Filed 7/8/20 Torres v. City of Redlands CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ROBERT TORRES,

Plaintiff and Appellant,

v.

CITY OF REDLANDS,

Defendant and Respondent.

E071890

(Super.Ct.No. CIVDS1511061)

OPINION

APPEAL from the Superior Court of San Bernardino County. Wilfred J. Schneider, Jr., Judge. Affirmed.

Law Offices of Farnell & Norman and Ronald E. Norman, for Plaintiff and Appellant.

Disenhouse Law, Bruce E. Disenhouse and Gary O. Poteet, Jr., for Defendant and Respondent.

I.

INTRODUCTION

Plaintiff and appellant, Robert Torres, was injured when he lost control of his truck and crashed after driving over a manhole with an unsecured cover. Torres sued the City of Redlands (Redlands) based on the tort theory of a dangerous condition of public property. After Torres gave his opening statement during a court trial, the trial court granted Redlands’s motion for nonsuit and entered judgment against Torres. Torres appeals the judgment on the ground his opening statement provided sufficient facts to support his claim against Redlands for dangerous condition of public property. We affirm the judgment of nonsuit.

II.

FACTS AND PROCEDURAL BACKGROUND

On October 27, 2014, Torres complied with the California Tort Claims Act (Gov. Code, §§ 810-996.6) by filing a government tort claim against Redlands, alleging that on August 3, 2014, at between 6:30 and 7:00 p.m., Torres was in a single vehicle crash on Marigold Avenue in Redlands. Torres stated in his claim that, while driving about 45 mph, he drove over a manhole cover, which was loose as a result of a rain storm. Torres lost control of his pickup truck when it became airborne and crashed into a water main. Torres sustained physical injuries and his truck was a “total loss.” Torres alleged that Redlands was responsible for the accident on the ground the manhole cover was not “seated,” that is, it was not securely placed over the manhole.

Redlands notified Torres that his government tort claim was rejected and therefore Torres could file a lawsuit in the trial court. In August 2015, Torres timely filed a lawsuit against Redlands for damages in the trial court. After numerous demurrers to Torres’s complaint and amended complaints, Redlands answered Torres’s fourth amended complaint, the operative complaint (Complaint). Torres’s Complaint contains a single cause of action for dangerous condition of public property.

A. Torres’s Complaint Allegations

Torres alleged in his Complaint that at the time of the accident, the road was wet from recent rain, but this did not cause the accident. The accident allegedly was caused by Torres driving over an unsecured manhole cover. The manhole cover flew into the air upon contact with Torres’s pickup truck. His truck’s impact with the manhole and cover caused his vehicle to become airborne, swerve to the side of the street, hit the curb, sideswipe a backflow water pipe, and then come to rest.

Torres further alleged the manhole was unsecured because Redlands had not reasonably maintained the manhole coverings and had not kept clear the storm drains. Torres alleged that, after 45 minutes of rain, amounting to less than .25 inches of rain, water and debris in the storm drain may have pushed up and dislodged the manhole cover. Torres concluded Redlands’s roads, manholes, storm drains, and drainage system were in a dangerous condition at the time of the accident, because of Redlands’s failure to adhere to safety standards and because of inadequate maintenance of the storm drain system by Redlands public works department. Torres alleged in his Complaint that the manholes, which were located in areas subject to inundation by flooding, should have been secured with bolts. Redlands’s failure to do so allegedly contributed to the accident. In addition, Redlands allegedly knew of the dangerous condition of the manhole coverings, which created a foreseeable risk of harm to motorists, and was a proximate cause of Torres’s injuries. Torres alleged that four manhole coverings had become dislodged that same evening, after less than .25 inches of rain.

B. Pretrial Proceedings

Redlands filed a motion for summary judgment. Redlands stated in its motion that, on the day of the accident, there was heavy flooding due to torrential rainfall. Redlands asserted that it had no knowledge of any defect on Marigold Avenue, or knowledge or notice of any loose manhole covers on the street before the accident. Redlands asserted it did not create the alleged dangerous condition and had no prior knowledge of its existence. Torres opposed Redlands’s summary judgment motion.

In support of Torres’s opposition, engineering sciences expert, Dale Dunlap provided a declaration. Dunlap stated in his declaration that there were unseated manhole covers on the day of the accident, along the storm drain system, which was designed to handle the amount of rainfall on the day of the accident. Dunlap concluded this showed there was a failure along the storm drain system, with the most probable cause of the failure being a lack of maintenance of the system. Dunlap explained that sediment can build up within a storm drain pipeline, impeding waterflow. During low rainfall, when there is insufficient flow through the pipe to flush out the sediment, the storm drain system should be manually cleaned out. Dunlap concluded Redlands had failed to do this, resulting in the manhole covers being dislodged.

