Filed 1/17/20 Wellons v. City of Temecula CA4/2

See concurring opinion.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MIRANDA ELIZABETH WELLONS,

Plaintiff and Appellant,

v.

CITY OF TEMECULA,

Defendant and Respondent.

_________________________________

SAMMY SPERA

Plaintiff and Appellant,

v.

CITY OF TEMECULA,

Defendant and Respondent.

E071226

(Super.Ct.No. MCC1600850)

OPINION

APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed.

McCormick, Mitchell & Rasmussen, John P. McCormick; Gibbs & Fuerst and Michael T. Gibbs for Plaintiffs and Appellants.

Richards, Watson & Gershon, Robert C. Ceccon, T. Peter Pierce and Stephanie Cao for Defendant and Respondent.

Plaintiffs and appellants Miranda Wellons and Sammy Spera were passengers in a car that crashed into a tree located in the median of Vail Ranch Parkway in the City of Temecula (defendant and respondent; hereafter, the City). Wellons and Spera (collectively, plaintiffs) sued the City alleging the size and location of the tree constituted a dangerous condition of public property. The City moved for summary judgment. The trial court concluded “no dangerous condition existed at the time of the collision” and granted the City’s motion for summary judgment. Plaintiffs contend the trial court erred because there is a triable issue of fact concerning the existence of a dangerous condition of public property. The City asserts that if plaintiffs prevail on the dangerous condition issue, then the City is entitled to summary judgment based upon a design immunity defense. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. COMPLAINTS

1. WELLONS’S COMPLAINT

The facts in this subsection are taken from Wellons’s complaint. On September 25, 2015, Francois Kershaw (Driver) drove her 2010 Mazda automobile (the car) on Vail Ranch Parkway in the City. Plaintiffs were passengers in the car. On Vail Ranch Parkway, approximately 549 feet south of the intersection with Johnston Drive, the car struck “a pine tree in the center median of Vail Ranch Parkway.” Wellons suffered “severe and disabling injuries, including but not limited to, [a] fractured and/or severed spine resulting in T8 paraplegic complete.”

Wellons alleged, “Vail Ranch Parkway was and is in such a condition so as to present an unreasonable risk of harm to drivers and occupants of motor vehicles reasonably anticipated by the City of Temecula to drive over and upon said roadway with due care. Said unreasonably dangerous conditions consist of, in part, unsafe design speeds, insufficient roadside clearance, the presence of unguarded fixed and immovable objects in the center median and the absence of warning signs advising of the foregoing unreasonably dangerous conditions.”

Wellons further alleged, “[T]he City of Temecula[] ignored and violated standards of roadway design, roadside design, construction and maintenance thereby creating, accepting and maintaining an unreasonably dangerous condition or conditions, which caused injuries and damages to [Wellons] as hereinafter alleged.” Wellons’s tort injury claim form is not attached to her complaint.

2. SPERA’S COMPLAINT

The facts in this subsection are taken from Spera’s complaint. Spera alleged, “On September 25, 2015, [Driver] was driving [the car] when the [car] struck and collided with a pine tree in the center median of Vail Ranch Parkway approximately 549 feet south of its intersection with Johnston Drive in the City of Temecula . . . . At said time and place, [Spera] was a passenger in [Driver’s car] and sustained severe and disabling injuries, including but not limited to, a closed head injury.”

Spera alleged, “On or about September 25, 2015, . . . Vail Ranch Parkway was and is in such a condition so as to present an unreasonable risk of harm to drivers and occupants of motor vehicles reasonably anticipated by the City of Temecula to drive over and upon said roadway with due care. Said unreasonably dangerous conditions consist of, in part, unsafe design speeds, insufficient roadside clearance, the presence of unguarded fixed and immovable objects in the center median, and the absence of warning signs advising of the foregoing unreasonably dangerous conditions. The City of Temecula maintained large trees in the median of Vail Ranch Parkway, which precluded a safe clear zone for motorists and their passengers. Under the circumstances, including the design speed, the volume of traffic, and the curbed median on Vail Ranch Parkway, it was unreasonably dangerous for the City of Temecula to maintain trees in the median, and it was especially dangerous to maintain trees with such large diameter trunks in the median.” Spera’s tort injury claim form is not attached to his complaint.

