code section 830.6] provides that a public entity is immune from liability for injuries caused by the plan or design of a public improvement where such plan or design has been approved in advance by the legislative body of the public entity or by some other body or employee and where the court finds any substantial evidence on the basis of which a reasonable entity or employee could have approved the plan.” (Cameron v. State of California (1972) 7 Cal.3d 318, 325, internal citations omitted.) “The purpose of 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. [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.” (Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369, internal citations omitted.)

Under Section 830.6, a public entity is not liable for injuries caused by a dangerous condition of public property if the following elements are satisfied: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design before the construction or improvement; and (3) substantial evidence supporting the reasonableness of the design. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66.)

The State asserts that there is a prima facie case for each element of design immunity. The State’s argument is well taken. With respect to the first element, the allegations of the complaint establish that the injury occurred, at least in part, as a result of the design. (See Fuller v. Department of Transportation (2001) 89 Cal.App.4th 1109, 1114 [permitting a defendant to rely on the allegations of the complaint to establish causation].) With respect to the second element, the State submits the “as-built” version of the plans prepared and signed by a civil engineer in its employ. (Sams Decl., Ex. I.) As such, it establishes that second element of the defense. (See Greiner v. Irwindale (1997) 57 Cal.App.4th 931, 940 [stating that “[p]lans, prepared by a civil engineer and signed by a city engineer in his official capacity as an employee of a public entity, are evidence that a project had the requisite discretionary approval prior to construction”].) Finally, with respect to the third element, the State presents evidence that the curve radius of the ramp, the design speed, the stopping sight distances are all consistent with the California Department of Transportation Traffic Manual in effect at the time of the construction. (State’s UMF Nos. 18-23.) As such, the State produces substantial evidence that the design could have been adopted by a reasonable public employee. (See Arreola v. County of Monterrey (2002) 99 Cal.App.4th 722, 757 [stating that “[i]f the record contains the requisite substantial evidence, the immunity applies, even if the plaintiff has presented evidence that the design was defective”]; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1267 [stating that substantial evidence typically “consists of an expert opinion as to the reasonableness of the design, or evidence of relevant design standards”].)

In opposition, Plaintiff argues that summary judgment should not be granted because the incident at issue was not caused solely by a defect in design. He asserts that the State’s failure to warn of the dangerous condition or maintain the property at issue also caused the incident.

“[W]here [a public entity] is immune from liability for injuries caused by a dangerous condition of its property because the dangerous condition was created as a result of a plan or design which conferred immunity under section 830.6, the [public entity] may nevertheless be liable for failure to warn of this dangerous condition where the failure to warn is negligent and is an independent, separate, concurring cause of the accident.” (Cameron v. State of California (1972) 7 Cal.3d 318, 329; see also Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575 [stating that Gov. Code, § 830.6 does “not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident”].)

Here, Plaintiff submits evidence indicating that the State’s failure to maintain the property or warn of the dangerous condition constituted independent, separate, concurring causes of the incident. In particular, Plaintiff’s expert declares that the State created a dangerous condition of property at the crosswalk by negligently maintaining trees and shrubbery located on Lawrence Expressway, which obscured one of the warning signs, and permitting the crosswalk striping to become degraded which made the crosswalk almost invisible to motorists. (See Dunlap Decl., ¶¶ 12, 19, 24-25, 26, 33, 39.)
Accordingly, Plaintiff establishes a triable issue of material fact as to whether the State’s failure to maintain the subject property and warn of the existence of the dangerous condition constitutes independent, separate, concurring causes of the incident.

