Filed 7/27/21 Dopke v. City of Pasadena CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE
SCOTT DOPKE et al., B304020
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC611949)
v.
CITY OF PASADENA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, John J. Kralik, Judge. Affirmed.
Law Office of John V. Gaule and John V. Gaule for
Plaintiffs and Appellants.
Michele Beal Bagneris, City Attorney, and John W. Nam,
Deputy City Attorney, for Defendant and Respondent.
____________________________
Plaintiffs and appellants sued the City of Pasadena
(the City) after their son collided with another motorist at a
purported dangerous intersection and died. The trial court
granted summary judgment in favor of the City. Appellants
contend this was error.
We conclude the trial court did not err for two independent
reasons: (1) appellants submitted no evidence in support of their
opposition to summary judgment; and (2) appellants failed to
raise a triable issue of material fact that a dangerous condition
existed at the intersection in question. Accordingly, we affirm
the judgment in favor of the City.
BACKGROUND
Appellants Scott and MaryAnn Dopke (the Dopkes) are the
parents of Nick Dopke who was killed while riding his motorcycle
in the City. Nick Dopke collided with Thomas Barela at the
intersection of Del Mar Boulevard and Meridith Avenue
(sometimes referred to as the Intersection). At the time of the
collision, Nick Dopke was riding his motorcycle westbound on
Del Mar Boulevard. Barela was making a left turn onto Del Mar
Boulevard from Meridith Avenue.
The speed limit on Del Mar Boulevard near the
Intersection was 35 miles per hour. Officer Phillip Klotz
estimated that Nick Dopke was traveling 75.6 miles per hour
immediately prior to the collision. Officer Klotz used a “time and
distance calculation to determine an approximate speed, using
several landmarks as reference points that were visible on the
surveillance video” obtained during the police investigation of the
collision. Klotz opined that if Nick “Dopke had been traveling at
or near the posted 35 mph speed limit, the collision would have
been preventable.”
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1. Complaint
On March 16, 2016, the Dopkes sued the City, alleging in a
form complaint: “On the date of the incident, traffic had been
rerouted because of a bicycle race causing more congestion than
normal on Del Mar Blvd[.] and Meridith Avenue. Vehicles
parked on westbound Del Mar and the trees on the northside of
Del Mar obscured the sight lines of drivers turning left onto
eastbound Del Mar from Meridith making it impossible to see a
motorcycle traveling in the right of way on westbound Del Mar.
As a result, the decedent and a vehicle making a left turn onto
Del Mar from Meridith collided causing the death of the
decedent. The decedent, Nick Dopke, was the adult son of the
Plaintiffs. On May 31, 2015, [the date of the collision], he was
riding his motorcycle westbound on Del Mar Blvd[.] in Pasadena.”
2. The City moved for summary judgment
The City argued that Government Code1 section 835,
governing a dangerous condition of public property, is the sole
basis for imposing liability on a public entity based upon the
condition of public property, and that no evidence supported any
element of such a cause of action here. Specifically, there was no
evidence that the Intersection was the proximate cause of the
accident or that the City had actual or constructive notice of a
dangerous condition at the Intersection. The City further argued
that it was immune from liability under sections 830.6, 820.8,
and 820.2.
In his declaration in support of summary judgment,
Kris Markarian, a city engineer, represented that he had
1 All statutory citations are to the Government Code.
3
reviewed complaints from January 1, 2008 through May 31, 2015
and found none concerning any dangerous condition of the
Intersection. The City’s routine inspections revealed no
dangerous condition, and the City’s postaccident inspection
revealed no dangerous condition. In her declaration, Arlene
Gallardo, the City’s risk and insurance administrator, stated the
City has “no record of any claims or lawsuits from 1979 to the
present regarding any traffic collisions or claims of a dangerous
condition of public property at, or near, the intersection at
Del Mar Blvd. and Mer[i]dith Ave., other than the May 31, 2015
incident involving” Nick Dopke. Markarian explained that a
professional engineer designed the Intersection in accordance
with accepted engineering guidelines and that it was constructed
according to the professional engineer’s plan.
