OPINION
I. INTRODUCTION
Plaintiff Amanda Laabs was injured in an automobile collision. She sued various parties, including the County of San Bernardino (the County) and the City of Victorville (the City). As against these governmental entities, she alleged that her injuries were caused by a dangerous condition of public property for purposes of Government Code sections 830 and 835.
We affirm both the trial court's grant of summary judgment as well as its denial of the City's motion for defense costs and expenses.
II. STATEMENT OF FACTS
The following facts are, in essence, uncontroverted and taken from the evidence submitted by the parties in support of, and in opposition to, the motion for summary judgment.
Ridgecrest Road is a four-lane north/south roadway with a posted speed limit of 55 miles per hour. It intersects with Pebble Beach Drive, a two-lane
Pebble Beach, which has no centerline delineation, passes through a portion of the Spring Valley Lake residential area. Ridgecrest runs along the west side of the Spring Valley Lake development. There is a block wall along the east side of Ridgecrest, just to the south of Pebble Beach. The block wall is about 10 feet east of the curb and runs parallel with Ridgecrest; at its north end, it turns easterly to run along a small portion of the south side of Pebble Beach.
The subject automobile accident occurred when a northbound vehicle on Ridgecrest collided with a westbound vehicle turning left from Pebble Beach onto southbound Ridgecrest. The northbound vehicle, a Porsche Carrera, was driven by James Dimeo. The left-turning vehicle, a Mitsubishi, was driven by Dorothy Specter. The impact occurred within the northbound lanes of Ridgecrest.
In 1996, Ridgecrest was widened to the west. Added were the southbound lanes of Ridgecrest consisting of two 12-foot lanes and a 12-foot-wide two-way left turn lane. The County retained ownership, control, and responsibility for the northbound lanes of Ridgecrest; the City annexed the west side and acquired control and maintenance responsibility for the southbound lanes. The as-built plans show the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.
At its intersection with Ridgecrest, Pebble Beach has a 6 to 8 percent uphill grade in a westerly direction and a 5 percent downgrade to the north. South of its intersection with Pebble Beach, Ridgecrest is an undulating roadway with a 280-foot vertical curve just to the south of the intersection.
At the time of the accident, the driver of the northbound Porsche, James Dimeo, was accompanied by Jason Moffett and plaintiff. Just before the accident, they planned to go to In-N-Out Burger. Initially, Dimeo proceeded southbound on Ridgecrest towards Bear Valley Highway. His vehicle at times reached a speed of 100 miles per hour. At some point near a church parking lot, Dimeo made a U-turn and began proceeding northbound on Ridgecrest.
Witness Kevin Vidana-Barda testified that as he was proceeding northbound on Ridgecrest, south of the accident site, the Porsche passed him, traveling anywhere from 100 to 120 miles per hour.
Dorothy Specter, the driver of the Mitsubishi, indicated that she stopped at the stop sign, looked both ways and saw nothing coming. She eased forward and again looked both ways and saw nothing coming. She pulled into the intersection to make a left-hand turn to go south on Ridgecrest. Suddenly, a vehicle came in front of her and struck the front of her vehicle. She never saw the other car coming. In a statement to the investigating officer, Specter gave no indication that her line of sight was obstructed.
Dimeo said that he had driven this part of Ridgecrest "every day," and "hundreds of times." He normally drives an elevated truck and never had difficulty seeing cars at the Pebble Beach intersection. In the lower Porsche, however, he said he could not see the westbound car at the intersection.
Keith Friedman, an expert, opined that based on his preliminary analysis, the Porsche was going 74 miles per hour at impact. After this initial impact, the Porsche spun around 270 degrees moving in a northwesterly direction. The Porsche partially jumped the western curb of Ridgecrest and slid northerly along the curb, striking and knocking over a light pole; the pole was located on the sidewalk adjacent to the southbound lanes. It had been installed within the City right-of-way, approximately one foot west of the western curb face of Ridgecrest.
Other evidence submitted by way of lay witnesses and expert declarations will be discussed within the context of our analysis.
III. PROCEDURAL BACKGROUND
In her first amended complaint, plaintiff asserts a cause of action for "premises liability" based on the theory, among others, that her injuries were caused by a dangerous condition of public property for purposes of sections 830 and 835. Specifically, plaintiff alleged: "There was inadequate sight distance so that Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle. Based upon information and belief, the [City] is responsible for the design, construction, maintenance and conrol
The City moved for summary judgment on the following grounds: The City did not own or control northbound Ridgecrest, the Ridgecrest-Pebble Beach intersection was not in a dangerous condition as a matter of law, the City is entitled to design immunity under section 830.6, and the City is entitled to immunity for failure to provide traffic or warning signals, signs, markings, or devices under section 830.8.
In addition to opposing the City's asserted grounds for summary judgment, plaintiff argued that the placement of the light pole, or luminaire, on the west side of Ridgecrest constituted a dangerous condition that contributed to the severity of plaintiff's injuries.
Following a hearing, the court granted the motion for summary judgment. Subsequently, the court denied the City's motion for defense costs and expenses.
IV. ANALYSIS
A. Standard of Review
A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff's cause of action, or shows that one or more elements of the cause of action cannot be established. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849 [107 Cal.Rptr.2d 841, 24 P.3d 493].) The moving party bears the burden of persuasion that there is no triable issue of material fact. Additionally, the moving party bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party to demonstrate the existence of a triable issue of material fact. (Id. at pp. 850-851.) "In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted.... [Citations.] The court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action,
On appeal, "our review is de novo, and we independently review the record before the trial court." (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 652 [92 Cal.Rptr.2d 29].) "The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale." (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878 [116 Cal.Rptr.2d 158].)
B. General Overview
For the property to be considered in a "dangerous condition," it must create "a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property ... is used with due care in a manner in which it is reasonably foreseeable that it will be used." (§ 830, subd. (a).) A public entity's "property may be considered dangerous if a condition on the adjacent property exposes those using the public property to a substantial risk of injury." (Cal. Law Revision Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 830, p. 299.)
A "design immunity" defense is provided under section 830.6. Under this statute, a public entity is not liable for a dangerous condition of its property if the public entity demonstrates that the injury was caused by property constructed in accordance with an approved plan or design. For the design
Initially, we consider whether the alleged dangerousness of the luminaire's location, raised for the first time in opposition to defendant's motion for summary judgment, can be considered as a basis for denying the summary judgment motion. As discussed below, we conclude that it cannot.
C. The Plaintiff Cannot Raise the Alleged Dangerousness of the Luminaire for the First Time in Opposition to the Motion for Summary Judgment
The City argues that because plaintiff made no allegations in her complaint that the physical location of the luminaire was a basis for dangerous condition liability, we cannot consider the issue in determining the propriety of the trial court's grant of summary judgment. In her reply brief, plaintiff argues that the placement of the luminaire, while not specifically referenced, is "closely tied to the City's dangerous condition liability which was clearly alleged in plaintiff's complaint." She further submits that the complaint is only one of the "pleadings" which define the issues to be addressed at the motion for summary judgment.
