Filed 8/10/21 Wickander v. Cal. Dept. of Transportation CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
DANIELLE WICKANDER et al., B301808
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC664489)
v.
CALIFORNIA DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Marc D. Gross, Judge. Affirmed.
Paoli & Purdy and Court B. Purdy for Plaintiffs and
Appellants.
Erin E. Holbrook, Jeanne E. Scherer, Chief Counsel,
Jerald M. Montoya, Deputy Chief Counsel, and Mark Berkebile,
for Defendant and Respondent.
______________________________
A driver negligently hit pedestrians plaintiffs and
appellants Spencer Wickander (through his mother, Danielle
Wickander) and Tailor Heer as they attempted to cross State
Route 1, Pacific Coast Highway (PCH), in Malibu, from the beach
side to the inland side where their vehicle was parked. They
sued defendant and respondent California Department of
Transportation (CalTrans) for dangerous condition of public
property under Government Code section 835. CalTrans
successfully moved for summary judgment, and plaintiffs appeal.
Because the trial court properly granted CalTrans’s motion,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
A. The Accident
At approximately 5:22 p.m. on July 2, 2016, plaintiffs were
crossing PCH in Malibu when they were struck by a vehicle
driven by Adabelle Ekechukwu (Ekechukwu). They were
returning from the beach to their car, which was parked on the
inland side of PCH. Tragically, Spencer Wickander was killed,
and Tailor Heer was injured.
The accident occurred during daylight.
B. The Accident Location
PCH at the accident location is a four-lane conventional
highway, with two northbound and two southbound lanes,
separated by a two-way left turn lane. Parking is prohibited on
the ocean side and permitted on the inland side.
C. No Prior Accidents or Complaints
From January 1, 2008, through July 2, 2016, approximately
46,188,500 vehicles traveled through the accident location.
2
During that time, there is no record of any vehicle-versus-
pedestrian accidents other than the instant one.
Furthermore, CalTrans uses the Traffic Accident
Surveillance and Analysis System to identify highway segments
that have a higher-than-average number of accidents. If a
location has a higher-than-average number of accidents, a safety
investigation is triggered. From January 1, 2005, through
June 30, 2016, the accident location was never identified as
having a higher-than-average number of accidents, meaning that
“this section of roadway is performing as expected and consistent
with other similar facilities of this type.”
Finally, there is no record of any complaints from private
citizens, law enforcement, or local public entities about the
dangers posed to pedestrians crossing PCH at the accident
location.
D. Subsequent Safety Enhancements
Following the accident, CalTrans discussed additional
safety measures that could be installed. After considering and
ruling out a crosswalk with flashing beacons, CalTrans decided to
prohibit parking on the inland side of PCH near the accident
location.
Procedural Background
A. The Complaint
On June 9, 2017, plaintiffs initiated this lawsuit against
CalTrans. They filed their first amended complaint, the
operative pleading, on August 7, 2018. They alleged that PCH at
the accident location was a dangerous condition of public
property because the inland side shoulder where plaintiffs parked
did not meet the minimum shoulder-width requirements. As a
3
result, plaintiffs asserted that CalTrans should have prohibited
public parking at that location.
In addition, plaintiffs alleged that PCH at this location
lacked adequate roadway markings and warnings, lacked a
refuge island in the middle of PCH, and lacked adequate parking
on the ocean side of the highway.
Finally, plaintiffs alleged that Ekechukwu’s negligent,
reckless, and unlawful behavior directly and proximately caused
the accident.
B. CalTrans’s Motion for Summary Judgment
On April 9, 2019, CalTrans filed its motion for summary
judgment. It argued: (1) the accident location was not a
dangerous condition of public property as a matter of law;
(2) CalTrans did not have actual or constructive notice of a
dangerous condition of public property; and (3) CalTrans is
immune from liability pursuant to the theory of design immunity.
In support, CalTrans offered three supporting declarations,
including an expert declaration from a civil engineer.