Wes Pringle, a registered professional engineer in the fields
of civil and traffic engineering, echoed these conclusions in
opining: The Intersection “was safe when used with due care and
was not a dangerous condition of public property. The subject
intersection and roadway [were] not negligently designed or
maintained. The intersection at Del Mar Blvd. and Mer[i]dith
Ave. was reasonably constructed and gave sufficient sight lines at
the Mer[i]dith Ave. limit to alert drivers to the presence of
oncoming traffic and therefore gave adequate warning to drivers,
making a left from Mer[i]dith Ave. to head eastbound on Del Mar
Blvd., of the potential that there might be oncoming traffic.”
Pringle opined on the cause of the accident as well: Nick Dopke
was “operating his motorcycle at over 40 mph over the posted
35 mph speed limit on Del Mar Blvd. Additionally, the driver of
the car, Barela, contributed to the collision by failing to yield the
right of way to oncoming traffic.”
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Joaquin Siques, a traffic engineer for the City, inspected
the Intersection and “confirmed that there was adequate
approach sight distance for the intersection of Del Mar and
Mer[i]dith in both directions of travel along Del Mar Blvd. At the
speed limit of 35 mph, the minimum stopping distance required
is 250 feet. . . . I estimated that from Mer[i]dith, the intersection
at Del Mar is visible from a distance of over 400 feet.” Siques
concluded, “There is no street design deficiency that would create
a dangerous condition at this intersection.”
Siques also observed that the “intersection of Del Mar Blvd.
and Mer[i]dith Ave . . . has a collision rate which is significantly
less than the average rate for similar intersections.” Siques
reiterated, “There had not been any prior complaints from
residents to the City regarding safety at the subject intersection.”
The City also attached portions of Thomas Barela’s
deposition to its motion. Barela testified: Just before the
collision, “Del Mar seemed to be absent of cars and activity. It
just seemed to be quiet.” Barela was in the process of initiating a
left-hand turn when the accident occurred. Barela testified that
vehicles parked on Del Mar “impeded” his view “of westbound
traffic on Del Mar.”
3. Opposition to summary judgment
The Dopkes argued there were triable issues of fact
regarding the existence of a dangerous condition at the
Intersection, the cause of the accident, and the City’s knowledge
about any such dangerous condition. They provided no
evidentiary submission. With the exception of citation to the
Barela deposition, their separate statement was devoid of any
citation to evidence following their asserted disputed facts.
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In their opposing memorandum of points and authorities,
the Dopkes represented that Barela drove on Meridith instead of
on Colorado because of a bicycle race taking place in the City.
The Dopkes further represented Tartanya Smitheman had
testified in a deposition that she had heard 48 accidents over a
four-year period at “the corner of Allen and Del Mar or
approximately at that location.” According to the Dopkes,
Smitheman complained only to her husband about that number
of accidents. The Dopkes further contended Barela testified that
vehicles parked on Del Mar impeded his view of westbound traffic
on Del Mar. The Dopkes failed to attach any deposition
testimony to their opposing papers.
4. Tentative opinion
The trial court tentatively concluded the Dopkes had
presented no evidence of a dangerous condition. The court
explained: The Dopkes have “not provided the declaration of an
expert—or in fact any evidence at all with the opposition brief—
that the Subject Intersection does or does not constitute a
dangerous condition and whether it was a dangerous condition
because the City allowed cars to park on the streets, the trees
were untrimmed, etc.” Additionally, the Dopkes presented no
evidence “that the Subject Intersection and parked cars (or trees
surrounding the roadway) were the proximate cause of
Decedent’s injury.” The trial court also tentatively concluded the
Dopkes presented no evidence that the City knew of the alleged
dangerous condition.2
2 The trial court did not consider the City’s argument
below that it was immune from liability. Because the City does
not address this defense on appeal, and because we conclude that
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5. Hearing and judgment
At the summary judgment hearing, the Dopkes’ counsel
argued there was “more traffic coming through Mer[i]dith than
there ordinarily would be.” The court asked whether an expert
witness had testified to that fact and counsel responded: “I didn’t
think it was necessary for purposes of summary judgment motion
in terms of determining whether there was a triable issue of fact
as to this.”