3. CONSOLIDATION

The parties stipulated to consolidate Wellons’s and Spera’s cases into a single case for all purposes.

B. MOTION FOR SUMMARY JUDGMENT

The City moved for summary judgment. The City asserted that, at the time of the crash, Driver was driving 60 miles an hour, which exceeded the posted speed limited of 45 miles an hour. The City contended, “According to an eyewitness on the sidewalk, the driver was not looking at the roadway, but was looking over her right shoulder. [¶] The road curved slightly, but the driver apparently did not see the curve. The driver kept going straight, and struck the east curb to the right of her vehicle. The driver apparently lost control and the vehicle[] veered to the left, travelled approximately 177 feet, and crashed into a tree in a median.”

The City asserted, “[I]n the approximately 14 years between the date [the] City annexed Vail Ranch Parkway and the date before Plaintiffs’ accident, there have been no reported accidents on Vail Ranch Parkway between Johnston Drive and Camino Rubano. In that period, there was only one collision involving a vehicle and a tree on Vail Ranch Parkway, and that accident occurred a mile away and involved a driver under the influence.”

The City contended, “[Plaintiffs] sued the City, maintaining that it should have installed a ‘barricade’ between the roadway and the tree.” The City asserted the tree in the median did not constitute a dangerous condition of public property because “[t]he roadway is well marked, and the median and trees are clearly visible. There is no unusual accident history.” The City contended that no reasonable person would conclude that the lack of a barrier between the tree and the road created a substantial risk of injury if the road were being utilized in a reasonably foreseeable manner.

C. OPPOSITION

Plaintiffs opposed the City’s motion for summary judgment. Plaintiffs contended there was a triable issue of fact concerning “whether the location of the tree constituted a dangerous condition.” Plaintiffs asserted, “Here, the 17.5-inch diameter tree adjacent to the roadway constituted a dangerous condition of property which caused . . . Plaintiffs’ injuries. [Citation.] The tree is in violation of the clear zone guidelines set forth by Caltrans and AASHTO[ ], which since 1977 have recommended a 45 m.p.h. roadway have at a minimum 16 to 30 feet of clear zone.” Plaintiffs contended that “these 40-year-old recommendations may be found by a jury to be standards that the City is bound by.”

The tree was “approximately 7.73 feet from the center of the yellow edge line for northbound Vail Ranch Parkway,” and the car was traveling northbound at the time of the crash. Plaintiffs supported their assertion regarding the tree’s distance from the road with citations to photographs and two declarations.

One of the declarations cited by plaintiffs was by Gerald P. Bretting, a consulting engineer. Bretting declared, “[T]he eastern edge of the tree impacted by [the Driver] is approximately 6.16 feet from the eastern curb face of the center median and 7.73 feet from the center of the yellow edge line for northbound Vail Ranch Parkway. There is a bicycle lane that measures 6.8 feet wide. There is a concrete curb and gutter. The curb measures 8 inches wide, and the gutter is 18 inches wide. There are two lanes of travel for vehicles. The no. 1 lane is 12.3 feet wide, and the no. 2 lane is 13.4 feet wide.” (Fn. omitted.)

D. REPLY

The City replied to plaintiffs’ opposition. The City contended that plaintiffs’ reliance on the Caltrans Highway Design Manual and the AASHTO Roadside Design Guide was misplaced because (1) those two guides provide recommendations, not safety standards; (2) the Caltrans guide does not apply to city streets; and (3) the portion of the AASHTO guide cited by plaintiffs does not apply to urban settings.