C. Plaintiffs’ Opposition
Plaintiffs opposed CalTrans’s motion. They argued, inter
alia, that CalTrans’s motion should be denied because (1) it failed
to address multiple factual allegations in the first amended
complaint, (2) there were multiple triable issues of material fact,
and (3) design immunity did not apply.
In support, they offered a competing expert declaration.
Their expert measured the shoulder width as less than eight feet.
Notably, the expert relied in part upon a parking study conducted
by Stantec, a private engineering firm, nearly one year after the
subject accident. Stantec had measured the shoulder widths
4
along PCH and found that they were less than eight feet near the
subject location and recommended that parking be eliminated.
Plaintiffs’ expert also noted that the May 7, 2012, edition of
CalTrans’s Highway Design Manual,1 provided that “‘[w]here on-
street parking is allowed, 10 feet shoulder width is preferred.’”
He further noted the lack of pedestrian facilities on the inland
side of PCH. There was no buffer to provide space for
pedestrians to exit parked vehicles, and at the time of the
accident, there were no signs warning motorists of crossing
pedestrians.
Plaintiffs’ expert agreed that there was no history of
pedestrian-versus-vehicle accidents at the subject location. But,
he did point to two accidents (one in 2013 and one in 2014) that
occurred approximately one mile north of the subject location.2
Ultimately, plaintiffs’ expert opined that “allowing parking,
pedestrian travel, and pedestrian crossings along [PCH] with a
substandard shoulder, high vehicular volumes and speeds, placed
pedestrians, such as the Plaintiffs, going to and from [the beach]
at a significant risk of foreseeable injury.”
Also in support of their opposition, plaintiffs’ counsel
offered a declaration, attached to which were 25 exhibits.
Exhibits 5 and 6 were identified as “Various Emails to
CALTRANS . . . re: safety issues on subject roadways.” One
e-mail was sent in 2015, from Arthur Aladjadjian of the City of
1
During discovery, a CalTrans engineer testified at his
deposition that the applicable CalTrans Highway Design Manual
calls for an eight-foot shoulder for parking.
2
Both accidents occurred at night, and the pedestrians
struck had either been drinking or were intoxicated.
5
Malibu to CalTrans stating: “Please see emails below regarding
the line of sight concerns when exiting onto PCH from” the beach.
He suggested installing additional “no parking” signs near the
driveway entrance to make clearer that parking was prohibited
near the driveway. And, on February 15, 2016, Alcal Tuyet of the
Los Angeles County Sheriff’s Department sent an e-mail to the
City of Malibu (and the e-mail was eventually provided to
CalTrans) noting that cars exiting the beach “had to stick their
cars so far out in the roadway to see past the cars parked close to
the driveway.” According to plaintiffs, these e-mails put
CalTrans on notice of visibility issues at the subject location,
which were relevant in light of Ekechukwu’s deposition testimony
that she was distracted by people and vehicles coming and going
from that particular beach area.
In addition, plaintiffs’ counsel attached a safety study to his
declaration, which plaintiffs contended created a triable issue of
fact as to whether CalTrans had received any safety complaints
at the accident location.
D. Trial Court Order Granting Motion for Summary
Judgment
After entertaining oral argument, the trial court granted
CalTrans’s motion for summary judgment. In so ruling, the trial
court first noted plaintiffs’ procedural errors in their opposition.
It then turned to the merits of CalTrans’s motion.
The trial court found it undisputed that (1) there was no
history of vehicle-versus-pedestrian accidents at the subject
location; (2) the accident location had never been identified as a
high-accident location; (3) there was no evidence of visibility or
unusual roadway conditions that made the subject location
unsafe for pedestrians; and (4) CalTrans had not received any
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safety-related complaints about the subject location.
Furthermore, plaintiffs did not exercise due care or use the
subject roadway in a foreseeable manner; they crossed PCH
outside of a marked crosswalk, in violation of the Vehicle Code.
