Case Name: Herriot v. Diep, et al.
Case No.: 17CV308646

Defendant/cross-complainant/cross-defendant Jeannette D. Kennedy, as Trustee of the Jeannette D. Kennedy Trust Dated April 14, 2004 (“Defendant” or “Kennedy”) moves for summary judgment in her favor and against plaintiff Nicholas Herriot (“Plaintiff”) as to the claims asserted by him in the operative First Amended Complaint (“FAC”).

I. Background

A. Factual

This is a personal injury action. On or about April 24, 2015, Plaintiff was riding his bicycle northbound on Middlefield Road near the intersection of Lowell Avenue in Palo Alto. (FAC, ¶ 8.) As Plaintiff was riding his bicycle, he was struck by a 2005 Gray Acura TL that was “owned, controlled, maintained, entrusted, handled, managed, supervised, operated and/or possessed” by defendants Diep Diep (“Diep”) and Ching-Pei Hu (“Hu”). (Id. at ¶¶ 4 & 8.) As a result of the accident, Plaintiff suffered serious and permanent injuries. (Id. at ¶ 8.)

Plaintiff alleges that Diep and Hu caused his injuries by “negligently and carelessly driving, owning, operating, controlling, entrusting, handling, possessing, managing and maintaining” the 2005 Gray Acura TL. (FAC, ¶¶ 10-12.)

Plaintiff further alleges that Kennedy “owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled, failed to adequately landscape and/or supervised” real property located at the intersection of Middlefield Road and Lowell Avenue. (FAC, ¶¶ 5-6 & 16.) At the time of the accident, the subject property “contained trees, shrubs, plants, hedges and the like that either partially or completely obstructed the view of motor-vehicle traffic that was merging onto Middlefield Road from Lowell Avenue.” (Id. at ¶¶ 7 & 17.) Kennedy “negligently and carelessly owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled and/or supervised the [property], permitted or created the dangerous condition, increased the risk of harm or created a false sense of safety (i.e., reliance on the undertaking) at or near the [property] so as to cause Plaintiff to encounter a dangerous and deceptive condition, and thereby directly causing the injuries and damages to [Plaintiff].” (Id. at ¶ 19.) More specifically, Kennedy “failed to adequately landscape … bushes, plants, trees and hedges located in the front portion of the property … .” (Id. at ¶ 5.)

Lastly, Plaintiff alleges that Kennedy was “subject to and violated … Section 8.04.050(a)(3) and (6) of Chapter 8.04, Section 9.56.030(a)(5), (8) and (21) of Chapter 9.56 and Sections 1624.020, 16.24.040, 16.24.080 of Chapter 16.24 of the Palo Alto Municipal Code,” regarding “sight visibility at intersections and public safety.” (FAC, ¶ 24.) These violations allegedly “caused Plaintiff’s injury, the occurrence resulting in the injury was of a nature that the regulations were designed to prevent[,] and Plaintiff was among the class of persons for whose protection the regulations were adopted.” (Id. at ¶ 24.)

B. Procedural

Based on the foregoing allegations, Plaintiff filed the operative FAC on January 24, 2019, against Diep, Hu, and Kennedy, alleging causes of action for: (1) negligence (against Diep and Hu); (2) premises liability/negligence (against Kennedy); and (3) negligence per se. Kennedy’s subsequent demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action was sustained by the Court without leave to amend in April 2019, leaving a single claim remaining against her. On August 29, 2019, Defendant filed the instant motion for summary judgment. Plaintiff opposes the motion.

II. Plaintiff’s Request for Judicial Notice

In support of his opposition to Defendant’s motion, Plaintiff requests that the Court take judicial notice of the following: (1) various provisions of the Palo Alto Municipal Code (Exhibit A); (2) various provisions of the California Vehicle Code (Exhibit B); (3) the City of Palo Alto’s Visibility Project (Exhibit C); (4) various deposition exhibits (photographs) (Exhibit D); and (5) Google Earth photographs taken of the subject intersection before the incident took place (Exhibit E).

The Court will take judicial notice of Exhibits A and B. (See Evid. Code, § 452, subd. (b).) It is not appropriate to take judicial notice of photographs, so the Court will not take judicial notice of Exhibits D and E. And Exhibit C is a city document. Thus, it is not an “[o]fficial act[] of the legislative, executive, and judicial departments of the United States and of any state of the United States.” The Court hence will not take judicial notice of Exhibit C.