E. HEARING

The trial court held a hearing on the City’s summary judgment motion. At the beginning of the hearing the trial court said, “I’ll tell you where some of the problems are for me. Okay. The issue on the Complaint is not clear for me. I can’t imagine that somebody is saying that medians shouldn’t be constructed. I can’t imagine somebody is saying trees shouldn’t be planted. That’s kind of the heart of this. I’m trying to figure out exactly what is it that the City did wrong that they’re being held responsible for. [¶] Is it because they let the girth of the trunk of the tree grow to the point where it reaches the 30-inch mark? Is that what it is? Are they supposed to trim trunks? Are they supposed to trim trees?”

Wellons asserted that the trial court’s confusion meant the summary judgment motion should be denied because the City did not meet its burden in bringing the motion. The City asserted that it tried, through discovery, to determine plaintiffs’ precise complaint about the tree, but the City “didn’t get any detail as what the plaintiffs claim was wrong.” The City argued, “I think what they’re claiming is we should put in some sort of barricades or guardrails around our median so people don’t hit them. That is not required by anyone—any of the standards or guidelines they cited.”

Wellons replied, “[I]t’s been clear in discovery and it’s clear in the moving papers that they know that I’m focusing on . . . AASHTO and Caltrans, I’ll say ‘recommendations’ in quotes. And I think that poses one of the important questions of fact in this case is, have those—are those 40-year-old recommendations—have they become standards in the industry. [¶] More specifically, given the specific circumstances of this situation, are those recommendations—do they pose applicable standards obligating the City of Temecula to either remove the trees, put in speed bumps to slow down the traffic, which would be a step that would be appropriate, because a lot of the AASHTO and Caltrans recommendations deal with speeds or are they obligated to put in barricades. There are a variety of things they can do to diminish the risk to people using the highway with due care.”

Wellons continued “my point is that there are triable issues of fact, if the Court will bear with me for a moment. Whether the highway is a conventional highway—[¶] Incidentally, in the moving papers, not just in the reply, you’ll notice the defendants focus heavily upon, though, Mr. Pringle’s declaration, AASHTO recommendations, Caltrans recommendations, whether they apply, . . . whether it’s a conventional highway or it’s not a conventional highway.

“These are all variables that, in my view, the jury is entitled to hear in order to determine whether this is that specific situation where the City of Temecula, yes, they had to do something. And I think that’s—that’s what my position on the case is; that there are sufficient triable issues of fact for a jury that a reasonable juror could conclude that, yeah, Temecula should have done something here or should not have done something. Maybe they shouldn’t have accepted the annex property. Maybe they should have accepted the annex property with conditions.

“Other triable issues of fact is [sic] whether the positioning of the trees constitutes an unreasonable risk of harm. Is the site of the collision an urban environment? I’m getting into the—bad phrase, I’m getting into the trees here.”

The trial court asked Wellons to briefly list the triable issues of fact. Wellons responded that the triable issues of fact included: (1) “whether the AASHTO and Caltrans recommendations have . . . become standards, and therefore, do they obligate the public entity”; (2) “whether the highway was a conventional highway”; (3) “which recommendations of AASHTO or Caltrans apply”; (4) “whether the position of the trees constitutes an unreasonable risk of harm”; (5) “is the site of the collision an urban environment”; (6) “whether [the design review engineer for Vail Ranch Parkway] was provided sufficient information to allow him to exercise discretion in approving plans where there was no presence of trees indicated in his plans”; and (7) “whether there has been a change of conditions.”

The City asserted “What they’re basically arguing is the lack of a barrier—the lack of a guardrail is a dangerous condition. They’re arguing that based on AASHTO standards and Caltrans standards, and which, by their terms, do not apply here. And even if they did apply, they’re not mandatory.”