Thus, CalTrans met its burden of showing that plaintiffs
could not establish two essential elements of dangerous condition
liability: the existence of a dangerous condition or property, and
notice of such condition.
After specifically noting that CalTrans was not required to
disprove every allegation in plaintiffs’ operative pleading, the
trial court next found that plaintiffs failed to raise a triable issue
of material fact. It found plaintiffs’ evidence of the two prior
accidents, the Stantec parking studies, and e-mails regarding
parking and visibility inadmissible. And, even if it were
admissible, the evidence did not create a triable issue of fact.
First, the two prior accidents did not occur under the same or
similar circumstances—they occurred at a different location, at
night, and involved intoxicated pedestrians. Second, the Stantec
reports did not verify the information received by others, and one
of the studies was not published until after the subject accident.
While the report recommended making a 21-mile section of PCH
safer, the trial court noted that public property is not a
dangerous condition simply because it can be made safer. And
third, the various e-mails were irrelevant or immaterial to the
issue of notice of the particular dangerous condition alleged here.
None of the e-mails concerns pedestrians crossing PCH.
Finally, the trial court rejected plaintiffs’ contention that
because the shoulder width was less than eight feet wide,
CalTrans should have prohibited parking at the location, and had
parking been prohibited, plaintiffs would not have parked there
7
and would not have been struck while crossing PCH to return to
their parked vehicle. The trial court recognized that the shoulder
width of the side of the highway where plaintiffs had parked was
not causally connected to the accident.3
E. Judgment and Appeal
Judgment was entered, and this timely appeal ensued.
DISCUSSION
I. Standard of review
“We review a grant of summary judgment de novo,
considering ‘“all of the evidence set forth in the [supporting and
opposition] papers, except that to which objections have been
made and sustained by the court, and all [uncontradicted]
inferences reasonably deducible from the evidence.”’ [Citation.]
‘In independently reviewing a motion for summary judgment, we
apply the same three-step analysis used by the superior court.
We identify the issues framed by the pleadings, determine
whether the moving party has negated the opponent’s claims, and
determine whether the opposition has demonstrated the
existence of a triable, material factual issue.’ [Citation.]”
(Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th
411, 415.)
“The general rule is that summary judgment is appropriate
where ‘all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law . . . .’ [Citation.] A defendant
‘moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of
any triable issue of material fact.’ [Citation.] The moving
3
The trial court did not reach the issue of design immunity.
8
defendant may meet this burden either by showing that one or
more elements of a cause of action cannot be established or by
showing that there is a complete defense thereto. [Citations.]
‘“[A]ll that the defendant need do is to show that the plaintiff
cannot establish at least one element of the cause of action . . . [;]
the defendant need not himself conclusively negate any such
element . . . .” [Citation.]’ [Citation.] Once the moving party’s
burden is met, the burden shifts to the plaintiff to demonstrate
the existence of a triable issue of material fact. [Citation.] The
plaintiff must produce ‘“substantial”’ responsive evidence
sufficient to establish a triable issue of fact. [Citation.]
‘[R]esponsive evidence that gives rise to no more than mere
speculation cannot be regarded as substantial, and is insufficient
to establish a triable issue of material fact.’ [Citation.]”
(Granadino v. Wells Fargo Bank, N.A., supra, 236 Cal.App.4th at
p. 415.)
In reviewing an order granting summary judgment, we
strictly scrutinize the moving party’s papers (Chevron U.S.A.,
Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549, overruled in
part on other grounds by Camargo v. Tjaarda Dairy (2001) 25
Cal.4th 1235, 1245), and liberally construe the declarations of the
party opposing summary judgment to determine the existence of
triable issues of fact. (Sosinsky v. Grant (1992) 6 Cal.App.4th
1548, 1556.) All doubts as to whether any material, triable issues
of fact exist are to be resolved in favor of the party opposing
summary judgment. (Ibid.)