III. Defendant’s Motion for Summary Judgment

Given the Court’s prior order sustaining Defendant’s demurrer, one cause of action remains against her: premises liability/negligence. Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) She seeks judgment in her favor as to this claim.

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] 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.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

B. Analysis

With the instant motion, Defendant maintains that she is entitled to summary judgment for the following reasons: (1) she owed Plaintiff no duty of care because the landscaping on her property did not contribute to his accident; and (2) even if she did owe Plaintiff a duty of care, Plaintiff cannot establish that her property was improperly maintained or that it violated municipal codes and thus was a cause of the accident.

1. Defendant’s Duty of Care

The existence of a duty of care is an essential element of Plaintiff’s claim for negligence/premises liability. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362.) As relevant here, a landowner “owes a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury.” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478, internal citations omitted.) The existence of a duty in the first instant is an issue of law for the court to decide. (Alcarez v. Vece (1997) 14 Cal.4th 1149, 1162, fn. 4.)

The following factors, often referred to as the “Rowland factors,” are used to determine the scope of the landowner’s duty of care under the relevant circumstances: “the foreseeability of harm to the injured party; the degree of certainty he or she suffered an injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved.” (Barnes v. Black, supra, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

Here, the injuries suffered by Plaintiff are not alleged to have occurred directly on Defendant’s property, but rather adjacent to it. However, “[a] landowner’s duty of care to avoid exposing others to risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.” (Barnes v. Black, 71 Cal.App.4th at 1478, citing McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7-8.) The aforementioned Rowland factors determine the scope of a duty of care whether the risk of harm is situated on site or off site. (McDaniel v. Sunset Manor Co., 220 Cal.App.3d at 7-8.)

With the foregoing in mind, Defendant first endeavors to negate the element of a duty of care by establishing that the injury to Plaintiff was not foreseeable and that the condition of her landscaping was not the cause of, i.e., closely connected to, Plaintiff’s accident. In support of these assertions, Defendant submits the following undisputed material facts: Defendant’s property, which she has owned since 1963, is regularly maintained by Moffett Landscaping Services. (Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”) Nos. 1, 2.) Defendant has never received any notices, warnings, or citations regarding the landscaping of her property from the City of Palo Alto. (UMF No. 3.)

On the morning of April 24, 2015, Plaintiff, whose bicycle was his main form of transportation and was ridden by him daily, was riding his bicycle from his home to work. (UMF Nos. 4, 6.) Plaintiff was riding his bicycle northbound on the sidewalk abutting the southbound side of Middlefield Road (“Middlefield”). (UMF No. 7.) Plaintiff approached the intersection of Middlefield and Lowell Avenue (“Lowell”) intending to cross the street and did not believe that he was required to stop at the intersection because there was a stop sign for vehicles proceeding from Lowell onto Middlefield. (UMF No. 8.) Plaintiff reached the wheelchair ramp on the sidewalk prior to entering the roadway and observed Diep’s vehicle. (UMF No. 9.)

Diep was in his vehicle intending to turn right onto Middlefield and stopped at the limit line and was able to see if there were any pedestrians on the sidewalk to his right. (UMF No. 11.) Witness Janie Larios (“Larios”) was driving northbound on Middlefield intending to make a left turn onto Lowell when she observed Plaintiff on his bicycle travelling on the sidewalk in the same direction she was traveling. (UMF Nos. 12, 13.) Larios further observed Diep stopped on Lowell waiting to turn right onto Middlefield. (UMF No. 14.)

Plaintiff’s bicycle and Diep’s vehicle collided, resulting in Plaintiff suffering a fracture to his lower left leg. (UMF Nos. 15, 19.) Following the collision, Diep did not move his vehicle from its place of rest. (Id.) Palo Alto police officers arrived at the accident scene and a photograph they took show that Diep’s vehicle had started its turn when hit by Plaintiff and the accident occurred beyond the landscaping on Defendant’s property. (UMF No. 16.)