Plaintiff's first amended complaint alleges: "Plaintiff was a passenger in a vehicle northbound on Ridgecrest Road driven by James Dimeo, Jr., in the vicinity of its intersection with Pebble Beach Road in Victorville, unincorporated County of San Bernardino. Another vehicle driven by Dorothy Jean Specter was westbound on Pebble Beach Road stopped at a stop sign before attempting a left turn to go south on Ridgecrest Road. There was inadequate sight distance so that Specter did not perceive the approaching Dimeo vehicle which struck the Specter vehicle. Based upon information and belief, the [City] is responsible for the design, construction, maintenance and conrol [sic] of the southbound lanes of Ridgecrest Road. Based upon information and belief, [County] is responsible for the northbound lanes of Ridgecrest Road. Defendants [City] and [County] were negligent in designing, constructing, maintaining, controlling and otherwise creating and failing to correct dangerous road conditions due to inadequate sight distance and lack of warning signs, devices and signals. The dangerous conditions created an unreasonable risk of injury to persons using the roads and such dangerous conditions were a foreseeable cause of Plaintiff's injuries." There is no specific mention of the luminaire or any similar object. The "dangerousness"
"The pleadings delimit the issues to be considered on a motion for summary judgment. [Citation.]" (Turner v. State of California (1991) 232 Cal.App.3d 883, 891 [284 Cal.Rptr. 349] (Turner).) Thus, a "defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers." (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4 [93 Cal.Rptr.2d 820].) "To create a triable issue of material fact, the opposition evidence must be directed to issues raised by the pleadings. [Citation.] If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the summary judgment motion. [Citations.]" (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264-1265 [102 Cal.Rptr.2d 813].) "[T]he pleadings `delimit the scope of the issues' to be determined and `[t]he complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action.' [Citation.] [Plaintiff's] separate statement of material facts is not a substitute for an amendment of the complaint. [Citation.]" (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201-1202, fn. 5 [37 Cal.Rptr.3d 863] (Lackner).)
Here, plaintiff did not seek leave to amend her complaint prior to the hearing on the motion for summary judgment. The issue therefore presented is whether her amended complaint can be construed to encompass the issue of the dangerous placement or location of the luminaire.
In Lackner, the plaintiff received personal injuries when skiing at Mammoth Mountain. At the time of the injury, she was standing in a deserted area at the base of an advanced ski run. Cassidy North, a high school snowboarder, was training for the California Nevada Ski and Snowboard Federation State High School Championships. He sped down the run at a high rate of speed and struck the plaintiff. The plaintiff sued Mammoth, among others. She alleged that Mammoth had increased the risk of injury inherent in skiing by failing to enforce and supervise the race participants' use of ordinary ski runs and by failing to warn its patrons that race participants were permitted to
In Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621 [32 Cal.Rptr.3d 266] (Oakland Raiders), the plaintiff sued the National Football League on various theories, including breach of fiduciary duty. In response to the defendant's motion for summary adjudication, the plaintiff submitted three new or additional arguments as to how the defendant breached its fiduciary duty.
In Fall River Joint Unified School Dist. v. Superior Court (1988) 206 Cal.App.3d 431 [253 Cal.Rptr. 587] (Fall River), the plaintiff was a student at Fall River Junior-Senior High School. He received injuries when a steel door of a building struck his head. In his governmental claim he asserted that the door was "in a dangerous and defective condition" for several reasons, one of which was that it closed with excessive force. After the filing of the original complaint, the plaintiff filed an amended complaint alleging that school district personnel negligently failed to supervise students who were engaged in horseplay, and that he was injured as a result. The defendant moved for judgment on the pleadings based on the proposition that the cause of action for negligent supervision was not contained within the claim. The trial court denied the motion. The appellate court reversed. In doing so, the court stated that the "cause of action patently attempts to premise liability on an entirely different factual basis than what was set forth in the tort claim." (Id. at p. 435.)
In Donohue v. State of California (1986) 178 Cal.App.3d 795 [224 Cal.Rptr. 57] (Donohue), the plaintiff alleged in his claim that the State of California was negligent in allowing an uninsured motorist to take the driving test. In his complaint, he contended that the state was negligent by failing to instruct, direct, and control the driver in operating the vehicle. In affirming the trial court's grant of the motion for judgment on the pleadings, the court stated, "[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination." (Id. at p. 804.)
In Blair v. Superior Court (1990) 218 Cal.App.3d 221 [267 Cal.Rptr. 13] (Blair), the plaintiff was a passenger in a vehicle that struck a tree after leaving the roadway. In his claim, the plaintiff contended that the car went out of control because of ice on the roadway and that the state negligently maintained and constructed the highway. The plaintiff's claim further indicated that the state failed to sand and care for the highway. In his complaint,
In Turner, the alleged discrepancy was not between the claim and the complaint, but rather between the claim and the facts submitted in opposition to the motion for summary judgment. There, the plaintiff was shot in the parking lot of Cal Expo in Sacramento. He alleged in his claim that the defendants knew or should have known that gang-related violence and shootings had occurred on the premises, and that the defendants "failed to provide adequate warnings and/or security to members of the general public...." (Turner, supra, 232 Cal.App.3d at p. 889, fn. 2.) In their motion for summary judgment, the defendants argued that they were not liable on a theory of negligence or dangerous condition of public property based on their failure to provide adequate security. In response, the plaintiff submitted evidence of inadequate lighting in the area where the shooting occurred. The trial court granted summary judgment, concluding that the claim of inadequate lighting was barred because no such allegation was included in the claim. In affirming, the appellate court indicated, "Nowhere [in the claim] is there any mention of inadequate lighting as a basis for the dangerous condition of property...." (Id. at p. 889.) The Turner court distinguished Blair, stating, "In ... Blair the allegations in the claim were broad enough to
While providing no bright line, these cases provide some guidance. Initially, if a plaintiff wishes to introduce issues not encompassed in the original pleadings, the plaintiff must seek leave to amend the complaint at or prior to the hearing on the motion for summary judgment.
For example, in Lackner, the plaintiff's initial theory was the defendant's alleged failure to control or supervise race participants, and warn other patrons of the presence of race participants. In her complaint, the plaintiff attempted to add a subtly different theory—that the defendant failed to post warning signs telling downhill skiers to slow down because they were coming up on a flat portion of slope where other skiers often stopped. In Oakland Raiders, the plaintiff attempted to add entirely new factual bases to support a theory already alleged in the complaint. In Fall River, the plaintiff initially asserted a dangerous condition of public property based on alleged defects in the steel door. He later attempted to add not only new facts of children horseplaying, but also a new theory of negligent supervision. In Turner, the plaintiff initially pled theories of liability based upon the failure to provide adequate security, and later attempted to add an issue of a dangerous condition based on inadequate lighting.
In the present matter, plaintiff's supplemental statement of undisputed facts states: "The City created another dangerous condition by the installation of light fixtures too close to the roadway." (Italics added.) Unlike Lackner and Fall River, no new legal theory is alleged. Both the amended complaint and
The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond. (Todd v. Dow (1993) 19 Cal.App.4th 253, 258 [23 Cal.Rptr.2d 490].) Upon a motion for summary judgment, amendments to the pleadings are readily allowed. (Kirby v. Albert D. Seeno Construction Co., supra, 11 Cal.App.4th at p. 1069, fn. 7.) If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself. (Ibid.) To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.
