Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC319610. David A. Workman, Judge. Affirmed.
Law Offices of James L. Migler and Sean O. Lonergan for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, and Lisa S. Berger, Deputy City Attorney, for Defendant and Respondent.
COOPER, P. J.
Plaintiffs Daisy Gibson and Mt. Lebanon Missionary Baptist Church (church) appeal from a judgment on special verdict in favor of defendant City of Los Angeles (city), in an action for negligent property damage, arising from a fire. The jury found that there had existed a dangerous condition of city property (Gov. Code, § 835), but that this condition had not caused the damage. Plaintiffs contend it was reversible error not to instruct the jury with CACI Nos. 430 and 432, concerning cause, and that the city should have been found to have caused the damage, or at least should have borne the burden of proof on that question. We disagree with these contentions and affirm the judgment.
FACTS
This action was commenced by the church and its late owner, Rev. Emanuel Gibson. (His widow, Daisy Gibson, is continuing this appeal as his successor in interest, under Code of Civil Procedure sections 377.30-377.32.) Plaintiffs sought damages on account of two fires, on October 20, 2003, and December 4, 2004, which damaged the church’s property. Plaintiffs contended that the fires stemmed from the city’s failure to maintain, free of large quantities of refuse, an alley behind the church’s location on South Western Avenue, which refuse had fueled the fires. Plaintiffs asserted that by failing to keep the alley clear the city had created an actionable dangerous condition. The city resisted this theory, contending in part that the initial fire had originated on church property. The jury returned verdicts finding, as to the first fire, that there had been a dangerous condition but it had not been a cause of damage to plaintiffs, and that with respect to the second fire there had not been a dangerous condition. This appeal is from the judgment only as it concerns the first fire, which we refer to as “the fire.”
The evidence at trial showed that the alley, in which the city held an easement, extended 25 feet wide. A further, six-foot wide strip of land (setback), which the church owned, bordered the alley on one side and the back of the church on the other. The alley area attracted substantial quantities of discarded matter. A city street services bureau supervisor testified that cleanup of such an alley normally would occur every several months, because of the numerous heavy service demands within the area. Before the fire, the alley had last been cleared on September 17, 2005, but complaints about its condition had followed within a week, and twice thereafter after in October. Debris of this nature in alleys posed a public safety issue of fire.
Both parties’ fire experts agreed that the blaze had been set by human hands. They disagreed, however, about where this had occurred. Plaintiffs’ expert Albert Hernandez, a retired veteran of several decades with the Los Angeles Fire Department, opined that the fire had been set in the alley. Defendant’s expert Thomas Derby, a fire department arson investigator who had examined the scene of the fire just after firefighters extinguished it, opined that the fire had been ignited on church property, at a back wall, from which the burning migrated to the church’s garage.
Plaintiffs requested that the court give CACI No. 432, regarding third party conduct as supervening cause. The city objected, and instead requested CACI No. 433 (Causation: Intentional Tort/Criminal Act as Superseding Cause). The court ultimately refused both instructions. The jury then returned a verdict finding dangerous condition but not causation, and the court entered judgment for the city.
DISCUSSION
Plaintiffs’ first contention is that the court prejudicially erred in refusing to give CACI No. 432, regarding third-party conduct as superseding cause. The instruction states that to avoid responsibility, the defendant must establish four factors: that the other party’s conduct occurred after the defendant’s, that the subsequent conduct was highly unusual, that the defendant had no reason to expect such wrongful conduct, and that the resulting harm was different from that which could be expected from the defendant’s own conduct. Plaintiffs assert that the evidence supported this instruction, with regard to the incendiary conduct to which both fire experts testified, and that the city would not likely have proven more than one element, under the instruction.
The Directions for Use of CACI No. 432 observe that “Defendants, not plaintiffs, would normally request this type of instruction.” By proffering the instruction here, plaintiffs sought to impose on the city a form of defense it was not truly pursuing, and which could not readily be sustained. The instruction, however, was not apposite to the theory of the city’s case, namely that it was not responsible because the fire began on plaintiffs’ own property. Although the city did request CACI No. 433, concerning intentional tort or criminal act as superseding cause, that instruction fit the circumstances, where CALJIC No. 432 did not, and contained a shorter set of qualifications for the defendant to satisfy.
Plaintiffs’ second contention is that the court gave inadequate instructions on the meaning of causation. In this connection, the court elected to give BAJI No. 3.76 (cause – substantial factor test), and did not give CACI No. 430 (Causation: Substantial Factor), which adds some considerations about the term. Although CACI No. 430 was more elaborate than the instruction the court used, the court’s choice was not an abuse of discretion. And contrary to plaintiffs’ contention, BAJI No. 3.76 did not leave the jury without guidance about determining whether the city’s conduct was the cause of plaintiffs’ injuries.
The standard portion of CACI No. 430 states: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.”
Plaintiffs’ final contention is that the jury should have decided the issue of causation against the city, principally because debris was involved in the fire. This is a reverse substantial evidence contention, which seeks to overturn the verdict as a matter of law, and it is inherently difficult to sustain. Almost all of plaintiffs’ supporting arguments are based on hypothetical and speculative estimations of what the jury might have found. Such speculation is not a sound basis for challenging a verdict. Moreover, plaintiffs concede that the evidence could have warranted the verdict rendered.
Plaintiffs make a related argument, that the city should have been required to bear the burden of proof on causation. This point too is without merit. That the city was found to have created a dangerous condition did not establish that the city either was presumptively the cause of the injury, or that it deprived plaintiffs of the means to establish causation, as in plaintiffs’ principal authority, Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.