Wellons said, “The trees in their proximity to the highway are the condition I’m complaining of, unless guarded or some other action is taken.” Wellons continued, “And I’m looking at this condition and I’m saying, ‘Is there something I can do here? Is there something I should do here in order to protect against this happening again?’ And I think a reasonable juror under the facts of this case and the descriptions defined by [a retired traffic engineer] in his declaration, a reasonable juror can and would say yes. That is the nubs of this case, your Honor.”

After further discussion, the trial court said, “You end up in the same place, though, which is you shouldn’t have a tree in the median. That’s where you end up.” Wellons responded, “I’m saying in this circumstance, because of the variables that apply in this circumstance, these trees should not have been in this median at this time given their origins, given their proximity to the travel portion of the roadway, given other variables . . . , and given the [prior accident one-mile away].” The trial court took the matter under submission.

F. RULING

In its ruling, the trial court wrote, “Regardless of the other issues, the Motion is GRANTED because no dangerous condition existed at the time of the collision. Neither the median nor the trees and their placement constitute a dangerous condition. As conceded by Plaintiff a median is not inherently dangerous nor are trees. Therefore, the issue is whether the Plaintiff [sic] has shown that there is no triable issue of fact. The record establishes that defendant City considered and evaluated the oft cited AASHTO Guide. These are guidelines not rules . . . . Further, if the concern by the plaintiff[s] is the selection of tree variety, there is nothing to show that this variety of tree is wrong. There is no issue of fact there. If the issue is tree placement, there is no factual dispute as to the location of the tree. If anything the facts show that the placement of the tree is inappositely located to the Plaintiff[s’] case.”

DISCUSSION

A. PROCEDURAL LAW AND STANDARD OF REVIEW

“ ‘A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff “has not established, and cannot reasonably expect to establish, a prima facie case . . . .” [Citation.]’ [Citation.] ‘[O]nce a moving defendant has “shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,” the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff “may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action” ’

“ ‘On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.’ ” (Lyle v. Warner Bros. Television Productions (2006) 38 Cal.4th 264, 274.)

B. DANGEROUS CONDITION

Plaintiffs contend the trial court erred by granting summary judgment because there is a triable issue of fact as to whether “the 17.5-inch diameter tree adjacent to the roadway constituted a dangerous condition of property.”

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that . . .: [¶] [t]he public entity had actual or constructive notice of the dangerous condition under [Government Code] Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subd. (b).)

“ ‘Dangerous condition’ means 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.” (§ 830, subd. (a).)

In the trial court, plaintiffs asserted a dangerous condition existed because the City failed to comply with AASHTO and Caltrans guides. The City asserted that the AASHTO and Caltrans guides were inapplicable to Vail Ranch Parkway because (1) the Caltrans guide does not apply to city streets; and (2) the portion of the AASHTO guide cited by plaintiffs does not apply to urban settings. In support of its argument, the City cited the declaration of Weston Pringle, a registered professional engineer. Pringle declared the Caltrans guide “does not apply to city streets such as Vail Ranc[h] Parkway.”

In regard to the AASHTO Guide, Pringle declared, “The median, as configured on September 25, 2015, conforms with the AASHTO Guide, which states that a fixed object should be 4 feet from the edge of the curb.” Nevertheless, Pringle also declared, “The City had no legal obligation to follow the AASHTO Guide.” Pringle explained that the AASHTO guide “provides guidelines” and that “many cities and counties do not follow those guidelines.” In other words, the AASHTO guide is optional—not a legal obligation—but Vail Ranch Parkway nevertheless conforms to the AASHTO guidelines.

Further, Pringle declared that 2,400 vehicles per day drive along the relevant portion of Vail Ranch Parkway, which amounts to approximately 876,000 vehicles per year. Pringle opined, “Based upon the volume of traffic and the history of no reported accidents, it is my opinion that Vail Ranch Parkway, the median at the Accident Scene, and the trees in the median do not present a substantial risk of injury to a person exercising due care.”