Based on the foregoing facts, Defendant contends that Plaintiff failed to use reasonable care while approaching the intersection on his bicycle and that she could not foresee such a failure on his part. She notes that he was riding his bicycle on the wrong side of the street in violation of Section 21650.1, which provides that “[a] bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.” While this statute does not require bicycles to travel with the flow of traffic when ridden on a sidewalk because a sidewalk is not a “shoulder of a highway” (see Spriesterbach v. Holland (2013) 215 Cal.App.4th 255), at the time he was struck, Plaintiff was no longer on the sidewalk but rather in the roadway crossing the street.

Defendant asserts that Plaintiff was obligated to use reasonable care in approaching the intersection and failed to do so in entering it at full speed, in the wrong direction, rather than slowing down to observe if it was safe to cross. If his view was indeed obstructed by the hedge, Defendant maintains, all the more reason that Plaintiff should have approached the intersection with caution. She also contends that the photograph of the scene taken by the police shows that (1) the hedges are well maintained and do not encroach on the sidewalk; (2) the sidewalk is visible from the limit line; and (3) the intersection is viewable from the sidewalk. (Defendant’s Exhibit G.) It also shows, she continues, that the collision occurred after the limit line and well beyond the hedges of her property, and when Diep had already started to turn. (Id.) Indeed, the picture shows the vehicle in mid-turn, and nearly halfway past the limit line when the collision occurred. Plaintiff struck the side of the vehicle. Defendant notes that when asked at his deposition whether he saw Diep’s vehicle in the time leading up to the collision Plaintiff responded, “very briefly,” and then explained that that meant as follows: “So, hedge, me, barely past, saw him turning.” (Defendant’s Exhibit C at 43:18-25.) He further explained that he saw the vehicle when he arrived at the wheelchair ramp. (Id. at 48: 3-19.)

The foregoing evidence, Defendant explains, clearly demonstrates that not only did Plaintiff not approach the intersection in a reasonable way and collided with Diep’s vehicle as a result, but that the landscaping of her property was not the cause of the accident. Therefore, she explains, she did not owe Plaintiff a duty of care, or breach any duty if one existed.

The Court finds the foregoing sufficient to meet Defendant’s initial burden. The evidence submitted by Defendant shows that Plaintiff approached and entered into the intersection of Middlefield and Lowell in a wholly unreasonable way- in the wrong direction and at full speed despite an inability to see the entirety of the intersection- so as to be unforeseeable by Defendant. The photographs submitted by Defendant of the accident scene (and in fact the photographs submitted by Plaintiff as well) establish that Diep’s vehicle was well over the limit line when Plaintiff collided with the side of it at full speed. (Defendant’s Exhibit G; Declaration of Megan Irish in Support of Opposition to Motion for Summary Judgment (“Irish Decl.”), ¶¶ 8, 9 and Exhibits D and E.) The hedges on Defendant’s property did not encroach on the sidewalk, nor did they obstruct the view of the street crossing from one side of Lowell to the other. Further, the sidewalk was viewable from the limit line such that when vehicle was stopped there, the driver would be able to see pedestrians, etc. coming down the sidewalk ramp. Plaintiff testified that he was able to briefly see the vehicle before colliding with it; had he operated his bicycle in a more cautious manner as he approached the intersection, i.e., not at full speed and in the wrong direction, it seems likely he would have had have time to either lesson the resulting impact with the vehicle or avoid it completely.

Defendant’s evidence also establishes the lack of a close connection between the landscaping on her property and Plaintiff’s collision with Diep’s vehicle, with Plaintiff’s actions being the primary cause, and the moral blame attached to her “conduct,” as it were, is not significant, with Defendant noting that she has never received any notices, warning or citations from the City of Palo Alto regarding the landscaping of her property, and both Diep and Plaintiff testified to having been able to view the sidewalk/street.

Defendant addresses allegations that she violated Palo Alto Municipal Code sections 8.04.050(a)(3), 9.56.030(a)(5), (8) and 21, 16.24.020, 16.24.020, 16.24.040 and 16.24.080, which relate to sight visibility at intersections and public safety and pertain to Plaintiff’s claim for negligence per se. However, given that the Court sustained Defendant’s demurrer to this cause of action without leave to amend, and that the foregoing allegations were contained entirely within that claim, Defendant need not address these particular municipal code provisions in order to meet her initial burden on this motion (contrary to what Plaintiff contends in his opposition) because they no longer exist in the operative pleading.