The trial court denied Redlands’s motion for summary judgment, concluding Redlands did not disprove the existence of constructive notice of the condition of the storm drains and manhole covers, which Torres alleged constituted a dangerous condition.

On September 19, 2018, the parties waived trial by jury and agreed to bifurcation of trial of liability and damages. Torres, who was representing himself asked if he could use the deposition of his designated expert, Dale Dunlap. Torres conceded that Dunlap was not unavailable to testify. The court stated that it would address the matter when it was at issue during the liability phase. The court explained to the parties that the following Monday the court would hear all liability evidence. The court told Torres to have all of his witnesses he planned to have testify present for the trial on Monday, September 24, 2018. The court also stated that, if the parties wanted to give opening statements, they would be given on Monday. The court explained to Torres that an opening statement was intended to provide a road map of what he intended to prove and what evidence would prove his case.

C. Torres’s Opening Statement

On September 24, 2018, Torres stated the following during his opening statement. The accident happened on August 3, 2014, when the roads were a little wet. Torres noted that the weather was not a cause of the accident. The accident was caused by a dangerous road condition. The road looked normal. Torres was driving about 35 to 45 mph in the number two lane. Suddenly, it felt as if he hit something and then he was instantly flying in the air in his truck. According to a witness, his truck went up into the air five feet. When his truck landed, there was a black SUV 300 feet in front of him.

Torres believed that right before his accident, the SUV had hit a manhole cover, disabling the SUV and causing its driver to pull to the side of the road. Torres did not notice the SUV until after Torres hit the manhole and cover, and came back down. After his truck landed, Torres could not stop his truck because the axle dislodged from his truck frame. Torres was headed toward the disabled SUV. He swerved to the right, off the road, in between a light pole and a water backflow valve. He swiped the backflow valve, causing a “gusher,” and rolled down a landscaped slope. Torres took photographs showing his truck after the crash. His truck was a total loss. Police Officer Frisch arrived. Torres told him what had happened. Torres said he had seen 40 or 45 mph speed limit signs posted in the area. Torres reported that he had a sore back after the accident. He waited to go to the doctor because he thought his back would get better, but it didn’t. It got progressively worse until he felt compelled to get treatment on August 29, 2014.

The court reminded Torres that during the liability phase of the trial, he need not discuss his injuries. Rather, he should focus on what his evidence would show relative to Redlands’s liability. The court asked Torres what evidence he would present that would show Redlands was responsible. Torres continued with his opening statement, explaining that his accident was caused by public property that created a substantially dangerous condition under section 830, subdivision (a). He was driving on a road when he drove over a manhole, in which the cover caved into the manhole and then flipped into the air 20 feet. Torres’s left rear wheel of his truck sunk into the manhole, resulting in damage to his truck and injury to his back.

When the court asked Torres what evidence he had that showed Redlands was aware of the manhole condition, Torres stated he hired a civil engineer to provide expert opinion on the matter. Redlands’s attorney deposed the expert, Dale Dunlap, and his deposition testimony would be provided at trial. Torres explained that Dunlap told him he would not testify at trial unless Torres was represented by an attorney. Therefore, because Torres was representing himself at trial, Dunlap would not be testifying.

Torres stated that he, however, had Dunlap’s deposition testimony stating Dunlap’s opinions as to why the accident occurred and why Redlands was responsible. During Dunlap’s deposition, he stated that, if the storm drains had been maintained in a routine manner, the accident would not have occurred. Torres explained that the most probable cause of the accident was that there was a blockage in the storm drain pipeline, causing water to come up higher. Torres noted that Dunlap had said during his deposition that Redlands had had clogs in the pipes before and had cleared out the blockage. The court asked Torres if there was any evidence regarding the manhole cover in question. Torres said he had a photograph of a manhole and inspected area, but it was unknown which manhole was shown in the photographs.

Torres further stated that, after the accident, the Redlands Public Works crew arrived and fixed the water backflow valve he had hit. They also put the manhole cover back over the manhole, and that is where it has remained to date. Torres suggested that if there had been regular maintenance and cameras in the storm drains, the accident would not have happened. Torres also said he did a “study” that indicated that manholes within a flood zone should be bolted down. Torres concluded that the subject manhole cover therefore should have been bolted down, because the area where the accident occurred was low, near the Santa Anna River, with a lot of water flowing to the area.

Torres ended his opening statement by stating that Redlands had a duty to routinely service and maintain its roadways to keep them clear and safe for public use. Therefore, Redlands should be held responsible for Torres’s accident. Torres explained that Dunlap had said that, because there had been a drought that summer, the city should have checked the drainage system more often, because a little rain would bring sand and silt. Torres acknowledged that Dunlap would not be testifying but noted Dunlap stated everything in his deposition and declaration filed in support of Torres’s opposition to summary judgment.