In the trial court and on appeal, plaintiff asserted that triable issues of fact exist as to whether the intersection constituted a dangerous condition based upon the inadequacy of the stopping sight distance for northbound motorists. On appeal, the City does not dispute this contention. Instead, the City argues that it cannot be liable for the dangerousness of the intersection because the northbound lanes were owned, controlled, and maintained by the County, not the City. In support of its motion for summary judgment on this issue, the City submitted "undisputed" facts negating such ownership, control, and maintenance. In support thereof, the City submitted the declarations of engineers John McGlade and Edward Ruzak. McGlade declared that the County owned, maintained, controlled, and had responsibility for the northbound lanes; the City had control and responsibility for the southbound lanes; and the City did not construct, maintain, own, or control the northbound lanes. Ruzak indicated that the as-built plans delineate the northbound lanes as being County property and the southbound lanes as being owned and controlled by the City.
Plaintiff, in her response, did not dispute these facts, other than as they relate to the intersection as a whole. However, plaintiff argues that the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent property because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. Thus, the issue is whether the City's liability may be premised on Specter's attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes). As we explain, there are sufficient facts in the record to create a triable issue relative to the imposition of liability on the City even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.
In Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [132 Cal.Rptr.2d 341, 65 P.3d 807] (Bonanno), the plaintiff was struck by a vehicle while crossing a county-owned roadway to get to a bus stop established by the defendant (CCCTA). Following a plaintiff's verdict, CCCTA appealed. In affirming the judgment, the Court of Appeal held that
Bonanno was followed in Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [1 Cal.Rptr.3d 712] (Joyce). In Joyce, the plaintiff was
In both Bonanno and Joyce, the plaintiffs were injured while on property adjacent to the defendants' property. Both the plaintiffs were exposed to a risk of injury because they were attempting to use the defendants' property (the bus stop or school grounds). As here, plaintiff was injured while on adjacent property (the northbound lanes). She was exposed to a risk of injury because at the time of the accident Specter was attempting to use and access defendant's southbound lanes.
In both Bonanno and Joyce, the defendant entity had some ability to protect against the injury. In Bonanno, the transit district could have moved the bus stop; in Joyce, the school district could have removed the opening in the fence. Here, the evidence of the City's ability to control, or protect against the risk of injury, is far less obvious; yet triable issues nonetheless remain. While there is no evidence in the record of any contract or agreement
Thus, liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest.
E. The Evidence Established the Applicability of the Design Immunity As a Matter of Law
"The rationale for design immunity is to prevent a jury from second-guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.] `"`[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.'" [Citation.]' [Citation.]" (Cornette, supra, 26 Cal.4th at p. 69.)
As to the causal relationship between the plans and the accident, there is a clear nexus between the vertical curvature of Ridgecrest south of its intersection with Pebble Beach as shown in the plans and the adequacy or inadequacy of stopping sight distance. Thus the first prong is met.
As to the second prong, the discretionary approval of the plans prior to construction, the 1996 plans depict the vertical curve on Ridgecrest just south of the intersection with Pebble Beach and the widening of the road. In his declaration, John McGlade, a City engineer, declared that these plans were reviewed and approved by Jon Roberts, an engineer employed by the City. Ruzak also declared that the plans were approved by Roberts and the San Bernardino County Road Department in April 1996. The plans themselves show that they were signed and approved by Roberts in his capacity as the City Engineer. As such, his signature is presumed genuine. (See Evid. Code, § 1453.) Such evidence satisfies the City's evidentiary burden for the second prong. (See Alvarez v. State of California (1999) 79 Cal.App.4th 720, 734 [95 Cal.Rptr.2d 719], disapproved on another point in Cornette, supra, 26 Cal.4th at pp. 73-74.) Whether the engineers in approving the 1996 plans took into consideration the added distance and involved time for a westbound motorist to clear the northbound lanes, as opposed to clearing only one northbound lane as represented by the 1969 plans, is not for us to speculate in a record void of any evidence relative thereto. (See Alvarez v. State of California, supra, at p. 734.)
Relative to this issue, the City submitted one "undisputed" fact: "The westside (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of Highcrest and Ridgecrest Road. The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, professional engineer, employed by the [City], on April 16, 1996. The County approved the plans on April 29, 1996." In support of this fact, the City provided the declarations of Ed Ruzak, a registered civil and traffic engineer, and John McGlade, a civil engineer employed by the City. Ruzak declared that he reviewed the as-built plans. His declaration thereafter addresses only the southbound lanes and their interface with Highcrest. There is nothing in his declaration to support the fact that the plans and design for the intersection of Ridgecrest and Pebble Beach and the northbound lanes south of the intersection were reasonably approved.
McGlade's declaration was also focused on the southbound lanes. His declaration is two and one-half pages in length. Approximately one page is dedicated to the issue that the County owned, controlled, and maintained the northbound lanes and the City owned, controlled and maintained the southbound lanes. Within this context, he declares that "[t]he [City] did not design the northbound lanes of Ridgecrest...." He further states that "[t]he sight line looking south onto Ridgecrest Road from Pebble Beach Drive for oncoming northbound traffic is on County owned, maintained and controlled property." Lastly, he declares that in 1996 Ridgecrest was widened to the west. That "[t]he west side (southbound lanes) street improvements and widening of Ridgecrest Road included modification of the intersection of High Crest and Ridgecrest Road (see Exhibit A). The road and intersection modification and improvements were reviewed and approved in accordance with good engineering practices by Jon Roberts, a professional engineer
In deciding whether there is substantial evidence to support the notion that the plan or design was reasonably approved, we must determine whether there is evidence which "reasonably inspires confidence" and is of "solid value." No portion of Ruzak's declaration supports the conclusion that the plans and designs of the northbound lanes and their intersection with Pebble Beach were reasonably approved. Equally, we do not believe that McGlade's declaration is supportive of the reasonableness of the design and approval. While one portion of the declaration could arguably be viewed in isolation as supporting the reasonableness of the plan and design for the entire roadway, when viewed in the context of the entire declaration, the essence of McGlade's declaration is that the plans and design for the southbound lanes fell within the range of reasonable engineering guidelines; not that the design of the overall intersection and approaching northbound lanes was designed to comply with reasonable engineering principles. And, as to the portion of the declaration which could arguably be relied upon by the City to support the reasonableness of the design, McGlade limits his opinion to the "road and intersection modification and improvements" of Ridgecrest and Highcrest. Based on the papers it submitted we do not believe that defendant met its initial burden of production as it relates to the third prong of the design immunity.
The context within which the trial court and this court are dealing with the issue of the design immunity, is that of a summary judgment motion. Our sole function "is to determine from the submitted evidence whether there is a `triable issue as to any material fact'...." (Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 [68 Cal.Rptr.2d 571], citation omitted, italics added.) Our decision in the companion County case stands solely for the proposition that, "from the evidence submitted," there was no triable issue of fact as to the applicability of the design immunity. Such a finding in the County motion has no bearing on the City's separate motion, where the supporting evidence relied on is distinct from that proffered in the County's motion.