Nevertheless, Defendant appears to address these provisions in anticipation of Plaintiff relying on a negligence per se theory. Defendant argues that Plaintiff cannot establish that she violated the aforementioned provisions because none actually apply to her property. The first section at issue, 8.04.050, defines public nuisances. Subdivision (a)(3), which Plaintiff insists Defendant’s landscaping was in violation of, specifically reads as follows:

(a) The following are, for the purposes hereof, defined to be public nuisances:
(3) Any tree limb, shrub, hedge, or plant reaching a height more than three feet above the curb grade adjacent thereto, except tree trunks having no limbs lower than nine feet above curb grade, within the thirty-five foot triangle of public or private property, measured from the projected curb lines, at the intersections of any street improved for vehicular traffic where either traffic signals, stop signs, or yield signs are not installed, or at any intersections which are determined by the chief transportation official to contain tree limbs, shrubs, hedges, or plants that obscure an impair the view of passing motorists, cyclists or pedestrians to as to create a safety hazard.

(Emphasis added.)

As Defendant notes, the foregoing section is clearly inapplicable to the intersection where the subject incident took place because it is controlled by a stop sign on Lowell. In an effort to demonstrate the existence of a triable issue of material fact, Plaintiff nevertheless argues that it does apply because there was no stop sign or signal on Middlefield, but this section applies to intersections and not individual streets. The intersection in question was controlled by a stop sign, and thus this section is inapplicable to the circumstances at bar. Plaintiff asserts that road users traveling up and down Middlefield have no controls and therefore no obligation to stop, giving them the right of way. This argument, however, ignores the fact that when the collision occurred Plaintiff was traveling in the wrong direction in the roadway per Vehicle Code section 21650.1 and had a duty to approach the intersection with due care.

Plaintiff also take pains in his opposition to establish that he was legally permitted to ride on the sidewalk. While it is true that he was permitted to do so, the subject collision did not occur when he was on the sidewalk, but rather when he was in the roadway. Upon entering the roadway, Plaintiff was obligated to comply with the Vehicle Code section 21650.1 which, as stated above, requires a bicycle operated on the road to “be operated in the same direction as vehicles are required to be driven upon the roadway.” (Emphasis added.) He did not do so. Further, merely because Plaintiff was permitted to ride on the sidewalk does not mean that he did not have a duty to operate his bicycle in a reasonable manner when he approached the intersection of Middlefield and Lowell travelling at full speed, entering into the roadway from the wrong direction. Contrary to Plaintiff’s assertions, the Court does not agree that it is foreseeable that a bicyclist will enter the intersection of Middlefield and Lowell at full speech travelling the wrong way.

Palo Alto Municipal Code sections 9.56.030(a) describes conditions that constitute a nuisance and require abatement once an enforcement officer determines that such conditions exist upon a premise and that abatement is necessary. The subsections of this subdivision cited by Plaintiff as being violated by Defendant’s landscaping, (5), (8) and (21), simply spell out nuisances that an enforcement officer has the authority to demand abatement of by a property owner. Here, however, nothing on Defendant’s property was ever identified as a public nuisance by the City of Palo Alto that she was required to abate. (UMF No. 3.)

Plaintiff additionally argues that Defendant’s hedges violated the height requirements set forth in Municipal Code sections 16.24.020, 16.24.040 and 16.24.080, but these sections apply to “fences” and, as Defendant persuasively argues, the Municipal Code distinguishes “fences” and “hedges” by listing both within definitions articulated in other portions of the code. In any event, even if these sections do apply, Plaintiff offers nothing which establishes that the hedges actually obstructed Diep and Plaintiff’s view of each other. Diep testified that he was able to see the sidewalk ramp to his right and Plaintiff that he was able to (briefly) see Diep’s vehicle before the collision.

Plaintiff also insists that a triable issue of material fact exists with respect to Diep and Defendant as contributing factors to his accident and thus whether they are concurrently liable. He argues that that in addition to the question of whether Defendant’s foliage exceeded permissible height regulations provided by the Palo Alto Municipal Code, there is also a dispute as to whether Diep fully checked the sidewalk before he proceeded from a stop on Lowell to making a right onto Middlefield. However, even if the latter is true, it has no bearing on the issue of whether Kennedy bears any culpability for the subject collision, only on whether Diep does.

In sum, Plaintiff fails to establish the existence of a triable issue of material fact with respect to Kennedy’s culpability for his injury. Consequently, Defendant’s motion for summary judgment is GRANTED.

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