We affirm an order granting summary judgment if it was
correct on any ground that the parties had an adequate
opportunity to address in the trial court. (Securitas Security
9
Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115,
120.)
II. Relevant law
A. Dangerous Condition
“‘Except as provided by statute, 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 either: [¶] (a) A
negligent or wrongful act or omission of an employee of the public
entity within the scope of his employment created the dangerous
condition; or [¶] (b) The public entity had actual or constructive
notice of the dangerous condition under Section 835.2 a sufficient
time prior to the injury to have taken measures to protect against
the dangerous condition.’ ([Gov. Code,] § 835.)” (Garcia v.
American Golf Corp. (2017) 11 Cal.App.5th 532, 539–540.)
A “dangerous condition” is defined as “a condition of
property that creates a substantial (as distinguished from a
minor, trivial or insignificant) risk of injury when such property
or adjacent property is used with due care in a manner in which
it is reasonably foreseeable that it will be used.” (Gov. Code,
§ 830, subd. (a).) Stated another way, “[a]ny property can be
dangerous if used in a sufficiently abnormal manner; a public
entity is required only to make its property safe for reasonably
foreseeable careful use. [Citation.]” (Mathews v. City of Cerritos
(1992) 2 Cal.App.4th 1380, 1384; see also Fuller v. State of
California (1975) 51 Cal.App.3d 926, 940 [“‘a public entity should
not be liable for injuries resulting from the use of a highway—
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safe for use at 65—at 90 miles an hour, even though it may be
foreseeable that persons will drive that fast’”].)
“‘[A] claim alleging a dangerous condition may not rely on
generalized allegations [citation] but must specify in what
manner the condition constituted a dangerous condition.’
[Citation.] A plaintiff’s allegations, and ultimately the evidence,
must establish a physical deficiency in the property itself.
[Citations.] A dangerous condition exists when public property ‘is
physically damaged, deteriorated, or defective in such a way as to
foreseeably endanger those using the property itself,’ or possesses
physical characteristics in its design, location, features or
relationship to its surroundings that endanger users. [Citation.]”
(Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347–
1348.)
“A condition is not a dangerous condition . . . if the trial or
appellate court, viewing the evidence most favorably to the
plaintiff, determines as a matter of law that the risk created by
the condition was of such a minor, trivial or insignificant nature
in view of the surrounding circumstances that no reasonable
person would conclude that the condition created a substantial
risk of injury when such property or adjacent property was used
with due care in a manner in which it was reasonably foreseeable
that it would be used.” (Gov. Code, § 830.2.)
In determining “whether a given condition of public
property is minor or insignificant as a matter of law,” we
“consider both the physical description of the condition, and
‘whether there existed any circumstances surrounding the
accident which might have rendered the defect more dangerous
than its mere abstract [description] would indicate.’ [Citation.]
Where appropriate, the court should consider not only the
11
intrinsic nature and quality of the condition, but also other
factors such as the time and place of the occurrence. [Citation.]
‘Furthermore, the court should see if there is any evidence that
other persons have been injured on this same defect.’ [Citation.]”
(Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234.)
Although the question of whether a dangerous condition
exists is often one of fact, the issue may be resolved as a question
of law when reasonable minds can only draw one conclusion from
the facts. (Chowdhury v. City of Los Angeles (1995) 38
Cal.App.4th 1187, 1194.) In other words, “‘[i]t is for the court to
determine whether, as a matter of law, a given defect is not
dangerous.’” (Davis v. City of Pasadena (1996) 42 Cal.App.4th
701, 704.) “This is to guarantee that [public entities] do not
become insurers against the injuries arising from trivial defects.”
(Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734.)
B. Causation
“An essential element of a cause of action for damages
based on a dangerous condition of public property is causation”
and “the issue can be decided as a matter of law where the facts
of a case can permit only one reasonable conclusion.” (Milligan v.