After the Dopkes’ counsel argued there were triable issues
of fact, the court stated, “All you’re telling me about it is there’s
some trees and parked cars there. If that was enough to say an
intersection was dangerous, every single intersection would be
dangerous. I mean, the City of Pasadena’s been there a long
time, a city with a lot of trees.” Counsel argued: “With all due
respect, Your Honor, I don’t think it’s this court’s position to kind
of make that determination.” Counsel elaborated that it was for
the jury, and not the court to decide if these facts created a
dangerous intersection.
The trial judge took the matter under submission, and
thereafter, granted summary judgment in favor of the City.
STANDARD OF REVIEW
Our standard of review of a summary judgment is familiar.
“As a summary judgment motion raises only questions of law
regarding the construction and effect of supporting and opposing
papers, this court independently applies the same three-step
as a matter of law, there was no triable issue of fact as to
whether a dangerous condition existed, we do not address the
City’s immunity defense.
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analysis required of the trial court. We identify issues framed by
the pleadings; determine whether the moving party’s showing
established facts that negate the opponent’s claim and justify a
judgment in the moving party’s favor; and if it does, we finally
determine whether the opposition demonstrates the existence of a
triable, material factual issue.” (Tsemetzin v. Coast Federal
Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) This
court reviews the trial court’s ruling, “not its rationale.” (Dictor
v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.)
This court’s obligation to conduct a “de novo review [of the
grant of summary judgment] does not obligate us to cull the
record for the benefit of the appellant in order to attempt to
uncover the requisite triable issues. As with an appeal from any
judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.” (Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116,
disapproved on another ground as recognized in Kaufman &
Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 41–42; see also Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768 [“appellate court is not required
to search the record on its own seeking error”]; Guthrey v. State of
California (1998) 63 Cal.App.4th 1108, 1111, 1115 [rejecting
appellant’s challenge to the grant of summary judgment because,
although appellant argued “ ‘a plethora of admissible evidence’
indicat[ed] a triable issue of fact existed” on many of his claims,
appellant waived the argument by failing to identify where the
evidence could be found in the record].)
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DISCUSSION
On appeal, the Dopkes contend they sufficiently raised
triable issues of material fact supporting the inference that the
City created a dangerous condition. The Dopkes contend the trial
court erred in concluding no evidence supported the inference
that the Intersection was “not dangerous.” (Boldface &
capitalization omitted.)
A. The Dopkes Cite No Evidence, and Therefore Show
No Triable Issue of Material Fact
Section 835 provides the architecture for a claim against a
public entity for a dangerous condition on public property:
“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.”
Section 830 defines “ ‘[d]angerous condition’ ” 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
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in which it is reasonably foreseeable that it will be used.” (§ 830,
subd. (a).) Courts have recognized that use of public property in
an improper manner can defeat a claim of “dangerous condition.”
(Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1183.)
“ ‘ “With respect to public streets, courts have observed ‘any
property can be dangerous if used in a sufficiently improper
manner. For this reason, a public entity is only required to
provide roads that are safe for reasonably foreseeable careful
use.” [Citation.]’ ” (Ibid. ) A City is not “charged with
foreseeing” that motorists will recklessly disobey traffic laws.
(Chowdhury v. City of Los Angeles (1995) 38 Cal.App.4th 1187,
1196.)
The Dopkes do not dispute that the City satisfied its initial
burden in moving for summary judgment. Thus, the burden
shifted to them to demonstrate a triable issue of material fact.
The Dopkes appellate briefs contain no citation to evidence in
support of their contention that there are triable issues of fact as
to their claim for dangerous condition of public property. With
the exception of quoting from the transcript of the hearing below,
they only reference their opposition to summary judgment, which
is not evidence, and which itself, as previously noted, did not
contain the deposition testimony referenced in their opposing
memorandum of points and authorities. These defects are fatal
to the appeal before us.3 (Guthrey v. State of California, supra,
63 Cal.App.4th at p. 1115 [citation to points and authorities in
support of motion for summary judgment is not citation to
admissible evidence]; see also Jackson v. County of Los Angeles
3 We observe that in their reply, the Dopkes did not
address the City’s arguments about these defects.