Additionally, to the extent the City seeks to rely upon facts in these records, the evidence of such facts are not referenced in the City's separate statement of undisputed facts, as required by Code of Civil Procedure section 437c, subdivision (b)(1) (each material fact in the separate statement "shall be followed by a reference to the supporting evidence"). "`The due process aspect of the separate statement requirement is self evident—to inform the opposing party of the evidence to be disputed to defeat the motion.' [Citation.] [¶] ... [T]he evidence ... was omitted from the separate statement.... In considering this evidence, the court violated [plaintiff's] due process rights.... Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. [Citation.]" (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [125 Cal.Rptr.2d 499].) Here, the evidence submitted by the County was not included as part of the supporting evidence on the City's motion. And as provided by Code of Civil Procedure section 437c, subdivision (b)(7), "[a]ny incorporation by reference of matter in the court's file shall set forth with specificity the exact matter to which reference is being
As set forth in Code of Civil Procedure section 437c, subdivision (c), "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact.... In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers...." (Italics added.) "All of the evidence" includes evidence supplied by the plaintiff that supports the defendant's motion. In Villa v. McFerren (1995) 35 Cal.App.4th 733 [41 Cal.Rptr.2d 719], for example, the court considered deposition testimony supplied by a plaintiff in determining whether the defendant's burden of production had been met. The court stated, "We reject the argument that the trial court could not consider the deposition transcript excerpts produced by plaintiff in determining whether the burden of proof had shifted. No doubt, had plaintiff not produced the transcript of defendant's deposition, the burden would never have shifted and the summary judgment motion should have been denied. However, in determining whether the burden of proof has shifted, the trial court ... must consider all of the papers
F. There Is No Triable Issue of Fact That the County Lost the Design Immunity As a Result of "Changed Circumstances"
In addressing the first element that the plan or design has become dangerous because of a change in physical conditions, the court in Weinstein v. Department of Transportation, supra, 139 Cal.App.4th 52 indicated, in addressing a cross-median accident and the absence of a median barrier in a Caltrans (Department of Transportation) plan, that "[p]laintiffs did not meet this burden. Their showing relied on the increase in traffic at the accident location and a corresponding increase in accidents. However, plaintiffs failed to produce evidence that either statistic made the condition of the roadway at the accident location inconsistent with state standards or would have rendered it unreasonable for a public entity to approve the design of the roadway.... Plaintiffs produced no evidence that increased traffic volume alone mandated a median barrier under the applicable state standards, and they otherwise
The record contains no traffic counts and little traffic accident history. There is absolutely nothing upon which a court could find a triable issue. The original design of Ridgecrest and Pebble Beach occurred in 1969. The design was subsequently modified in 1996 to widen the intersection. Plaintiff provides no statistical data on the increase of traffic flow at the intersection between 1969 and 1996, and 1996 to the date of the accident. No speed surveys over the relevant time period are provided and there is no attempted correlation between increased traffic flow, increased speeds, and increased accidents. There is nothing in the record to support even an inference that the functioning of the intersection was any different in 1969, 1996, or 2002. Plaintiff has simply failed to address, from an evidentiary point of view, the issue of changed conditions.
Lastly, plaintiff failed to proffer sufficient evidence that the City had time to obtain funds to carry out remedial work to bring the property into conformity with a reasonable design or that they did not reasonably attempt to provide adequate warnings, or otherwise restrict turning movements onto the southbound lanes. Neither of plaintiff's experts addressed the issue of providing warning signs or speed signs, as designated in the traffic manual. The only evidence of suggested remedial work provided by plaintiff was Crommelin's declaration that a signal light could have been installed or the elevation of Ridgecrest could have been reduced by "about one (1) foot." There is no evidence that defendant had a reasonable time to obtain the funds and carry out the suggested remedial work.
G. The City's Cross-appeal
The City appealed the denial of its motion for defense costs and expenses. We affirm.
1. Procedural Background
Following the grant of summary judgment and prior to the entry of judgment, the City filed a motion for attorney fees, expert fees, and costs pursuant to Code of Civil Procedure section 1038. Alternatively, the City moved for the recovery of its expenses, including attorney fees, pursuant to Code of Civil Procedure section 2033.420.
The City's motion was heard on October 17, 2005. Following argument, additional briefing was permitted and the matter submitted.
The City then filed a motion for renewal of defendant's motion for attorney fees and costs, requesting reconsideration of the December 14, 2005, ruling.
2. Motion for Defense Costs Under Code of Civil Procedure Section 1038
(a) Timeliness of the Motion for Attorney Fees
We first consider an argument by plaintiff that the City's motion was untimely. Code of Civil Procedure section 1038, subdivision (c), provides that a motion for fees made pursuant to that section be made prior to the
Plaintiff argues that, "according to the trial court's register of actions, it entered judgment for the City on May 4, 2005," and refers us to the court's order granting the City's motion for summary judgment. As the City correctly points out, the May 4, 2005, order is merely the order granting its motion for summary judgment, not the judgment itself. Plaintiff's argument is without merit.
(b) Implied Findings
In order to deny a motion for fees under Code of Civil Procedure section 1038, the court must find the plaintiff brought or maintained the action (1) in the good faith belief in the action's justifiability, and (2) with objective reasonable cause. (Kobzoff, supra, 19 Cal.4th at p. 862; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 888 [57 Cal.Rptr.3d 454].) The City contends that the trial court "abdicated its duty under this statute in refusing to make a ruling on the merits of the City's motion." It argues that the trial court was required "to make a determination of whether [p]laintiff's action was brought or maintained
It is a fundamental principle of appellate review that we presume that a judgment or order is correct. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [57 Cal.Rptr.3d 363]; see generally 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, pp. 394-395.) Moreover, it is the appellant's burden of providing a record that establishes error, and where the record is silent, we must indulge all intendments and presumptions to support the challenged ruling. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 194 [58 Cal.Rptr.3d 466]; Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [58 Cal.Rptr.3d 225].) From these principles, courts have developed the doctrine of implied findings by which the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227]; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494 [61 Cal.Rptr.3d 754]; Fladeboe, supra, at p. 58; see also County of Orange v. Barratt
Applying this doctrine here, we are required to infer from the court's denial of the City's motion that it made the determinations necessary to support its order. The City offers no authority or reason that would justify departing from this doctrine here. It does cite to Kobzoff, supra, 19 Cal.4th at page 862 for the proposition that the court is required to make the determinations of good faith and reasonable cause. This requirement, however, is not in dispute; just as the trial court must make the necessary determinations, we must presume that it did so. The issue is whether the court must expressly state its specific findings in the record. Kobzoff did not address this question.
Finally, the requirement in Code of Civil Procedure section 1038 that the court make the required good faith and reasonable cause determinations does not mean that the court is further required to explicitly state such determinations in the record. Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105 [274 Cal.Rptr. 447] is instructive on this point. In that case, the trial court issued an injunction against defendant Mullvain pursuant to Code of Civil Procedure section 527.6. That section requires the court to find "by clear and convincing evidence that unlawful harassment exists" before issuing an injunction. (Code Civ. Proc., § 527.6, subd. (d).) The trial court did not make an explicit finding that she was harassing the plaintiff, and Mullvain argued that this was error.