In sum, the City presented evidence (1) of thousands of people using the same section of Vail Ranch Parkway over a period of years and not suffering injuries; (2) that the Caltrans guide was inapplicable to Vail Ranch Parkway; (3) that the City complied with the AASHTO guide; and (4) that the AASHTO guide presented optional guidelines, not a legal duty. The City’s evidence demonstrates that plaintiffs cannot establish a prima facie case for a dangerous condition because (A) there does not appear to be a substantial risk when thousands of people use the same section of road without incident; and (B) the guides upon which plaintiffs are relying do not support plaintiffs’ case.

We now examine whether plaintiffs established a triable issue of fact. In plaintiffs’ oppositions and appellants’ opening brief they asserted, “The tree is in violation of the clear zone guidelines set forth by Caltrans and AASHTO, which since 1977 have recommended a 45 m.p.h. roadway have at a minimum 16 to 30 feet of clear zone.” Plaintiffs supported their assertion with a citation to the declaration of Nazir Lalani, who is a licensed traffic engineer.

Lalani asserted that Pringle relied on an incorrect portion of the AASHTO guide when Pringle concluded Vail Ranch Parkway complied with the AASHTO guide. Lalani asserted Pringle incorrectly relied on a portion of the guide that “deals with the distance between a roadway and a sidewalk.” Lalani asserted “Mr. Pringle should have referenced Section 3.1 dealing with ‘The Clear Zone Concept.’ ” In regard to the Caltrans guide, Lalani asserted it applied to roads like Vail Ranch Parkway because the Caltrans guide includes guidelines pertaining to roads with speed limits “ ‘greater than 35 m.p.h.’ ”

Plaintiffs’ evidence creates a triable issue of fact as to whether the AASHTO and Caltrans guides are applicable to Vail Ranch Parkway. However, plaintiffs have failed to provide evidence that a lack of compliance with the AASHTO and Caltrans guides poses a substantial risk of injury. In California, negligence per se is not a cause of action. The violation of a law creates an evidentiary presumption of negligence, but there is not a cause of action unless four elements are met. (Evid. Code, § 669, subd. (a)(1); Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286.) Thus, violations of AASHTO and Caltrans guidelines, if the guides apply in this case and are treated as laws or regulations, would not be sufficient for a cause of action.

Plaintiffs have not clearly explained how the applicability of the guides would result in a finding that a substantial risk of injury existed. The lack of connection between (1) the applicability of the guides, and (2) a substantial risk of injury, was apparent in the trial court. On one hand, plaintiffs asserted that the AASHTO and Caltrans guides require a “clear zone” without fixed objects. On the other hand, plaintiffs asserted, “I’m not urging that’s what I need in order to establish liability here is they need to take some trees out. I’m not arguing that.” Plaintiffs contradictory assertions create confusion as to whether (1) there needs to be a clear zone, per the AASHTO and Caltrans guides, which would mean the trees need to be removed; or (2) the trees currently located in the median are acceptable.

In trying to determine exactly how the applicability of the two guides could connect with demonstrating a substantial risk, the trial court asserted plaintiffs were arguing that trees should not be planted in medians. Meanwhile, the City asserted plaintiffs wanted guardrails around the medians. At the same time, plaintiffs said they were asserting Vail Ranch Parkway should not have been annexed, that speed bumps should be installed, or that the City “should have done something here or should not have done something.”

Plaintiffs have not explained what precisely it is about the alleged applicability of the AASHTO and Caltrans guides that means there is a substantial risk of injury, i.e., exactly what substantial threat was posed by the alleged lack of compliance with the two guides. This court remains puzzled as to whether plaintiffs are asserting a substantial risk of injury existed because the City failed to remove the trees, failed to install speed bumps, failed to install a guardrail, or because the City annexed Vail Ranch Parkway. Plaintiffs’ evidence concerning the possible applicability of the AASHTO and Caltrans guidelines does not lead us to conclude there is a triable issue of fact regarding the existence of a substantial risk of injury.