Golden Gate Bridge Highway & Transportation Dist. (2004) 120
Cal.App.4th 1, 8–9; see also Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1135 [“liability is imposed only when there is
some defect in the property itself and a causal connection is
established between the defect and the injury”].) To establish
causation, the plaintiff must present evidence that “the
defendant’s conduct was a ‘substantial factor’ in bringing about
his or her harm.” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286,
312.)
12
C. Notice
A public entity had actual notice of a dangerous condition
“if it had actual knowledge of the existence of the condition and
knew or should have known of its dangerous character.” (Gov.
Code, § 835.2, subd. (a).) A public entity had constructive notice
of a dangerous condition “only if the plaintiff establishes that the
condition had existed for such a period of time and was of such an
obvious nature that the public entity, in the exercise of due care,
should have discovered the condition and its dangerous
character. . . .” (Gov. Code, § 835.2, subd. (b).)
III. The trial court did not err in granting CalTrans’s motion for
summary judgment
Applying these legal principles, we conclude that the trial
court did not err in granting CalTrans’s motion for summary
judgment.4 As the trial court aptly noted, the following facts
were undisputed: (1) There was no history of vehicle-versus-
pedestrian accidents at the subject location;5 (2) the accident
location had never been identified as a high-accident location;
(3) there was no evidence of visibility or unusual roadway
conditions that made the subject location unsafe for pedestrians;
and (4) CalTrans had not received any safety-related complaints
about the subject location. Under these circumstances, there was
4
We reach this conclusion without considering CalTrans’s
alternative argument pursuant to the doctrine of design
immunity.
5
As set forth above, the other two accidents are readily
distinguishable. They occurred at a different location, at night,
and involved persons who either were intoxicated or had been
drinking.
13
no dangerous condition prompting liability under Government
Code section 835.
Perhaps more significantly, plaintiffs have not, and cannot,
demonstrate causation. Plaintiffs contend that CalTrans’s failure
to construct the inland shoulders at least eight feet wide and
then not prohibiting parking created a dangerous condition of
property. Their theory seems to be that had parking been
prohibited because of the narrow shoulders, plaintiffs would not
have parked there and would not have been struck by a vehicle
while crossing PCH from the beachside back to the inland side
where their car was parked. We are not convinced. Even if
CalTrans permitted vehicles to park on a narrow shoulder, and
therefore arguably invited pedestrians to cross PCH, there is no
evidence that this “increased or intensified the danger” to
pedestrians using due care.6 (Zelig v. County of Los Angeles,
supra, 27 Cal.4th at pp. 1136, 1138.) And, as pointed out by
CalTrans, had the shoulders been eight feet or wider, CalTrans
guidelines would have permitted parking. In this scenario,
plaintiffs presumably would have parked in the same location
and would still have crossed PCH. Thus, the width of the
shoulder (the alleged defect) has no causal relationship to being
struck by a vehicle while crossing PCH.
Finally, it is undisputed that CalTrans did not have notice
of the alleged dangerous condition. There were no prior similar
accidents at the subject location, and the subject location was
never identified as an area of concern. There also were no
complaints from private citizens, law enforcement, or local public
6
For this reason, the fact that there may have been
inadequate parking on the beachside of PCH is irrelevant.
14
entities about the alleged danger posed to pedestrians crossing
PCH at the subject location. While CalTrans may have been
aware that parking had been permitted on the inland side of
PCH, as set forth above, that alone is insufficient because the
width of the shoulder on the inland side of PCH is not causally
connected to the type of accident that occurred here.
Urging us to reverse, plaintiffs assert that the motion
should have been denied because it failed to refute each and
every factual allegation set forth in the first amended complaint.