Here, the court unequivocally denied the City's motion. Although the court did not expressly state its findings regarding the issues involved in the motion, neither the statute nor other authority required it to do so. Thus, based upon the doctrine of implied findings and the fundamental rules of appellate review upon which it is based, we are required to infer any factual determinations necessary to support the order. Accordingly, we infer that the court determined that that action was brought in good faith and with reasonable cause. Next, we address whether these implied findings are erroneous under the applicable standard of review.
(c) The Merits of the Motion for Defense Costs
On appeal, the City does not argue that the action was not brought or maintained in good faith. The City focuses only on the element of objective reasonable cause. "Reasonable cause is to be determined objectively, as a
The City argues that it established each element of design immunity and, therefore, "because [it] is clearly immune from liability, [plaintiff's] pursuit of her claims was unreasonable as a matter of law." However, a "defendant may not recover [Code of Civil Procedure] section 1038 costs simply because it won a summary judgment or other dispositive motion; victory does not per se indicate lack of reasonable cause. [Citation.] That victory is simply the first step." (Kobzoff, supra, 19 Cal.4th at p. 856.)
The City further argues that plaintiff did not have reasonable cause because "the undisputed evidence showed that no dangerous condition of property
Because plaintiff's claim was objectively reasonable, the City's motion for fees under Code of Civil Procedure section 1038 was properly denied.
3. Motion for Expenses Under Code of Civil Procedure Section 2033.420
Prior to trial, the City requested the following nine matters be admitted by plaintiff:
(1) "The point of impact between the DIMEO VEHICLE and the SPECTER VEHICLE was in the northbound lanes of Ridgecrest Road";
(2) "The point of impact between the DIMEO VEHICLE and the SPECTER VEHICLE was not on public property owned by the City of Victorville";
(4) "The SUBJECT ACCIDENT was not legally caused by a DANGEROUS CONDITION of property owned by the City of Victorville";
(5) "The SUBJECT ACCIDENT was not legally caused by a DANGEROUS CONDITION of public property controlled by the City of Victorville";
(6) "Your injuries sustained in the SUBJECT ACCIDENT were not legally caused by a DANGEROUS CONDITION of any property owned by the City of Victorville";
(7) "Your injuries sustained in the SUBJECT ACCIDENT were not legally caused by a DANGEROUS CONDITION of any public property controlled by the City of Victorville";
(8) "The public property where the SUBJECT ACCIDENT occurred is not dangerous if used with due care"; and
(9) "The DIMEO VEHICLE was traveling in the northbound lanes of Ridgecrest Road at all times when it was within 690 feet of the point of impact with the SPECTER VEHICLE."
Plaintiff denied each of these matters.
In the alternative to its motion for fees under Code of Civil Procedure section 1038, the City sought to recover its fees and expenses attributable to proving each of the above matters pursuant to Code of Civil Procedure section 2033.420.
Plaintiff opposed the City's motion on the ground that the admissions sought were not matters of substantial importance and, if they were, "plaintiff had good reason to deny several of the requests." In addition, plaintiff asserted that many of the fees and costs sought by the City are not attributable to proving the matters for which admission was requested. The same arguments are made on appeal.
A request for admission has "substantial importance when the matter requested for admission [is] central to disposition of the case." (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509 [224 Cal.Rptr. 838] [interpreting Code Civ. Proc., former § 2034].)
In evaluating whether a "good reason" exists for denying a request to admit, "a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial." (Brooks v. American Broadcasting Co., supra, 179 Cal.App.3d at p. 511 [interpreting Code Civ. Proc., former § 2034].)
Here, the first three of the requested admissions concern the location of the point of impact; specifically, at a point in the northbound lanes, which are not owned or controlled by the City. The last requested admission seeks an admission that Dimeo was in the northbound lanes as he approached the point of impact. The trial court could reasonably have concluded that the location of impact and the fact that Dimeo had been driving in the northbound lanes were not central to the disposition of the case. That is, as we discussed above, a central issue was whether the City can be liable for an injury even though the injury occurred on property that is not owned or controlled by the City.
The requested admissions that we have numbered (4) through (7) above seek admissions concerning legal causation for the accident and plaintiff's injuries. The eighth requested admission calls for plaintiff to admit that the public property where the accident occurred, i.e., the intersection, is not dangerous if used with due care. The court could have easily concluded that at the time plaintiff refused to admit such matters she reasonably held a good faith belief that she would prevail at trial on these issues. Therefore, the court did not abuse its discretion in denying the City's motion with respect to these matters.
Because the court's denial of the City's alternative motion for fees was not an abuse of discretion, we affirm the court's order.
V. DISPOSITION
The judgment is affirmed. The denial of the City's motion for defense costs and expenses is affirmed. Each party shall bear its own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Miller, J., concurred.
I concur with the majority opinion affirming the trial court's grant of summary judgment in favor of the City of Victorville (City), but am forced to write separately to question the majority's discussion of the City's liability as an adjacent property owner, the City's request for judicial notice, and the City's motion for attorney fees.
Amanda Laabs (Plaintiff) sued the City and the County of San Bernardino (County), among other parties, as a result of her injuries incurred in an automobile accident on Ridgecrest Road where it intersects with Pebble Beach Drive. Ridgecrest Road is a four-lane north/south roadway. The northbound lanes are owned and controlled by the County. The southbound lanes are owned and controlled by the City. The accident occurred when the northbound vehicle in which Plaintiff was a passenger collided with a westbound left-turning vehicle driven by Dorothy Specter (Specter). Plaintiff alleged that her injuries were caused by a dangerous condition of public property. Both the City and the County moved for summary judgment. The
In Plaintiff's appeal against the County (Laabs v. County of San Bernardino (May 11, 2007, E039694) [nonpub. opn.] (Laabs)), this court affirmed the granting of summary judgment in favor of the County. Although we found that a triable issue of fact exists as to whether the County was on constructive notice of the sight distance limitation at the intersection and of its dangerousness, we concluded that the County was immune from liability based on its approved plan or design for widening Ridgecrest. (Laabs, supra, E039694.)
I. City's Liability for Alleged Dangerous Condition on Adjacent Property
In this appeal, the majority finds that the "present record demonstrates no triable issue of fact as it relates to the applicability of the design immunity." (Maj. opn., ante, at p. 1268.) Nonetheless, the majority feels compelled to address the issue of whether the City, as the owner of the southbound lanes, can be liable for an accident on the adjacent County-owned property (northbound lanes) because the addition of the southbound lanes increased the dangerousness of crossing through the intersection. More specifically, the majority states that "the issue is whether the City's liability may be premised on Specter's attempt to use City property (i.e., the southbound lanes) in combination with the existence of a dangerous condition on the adjacent County property (i.e., the northbound lanes)." (Id. at p. 1259.) The majority concludes there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.
I disagree.
