Case Number: LC094697    Hearing Date: July 10, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SHELAIM FURST,
Plaintiff(s),
vs.

ANTOINE ALPHONSE SHEHATA, et al.,

Defendant(s).

CASE NO: LC094697

[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #18
July 10, 2014

Defendant, City of Los Angeles’s Motion for Summary Judgment is Denied.

1. Background Facts
Plaintiffs, Shelaim and Ester Furst filed this action against Defendants, Antoine Alphonse Shehata, Sinnot Arshalouse, State of California, Department of Transportation, County of Los Angeles, and City of Los Angeles for damages arising out of a bike v. automobile accident. Plaintiff was riding in the number three (bike) lane on Victory Blvd. when Defendant, Shehata, attempted to merge from the number two lane into the number three lane to turn right onto the 405 freeway. Shehata hit Furst from behind, and Furst landed on Shehata’s windshield; Furst was seriously injured in the incident. The operative Second Amended Complaint (attached to the moving papers as Exhibit A) includes causes of action for dangerous condition of public property and loss of consortium.

2. Grounds for Motion for Summary Judgment
At this time, the City moves for summary judgment. The City contends the sole cause of the accident was Shehata’s negligence. Alternatively, the City contends there is no mandatory duty at issue and therefore the City cannot be liable for the incident.

3. Evidentiary Objections
As an initial note, Defendant filed evidentiary objections with its reply papers. The objections are overruled.

4. Cause of the Accident
The City’s first argument is that the accident was caused solely by Shehata’s negligence, and not by any condition on the property. The City provides evidence that Shehata was driving in the number two lane on Victory Blvd., and was trying to merge right into the number three (bicycle) lane in order to turn onto the 405 freeway. The City provides evidence that the area was very congested, and Shehata was having a hard time merging. The City establishes that Shehata did not see Furst before he struck him, and that “all of a sudden,” he saw Furst’s body coming toward the windshield. Shehata rear-ended Furst, and hit Furst’s bicycle with his car. Notably, Shehata suffers memory loss in connection with the events immediately before and after the collision, and Furst has no memory of the time before or after the collision at all.

Notably, the City does not contend or attempt to establish that the roadway was not in an unsafe condition. The City argues that, even if it was in an unsafe condition, the unsafe condition did not cause or contribute to the accident, which was caused solely by Shehata’s negligence.

Plaintiff opposes the motion, relying primarily upon the Declaration of Robert Douglas, an expert in the fields of civil engineering and traffic and transportation engineering. Douglas details his expert credentials. He explains that he reviewed the traffic collision report, photographs of the scene of the crash, additional photographs of the scene of the incident, the SWITRS accident data for the intersection, responses to discovery, the plan sheets produced for the roadway, the California Streets and Highway Code, the MUTCD, the 1996 City Bicycle Plan, the 2010 City Bicycle Plan, the technical design guide for the 2010 City Bicycle Plan, Chapter 1000 of the Caltrans Highway Design Guide, and the deposition testimony taken in this case. He also indicates he performed site inspections of the subject area. He declares that a review of the subject area shows that, due to poor conditions in the bike lane, Furst likely had to move to the far left of the bicycle lane shortly before the accident to avoid potholes and uneven surfaces. He contends Furst likely did this shortly before the collision; when coupled with Shehata’s decision to change lanes at the same time, the accident became inevitable.

Notably, the City objected to Douglas’s testimony on the primary ground that it is based on speculation. The City takes issue with the fact that neither Shehata nor Furst remember what happened immediately before or after the accident, and therefore contends Douglas cannot meaningfully conclude how the accident occurred. Douglas has, however, used his own viewing of the subject area, the pictures from the scene of the accident, Furst’s customs and habits in riding his bicycle, and various parties’ deposition testimony to piece together what most likely happened shortly before the accident. The objections are overruled, as Douglas adequately states the basis for his opinions.

The Declaration of Douglas is sufficient to raise triable issues of material fact concerning whether the condition of the road contributed to the subject accident. The motion for summary judgment on the ground that the sole cause of the accident was Shehata’s negligence is therefore denied.

5. No Mandatory Duty
The City’s alternative argument is that it was not under a mandatory duty to improve the condition of the bike lane. The City argues that Plaintiffs’ complaint is premised on a violation of Gov Code §815.6, and a violation of §815.6 exists if and only if the City fails to comply with a mandatory duty. The City argues that no mandatory duty was at issue here, and therefore it cannot be held liable for the accident.

The motion for summary judgment on this ground is denied for several reasons. First, the City fails, in the separate statement, to show that no mandatory duty was at issue. It contends only that the mandatory duty was not identified in the SAC. It fails to show that identification of the duty is required in the complaint. Second, Plaintiffs show, in opposition, that their SAC actually does identify the duty at issue – the 1996 Bicycle Plan, which has the force and effect of the law per Green v. City of Livermore (1981) 117 Cal.App.3d 82, 90. Third, Plaintiffs’ opposition fully details the alleged breaches of the Bicycle Plan that contributed to the accident. Fourth, the City’s reply is entirely silent in this regard, and appears to concede the issue.

Dated this 10th day of July, 2014

Hon. Elia Weinbach
Judge of the Superior Court