We are not convinced. While the pleadings certainly frame the
issues for a summary judgment motion, plaintiffs offer no legal
authority in support of their contention that CalTrans was
required to refute every factual allegation in their first amended
complaint. In fact, because CalTrans sought summary judgment
on the grounds that plaintiffs could not prove their claim against
it, all CalTrans had to do was negate at least one element of
plaintiffs’ claims. Here, as set forth above, it successfully negated
three different elements of plaintiffs’ cause of action. (Consumer
Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
Plaintiffs further argue that the trial court abused its
discretion in sustaining CalTrans’s evidentiary objections to
plaintiffs’ expert’s declaration.7 We need not address this issue.
As set forth above, CalTrans offered undisputed evidence that the
shoulder width of PCH at the accident location did not constitute
7
Notably, plaintiffs largely argue that their expert’s opinion
testimony should have been admitted because it pertained to
CalTrans’s contention that it was immune from liability pursuant
to the design immunity doctrine. Like the trial court, we need
not reach this issue.
15
a dangerous condition as a matter of law, and even if it did,
(1) that condition was not causally connected to plaintiffs’
accident, and (2) CalTrans did not have notice of that condition.
Nothing in plaintiffs’ expert’s declaration refutes the foregoing.
And, his opinion that the shoulder width constituted a dangerous
condition is insufficient to create a triable issue of material fact.
(Davis v. City of Pasadena, supra, 42 Cal.App.4th at p. 705 [“the
fact that a witness can be found to opine that a condition
constitutes a significant risk and a dangerous condition does not
eliminate this court’s statutory task, pursuant to [Government
Code] section 830.2, of independently evaluating the
circumstances”].)
In addition, plaintiffs argue that the trial court erred in
relying upon Evidence Code section 11518 and not considering the
fact that CalTrans took remedial steps after the accident. We
agree that the evidence was barred pursuant to Evidence Code
section 1151. Moreover, plaintiffs ignore Government Code
section 830.5, subdivision (b), which provides, in relevant part,
“‘[t]he fact that action was taken after an injury occurred to
protect against a condition of public property is not evidence that
the public property was in a dangerous condition at the time of
the injury.’” (See also Moritz v. City of Santa Clara (1970) 8
Cal.App.3d 573, 577.) And, in any event, the fact that public
property can be made safer is not a proper basis for deeming the
8
Evidence Code section 1151 provides, in relevant part, that
“[w]hen, after the occurrence of an event, remedial or
precautionary measures are taken, which, if taken previously,
would have tended to make the event less likely to occur,
evidence of such subsequent measures is inadmissible to prove
negligence or culpable conduct in connection with the evidence.”
16
existing condition dangerous. (Dole Citrus v. State of California
(1997) 60 Cal.App.4th 486, 494.)
In addition, plaintiffs seem to argue that Ekechukwu’s
testimony that there were visual distractions at the subject
location creates a triable issue of fact that the accident location
constituted a dangerous condition. According to plaintiffs, her
testimony is consistent with e-mails which purportedly put
CalTrans on notice of the alleged dangerous condition. We are
not convinced. The problem with plaintiffs’ contention is that the
subject e-mails did not address the dangerous condition alleged in
this case—they did not address pedestrians crossing PCH.
Instead, they addressed multiple locations and unrelated issues,
such as faded or missing no-parking signs, cars parking too close
to a driveway on the ocean side of PCH, and visibility with
respect to vehicles attempting to exit the parking lot at the beach.
Finally, plaintiffs argue that the trial court erred in
considering the negligence of Spencer Wickander and Tailor
Heer. Plaintiffs correctly point out that the law does not require
a plaintiff to prove that the property was actually being used
with due care at the time of his injury. (Alexander v. State of
California ex rel. Dep’t of Transportation (1984) 159 Cal.App.3d
890, 899.) While the trial court noted in its order that plaintiffs
did not exercise due care, that was not the basis of the trial
court’s conclusion. And it has no bearing on our de novo analysis
here.
17
DISPOSITION
The judgment is affirmed. CalTrans is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
________________________, J.
HOFFSTADT
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