In regard to the lack of accidents on the relevant portion of Vail Ranch Parkway, plaintiffs assert the 2011 accident involving an intoxicated driver approximately one mile away is evidence of a dangerous condition of public property. Plaintiffs fail to explain how one accident approximately one mile away involving an intoxicated driver is evidence that the tree in the relevant portion of Vail Ranch Parkway posed a substantial risk of injury to a reasonable driver. Plaintiffs’ argument is conclusory, e.g., “[T]his 2011 accident is evidence the mature Canary Island Pine trees located in the center medians on Vail Ranch Parkway posed a dangerous condition of public property.” Plaintiffs do not explain how the two crashes are connected. Therefore, plaintiffs have failed to demonstrate a triable issue of fact on the issue of a dangerous condition.

Plaintiffs assert that in 2007 the City altered a median on Pechanga Parkway to comply with the AASHTO and Caltrans guides. Plaintiffs assert, “This modification of a major roadway evidences both the City’s knowledge of the danger of the trees on the Vail Ranch median and the City’s ability to remedy the danger.” Knowledge and ability to remedy a risk are not the issues we are focused on. We are focused on whether plaintiffs have presented evidence demonstrating a triable issue of fact concerning whether the tree posed a substantial risk of injury. (§ 830, subd. (a).) Accordingly, because plaintiffs’ argument is off-topic, we find it to be unpersuasive.

Plaintiffs assert the City has been without a traffic engineer since 2010. Plaintiffs contend, “[I]f the City had a traffic engineer, or even an engineer with appropriate training and education, the danger here complained of would be evident—if not before the [2011 intoxicated driver crash], certainly after it occurred.” Plaintiffs argument does not explain why there is a triable issue of fact regarding whether the tree posed a substantial risk of injury. Accordingly, because the argument appears to be off-topic, we find it to be unpersuasive.

Plaintiffs assert, “The City created the hazard.” Plaintiffs argument concerning the identity of who is responsible for the alleged dangerous condition does not explain how there is a triable issue of fact concerning whether the tree posed a substantial risk of injury. Accordingly, we find plaintiffs’ argument to be unpersuasive.

Plaintiffs assert the lack of a barricade cannot be a trivial defect. Plaintiffs write, “If its diameter was 4.25 inches, an argument could be made the defect was trivial. But that is not the case here.” Plaintiffs’ argument fails to explain how the size of the tree, in and of itself, creates a substantial risk of injury. Accordingly, plaintiffs did not meet their burden of demonstrating a triable issue of fact concerning the existence of a dangerous condition. In sum, the trial court did not err.

C. DESIGN IMMUNITY

The City contends it should be granted summary judgment based upon a design immunity defense. We have concluded that the trial court properly granted summary judgment due to plaintiffs’ failure to demonstrate a triable issue of fact on the dangerous condition element. Therefore, we need not address the merits of the City’s argument pertaining to design immunity. (See Steiner v. Superior Court (2013) 220 Cal.App.4th 1479, 1485 [an issue is moot when no effective relief can be granted].)

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

I concur:

RAPHAEL

J.

[Wellons, E071226]

MENETREZ, J., Concurring in the judgment.

I concur in the judgment but write separately because I believe there is a more straightforward basis for affirming the trial court’s judgment. “[E]ven when a public entity unreasonably decides to place a hard, fixed object on public property, the object is not a ‘dangerous condition’ within the meaning of [Government Code] section 835 if it does not create a substantial risk that motorists driving in a reasonable manner will be injured by striking it.” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1111.) Thus, the tree at issue in this case constituted a dangerous condition only if it “created a substantial risk of injury when the roadway was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Ibid.) The record before us contains no evidence that the tree created any risk of injury to anyone when the roadway was used with due care in a reasonably foreseeable manner. The record consequently contains no evidence that the tree constituted a dangerous condition, so summary judgment for the defense was proper. I therefore concur in the judgment.

MENETREZ

J.