10
(1997) 60 Cal.App.4th 171, 178, fn. 4 [separate statement is not
evidence].)
In sum, the Dopkes failed to satisfy their shifted burden to
demonstrate a triable issue of material fact precluding summary
judgment, and have thus failed to demonstrate the trial court
erred in granting defendant’s motion for summary judgment.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“ ‘A
judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of
appellate practice but an ingredient of the constitutional doctrine
of reversible error.’ [Citations.]”].)
B. The Purported “Evidence” the Dopkes Cite Does Not
Support the Inference that the Intersection Was a
Dangerous Condition
The Dopkes argue the following “facts” are sufficient to
defeat the City’s summary judgment motion: (1) “whether the
City’s rerouting of traffic for a bicycle race known as CicLAvia
contributed to the traffic collision”; (2) “the number of traffic
collisions at or near the intersection of Del Mar and Mer[i]dith,
where the accident occurred”; and (3) whether the sight lines
from Mer[i]dith eastbound on Del Mar are adequate.”
It is undisputed that Barela drove on Meridith Avenue
because of a bicycle race in the City known as CicLAvia.
Evidence that Barela altered his route because of this race
does not support the inference that there was a substantial risk
of injury at the Intersection. Smitherman’s purported but not
proffered deposition testimony concerning accidents occurring at
a completely different intersection, the corner of Allen and
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Del Mar Boulevard, also is not probative of any dangerous
condition of property at the Intersection, located at the corner of
Meridith and Del Mar. Nothing in the Dopkes’ description of
Smitherman’s deposition testimony indicates she testified about
the number of accidents at the Intersection, and the Dopkes
provide no evidence supporting the inference that any accident
other than the one involving Nick Dopke occurred at the
Intersection. Thus, the Dopkes raised no triable issue of material
fact that the Intersection was dangerous, that the City created
the dangerous condition, or that the City was either actually or
constructively aware of any purported danger.
Even if, arguendo, parked cars impeded Barela’s sight as he
so testified, there was no evidence that this posed a risk of injury
if the Intersection was used with due care. The Dopkes offered
no evidence disputing Officer Klotz’s declaration that Nick Dopke
was traveling over 75 miles per hour, more than twice the speed
limit. The Dopkes offered no evidence that the sight lines were
inadequate when drivers used the Intersection with due care.
The Dopkes argue that the trial court improperly relied
upon his personal knowledge of the City in granting summary
judgment. Although the record shows that the trial court
referenced its familiarity with Pasadena streets, the Dopkes
demonstrate no prejudicial error based on these statements.
The judge presiding over the trial stated that he “lived in
that City long enough to know” that Colorado Boulevard was a
major thoroughfare. The trial court also stated that “the City of
Pasadena’s been there a long time, a city with a lot of trees,” to
which the Dopkes’ counsel responded, “I know.”
In granting summary judgment in favor of the City, the
trial court reached the only conclusion consistent with the record
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before us. That is, the Dopkes identified no evidence raising a
triable issue of material fact precluding summary judgment as to
the existence of a dangerous condition at the Intersection. For
those reasons, the Dopkes have failed to demonstrate the trial
court erred in granting summary judgment in the City’s favor.4
DISPOSITION
The judgment is affirmed. The City of Pasadena shall have
its cost on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J. CRANDALL, J.*
4 In their reply, the Dopkes argue they did not need to
proffer expert testimony. We decline to consider this argument
raised for the first time in the reply brief. (Levin v. Ligon (2006)
140 Cal.App.4th 1456, 1486 [“It is elementary that points raised
for the first time in a reply brief are not considered by the
court.”]; see also United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 158 [same].)
Because no evidence raised a triable issue of material fact
supporting the inference that the Intersection was a dangerous
condition, we also do not consider the City’s arguments that the
Intersection was not the proximate cause of the collision or that
there was no evidence that the City had notice the Intersection
was a dangerous condition.
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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