Redlands’s attorney responded to Torres’s opening statement by requesting nonsuit under Code of Civil Procedure section 581c, subdivision (a), Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 204-208, and Valentis v. County of Riverside (Dec. 7, 2017, E065767) nonpublished opinion. Defense counsel noted that Torres’s government tort claim was limited to the theory that the manhole cover was not properly seated, and Torres had no evidence supporting this theory. There was no evidence of city employee negligence in the operation of street maintenance, no evidence of any prior or subsequent accident history, and no evidence of how long the condition might have existed. In addition, Torres indicated that, before the accident, the street appeared normal. There was nothing that would have alerted him or anyone else that the manhole was not properly seated. Furthermore, it was a Sunday evening, when public employees would not normally be working. Defense counsel concluded there was no basis for finding that Redlands had notice of the condition or created a dangerous condition. Defense counsel objected to Torres arguing that Redlands had been negligent in inspecting the drainage system or that the design of the particular section of the system was flawed. Torres did not allege these theories in his government tort claim and he did not proffer any evidence to support them or that there was a dangerous condition of public property at the time of Torres’s accident.

Torres responded that the manhole cover was a dangerous condition that caused his injuries and damage to his truck. After Torres said he had nothing further, the trial court granted Redlands’s motion for nonsuit. The court noted that Torres had not demonstrated in his opening statement that, among other things, Redlands had actual or constructive notice that the subject manhole cover was not properly seated.

III.

MOTION FOR NONSUIT

Torres contends the trial court erred in granting Redlands’s motion for nonsuit immediately after Torres gave his opening statement, without allowing him the opportunity to present any evidence.

A. Law Governing Nonsuit

“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) The trial court has the authority to grant nonsuit in both jury and nonjury trials. (Lingenfelter v. County of Fresno, supra, 154 Cal.App.4th at pp. 204-209.) A defendant may move for nonsuit after the plaintiff’s opening statement or at the close of the plaintiff’s evidence. (Code Civ. Proc., § 581c, subdivision (a).)

We independently review the ruling on a motion for nonsuit under the same standard that governs the trial court. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291.)

B. Analysis

Torres contends Redlands’s failure to properly maintain its storm drain system in the area of the accident, caused blockage in the storm drain pipeline, resulting in a rise in water during a brief downpour, resulting in water pressure from below dislodging the subject manhole cover. This created a dangerous condition which led to Torres driving over the unsecured manhole cover, which caused him to lose control of his truck and crash.

In order for Torres to prevail on his single cause of action for dangerous condition of public property, he was required to show there was a dangerous condition of public property, which is defined in section 830, subdivision (a) 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.”

The elements of a tort cause of action for dangerous condition of public property are codified in section 835 as follows: (1) “the property was in a dangerous condition at the time of the injury,” (2) “the injury was proximately caused by the dangerous condition,” (3) “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred,” and (4) “either: [¶] (a) 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 [¶] (b) The public entity had actual or constructive notice of the dangerous condition under [s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835, italics added.)

The term “protect against,” as used in section 835 regarding notice, “includes repairing, remedying or correcting a dangerous condition, providing safeguards against a dangerous condition, or warning of a dangerous condition.” (§ 830, subd. (b).) “[A]ctual notice of a dangerous condition within the meaning of subdivision (b) of [s]ection 835” exists “if a public entity had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.” (§ 835.2, subd. (a).) It is undisputed there was no evidence Redlands had actual notice the manhole cover Torres drove over was loose.

Torres argues on appeal there was evidence Redlands had constructive notice of the loose manhole. Under section 835.2, subdivision (b), “A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of [s]ection 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”

“Due care” can be established by admissible evidence “as to: [¶] (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property[,] [¶] (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.” (§ 835.2, subd. (b).)

Redlands agrees on appeal that Torres satisfied elements 2 and 3 of section 835 for purposes of his opening statement (“the injury was proximately caused by the dangerous condition” and “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred”). Redlands argues, however, Torres did not satisfy elements 1 (the road was in a dangerous condition at the time of the accident) and 4 (either a Redlands employee created the dangerous condition or Redlands had notice of the dangerous condition a sufficient time before the accident to have taken measures to protect against the dangerous condition). (§ 835.)

The trial court stated it granted nonsuit based on Torres failing to show he could present evidence of element 4. The reporter’s transcript of Torres’s opening statement shows the trial court was correct in concluding this. Torres indicated he did not have any evidence that a Redlands employee was negligent in the operation of the street, that the storm drain system was not properly inspected or maintained, or that Redlands had actual or constructive notice that there was a dangerous condition, which caused Torres’s accident. Torres stated he intended to rely on expert Dunlap’s expert opinion that the storm drain system was not properly maintained, and the manhole was dislodged because of blockage in the storm drain system. However, Torres acknowledged that Dunlap would not be able to testify at the trial. Without Dunlap’s expert testimony, Torres was unable to prove that the probable cause of the unseated manhole cover was Redlands’s failure to properly inspect and maintain the storm drain system, and constructive notice of the loose manhole cover.