In reply, the State argues that the failure to maintain the trees, shrubbery and crosswalk striping or warn of the alleged dangerous condition does not create a substantial risk of injury as a matter of law. In this respect, it relies on Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340 and Sun v. City of Oakland (2008) 166 Cal.App.4th 1177. Neither case is on point. First, the defects alleged in Cerna principally concerned the use of the wrong type of crosswalk (a regular crosswalk as opposed to a crosswalk marked for a school), the lack of traffic control signals, and the absence of crossing guards. (Cerna, supra, 161 Cal.App.4th at pp. 1349-1351.) As such, the case does not address whether a failure to maintain public property or warn of a dangerous condition may create a substantial risk of injury. Second, the Sun court determined that Government Code section 830.8 immunized a public entity from liability for removing of a crosswalk. (Sun, supra, 166 Cal.App.4th at p. 1193.) Since the application of Government Code section 830.8 is not at issue in the motion, Sun is simply inapposite. Accordingly, the State fails to demonstrate that its alleged negligent maintenance does not create a substantial risk of injury as a matter of law.

In sum, since design immunity does not bar the entirety of Plaintiff’s cause of action for a dangerous condition of public property, the State is not entitled to summary judgment based on this defense.

D. Conclusion

Based on the foregoing, the State’s motion for summary judgment or, in the alternative, summary adjudication of the second cause of action is DENIED.

III. The County’s Motion for Summary Judgment or, in the alternative, Summary
Adjudication

The County moves for summary judgment of Plaintiff’s complaint or, in the alternative, summary adjudication of the second cause of action in the complaint on the ground that the action has no merit. (See Code Civ. Proc., § 437c, subds. (a)(1), (f)(1).) In addition, the County moves for summary judgment of the cross-complaint or, in the alternative, summary adjudication of the first and second causes of action on the ground the action has no merit. (See Code Civ. Proc., § 437c, subds. (a)(1), (f)(1).)

A. Summary of Evidence Submitted

1. The County’s Evidence

In support of its motion, the County submits the following relevant evidence: The State designed, owns, maintains and controls the on-ramp and crosswalk at issue. (County’s UMF Nos. 35, 37-44.) Under a freeway maintenance agreement between the County and the State, the County maintains the curbs on Lawrence Expressway. (County’s UMF Nos. 48, 55.) The County is not responsible for maintaining the on-ramp or any landscaping. (County’s UMF Nos. 57-58.) In addition, the State’s expert calculated that an estimated 120,000 pedestrians have used and 46 million vehicles have driven over the crosswalk in the last 12 years without any other pedestrian collisions. (County’s UMF No. 32.)
2. Plaintiff’s Evidence

In opposition, Plaintiff presents the following relevant evidence: The State delegated significant maintenance duties to the County, and the County has maintained the pavement markings on the on-ramp. (Plaintiff’s UMF No. 35.) The County’s employee with the primary landscaping responsibility for Lawrence Expressway testified that the County maintains the grass and weeds to the right of the curb on the sidewalk directly south of the crosswalk. (Plaintiff’s UMF No. 55.) The State’s person most qualified testified that the County was responsible for maintaining any landscaping to the right of northbound Lawrence Expressway extending almost up to the crosswalk. (Plaintiff’s UMF No. 55.) In addition, the County refreshes paint on the pavement markings at the on-ramp. (Plaintiff’s UMF Nos. 57, 69.)

B. Evidentiary Objections

Plaintiff asserts 39 objections to the evidence submitted in support of the County’s motion. The objections are not material to the disposition of the motion and, therefore, no ruling is required. (See Code Civ. Proc., § 437c, subd. (q).)

The County asserts 10 objections to the evidence submitted in opposition to the motion. Objection Nos. 1, 6, and 7 on the grounds of relevance, speculation, and the parole evidence rule are OVERRULED. Objections Nos. 2-5 and 8-10 are not material to the disposition of the motion, and therefore, no ruling is required. (See Code Civ. Proc., § 437c, subd. (q).)

C. Procedural Defect

Preliminarily, Plaintiff contends that the motion for summary adjudication should be denied because it does not identify the specific causes of action, claims of damages or issues of duty the County seeks to adjudicate. (See Cal. Rules of Court, rule 3.1350(b) [stating that “[i]f summary adjudication is sought … the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion…”].) This argument lacks merit because the County’s notice of motion specifically states that the “County is entitled to summary adjudication of the second cause of action in the complaint.” Accordingly, the County’s motion for summary adjudication of the second cause of action will not be denied on this basis.