To begin with, the City is arguing that no dangerous condition existed. At the trial court level, the City argued that the intersection of Ridgecrest and Pebble Beach was not a dangerous condition as a matter of law. Referencing Government Code section 830, subdivision (a), and citing Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439 [6 Cal.Rptr.3d 316] (Brenner), the City claimed that "[p]roperty is not `dangerous' within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care." In deciding in favor of the City, the trial court found that the City did not own or control the intersection at the time of the accident. On appeal, Plaintiff acknowledges that liability for a dangerous condition of property is premised upon a showing of ownership or control over the dangerous condition. However, she claims the City admitted in its moving papers that the intersection was jointly controlled by the County and the City. I disagree.
In its responding brief, the City maintains its liability is premised on whether or not it controlled the northbound lanes. Regarding Plaintiff's claim that the expansion of Ridgecrest Road exacerbated the dangerousness of the intersection, the City aptly notes there was no evidence in the record to support such claim. Plaintiff references the declarations of her engineering experts, Howard Anderson and Robert Crommelin, as well as a resident of the area, Michael Chamberlin. Turning to those declarations, I note that neither expert opined that the widening of the road in 1996 exacerbated or caused the dangerous condition of the intersection. Instead, the expert declarations focused on the sight distance, stopping distance and speed limit for the northbound County-controlled lanes.
Nonetheless, Plaintiff attempts to get around this obstacle by arguing that the City may be held liable for an accident which was caused by a dangerous condition on adjacent property. She cites Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 841 [206 Cal.Rptr. 136, 686 P.2d 656] (Carson). In Carson, the husband and surviving children of a decedent filed an action after decedent was killed in a car collision at an intersection owned and controlled by the city. (Id. at pp. 836-837.) The plaintiffs alleged that a sign and trees located along one side of the road obstructed the visibility of drivers and created a reasonably foreseeable risk of the kind of injuries which were incurred. (Id. at p. 837.) The city moved for nonsuit, arguing that, even if the sign created a dangerous condition, the city was not statutorily liable because it did not erect the sign, had no notice of the sign's presence, and there was insufficient evidence of a dangerous condition. (Id. at p. 840.) The trial court granted nonsuit; however, the Supreme Court reversed. Our high court held that the ownership and control of the sign was irrelevant to the question of the city's liability as the city property at issue was not the sign, but the intersection that was rendered dangerous by erection of the sign. (Id. at
Faced with this flaw in her argument, in her reply brief Plaintiff argues that "the fact that the City does not own the property where the cars collided does not shield it from dangerous condition liability." She cites, and discusses for the first time, Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139 [132 Cal.Rptr.2d 341, 65 P.3d 807] (Bonanno). The majority relies on Bonanno, and Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292 [1 Cal.Rptr.3d 712] (Joyce) in finding that there are sufficient facts in the record to create a triable issue regarding imposition of liability on the City.
In Bonanno, the plaintiff, a bus patron, was struck by a motorist while crossing a dangerous street in a marked crosswalk at an uncontrolled intersection to get to a bus stop. (Bonanno, supra, 30 Cal.4th at p. 145.) The plaintiff sued Contra Costa County and the transit authority, a public entity, alleging that the district's bus stop was a dangerous condition of property under Government Code section 835. The transit authority argued that it did not have control over the location of the bus stop because Contra Costa County, which owned the right-of-way where the bus stop was located, had "a veto power over any proposal for a new stop on [the county's] property." (Bonanno, supra, 30 Cal.4th at p. 147.) The Bonanno court rejected the transit authority's claim that it could not "be liable for an injury occurring on property (the street) it neither owned nor controlled." (Id. at p. 151.) Instead, it found that the transit authority "owned and controlled its own bus stop, and a condition of that property, its physical situation, caused users of the bus stop to be at risk from the immediately adjacent property." (Ibid.) The court explained that, regardless of whether the transit authority needed the county's permission as to locating bus stops, the transit district "enjoyed sufficient sole control over the bus stop to remove it if it was unnecessarily dangerous." (Id. at p. 147, fn. 2.)
Regarding the applicability of Bonanno, I find the unique facts in that case make it inapplicable in this case. To begin with, the Bonanno court found that it was feasible for the transit authority to move or remove the bus stop. (Bonanno, supra, 30 Cal.4th 139, 152.) Here, it is not feasible to relocate the southbound lanes. Moreover, there is no evidence that the City had any control over the location or design of the Pebble Beach entrance to Ridgecrest Road on the County's property.
Here, I do not begin with the assumption that the intersection constituted a dangerous condition. There are millions of intersections throughout the United States that are similar to the one in this case. As the City noted at the trial level, "Property is not `dangerous' within the meaning of the statutory scheme if the property is safe when used with due care and the risk of harm is created only when foreseeable users fail to exercise due care." To assume that this intersection was dangerous given the facts of this case would negate the statutory scheme behind Government Code section 830. (Brenner, supra, 113 Cal.App.4th at p. 439.) It was not the intersection itself that constituted a dangerous condition. Rather, it was the fact that the vehicle (in which Plaintiff was a passenger) was being driven by an individual who failed to use due care. As the majority correctly notes, the trial court merely found the existence of a triable issue of fact as to whether the intersection created a foreseeable risk of injury to members of the motoring public "`using due care.'" (Maj. opn., ante, at p. 1260, fn. 8.) Likewise, I do not assume that the addition of the southbound lanes created, or exacerbated, any dangerous condition.
Moreover, the issue to be decided in this case is the opposite of the issue decided in Bonanno. (Brenner, supra, 113 Cal.App.4th at 442.) Bonanno addressed whether adjacent property (location of a bus stop) was dangerous because of the route (crosswalk on busy road) necessarily traveled by its patrons. In contrast, Plaintiff's complaint addresses whether the route (northbound lanes) traveled by patrons was dangerous because of the adjacent
Similarly, I do not find Joyce applicable. In that case, the defendant's liability was based on its "failure to provide adequate safeguards against a known dangerous condition." (Joyce, supra, 110 Cal.App.4th at p. 300, italics added.) In Joyce, a student was seriously injured when she was struck by a car while crossing the street to enter the school grounds through an open school yard gate. Finding the facts similar to those in Bonanno, the Joyce court noted that while defendant "did not control the crosswalk, it did control whether an opening in the fence should be made. The open gate was built next to the crosswalk to encourage students to cross at an uncontrolled intersection. It diverted children from a safer, signal-controlled intersection less than 500 feet away.... [A] reasonable trier of fact could find that the open gate was a dangerous condition that could have been remedied by simply closing the fence opening and directing students to cross at the signal. [Citation.]" (Joyce, supra, at p. 299, fn. omitted.) My reasons for finding Bonanno inapplicable equally apply to Joyce. In Joyce, the defendant controlled the opening in the fence, there was no question as to whether the crosswalk constituted a dangerous condition, and the Joyce court did not address the issue raised by Plaintiff.