Torres did not state he would present any other admissible evidence of the condition of the storm drain system or cause of the accident, other than his own testimony and that of a third party witness who observed the accident. The trial court repeatedly encouraged Torres to state during his opening statement all evidence and facts he intended to rely on during the trial. The court even offered Torres the opportunity to add to his opening statement after Redlands requested nonsuit. At no time did Torres request an opportunity to reopen or augment his opening statement. Therefore, Torres forfeited any objection to being limited in any way from fully stating his case and evidence he intended to introduce at trial. Therefore, his opening statement cannot be construed as anything other than a full and adequate tender of evidence supporting his case.

Any testimony by Torres that the accident was caused by driving over a loose manhole cover would have been insufficient to establish Redlands was negligent in maintaining the storm drain system or Redlands had constructive notice of the loose manhole cover. Torres did not state he had any evidence of a history of similar incidents occurring at the accident sight or nearby within the recent past, or that Redlands had been notified of such incidents or of loose manholes in the accident area within a sufficient time to correct the condition before Torres’s accident.

Torres cites Hurn v. Woods (1982) 132 Cal.App.3d 896 for the proposition that the trial court erred in granting nonsuit on the ground Torres’s expert would not be testifying at trial. Hurn is inapposite. In Hurn, the plaintiff brought a medical malpractice action against his chiropractor. After the plaintiff’s opening statement, the trial court granted the defendant’s motion for nonsuit, which was based on the plaintiff’s opening statement failing to show that the plaintiff would provide expert testimony establishing malpractice. The court in Hurn, reversed the nonsuit judgment, concluding that the evidence outlined in the plaintiff’s opening statement was sufficient, even in the absence of expert testimony, because the proposed evidence supported liability based on the theory of res ipsa loquitur. Therefore, expert testimony was not required and granting nonsuit was improper. (Id. at pp. 901-902.)

In the instant case, Torres is asserting liability based on a dangerous condition of public property, which is not a res ipsa loquitur liability theory. Thus, the mere fact that the vehicle accident occurred was not sufficient to establish liability against Redlands. Expert testimony was required to establish that the dislodged manhole cover constituted a dangerous condition of public property.

Torres argues that, even though he stated in his opening statement that his expert, Dunlap, would not testify at trial, Torres could have introduced Dunlap’s expert opinions by other means. Torres, however, did not demonstrate that he had any other proper means of introducing admissible evidence of Dunlap’s opinions. Dunlap was not subpoenaed to testify, and his deposition testimony was inadmissible hearsay evidence, because Dunlap did not qualify as an unavailable witness under Code of Civil Procedure section 2025.620, subdivision (c).

Torres asserts on appeal that the trial court failed to consider his “study” in which he concluded that the subject manhole cover should have been bolted down. But Torres’s “study” and related opinion were inadmissible because they concerned a subject that was beyond common experience and Torres did not demonstrate he had any expertise in the area of manhole covers. (Evid. Code, §§ 800, 801.)

The trial court reasonably concluded that, without expert testimony establishing liability based on injury caused by a dangerous condition of public property, and without evidence Redlands had actual or constructive notice of the dislodged manhole cover, Torres could not prove his case against Redlands. The trial court correctly concluded expert testimony was necessary because the determination of whether Redlands was negligent in inspecting and maintaining its storm drain system, whether such negligence proximately caused the dislodging of the manhole cover in question, and whether it was foreseeable the manhole cover would become loose and cause an accident, was beyond common knowledge and observation among lay persons. Because it was apparent from Torres’s opening statement that he would not be providing the requisite expert testimony or other evidence necessary to establish liability based on the theory of dangerous condition of public property, the trial court did not err in entering judgment of nonsuit based on Torres’s opening statement.

Torres argues that, in the event he was limited at trial to the theory of liability alleged in his government tort claim, the trial court should have permitted him leave to amend his complaint to add allegations that Redlands failed to adhere to safety standards and provided poor or improper maintenance of its storm drain system. But Torres did not request to amend the Complaint to add these theories. Furthermore, the record shows that the trial court permitted Torres to argue negligent inspection and maintenance of the storm drain system. The record also shows that when requesting nonsuit, Redlands did not argue Torres’s government tort claim precluded him from asserting liability based on these additional theories. Furthermore, there is no indication in the record that the trial court refused to consider them. In addition, the negligent inspection and maintenance theories required expert testimony, which Torres stated would not be provided.

We therefore conclude the trial court did not err in granting Redlands’s motion for nonsuit upon determining, based on Torres’s opening statement, that as a matter of law the evidence Torres intended to present at trial was insufficient to support liability against Redlands. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 291.)

IV.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

MENETREZ

J.