D. Motion for Summary Judgment/Adjudication of Plaintiff’s Complaint

The County moves for summary judgment of the Plaintiff’s complaint or, in the alternative, summary adjudication of the second cause of action on two bases. First, the County asserts that Plaintiff is unable to establish that the subject property constitutes a dangerous condition of public property. Second, the County argues that it did not own, possess or control the property at issue. Plaintiff substantively opposes the motion or, alternatively, requests a continuance to enable him to perform additional discovery concerning these issues.
1. Dangerous Condition of Public Property

The County contends that the site of the incident does not constitute a dangerous condition of public property because there have been no other similar accidents over the last 12 years. As previously discussed in connection with the State’s motion for summary judgment, there is “no authority for the proposition that the absence of other similar accidents is dispositive of whether a condition is dangerous, or that it compels a finding of nondangerous absent other evidence.” (Lane, supra, 183 Cal.App.4th at p. 1346.) Since the County produces no evidence otherwise precluding a reasonable trier of fact from finding the crosswalk to be dangerous, summary judgment is not warranted on this basis.

2. Ownership and/or Control of Premises

The County argues that summary judgment is warranted because it did not own or control the subject property at the time of the incident. In opposition, Plaintiff does not dispute that the State, not the County, owned the crosswalk, the roadway, or the sidewalk. Instead, Plaintiff asserts that there is a triable issue of material fact as to whether the County controlled a portion of this property.

“[A] defendant cannot be held liable for a defective or dangerous condition of property which defendant did not own, possess, or control. [T]he duty to take affirmative action for the protection of individuals coming onto one’s property is grounded in the possession of the premises and the attendant right to control and manage the premises. Without the crucial element of control over the subject premises, no duty to exercise reasonable care to prevent injury on such property can be found.” (Hamilton v. Gage Bowl (1992) 6 Cal.App.4th 1706, 1711, internal citations omitted.) Control may be established where the defendant had “the power to prevent, remedy or guard against the dangerous condition.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 990.)

In support of its motion, the County presents the declaration of Masoud Akbarzadeh, the County Traffic Engineer for the Roads and Airports Department, who states the following: (1) the State of California owns and controls the Lawrence Expressway near the property where the incident took place; (2) the County is obligated to maintain a portion of the surface of Lawrence Expressway under a freeway maintenance agreement with the State; (3) based on his review of the agreement, the County is not responsible for the maintenance of the on-ramp where the incident took place or any of the vegetation on the right-hand side of Lawrence Expressway. (Akbarzadeh Decl., ¶¶ 13-14, 16, 25.) As such, the County meets its initial burden of production to make a prima facie case that it did not own or control the property at issue. Accordingly, the burden shifts to Plaintiff to establish a triable issue of material fact.

In opposition, Plaintiff presents the deposition of the State’s person most qualified, Ernesto Ramirez, which indicates that the County is responsible for maintenance of the vegetation on the right-hand side of Lawrence Expressway. In particular, Mr. Ramirez testifies that the State’s version of the maintenance agreement provides that the landscaping on the side of the road is the County’s responsibility. (Likar Decl., Ex. G, Ramirez Depo., pp. 27:7-14, 28:11-21, 33:2-18.) He explains that the agreement requires the County to maintain the shaded area of a particular map attached to the agreement and the shaded area includes the landscaping on the side of Lawrence Expressway. This evidence establishes a triable issue of material fact as to whether the County had the power under the maintenance agreement to prevent, remedy or guard against the dangerous condition.