Given the record before this court, and for the reasons stated above, I disagree with the majority's conclusion that "liability may be imposed on the City for an alleged dangerous intersection even though the initial impact occurred on County property and the obstructions to visibility existed on the County side of Ridgecrest." (Maj. opn., ante, at p. 1262.) The City does not own or control the northbound lanes, nor is there any evidence that the expansion of Ridgecrest Road from a two-lane to a four-lane road made the intersection dangerous, or exacerbated any alleged dangerous condition that may exist on the County-controlled northbound lanes. Again, the issue is whether the intersection created a foreseeable risk of injury to members of the motoring public "using due care." Here, the individual using the intersection was speeding, i.e., he was traveling in excess of 74 miles per hour.
II. City's Request for Judicial Notice
Regarding the majority's discussion of the City's request for judicial notice, I note that my colleagues correctly recognize the procedures and the law governing what evidence may be considered in support of, or opposition to, a motion for summary judgment. However, in the context in which the
Turning to the record, it is clear to me that the City's liability, if any, is tied to the County's liability. To that end, I would begin the analysis by considering the City's request for judicial notice of certain court records. On October 11, 2007, the City requested this court take judicial notice of (1) certain court documents contained in the appellate record of the County's related case decided by this court (Laabs, supra, E039694), including, but not limited to, various declarations and evidence supporting the County's motion for summary judgment; (2) the unpublished opinion of this court in Laabs, supra, E039694, issued on May 11, 2007; and (3) a copy of the declarations of McGlade and Ruzak with a minimized copy of exhibit A to those declarations and a minimized copy of exhibit 1 to the notice of lodgment, as submitted to the trial court in support of the City's motion for summary judgment. The majority granted the City's request pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a); however, the majority took judicial notice of the "existence of the documents in court files, ... not ... the truth of the facts asserted in such documents." (Maj. opn., ante, at p. 1266.) In support of this decision, the majority cites Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 [8 Cal.Rptr.2d 552] (Sosinsky).
The Sosinsky court noted that several cases have cited to, and followed, Jefferson's California Evidence Benchbook, which explained the meaning of judicial notice: "`A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders,
I disagree. Given the unique facts in this case, I would take judicial notice of the trial court's findings and conclusions with respect to the County, as well as our prior opinion affirming those findings and conclusions. (Kilroy v. State of California (2004) 119 Cal.App.4th 140 [14 Cal.Rptr.3d 109] (Kilroy).)
In Kilroy, the plaintiffs sued the state and a California Highway Patrol officer claiming a violation of their civil rights and other related torts on the
Nonetheless, the majority points out, "Our sole function `is to determine from the submitted evidence whether there is a "triable issue as to any material fact"....'" (Maj. opn., ante, at p. 1266.) Additionally, my colleagues emphasize Plaintiff's due process right to be informed of the evidence that needs to be disputed in order to defeat the City's motion. While the evidence submitted by the County was not included in the paperwork offered by the City, the record before this court shows that Plaintiff's due process right was not overlooked, nor was there any request to limit the submitted evidence to only that offered in the City's moving papers and Plaintiff's opposition thereto.
I find that the majority overlooks the context in which both of these motions for summary judgment were heard. Both motions were brought and argued simultaneously. Neither side demanded, nor even expected, the trial court to limit its consideration of all of the evidence presented in support of, and in opposition to, each motion when reaching a decision as to either motion. In fact, the City specifically stated that its motion was based upon everything which it had filed, plus "such oral arguments and evidence which the court permits at its hearing on this motion." Likewise, the County based its motion on "such further oral and documentary evidence as may be presented at the hearing of this motion." Even Plaintiff stated that her opposition was based upon what she had filed, plus "the pleadings on file with the Court, declarations, depositions and matters of which the Court may take judicial notice, and such argument as may be made at the hearing on this matter." To that end, at oral argument each party addressed the issues without segregation. In fact, Plaintiff's arguments against both the County and the City are substantially similar. Many times in her appellate briefs, Plaintiff mistakenly referred to the County when she meant the City.
Clearly, the trial court considered all of the evidence before it without regard as to which party was responsible for submitting such evidence. Given
Furthermore, regarding Plaintiff's appeal concerning the County, Plaintiff designated a comprehensive record. In this appeal, she "incorporate[s] that record by reference ... pursuant to California Rules of Court, [r]ule 10[b]." In Plaintiff's reply brief (which was filed after we had filed our opinion in Plaintiff's appeal involving the County), Plaintiff notes that this court had "found that the intersection's
Finally, to the extent the City failed to provide sufficient evidence of the reasonableness of the design as to the northbound lanes, such failure is due to the fact that no party claimed the City owned or controlled the northbound lanes. According to the pleadings, there was no reason for the City to address an issue (design of the northbound lanes) that did not apply to it. I find that issue was (and is) best addressed by the entity (the County) which owned and controlled those lanes, and thus, is charged with its design.
III. City's Motion for Attorney Fees
A. Code of Civil Procedure section 1038
After the City won its summary judgment motion, it filed a motion to recover attorney fees and costs under Code of Civil Procedure section 1038.
"In order to recover fees under Code of Civil Procedure section 1038, the court must `"determine whether or not the plaintiff, ... brought the proceeding with reasonable cause and in the good faith belief that there was a justiciable controversy under the facts and law which warranted the filing of the complaint."' [Citation.] `Reasonable cause' is an objective standard which asks whether any reasonable attorney would have thought the claim tenable. [Citation.] `Thus, before denying a [Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or maintained an action in the good faith belief in the action's justifiability and with objective reasonable cause.' [Citation.]
"The standard of review of an award of attorney fees under Code of Civil Procedure section 1038 is both de novo and substantial evidence. The `reasonable cause' prong is reviewed de novo, and the `good faith' prong is reviewed for substantial evidence. [Citation.]" (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 887-888 [57 Cal.Rptr.3d 454], italics added.)
Here, as the majority points out, following the October 17, 2005, hearing on the City's motion for costs and attorney fees, the trial court took the matter under submission. Thereafter, the trial court issued a minute order denying the motion "without prejudice subject to the outcome of the appeal." The City renewed its motion, explaining that Code of Civil Procedure section 1038, subdivision (c), requires a motion for attorney fees to be brought before entry of judgment or they will be waived. A hearing was held on January 30, 2006. The trial court indicated its preference to deny the motion, not on the merits of the motion, but because an appeal was anticipated. The court again took the matter under submission. On February 10, 2006, the trial court issued a simple order denying the motion for attorney fees with prejudice.
On appeal, the City contends the trial court "abdicated its duty under this statute in refusing to make a ruling on the merits of the City's motion...." The City argues that the trial court was required "to make a determination of
In support of their claim that the trial court was not required to expressly state its findings regarding the issues involved in the City's motion for attorney fees, and that any findings necessary to support the order are implied in the denial, my colleagues cite the doctrine of implied findings "by which the appellate court is required to infer that the trial court made all factual findings necessary to support the order or judgment. [Citations.]" (Maj. opn., ante, at pp. 1271-1272.) The cases cited in support of their use of this doctrine are: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132-1133, 1137 [275 Cal.Rptr. 797, 800 P.2d 1227] (discussing Code Civ. Proc., §§ 632 & 634, the court held that "a litigant who fails to bring to the attention of the trial court alleged deficiencies in the court's statement of decision waive[s] the right to complain of such errors on appeal, thereby allowing the appellate court to make implied findings in favor of the prevailing party"); Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 494 [61 Cal.Rptr.3d 754] (discussing Code Civ. Proc., §§ 632 & 634); Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58 [58 Cal.Rptr.3d 225] (Fladeboe) (discussing Code Civ. Proc., §§ 632 & 634); County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420, 439 [58 Cal.Rptr.3d 542] (discussing doctrine of implied findings and Fladeboe); and Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1109, 1112 [274 Cal.Rptr. 447] (Ensworth) (discussing Corp. Code, § 25612 and Code Civ. Proc., § 527.6 with the court holding that statute that authorized an injunction if the judge "`finds by clear and convincing evidence that unlawful harassment exists,'" did not "require the court to make a specific finding on the record" prior to issuing injunction, but was satisfied by finding "necessarily implie[d]" by the issuance of injunction itself). None of these cases discuss the actual statute in question.
