Case Number: BC666123 Hearing Date: June 11, 2019 Dept: 2

Motion for Summary Judgment by Defendant, City of Los Angeles, filed on 12/21/18, is GRANTED. Defendant has established it is entitled to judgment in its favor based on the undisputed material facts proffered.

The undisputed facts establish the following: Plaintiff alleges that on 10/20/16, at around 7:00 a.m., he was a pedestrian crossing Parthenia Street at its intersection with Willis Avenue, when he was allegedly struck by a vehicle driven by Defendant, Patricia Avila. UF 1, 2. Plaintiff alleges that the City of Los Angeles (“City”) operated, managed, designed, planned, engineered, constructed, maintained and inspected the intersection on the date of the incident. UF 3. Plaintiff alleges that the intersection constituted a dangerous condition of public property. UF 4.

Plaintiff contends that the dangerous condition contributing to the occurrence of the incident was the lack of a crosswalk, the uncontrolled intersection, and lack of further traffic controls to address pedestrian safety despite a busy thoroughfare requiring pedestrians to make it to the bus stop. UF 10. Plaintiff contends the intersection was a trap for pedestrians exercising due care. UF 12.

Plaintiff contends the center divider on Parthenia Street at the intersection contains a concrete portion giving pedestrians the false perception to enter the intersection and wait on the concrete barrier before proceeding through the other side of the street. UF 17.

Parthenia Street was separated by a center median. UF 25. On the day of the accident, Plaintiff crossed Parthenia Street from the southeast corner of Parthenia and Willis Avenue. UF 24. Traffic on Parthenia Street is not controlled by stop signs or other intersection controls. There are no signs or markings for crosswalks across Parthenia Street at that intersection. UF 31.

Plaintiff had crossed one lane of Parthenia and was about to place his foot on the center median when he was struck. UF 28.

To prevail on a claim for dangerous condition of public property pursuant to Government Code § 835, Plaintiff must establish, along with proximate cause and damages, that a dangerous condition existed that was either created by an employee of the public entity or that the public entity had actual or constructive notice of the condition in a sufficient time to take measures. Government Code § 835

Defendant raises three essential defenses to support granting the motion, including lack of a dangerous condition and design immunity. Assuming each of these issues raise triable issues of fact to warrant denying the motion, immunity under Government Code § 835.4 is a complete defense based on the undisputed material facts proffered.

Defendant has established that there is no dispute that its failure to complete the recommended measures for the intersection was reasonable such that it is immune under Government Code § 835.4. Pursuant to that code section, a public entity is not liable for a dangerous condition of public property if it establishes that its conduct (or lack of conduct) was reasonable under the circumstances. Government Code § 835.4.

Notwithstanding that the evidence supports Plaintiff’s theory that the City had knowledge of the risks of the intersection warranting additional traffic controls based on two pre-accident reports prepared by the City of Los Angeles, Department of Transportation, dated 7/23/16 and 7/26/16, Plaintiff has not controverted Defendant’s proffered facts with respect to the City’s inability to remedy the condition in the period before the reports were made and Plaintiff’s accident.

As set forth in § 835.4(b), “[t]he reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of protecting against the risk of such injury.” Government Code § 835.4(b) [emphasis added].

Plaintiff does not dispute the City’s lack of sufficient funds to design and construct most transportation capital improvement projects on its streets. UF 90. It is undisputed that the City sought to obtain funding for its capital improvement projects, prepared the necessary traffic control reports, and that the typical interval between submission of the application for funding is approximately 5.5 years. UF 91-95.

There is no dispute that LADOT sought funding and obtained for the City $10 million dollars. UF 95-96. Plaintiff’s evidence does not controvert the material fact that there was insufficient time to complete the project given the City’s prioritization schedule for this project which was determined by the finding that the intersection did not meet the “crash experience warrant.”

Plaintiff cites the evidence indicating that it was 15 months before the reports were generated and Plaintiff’s accident. This is not a material fact, and it does not controvert Defendant’s fact that it essentially did not have time and opportunity to complete that project. There is no dispute that there were at least three separate requests for traffic measures prior to the incident. These facts are insufficient to controvert Defendant’s evidence. Fact 98 is undisputed.

Plaintiff cites De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 749, for the proposition that the question of Defendant’s reasonableness is one for the trier of fact.

“The flaw in the argument is the assumption that the question of “reasonableness” under section 835.4, subdivision (b), was a question of law for the court. That assumption is erroneous. From the evidence reviewed it is apparent that reasonable minds could differ as to whether the action taken by the City was reasonable under the circumstances. The issue therefore was one of fact which should have been submitted to the jury under appropriate instructions.” De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, 749.

In that case, the court determined that that the question of reasonableness was an issue for the trier of fact because “[f]rom the evidence reviewed it is apparent that reasonable minds could differ as to whether the action taken by the City was reasonable under the circumstances. The issue therefore was one of fact which should have been submitted to the jury under appropriate instructions.” De La Rosa at 749.

Plaintiff’s evidence did not controvert any of Defendant’s material facts with respect to the City’s immunity under Government Code § 835.4, as discussed above. There is no basis for this court to find that reasonable minds could differ as to the reasonableness of Defendant’s inability to remedy the intersection given the time and opportunity it had to obtain funding and take action.

Plaintiff’s objections to evidence

Pursuant to Cal. Code Civil Procedure § 437c(q), when the court grants or denies a motion for summary judgment or summary adjudication, it need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion are preserved for appellate review. Cal. Code Civil Procedure § 437c(q).

Plaintiff’s objections to the Declaration of Brian R. Gallagher, the City’s Principal Transportation Engineer, are OVERRULED.

Of note, Plaintiff did not object to ¶ 31, cited in support of UF 98.

Moving party is ordered to give notice.