In reply, the County argues that Mr. Ramirez’s testimony does not establish a triable issue of material fact because it violates the parole evidence rule. This argument lacks merit on several grounds. First, the parole evidence rule only applies when the writing is intended by the parties as a final expression of their agreement with respect to the terms included therein. (Civ. Code, 1856, subd. (a); see also Gerdlund v. Electronic Dispensers International (1987) 190 Cal.App.3d 263, 270 [stating that the parole evidence rule applies only if the “writing [was] intended to be an integration, i.e., a complete and final expression of the parties’ agreement”].) Here, the County makes no attempt to establish that the attached contract was intended to be the complete and final expression of the parties’ agreement. Moreover, on its fact, the agreement does include an express integration clause, which suggests that that it is not fully integrated. (See Wallis v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 730 [noting that the absence of an integration clause supports the conclusion that the agreement was not fully integrated], disapproved of on other grounds in Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384.) Accordingly, the County fails to establish that the parole evidence rule applies. Second, even if the parole evidence rule is applicable, a party may introduce extrinsic evidence “not to vary or modify the terms of the agreement but to aid the court in ascertaining the true intent of the parties….” (Denver D. Darling, Inc. v. Controlled Environments Const., Inc. (2001) 89 Cal.App.4th 1221, 1236.) Here, Mr. Ramirez’s testimony merely explains the State’s interpretation of the agreement, namely, that the County’s maintenance obligation extended to the landscaping on the side of Lawrence Expressway based on the shading of the map attached to the agreement. A review of the map in question indicates that it is fairly susceptible to such an interpretation. Accordingly, the County fails to demonstrate that the parole evidence rule prohibits the introduction of Mr. Ramirez’s testimony.

Next, the County contends that it had no control over the subject property as a matter of law because no ordinance or resolution establishes that the County accepted said control. (See Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530, 1539 [finding that a public entity is not liable for failure to maintain a road unless it accepts such a responsibility by resolution of the governing body of the entity].) This argument is not well taken because the freeway maintenance agreement includes a resolution passed by the Board of Supervisors of the County of Santa Clara approving the agreement. (See Akbarzadeh Decl., Ex. H.) Since there does not appear to be any other formalities required for the State to delegate maintenance responsibilities to the County, the County fails to establish that summary judgment is warranted on this basis. (See Pritchard v. Sully-Miller Contracting Co. (1960) 178 Cal.App.2d 246, 250 [stating that the State Division of Highways may assign authority to local entities without any formal or written delegation because “there is no reason to believe that the Legislature was interested in burdening these public agencies with unnecessary formalities”].)

3. Conclusion

In light of the foregoing, the County’s motion for summary judgment of Plaintiff’s complaint or, in the alternative, summary adjudication of the second cause of action in the complaint is DENIED.

E. Motion for Summary Judgment/Adjudication of the Cross-Complaint

The County contends that its motion for summary judgment of the cross-complaint should be granted because it did not own or control the property at issue and therefore cannot be liable as a joint tortfeasor. (See Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787 [stating that “if the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff’s injuries, another defendant may not pursue a claim for indemnity against that defendant”].) In the alternative, the County moves for summary adjudication of the first and second causes of action for comparative equitable indemnity and implied indemnity in the Cross-Complaint because it is a public entity and is immune from common law causes of action. Neither argument is well taken.

First, as previously discussed in connection with the County’s motion for summary judgment of Plaintiff’s complaint, there is a triable issue of material fact as to whether the County controlled portions of the property at issue. Second, in Wagner v. State of California (1978) 86 Cal.App.3d 922, 927, the Court of Appeal rejected the argument that “sovereign immunity exists for a claim for comparative equitable indemnity, since the doctrine is based upon common law, is not statutory, and is thus barred by Government Code section 815,” finding that “the liability of a governmental entity for injury caused by a dangerous condition of its property under Government Code sections 810.8 and 835 includes within its broad terms damage sustained under circumstances such as those in the present case.”

In light of the foregoing, the County’s motion for summary judgment of the cross-complaint or, in the alternative, the first and second causes of action in the cross-complaint is DENIED.