The majority finds the decision in Ensworth to be instructive on interpreting Code of Civil Procedure section 1038. The Ensworth case involved a patient stalking her psychologist. Following a series of harassing incidents,
On appeal, Mullvain claimed, inter alia, that the trial court erred in failing to make the necessary findings under the statute. (Ensworth, supra, 224 Cal.App.3d at p. 1109.) "[Code of Civil Procedure] [s]ection 527.6 provides a procedure by which a person who has suffered harassment may seek an injunction prohibiting the harassment. In subdivision (b), harassment is defined as `a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.'" (Ibid.) Subdivision (d) of section 527.6 provides that "`the judge shall receive such testimony as is relevant, and may make an independent inquiry. If the judge finds by clear and convincing evidence that unlawful harassment exists, an injunction shall issue prohibiting the harassment.'" (224 Cal.App.3d at p. 1112.) Mullvain complained that the trial court failed to find a continuous course of conduct and emotional distress. (Ibid.) The appellate court rejected the complaint, finding that "[t]he statute does not require the court to make a specific finding on the record that harassment exists, nor does it require specific findings of the statutory elements of harassment as defined in subdivision (b)." (Ibid.) The court held that "the granting of the injunction itself necessarily implies that the trial court found that Mullvain knowingly and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed Ensworth, and that Ensworth actually suffered substantial emotional distress." (Ibid.)
Applying the above, my colleagues conclude that just as the Ensworth court necessarily found harassment, so too did the trial court in this case make the determinations of good faith and reasonable cause. The majority
I disagree. Given the language used in Code of Civil Procedure section 1038, the case law interpreting the statute, and the statements in the legislative committee reports concerning the statute's objects and purposes, I find that the trial court is required to state its findings on the record.
In 1980, the Legislature enacted Code of Civil Procedure section 1038. "In enacting the act which added section 1038 to the Code of Civil Procedure (Assem. Bill No. 3214, introduced by Assemblyman Patrick J. Nolan on Mar. 11, 1980, which became Stats. 1980, ch. 1209, § 1, pp. 4088-4089), the Legislature appears to have intended to discourage frivolous lawsuits against governmental agencies. For instance, an analysis prepared for the Senate Committee on the Judiciary stated: `The purpose of the bill is to allow public entities to recover the cost of defending frivolous lawsuits brought against them.' A Bill Digest of the Assembly Committee on the Judiciary stated: `Proponents contend that this bill will curb frivolous lawsuits because it will require plaintiffs who bring such actions to pay for some of the expense incurred by blameless defendants.'
"Statements in Legislative committee reports concerning statutory objects and purposes which are in accord with a reasonable interpretation of the statute serve as legitimate aids in determining Legislative intent. [Citation.] It will be presumed that the Legislature adopted the proposed legislation with the intent and meaning expressed in committee reports. [Citations.]
"The above-quoted statements which appear in the committee reports disclose that the purpose of Assembly Bill No. 3214, which became Code of Civil Procedure section 1038, was to allow public entities to recover costs incurred in defending frivolous lawsuits.... [¶] ... [¶]
"Subdivision (c) of section 1038 provides that any party requesting defense costs under the statute waives any right to seek damages for malicious prosecution and that failure to seek such relief shall not be deemed a waiver of the right to pursue a malicious prosecution action. The waiver provisions in subdivision (c) show a recognition by the Legislature that the relief afforded by section 1038 is so similar to a malicious prosecution cause of action that an aggrieved party can only seek redress by one method or the other, but not both. [¶] ... [¶]
"Inasmuch as the Legislature provided in subdivision (c) of section 1038 that a request for relief pursuant to the section operates as a waiver of a malicious prosecution action, we presume the Legislature intended that section
Given the above, a Code of Civil Procedure section 1038 motion takes the place of a malicious prosecution action. However, through the years, the statute has been amended. As our state's highest court noted in 1998, "The [Code of Civil Procedure] section 1038 proceeding was not always a summary one. In its original version, section 1038, subdivision (a), directed the `fact finder' to decide whether the action was brought with `reasonable cause' and in `good faith.' Under section 1038, subdivision (b), the trial court could `direct a separate trial at the conclusion of the proceeding on the issue of defense costs.' [Citation.] The 1986 amendment to section 1038, however, directed `the court,' rather than the `fact finder' to determine whether the statutory elements were present, and eliminated the court's power to order a separate trial on the question. [Citation.]" (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 857 [80 Cal.Rptr.2d 803, 968 P.2d 514] (Kobzoff).)
Until this case, other appellate courts and our state's highest court recognized that Code of Civil Procedure section 1038 "initially requires the trial court to determine whether [a plaintiff has] acted with reasonable cause and in the good faith belief that the law and facts stated a justifiable controversy."
Alternatively, the City sought discovery sanctions pursuant to Code of Civil Procedure section 2033.420 for Plaintiff's failure to admit a request for admission of a fact which was later proven to be true. Code of Civil Procedure section 2033.420 provides: "(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
"(b) The court shall make this order unless it finds any of the following:
"(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.
"(2) The admission sought was of no substantial importance.
"(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.
"(4) There was other good reason for the failure to admit."
The trial court denied the City's request without making any explicit findings or stating any reasons. The City appeals and my colleagues find that explicit findings were unnecessary.
I disagree.
As the majority notes, we review the court's findings for an abuse of discretion. (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10 [65 Cal.Rptr.2d 532].) However, because the trial court failed to state its findings, there is nothing for us to review. Accordingly, I would reverse the order and remand for further proceedings with the directions that the trial court comply with the statutory requirements and state its findings on the record.
FootNotes
Section 830, subdivision (a), defines "dangerous condition" to mean "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."
Plaintiff's evidence places directly into issue critical factual disputes as to the sight distance at the intersection, the prevailing speeds of northbound motorists approaching the intersection, and whether, given these facts, there is adequate stopping sight distance for motorists using due care as they proceed northbound on Ridgecrest or for motorists on Pebble Beach turning left across two lanes of northbound travel. A triable issue of fact exists as to whether the property created a foreseeable risk of injury to members of the motoring public "using due care."
"(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
"(b) The court shall make this order unless it finds any of the following: [¶] (1) An objection to the request was sustained or a response to it was waived under [Code of Civil Procedure] Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit."
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